California OAH special education order · August 28, 2017
Order Following Prehearing Conference; Order Granting Motion to Consolidate and Continue
OAH Case No. 2017080966, 2017040949 · ALJ Alexa J. Hohensee
OAH consolidated Student's and District's due process cases and continued the hearing. The cases share common questions, witnesses, and evidence, and Student did not object.
This case went to decision
Student v. Riverside Unified School District (consolidated): Riverside Unified prevails on all issues; ALJ finds December 2016 IEP offered FAPE and may be implemented without consent. (2018)
Summary
District filed its own due process case asking OAH to find that Student's 2016 IEP, as amended in April 2017, offered a FAPE. With it, District filed a motion to consolidate that case with Student's earlier case alleging assessment, FAPE, and procedural violations since February 2014, and to continue the hearing. Student did not object. OAH granted consolidation because the cases involve common questions of law and fact, the same parties, and the same witnesses and evidence, and consolidation avoids duplication and conflicting decisions. OAH also found good cause for a short continuance, made District's case the primary case, and reset the hearing to October 10-12, 2017.
Why it matters
When a district files its own case to defend an IEP after a parent has filed, OAH will usually combine the two cases. The decision deadline then runs from the district's later filing date, which can push back the parent's hearing.
Key authority cited
- Gov. Code, § 11507.3, subd. (a)
- Code Civ. Proc., § 1048, subd. (a)
- Ed. Code, § 56502, subd. (f)
- Ed. Code, § 56505, subd. (f)
- Ed. Code, § 56505.1, subd. (h)
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 Consolidated Matters of:
RIVERSIDE UNIFIED SCHOOL OAH Case No. 2017080966
DISTRICT,
v.
STUDENT.
PARENT ON BEHALF OF STUDENT, OAH Case No. 2017040949 v. ORDER FOLLOWING PREHEARING
CONFERENCE; ORDER GRANTING
RIVERSIDE UNIFIED SCHOOL MOTION TO CONSOLIDATE AND
DISTRICT. CONTINUE
On August 25, 2017, a telephonic prehearing conference was held before Administrative Law Judge Alexa J. Hohensee, Office of Administrative Hearings. Louis P.
Pilato, Attorney at Law, appeared on behalf of Student. Jack B. Clarke, Attorney at Law, appeared on behalf of Riverside Unified School District. The PHC was recorded.
Based upon discussion with the parties, the ALJ issues the following order:
1. Consolidation and Continuance. On April 21, 2017, Student filed a due
process hearing request, OAH case number 2017040949, naming District (Student’s case).
On August 22, 2017, District filed a due process hearing request, OAH case number 2017080966, naming Student (District’s case), with a concurrent motion to consolidate and continue the two hearings. At the PHC, Student stated that he had no objection to consolidation and a continuance.
Although no statute or regulation specifically provides a standard to be applied in deciding a motion to consolidate special education cases, OAH will generally consolidate matters that involve: a common question of law and/or fact; the same parties; and when consolidation of the matters furthers the interests of judicial economy by saving time or preventing inconsistent rulings. (See Gov. Code, § 11507.3, subd. (a) [administrative proceedings may be consolidated if they involve a common question of law or fact]; Code of Civ. Proc., § 1048, subd. (a) [same applies to civil cases].)
The complaint in Student’s case alleges that from February 2014, District denied Student a free appropriate public education by failing to assess Student, failing to offer Student a FAPE, and committing multiple procedural violations. District’s case seeks an order that the individualized education program developed on October 14 and December 7, 2016, as amended on April 21, 2017, offered Student a FAPE. Student’s case and District’s case involve common questions of law or fact. In addition, consolidation furthers the interests of judicial economy as the same witnesses and evidence will be presented in both cases, and consolidation will avoid the duplication of time, expense and resources involved in having these matters proceed to hearing separately and the possibility of conflicting decisions. Accordingly, consolidation is granted. District’s case is designated the primary case.
