California OAH special education order · April 28, 2020
Order Granting Student's Withdrawal of Due Process Complaint
OAH Case No. 2019091099 · ALJ Peter Paul Castillo
OAH dismissed Student's complaint without prejudice after Student withdrew it, and rejected several assertions by Student's attorney that videoconference hearing procedures prevented Parent from participating.
This case went to decision
Student v. Alta Loma School District: Alta Loma School District's 84-day delay in filing over a visual processing IEE denied FAPE; only a staff memo ordered. (2019)
Summary
OAH had already denied Student's request to continue the hearing. Student's attorney had argued counsel could not prepare for a videoconference hearing and that California law bars video hearings over a party's objection. Student then withdrew the complaint and made several claims about why. OAH granted the withdrawal and dismissed without prejudice, but noted that counsel never submitted a declaration showing Parent could not take part by video, that the record in a prior case showed Parent had internet access, that OAH has established reasonable accommodation procedures, and that counsel could have given Parent paper exhibit binders. OAH added that its procedures apply equally to attorneys for students and districts.
Why it matters
Families who say they cannot take part in a video hearing should back that up with a declaration and use OAH's accommodation process. Arguments that video hearings are unlawful over objection did not succeed, and OAH will not make special rules for one attorney.
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,
v.
ALTA LOMA SCHOOL DISTRICT.
OAH CASE NUMBER 2019091099
ORDER GRANTING STUDENT'S WITHDRAWAL OF
DUE PROCESS COMPLAINT
APRIL 28, 2020
On April 22, 2020, Student filed with the Office of Administrative Hearings, referred to as OAH, a request to continue this matter, based upon Student’s counsel inability to prepare adequately for a videoconference hearing. Student also contends that California’s Administrative Procedures Act does not permit a telephonic or video hearing if one party objects. On April 24, 2020, OAH denied Student’s motion as Student incorrectly cited applicable California law as the California Department of Education has authorized video or telephonic hearings in the regulations that govern special education due process hearings.
On April 24, 2020, Student filed a withdrawal of the due process complaint, in which Student’s attorney made several incorrect assertions. First, Student’s attorney never submitted a declaration from Parent that Parent could not participate in the hearing based on OAH’s videoconference procedures. It should be noted that in the Decision in OAH Case Number 2017120979, that it appeared that Parent had internet capabilities as she and Alta Loma engaged in email correspondence and not all Parent’s emails were sent from her phone in looking at the email hearing exhibits.
Further, Student’s counsel is incorrect as to OAH’s long established reasonable accommodation procedures. (https://www.dgs.ca.gov/OAH/Services/Page- Content/Office-of-Administrative-Hearings-Services-List-Folder/Accommodations-at- OAH) Regarding access to exhibits, nothing prevented Student’s attorney from providing Parent with a physical copy of the exhibit binders. Finally, OAH cannot create special rules for Student’s attorney as the processes that OAH established apply equally to attorneys for students and school districts.
Accordingly, Student due process complaint is dismissed without prejudice.
IT IS SO ORDERED.
Peter Paul Castillo Presiding Administrative Law Judge Office of Administrative Hearings