California OAH special education order · February 19, 2013
Order Denying Request for Reconsideration
OAH Case No. 2012100238 · ALJ Peter Paul Castillo
OAH denied CCS's request to issue a new subpoena for Student's records before hearing, treating it as reconsideration and finding no new facts or law because the IDEA allows no prehearing discovery.
This case went to decision
Student v. Tuolumne County California Children's Services: Tuolumne County California Children's Services must restore direct OT and PT and provide 90 compensatory therapy hours after unilateral cuts. (2013)
Summary
After OAH quashed CCS's subpoena duces tecum to Student as prohibited prehearing discovery, CCS asked OAH to issue a new subpoena requiring Student to produce records before the hearing. OAH treated the request as a motion for reconsideration because CCS was still seeking prehearing discovery. OAH denied it because CCS offered no new facts, circumstances, or law. Under the IDEA and California law, parties may present evidence, compel witnesses at hearing, and exchange documents five business days before hearing, but there is no right to prehearing discovery.
Why it matters
Parties in special education due process cases cannot use subpoenas to get records from the other side before the hearing. A party that simply renews a denied discovery request under a new label will be treated as seeking reconsideration and must show new facts or law.
Key authority cited
- Gov. Code, § 11521
- Code Civ. Proc., § 1008
- Baldwin v. Home Savings of America (1997) 59 Cal.App.4th 1192
- 20 U.S.C. § 1415(f)(2), (h)(2)
- Ed. Code, § 56505, subd. (e)
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:
PARENTS ON BEHALF OF STUDENT, OAH CASE NO. 2012100238
v. ORDER DENYING REQUEST FOR
RECONSIDERATION
TUOLUMNE COUNTY CALIFORNIA
CHILDREN'S SERVICES.
On October 5, 2012, Student filed a Due Process Hearing Request (complaint) against the Tuolumne County California Children’s Services (CCS) with the Office of Administrative Hearings (OAH). 1 This matter is set for a prehearing conference for March 6, 2013, and hearing on March 19 and 20, 2013.
On January 24, 2013, CCS served a Subpoena Duces Tecum (SDT) on Student, which requested specific records regarding Student, which were to be produced to CCS by February 12, 2013. On February 5, 2013, Student filed a Motion to Quash the SDT on the grounds that the SDT was unduly vague and overly broad and burdensome. On February 6, 2013, CCS filed an opposition to the Motion to Quash. On February 13, 2013, the undersigned administrative law judge (ALJ) issued an order that quashed CCS’ SDT for being prohibited prehearing discovery. On February 13, 2013, CCS filed a motion that requested that OAH issue a SDT for Student to produce requested records by February 26, 2013. OAH is treating CCS’ request for a SDT as motion for reconsideration because CCS is still requesting prehearing discovery. Student submitted a response on February 19, 2013.
APPLICABLE LAW
OAH will generally reconsider a ruling upon a showing of new or different facts, circumstances, or law justifying reconsideration, when the party seeks reconsideration within a reasonable period of time. (See, e.g., Gov. Code, § 11521; Code Civ. Proc., § 1008.) The party seeking reconsideration may also be required to provide an explanation for its failure to previously provide the different facts, circumstances or law. (See Baldwin v. Home Savings of America (1997) 59 Cal.App.4th 1192, 1199-1200.)
1 Student dismissed the Sonora Elementary School District and the Tuolumne County Office of Education pursuant to a settlement agreement with these parties.
DISCUSSION AND ORDER
CCS alleges no new facts, circumstances, or law in support of its request reconsideration because CCS is still requesting prehearing discovery, which is not permitted under the Individuals with Disabilities in Education Act (IDEA) and the California statutes and regulations that govern special education hearings. CCS failed to provide any authority to reconsider this ALJ’s determination that, while a party to a due process hearing under the IDEA has the right to present evidence and compel the attendance of witnesses at the hearing, and mutual disclosure of documents and witnesses five business days before hearing (20 U.S.C §1415(f)(2) and (h)(2); Ed. Code, § 56505, subds. (e)(2), (3) and (7)(italics added)), there is no right to pre-hearing discovery under the IDEA. Accordingly, CCS’ request for reconsideration is denied.
IT IS SO ORDERED.
Dated: February 19, 2013 /s/
PETER PAUL CASTILLO
Administrative Law Judge Office of Administrative Hearings