A due process hearing must be held, and a decision rendered, within 45 days of receipt of the complaint, unless a continuance is granted for good cause. (Ed. Code, §§ 56502, subd. (f) & 56505, subd. (f)(1)(C)(3).) This is the parties’ first request for a continuance in District’s case, and the short continuance sought provides the parties with time to prepare for a consolidated hearing, which constitutes a significant unanticipated change in the status of the case as a result of which the case is not ready for hearing.
Accordingly, District’s unopposed motion for continuance is granted for good cause shown, and the PHC and due process hearing are continued as set forth at Paragraph 2.
If the parties decide to mediate, they shall submit a joint request to OAH with a mutually agreed mediation date at least two weeks in advance of the date requested.
2. Hearing Dates, Times, and Location. The hearing is continued and shall take
place on October 10-12, 2017, and continuing day to day, Monday through Thursday, at the discretion of the ALJ. The hearing shall begin at 9:30 a.m. the first day of the hearing and at 9:00 a.m. all other days, unless otherwise ordered.
The parties shall immediately notify all potential witnesses of the hearing dates, and shall subpoena witnesses if necessary, to ensure that the witnesses will be available to testify.
A witness will not be regarded as unavailable for purposes of showing “good cause” to continue the hearing if the witness was not properly notified of the hearing date or properly subpoenaed, as applicable.
The hearing shall take place at the District’s offices located at 5700 Arlington Avenue, Riverside, California 92504. District shall certify with OAH, prior to October 2, 2017, that the designated facility fully complies with the Americans with Disabilities Act of 1990 (42 U.S.C. § 12101 et seq.), the Rehabilitation Act of 1973 (29 U.S.C. § 794 et seq.), the Unruh Civil Rights Act (Civ. Code, § 51 et seq.), and all laws governing accessibility of government facilities to persons with disabilities.
3. Continued PHC. The telephonic PHC is continued to 3:00 p.m. on October 2,
2017. OAH will initiate the conference call. The parties shall file amended PHC statements,
taking into account the consolidation of Student’s and District’s cases.
The parties are encouraged to review and shorten their witness and exhibit lists prior to the hearing, bearing in mind that evidence will be excluded if it is repetitive, cumulative, or insufficiently probative to justify the time it would take to hear. The ALJ has discretion to limit the number of witnesses who testify and the time allowed for witnesses’ testimony.
Education Code, section 56505.1, subdivision (h), empowers the ALJ presiding at a due process hearing to set a reasonable limit on the length of the hearing after consideration of all of the following: (i) issues to be heard, (ii) complexity of facts to be proven, (iii) ability of the parties or their representatives to present their respective cases, and (iv) estimates of the parties as to the time needed to present their respective cases.
4. Settlement. The parties are encouraged to continue working together
to reach an agreement before the rescheduled PHC. The parties shall inform OAH in writing immediately should they reach a settlement or otherwise resolve the dispute before the PHC.
In addition, if a settlement is reached within one day of the rescheduled PHC, the parties shall also inform OAH of the settlement by telephone at (916) 263-0880.
5. Failure to comply with this order may result in the exclusion of evidence or
other sanctions.
ORDER
1. District’s motion to consolidate is granted.
2. All dates in Student’s case, OAH case number 2017040949, are vacated.
3. District’s motion to continue is granted.
4. The mediation scheduled in District’s case is cancelled. The following dates are
set in District’s case for these consolidated matters: the parties shall participate in a prehearing conference on October 2, 2017 at 3:00 p.m., with OAH to initiate the call; the due process hearing on the consolidated cases shall be held on October 10-12, 2017, at 9:30 a.m. on the first day and 9:00 a.m. thereafter.
5. The 45-day timeline for issuance of the decision in the consolidated cases shall be
based on the date of the filing of District’s case, OAH case number 2017080966.
DATE: August 28, 2017
ALEXA J. HOHENSEE
Administrative Law Judge Office of Administrative Hearings