California OAH special education order · May 28, 2013
Order Denying Request for Reconsideration Without Prejudice
OAH Case No. 2013040122 · ALJ Bob N. Varma
OAH denied Student's request to reconsider the denial of a continuance because Parents offered no medical documentation showing Student's seizures kept them from prosecuting the case, but allowed renewal at hearing.
This case went to decision
Student v. Cupertino Union School District: Cupertino Union must provide summer compensatory ABA, home teaching, speech, and OT after predetermined offer and failed home-hospital services. (2013)
Summary
Student asked OAH to reconsider its same-day order denying a continuance, citing a new seizure on May 28, 2013, supported by Parent's declaration. The ALJ denied the request because there was no medical recommendation or enough information about Student's condition to show Parents could not prosecute the case. Without medical documentation, the ALJ reasoned, the case could stay on calendar indefinitely without ever reaching hearing. The denial was without prejudice, so Parents could bring evidence of Student's current condition to the May 29, 2013 hearing and renew the continuance motion there.
Why it matters
Parents who seek a continuance because of a child's medical condition should provide documentation from a medical provider explaining why they must be with the child and cannot attend hearing. A parent's own declaration about a medical event may not be enough to show good cause.
Key authority cited
- Gov. Code, § 11521
- Code Civ. Proc., § 1008
- Baldwin v. Home Savings of America (1997) 59 Cal.App.4th 1192
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:
PARENT ON BEHALF OF STUDENT, OAH CASE NO. 2013040122
v.
CUPERTINO UNION SCHOOL DISTRICT,
PARENT ON BEHALF OF STUDENT, OAH CASE NO. 2013040122
v.
CUPERTINO UNION SCHOOL DISTRICT. ORDER DENYING REQUEST FOR
RECONSIDERATION WITHOUT
PREJUDICE
On May 28, 2013, the undersigned administrative law judge issued an order denying Student’s motion to continue. On May 28, 2013, Parent on behalf of Student, filed a request for reconsideration. As the request is denied, no response from the Cupertino Union School District is required.
APPLICABLE LAW
The Office of Administrative Hearings 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.)
DISCUSSION AND ORDER
In consideration of the original request for consideration, the undersigned was provided information regarding Student’s seizure disorder and the recent seizures that Student has experienced. However, no evidence was provided to establish that a medical recommendation required Parents to remain with Student to the extent that they could not effectively prosecute this matter. Accordingly, the undersigned denied Student’s request to continue.
In support of the request for reconsideration, Student has provided evidence of a new seizure that occurred on May 28, 2013. The allegation is supported by declaration for Parent.
The undersigned is not unsympathetic to Student’s medical condition. However, there is insufficient information to establish good cause for a continuance. There is neither a medical recommendation, nor sufficient information regarding Student’s medical condition that would support the contention that Parents cannot prosecute this matter. Under the current representation by Parents, this matter is capable of remaining on calendar, but never reaching the hearing stage. At any given moment, Parents can allege that Student had a seizure, has a fever and therefore, Parents cannot attend a due process hearing. Without support of any documentation from a medical expert, Parents fail to establish good cause for a continuance.
Accordingly, Student’s request for reconsideration is denied. However, it is denied without prejudice. At the hearing on May 29, 2013, the Parents may present any relevant evidence regarding Student’s then current medical condition and renew their motion to continue. The administrative law judge at the hearing may consider any further evidence provided by Parents.
IT IS SO ORDERED.
Dated: May 28, 2013 /s/
BOB N. VARMA
Presiding Administrative Law Judge Office of Administrative Hearings