California OAH special education order · April 20, 2020
Order Denying Request for Continuance
OAH Case No. 2020020042, 2019120777 · ALJ Judith Pasewark
OAH denied Bakersfield City School District's request to continue the consolidated hearing over COVID-19 unavailability, ordering the hearing to proceed by video conference as scheduled.
This case went to decision
Student v. Bakersfield City School District (consolidated): Bakersfield City must fund two IEEs and compensatory tutoring, counseling and social skills for a kindergartner; mental health assessment upheld. (2020)
Summary
Bakersfield City School District asked to continue the consolidated due process hearing because district staff and witnesses were physically unavailable during the coronavirus pandemic. Student opposed the request, citing undue delay and the availability of video conferencing. OAH found no good cause and denied the continuance. All prehearing conference and hearing dates stay as calendared and will be held by video under OAH's April 15, 2020 General Order.
Why it matters
Early in the pandemic, OAH would not treat COVID-related physical unavailability alone as good cause for delay when hearings could go forward by video. Parents opposing a district's delay can point to video hearings as another way to solve the problem.
Key authority cited
- 34 C.F.R. § 300.515(a), (c)
- Ed. Code, § 56502, subd. (f)
- Ed. Code, § 56505, subd. (f)(3)
- Cal. Code Regs., tit. 1, § 1020
- Cal. Rules of Court, rule 3.1332(c), (d)
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:
BAKERSFIELD CITY SCHOOL DISTRICT,
V.
PARENT ON BEHALF OF STUDENT,
OAH CASE NUMBER 2020020042
AND
PARENT ON BEHALF OF STUDENT,
V.
BAKERSFIELD CITY SCHOOL DISTRICT.
OAH CASE NUMBER 2019120777
ORDER DENYING REQUEST FOR CONTINUANCE
APRIL 20, 2020
On April 9, 2020, Bakersfield City School District filed with the Office of Administrative Hearings, referred to as OAH, a request to continue this matter, based upon physical unavailability of school district and witnesses due to the coronavirus pandemic. On April 13, 2020, Student opposed the request based upon undue delay and availability of video conferencing for hearing.
A due process hearing must be conducted and a decision rendered within 45 days of receipt of the due process notice unless an extension is granted for good cause. (34 C.F.R. § 300.515(a) & (c) (2006); Ed. Code, §§ 56502, subd. (f), 56505, subd. (f)(3); Cal. Code Regs., tit. 1, § 1020.) As a result, continuances are disfavored.
Good cause may include the unavailability of a party, counsel, or an essential witness due to death, illness or other excusable circumstances; substitution of an attorney when the substitution is required in the interests of justice; a party’s excused inability to obtain essential testimony or other material evidence despite diligent efforts; or another significant, unanticipated change in the status of the case as a result of which the case is not ready for hearing. (Ed. Code, § 56505, subd. (f)(3); Cal. Rules of Court, rule 3.1332(c).)
OAH considers all relevant facts and circumstances, including the proximity of the hearing date; previous continuances or delays; the length of continuance requested; the availability of other means to address the problem giving rise to the request; prejudice to a party or witness as a result of a continuance; the impact of granting a continuance on other pending hearings; whether trial counsel is engaged in another trial; whether the parties have stipulated to a continuance; whether the interests of justice are served by the continuance or imposing conditions on the continuance; and any other relevant fact or circumstance. (Cal. Rules of Court, rule 3.1332(d).)
OAH has reviewed the request for good cause and considered all relevant facts and circumstances. The request is:
Denied. All prehearing conference and hearing dates are confirmed and shall proceed as calendared. The continuance request is denied. Prehearing conferences and due process hearings will be held via video conferencing pursuant to the General Order for Due Process Hearings and Mediations and Closure of Public Counters issued on April 15, 2020, which is attached along with the Order Setting Video Prehearing Conference Procedures and Participant Information for Prehearing Conferences.
IT IS SO ORDERED.
Judith Pasewark Administrative Law Judge Office of Administrative Hearings