California OAH special education order · May 20, 2016
Order Following Expedited Prehearing Conference and Dismissing Expedited Issue Without Prejudice; Vacating Expedited Hearing Date; and Denying Motion to Unexpedite as Moot
OAH Case No. 2016040611 · ALJ Theresa Ravandi
OAH dismissed Student's expedited issue without prejudice and vacated the expedited hearing because Student's counsel failed to appear at the expedited prehearing conference despite notice and two calls from the ALJ.
Summary
Student's amended complaint included an expedited claim (issue VIII) against Ipakanni, Feather Falls, and Butte County, and OAH set an expedited hearing for May 24, 2016. Student's counsel did not appear at the telephonic expedited prehearing conference, even though notice was given and the ALJ called twice and left a voicemail. The ALJ dismissed the expedited issue without prejudice, vacated the expedited hearing date, and denied a motion to unexpedite as moot. Student's non-expedited FAPE claims remain. Pending motions for sanctions, a continuance, and an objection to the amendment order will be decided after Student has three business days to respond to each.
Why it matters
Expedited hearings run on a strict 20-school-day timeline with no continuances, so missing an expedited prehearing conference can cost the family its expedited claim. Counsel must be reachable and ready at the scheduled time.
Key authority cited
- 20 U.S.C. § 1415(k)(4)(B)
- 34 C.F.R. § 300.532(c)(2)
People named in the order
- Ethan Retan, Attorney for Yuba City Unified School District
- Heather Edwards, Attorney for Butte County Office of Education, Four Winds Charter School, Feather Falls Union Elementary School District, and Ipakanni Early College Charter School
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. 2016040611 v. ORDER FOLLOWING EXPEDITED
PREHEARING CONFERENCE AND
BUTTE COUNTY OFFICE OF DISMISSING EXPEDITED ISSUE
EDUCATION, FOUR WINDS CHARTER WITHOUT PREJUDICE; VACATING
SCHOOL, YUBA CITY UNIFIED EXPEDITED HEARING DATE; AND
SCHOOL DISTRICT, FEATHER FALLS DENYING MOTION TO UNEXPEDITE
UNION ELEMENTARY SCHOOL AS MOOT
DISTRICT, AND IPAKANNI EARLY
COLLEGE CHARTER SCHOOL.
On May 20, 2016, a telephonic prehearing conference was held before Administrative Law Judge Theresa Ravandi, Office of Administrative Hearings. Ethan Retan, Attorney at Law, appeared on behalf of Yuba City Unified School District. Heather Edwards, Attorney at Law, appeared on behalf of Butte County Office of Education, Four Winds Charter School, Feather Falls Union Elementary School District, and Ipakanni Early College Charter School. There was no appearance by Student despite two attempts to reach Student’s counsel. The PHC was recorded.
Based upon discussion with the parties, the ALJ issues the following order:
1. Dismissal of Expedited Issue and Expedited Hearing. Student’s amended
complaint identified an expedited claim in issue VIII from February 19, 2016, to the present as to Ipakanni, Feather Falls and Butte County. Student did not request an expedited hearing, but OAH determined that the nature of Student’s claim required the setting of an expedited hearing. An expedited due process hearing before OAH must occur within 20 school days of the date the complaint requesting the hearing is filed. (20 U.S.C. § 1415(k)(4)(B); 34 C.F.R.
§ 300.532(c)(2) .) The procedural right to an expedited due process hearing is mandatory and does not authorize OAH to make exceptions or grant continuances of expedited matters.
(Ibid.) In sum, a matter can only be unexpedited or continued if no issue is alleged that is subject to an expedited hearing, or if the student withdraws the issues in the complaint that triggered the expedited hearing.
The expedited matter is pending hearing on May 24, 2016. Student was provided notice of the expedited prehearing conference and hearing dates on May 18, 2016 in OAH’s Order Granting Motion to Amend Complaint and in the Amended Dual Scheduling Order.
The ALJ attempted twice to reach Student’s counsel for the telephonic prehearing conference at the scheduled time of 3:00 p.m. and again at 3:18 p.m. Both calls went to a voicemail box and the ALJ left a message for Student’s counsel to call or the PHC would proceed in her absence.
Student’s expedited issue is dismissed without prejudice given the failure of Student’s counsel to appear and participate in the expedited PHC in preparation for the expedited hearing on May 24, 2016. All of Student’s issues regarding a denial of a free appropriate public education remain and will be discussed at the non-expedited PHC.
2. Pending Motions. There are numerous pending motions, specifically an
Objection to Order Granting Motion to Amend Complaint filed May 20, 2016; a Motion for Sanctions filed May 20, 2016; and a Motion to Continue the Non-Expedited Hearing filed May 20, 2016. The ALJ informed counsel during the PHC that Student would be afforded three business days from the date of filing of each motion to respond and then a written Order would issue as to each motion.
IT IS SO ORDERED.
DATE: May 20, 2016
THERESA RAVANDI
Administrative Law Judge Office of Administrative Hearings