California OAH special education order · December 18, 2017
Order Denying Student's Request to Compel District's Response; to Continue; to Shift Costs
OAH Case No. 2017090367 · ALJ Linda Johnson
OAH denied Student's motion to compel a response, continue the hearing, and shift costs because District had already responded to the complaint as OAH's earlier order allowed and later filed a supplemental response.
Summary
Student asked OAH to order District to respond to her amended complaint, to continue the hearing, and to shift costs to District under M.C. v. Antelope Valley Union High School District. OAH had earlier ordered District to respond to the amended complaint, or, if it had already responded, to file that response with OAH. District had served its response on November 3, 2017, filed it with OAH on November 9, 2017, and filed a supplemental response on December 11, 2017. OAH found that District complied, no separate response to the amended complaint was needed, and it denied all three requests.
Why it matters
The M.C. rule requires cost-shifting when a district fails to file a timely response, but it does not apply once the district has responded and complied with OAH's orders. An amendment filed before the response deadline can change the timing of when a response is due.
Key authority cited
- Ed. Code, § 56502(d)(2)(A)
- 20 U.S.C. § 1415(c)(2)(B)(i)(I)
- 34 C.F.R. § 300.508
- M.C. v. Antelope Valley Union High School Dist. (9th Cir. 2017) 858 F.3d 1189
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. 2017090367 v. ORDER DENYING STUDENT’S
REQUEST TO COMPEL DISTRICT’S
LIBERTY UNION HIGH SCHOOL RESPONSE; TO CONTINUE; TO
DISTRICT. SHIFT COSTS
On September 11, 2017, Parents on behalf of Student filed with the Office of Administrative Hearings a request for due process hearing (complaint) naming Liberty Union High School District. On September 12, 2017, District filed a notice of representation.
On September 18, 2017, Student filed a Motion to Amend the Due Process Hearing Request (amended complaint) which OAH granted on November 8, 2017.
On November 1, 2017, Student filed a motion to compel District to file a response to her complaint. On November 8, 2017, OAH ordered District to respond to Student’s amended complaint by November 20, 2017, or if District had already responded to file the response with OAH. On November 9, 2017, OAH received District’s response to Student’s complaint.
On December 8, 2017, Student filed a motion to order District to file a response to the amended complaint, request for continuance, and shift costs. District filed a supplemental response to Student’s complaint and an opposition to Student’s motion to compel, continue, and shift costs on December 11, 2017. Student filed a reply on December 12, 2017.
APPLICABLE LAW AND DISCUSSION
State and federal law require a local education agency to respond to a due process complaint within 10 days of receiving the complaint. (Ed. Code, § 56502(d)(2)(A);
Individuals with Disabilities Act, 20 U.S.C. § 1415(c)(2)(B)(i)(I); 34 C.F.R., § 300.508.)
Accordingly, District was required to provide a response to Student’s complaint on September 21, 2017. However, Student filed a motion to amend the complaint before District’s response was due and OAH did not grant Student’s motion to amend her complaint until November 8, 2017.
The case of M.C. by and through his guardian ad litem M.C. v. Antelope Valley Union High School District (9th Cir. 2017) 858 F.3d 1189, states:
When a school district fails to file a timely answer, the ALJ must not go forward with the hearing. Rather, it must order a response and shift the cost of the delay to the school district, regardless of who is ultimately the prevailing party.
(Id, pp. 1199-1200.)
District filed a response to Student’s complaint with OAH on November 9, 2017.
District’s response was dated November 3, 2017, and the proof of service stated it was served on Student on November 3, 2017. After District responded to Student’s complaint, but before said response was filed with OAH, OAH ordered District to respond to Student’s amended complaint. OAH specified that if District had already responded to Student’s complaint it need only file that response with OAH. District’s complied with OAH’s order by filing its response to Student’s complaint with OAH on November 9, 2017.
District persuasively argued that a subsequent response to Student’s amended complaint was not necessary. OAH’s November 8, 2017 order directed District to file a response to the amended complaint only if it had not already responded to Student’s complaint. Additionally, District filed a supplemental response to Student’s complaint on December 11, 2017. Accordingly, Student’s motion to compel a response, continue the due process hearing, and shift costs is denied.
IT IS SO ORDERED.
DATE: December 18, 2017
LINDA JOHNSON
Administrative Law Judge Office of Administrative Hearings