California OAH special education order · November 15, 2016
Order Granting Motion to Unexpedite Hearing
OAH Case No. 2016110023 · ALJ Paul H. Kamoroff
OAH granted Student's unopposed motion to unexpedite and vacated the expedited hearing dates. Student withdrew the only issue that triggered an expedited hearing, a disciplinary exclusion of more than 10 days.
Summary
Student's complaint raised four issues. OAH set an expedited hearing because one issue alleged that District unlawfully excluded Student from school for more than 10 days for disciplinary reasons. Student then withdrew that issue and moved to unexpedite the case and vacate the expedited dates, and District did not oppose. OAH granted the motion because the remaining issues, about misidentified disability and an inappropriate program, contain no facts requiring an expedited hearing, so the case will proceed on the regular hearing dates.
Why it matters
OAH must expedite discipline-related claims and cannot continue or unexpedite them while such an issue remains in the case. A family that prefers a regular hearing timeline has to withdraw the disciplinary issue itself.
Key authority cited
- 20 U.S.C. § 1415(k)(3)(A)
- 20 U.S.C. § 1415(k)(4)(B)
- 34 C.F.R. § 300.532(a)
- 34 C.F.R. § 300.532(c)(2)
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. 2016110023 v. ORDER GRANTING MOTION TO
UNEXPEDITE HEARING
DOWNEY UNIFIED SCHOOL DISTRICT.
On October 28, 2016, Parent on behalf of Student filed a Due Process Hearing Request with the Office of Administrative Hearings, naming Downey Unified School District. On November 1, 2016, OAH issued a Scheduling Order and Notice of Expedited and Non-Expedited Due Process Hearing and Mediation. The Scheduling Order set this matter for separate dates for the expedited and non-expedited issues in this case.
On November 10, 2016, Student filed a motion to unexpedite this matter and vacate the expedited hearing dates. District did not submit an opposition.
APPLICABLE LAW
A parent of a child with a disability who disagrees with any decision by a school district regarding a change in educational placement of the child based upon a violation of a code of student conduct, or who disagrees with a manifestation determination made by the district, may request and is entitled to receive an expedited due process hearing. (20 U.S.C.
§ 1415(k)(3)(A); 34 C.F.R. § 300.532(a) (2006).1) 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.
1 All subsequent references to the Code of Federal Regulations are to the 2006 version.
DISCUSSION
Student’s complaint alleges four issues against District. Issues one, two and four allege that District denied Student a free appropriate public education by misidentifying his disability and by failing to offer him an appropriate educational program. Student’s third issue alleges that District unlawfully excluded Student from school for over 10 days based upon disciplinary reasons. Although Student did not request an expedited hearing, OAH found an expedited hearing was required based upon issue three, because Student’s placement was being changed due to disciplinary issues.
On November 10, 2016, Student withdrew his third issue and requested that the expedited hearing dates be vacated. Student has demonstrated that no expedited issues were alleged in the complaint other than issue three, so that an expedited hearing is no longer required. Specifically, the remaining issues do not include facts that require an expedited hearing. Accordingly, the expedited hearing dates will be vacated.
ORDER
1. The motion to unexpedite this matter is granted.
2. All expedited hearing dates are vacated:
3. This matter shall proceed on the non-expedited hearing dates.
DATE: November 15, 2016
PAUL H. KAMOROFF
Administrative Law Judge Office of Administrative Hearings