California OAH special education order · June 25, 2018
Order Following Prehearing Conference
OAH Case No. 2018060213 · ALJ Penelope S. Pahl
OAH granted Elk Grove's request to continue its due process hearing because counsel and a witness were unavailable, over Mother's objection, and reset the prehearing conference and hearing for July 2018.
This case went to decision
Elk Grove Unified School District v. Student: Elk Grove Unified's behavior, occupational therapy and speech assessments were appropriate, so the district does not have to fund independent evaluations. (2018)
Summary
Before the prehearing conference, Elk Grove asked to continue the hearing because its attorney and a witness were unavailable. Father did not oppose the request. Mother objected because the delay would slow resolution of the issues. The ALJ found good cause, granted the continuance, vacated the prior dates, set a new prehearing conference for July 13, 2018 and a hearing beginning July 24, 2018 at the District's offices, and encouraged the parties to mediate or settle.
Why it matters
The unavailability of counsel or a witness can be good cause for a short continuance even when one parent objects. Parents representing themselves are pointed to OAH's Special Education Handbook to prepare for prehearing conferences and hearings.
Key authority cited
- 42 U.S.C. § 12101 et seq.
- 29 U.S.C. § 794 et seq.
- Civ. Code, § 51 et seq.
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:
ELK GROVE UNIFIED SCHOOL OAH Case No. 2018060213
DISTRICT,
ORDER FOLLOWING PREHEARING
v. CONFERENCE
PARENTS ON BEHALF OF STUDENT.
On June 25, 2018, a telephonic prehearing conference was held before Administrative Law Judge Penelope Pahl, Office of Administrative Hearings. Epiphany Owen, Attorney at Law, appeared on behalf of Elk Grove Unified School District. Student’s Mother and Father appeared on behalf of Student. The PHC was recorded.
Based upon discussion with the parties, the ALJ issues the following order:
1. Motion for Continuance. Prior to the Prehearing Conference, Elk Grove
submitted a request for continuance on the grounds of unavailability of counsel and a witness. Father did not oppose the continuance. Mother did voice an opposition to the continuance on the grounds that it delayed resolution of the issues.
Good cause was established for a continuance. The motion was GRANTED. All previously scheduled hearing dates are VACATED. The new dates are listed below.
2. Prehearing Conference and Hearing Date and Time. The Prehearing
Conference in this matter will take place on Friday, July 13, 2018 at 10:00 a.m.. A Prehearing Conference Statement shall be due from Elk Grove and from Student three business days prior to the date of the Prehearing Conference. Parents are encouraged to read the Special Education Handbook to familiarize themselves with the requirements for Prehearing Conferences and Hearings.
The Hearing shall take place on July 24, 2018 at 9:30 a.m., and July 25, and 26, 2018 at 9:00 a.m., then continuing day to day, at the discretion of the ALJ. The hearing shall take place at Elk Grove Unified School District, located at 9510 Elk Grove Florin Road, Elk Grove, CA 95624.
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 is not properly notified of the hearing date or properly subpoenaed, as applicable.
3. ADA Certification. Should Elk Grove be unable to provide facilities for a
hearing at the location noted above, Elk Grove shall file and serve a request to change venue no later than June 29, 2018, proposing a new location for the hearing. Any proposed facility for the hearing must fully comply with the Americans with Disabilities Act of 1990 (42 U.S.C.A. § 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. Elk Grove shall further ensure that certification that the hearing facility designated complies with all laws pertaining to disabled access is on file with OAH prior to the Prehearing Conference scheduled for July 13, 2018.
4. Mediation and Settlement. The parties are encouraged to continue working
together to reach an agreement before the due process hearing. While the parties could not agree to proceed to mediation as of the date of this Prehearing Conference, mediation is a request that can be made at any time. Should the parties wish to try to settle the case through the mediation process, they should file a written request to do so, indicating a mutually agreeable time for the mediation. A mediator will be assigned by OAH to assist the parties with their settlement discussions.
Mediation is not the only way to settle a case. The parties may speak directly to work out an agreement. Should the parties reach a settlement or otherwise resolve the dispute before the scheduled hearing, the parties shall inform OAH in writing immediately. In addition, if a settlement is reached within five days of the scheduled start of the due process hearing, the parties shall also inform OAH of the settlement by telephone at (916) 263-0880.
IF A FULL AND FINAL WRITTEN SETTLEMENT AGREEMENT IS REACHED
AFTER 5:00 P.M. THE DAY PRIOR TO HEARING, THE PARTIES SHALL LEAVE A
VOICEMAIL MESSAGE REGARDING THE SETTLEMENT AT (916) 274-6035. THE
PARTIES SHOULD ALSO LEAVE CONTACT INFORMATION SUCH AS CELLULAR
PHONE NUMBERS OF EACH PARTY OR COUNSEL FOR EACH PARTY. THE
PARTIES SHOULD SIMULTANEOUSLY EMAIL THE SIGNATURE PAGE OF THE
SIGNED AGREEMENT OR A LETTER WITHDRAWING THE CASE TO THE OAH AT
https://www.dgsapps.dgs.ca.gov/oah/oahsftweb .
Dates for hearing will not be cancelled until the letter of withdrawal or signature page of the signed agreement has been received by OAH. If an agreement in principle is reached, the parties should plan to attend the scheduled hearing unless different arrangements have been agreed upon by the assigned ALJ.
5. Failure to comply with this order may result in the exclusion of evidence or
other sanctions.
IT IS SO ORDERED.
DATE: June 25, 2018
PENELOPE S. PAHL
Administrative Law Judge Office of Administrative Hearings