California OAH special education order · January 3, 2023
Order Following Expedited Prehearing Conference, Dismissing Expedited Issue, and Granting Motion to Consolidate Non-Expedited Issues
OAH Case No. 2022120719 · ALJ Tiffany Gilmartin
OAH dismissed Downey's expedited issue because Downey was not seeking a 45-day interim alternative placement for a dangerous student, and granted Downey's unopposed motion to consolidate its case with Student's case.
This case went to decision
Student v. Downey Unified School District: Downey Unified must reinstate a fifth grader after an ALJ finds his conduct was a manifestation of his disability. (2023)
Summary
At an expedited prehearing conference, OAH heard both parties on Downey's expedited issue. OAH dismissed it because Downey was not asking OAH to find Student a danger to himself or others requiring a 45-day interim alternative educational setting. Downey's non-expedited issues were not affected. OAH also granted Downey's unopposed motion to consolidate its case with Student's earlier-filed case, because both cases ask whether the November 29, 2022 IEP offers a FAPE in the least restrictive environment. Student's case was made the primary case, and Student's own expedited issue stayed on calendar.
Why it matters
A district can get an expedited hearing only when it seeks an order placing a student in an interim alternative setting for up to 45 days because of dangerousness. Other district claims go on the regular timeline. Cases filed by both sides about the same IEP will usually be combined into one hearing.
Key authority cited
- 20 U.S.C. § 1415(k)(3)(A)
- Gov. Code § 11507.3, subd. (a)
- Code Civ. Proc. § 1048, subd. (a)
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:
DOWNEY UNIFIED SCHOOL DISTRICT,
v.
PARENTS ON BEHALF OF STUDENT.
OAH CASE NUMBER 2022120719
ORDER FOLLOWING EXPEDITED PREHEARING
CONFERENCE, DISMISSING EXPEDITED ISSUE, AND
GRANTING MOTION TO CONSOLIDATE NON-EXPEDITED
ISSUES
JANUARY 3, 2023
On December 30, 2022, Administrative Law Judge Tiffany Gilmartin, Office of Administrative Hearings, held a prehearing conference by videoconference. The Administrative Law Judge is called an ALJ. The Office of Administrative Hearings is called OAH. The prehearing conference is called a PHC.
Attorney Alefia Mithaiwala appeared on behalf of Downey Unified School District.
Attorney Damian Fragoso appeared on behalf of Student. The PHC was recorded.
Based upon discussion with the parties, the ALJ issues the following order:
DISMISSING DOWNEY’S EXPEDITED ISSUE
Counsel for both parties were heard on Downey’s expedited issue. The expedited issue was dismissed as Downey is not seeking an order from OAH determining student is a threat to himself or others and requires placement in an interim alternative educational setting for no more than 45 days. (20 USC § 1415(k)(3)(A).) This ruling does not impact Downey’s non-expedited issues. All dates for Downey’s expedited due process hearing are vacated.
MOTION TO CONSOLIDATE
On December 23, 2022, Downey filed with the Office of Administrative Hearings a Request for Due Process Hearing in OAH case number 2022120719, Downey’s Case, naming Student.
On December 9, 2022, Student filed a Request for Due Process Hearing in OAH case number 2022120336, Student’s Case, naming Downey.
On December 28, 2022, Downey filed a Motion to Consolidate the cases 2022120719, Downey’s case, and 2022120336, Student’s case. Student does not object to the motion.
CONSOLIDATION
No statute or regulation specifically provides a standard to be applied in deciding a motion to consolidate special education cases. However, OAH will generally consolidate matters that involve the same parties, a common question of law and/or fact, 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].)
Here, both cases involve a common question of law or fact, specifically, whether Downey’s November 29, 2022 individual education program offers Student a free appropriate public education in the least restrictive environment. Student does not oppose the motion. In addition, consolidation furthers the interests of judicial economy because the matters involve similar questions of law and fact, involve the same witnesses and parties. Accordingly, consolidation is granted. Student’s case also has a pending expedited issue. Student’s expedited issue remains on calendar for prehearing conference on January 9, 2023 and expedited due process hearing January 18 and 19, 2023.
1. Downey’s Motion to Consolidate is granted.
2. Student’s Case is designated as the primary case. All dates previously set
in Downey’s Case, OAH case number 2022120719, are vacated.
IT IS SO ORDERED.
Tiffany Gilmartin Tiffany Gilmartin Administrative Law Judge Office of Administrative Hearings