California OAH special education order · March 6, 2017
Order Denying Motion to Amend Complaint
OAH Case No. 2016110289 · ALJ Peter Paul Castillo
OAH denied Student's motion to amend the complaint because it was filed within five days of the hearing and tried to re-add an issue Student had dismissed at the prehearing conference.
This case went to decision
Student v. Tehachapi Unified School District: Tehachapi Unified blocked parent participation by predetermining refusal of an insurance-funded ABA aide; new IEP meeting and staff training ordered. (2017)
Summary
Student filed a motion to amend the due process complaint on March 3, 2017, four days before the March 7 hearing. District filed a conditional non-opposition. OAH denied the motion because federal law lets a hearing officer allow an amendment only more than five days before the hearing. OAH also noted that Student was trying to add back an issue Student had dismissed at the February 27, 2017 prehearing conference. All previously set dates stayed on calendar.
Why it matters
An ALJ cannot grant leave to amend within five days of the hearing, so families must move to amend early. An issue dropped at the prehearing conference may not be revived at the last minute.
Key authority cited
- 20 U.S.C. § 1415(c)(2)(E)(i)
- 20 U.S.C. § 1415(c)(2)(E)(ii)
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. 2016110289 v. ORDER DENYING MOTION TO
AMEND COMPLAINT
TEHACHAPI UNIFIED SCHOOL
DISTRICT.
On October 20, 2016, Student filed a Due Process Hearing Request (complaint) with the Office of Administrative Hearings, naming Tehachapi Unified School District. On March 3, 2017, Student filed a Motion to Amend the Due Process Hearing Request (amended complaint). On March 3, 2017, District filed a conditional non-opposition to Student’s motion. The hearing in this matter is scheduled to begin on March 7, 2017.
An amended complaint may be filed when either (a) the other party consents in writing and is given the opportunity to resolve the complaint through a resolution session, or (b) the hearing officer grants permission, provided the hearing officer may grant such permission at any time more than five (5) days prior to the due process hearing. (20 U.S.C.
§1415(c)(2)(E)(i).) The filing of an amended complaint restarts the applicable timelines for the due process hearing. (20 U.S.C. §1415(c)(2)(E)(ii).)
The motion to amend the complaint is not timely because the due process hearing date is set within five days from the date the motion to amend was filed with OAH. Further, Student seeks to add an issue that Student dismissed at the February 27, 2017 Prehearing Conference. Therefore, the motion to amend is denied. All previously set dates shall remain on calendar.
IT IS SO ORDERED.
DATE: March 6, 2017
PETER PAUL CASTILLO
Presiding Administrative Law Judge Office of Administrative Hearings