California OAH special education order · July 28, 2016
Order Denying Motion to Advance Hearing Dates
OAH Case No. 2016070664 · ALJ Robert Helfand
OAH denied Student's motion to start the hearing timeline early. Bonsall missed the 15-day resolution session deadline, but offered a session within the 30-day period, so Student showed no prejudice.
This case went to decision
Student v. Bonsall Unified School District (consolidated): Bonsall Unified must reimburse $44,838.69 for Arch Academy tuition and transportation and cannot implement its 2016 IEP without consent. (2017)
Summary
Student moved to advance the hearing dates because Bonsall did not hold a resolution session within 15 days of receiving the complaint. Bonsall opposed. It explained that its special education director was on vacation and that its counsel had since offered to hold a session on August 5, 2016, the last day of the 30-day resolution period. Student's counsel did not respond to that offer. OAH found Student had not shown how the late session prejudiced her, denied the motion, and ordered the parties to attend a resolution session on August 5, 2016, unless both sides agree to waive it.
Why it matters
A district's missed 15-day resolution deadline does not automatically speed up the hearing. Parents must show real prejudice, and turning down or ignoring a district's offer of a timely session weakens the request.
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(b)(5)
- Ed. Code, § 56501.5
People named in the order
- Deborah R.G. Cesario, Declarant supporting Bonsall's opposition (apparently Bonsall's counsel)
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. 2016070664 v. ORDER DENYING MOTION TO
ADVANCE HEARING DATES
BONSALL UNIFIED SCHOOL DISTRICT.
On July 7, 2016, Parents on behalf of Student filed with the Office of Administrative Hearings a Request for Due Process Hearing (complaint) naming Bonsall Unified School District. On July 20, 2016, OAH issued and served a scheduling order scheduling the due process hearing on August 30, 2016.
On July 22, 2016, Student filed with OAH a motion to advance hearing dates because Bonsall failed to hold a resolution session within 15 days from it receiving notice of Student’s complaint.
On July 27, 2016, Bonsall timely filed an opposition to the motion.
APPLICABLE LAW
A school district is required to convene a resolution meeting with a student’s parents within 15 days of receiving notice of a filed complaint. (20 U.S.C. § 1415(f)(1)(B)(i)(I); 34 C.F.R. § 300.510(a)(1); Ed. Code, § 56501.5, subd. (a).) If the school district fails to resolve the matter within 30 days of receipt of the complaint, the 45-day timeline to conduct a hearing and issue a decision shall commence. (Ed. Code., § 56501.5, subd. (c).)
When a school district does not hold a timely resolution session, the parent may seek the intervention of a hearing officer to begin the due process timeline. (32 C.F.R. § 300.510(b)(5).)
DISCUSSION
In its opposition, Bonsall states that shortly after receipt of the complaint, its special education director was on vacation and unavailable. The matter was not referred to Bonsall’s counsel until July 21, 2016, one day after the issuance and service of the scheduling order by OAH. Bonsall’s counsel filed with OAH and served on Student’s counsel a notice of representation.
Student filed her motion on July 22, 2016. The proof of service indicated that the motion was served upon Bonsall’s counsel. In the supporting declaration, Student’s counsel indicated that she had received no communication from Bonsall regarding scheduling a resolution session.
Thereafter, Bonsall’s counsel contacted counsel for Student seeking to schedule a resolution session and requesting that this motion be withdrawn. Student’s counsel refused the offer stating that Student’s parents had a “huge amount of anxiety about [Student’s] school placement” for the upcoming school year. (Declaration of Deborah R.G. Cesario in support of the Opposition, p. 2.) Bonsall’s counsel then emailed Student’s counsel seeking to schedule a resolution session on either August 5, 2016, the last day of the 30-day resolution period, or August 11, 2015. Student’s counsel has not responded.
Student has failed to demonstrate how it is prejudiced by the failure to hold a timely resolution session in light of the offered August 5, 2015, date.
ORDER
1. Student’s motion to advance hearing dates is denied.
2. The parties are ordered to attend a resolution session on August 5, 2016,
unless the parties jointly agree to waive the resolution process.
DATE: July 28, 2016 /s/
ROBERT HELFAND
Administrative Law Judge Office of Administrative Hearings