California OAH special education order · May 31, 2013

Order Granting Motion for Reconsideration and Granting Further Continuance of Prehearing Conference and Due Process Hearing

OAH Case No. 2013040960 · ALJ Timothy L. Newlove

OAH granted Student's contested motion to reconsider an earlier continuance order and moved the hearing to September 2013, because Student's attorney needed knee surgery and Student's expert would not be ready.

Granted Reconsideration

This case went to decision

Student v. Tustin Unified School District (consolidated): Tustin Unified may implement IEP moving medically fragile student from county program to Currie Middle School; Student's claims denied. (2013)

Summary

After OAH partly denied an earlier contested request and set hearing for June 2013, Student asked OAH to reconsider, and Tustin Unified opposed. OAH found Student showed new facts: a medical certificate that Student's attorney would be having knee replacement surgery, and that Student's retained expert would not have his evaluation done in time. Finding good cause, also noting District witnesses were unavailable over the summer, OAH vacated all dates and reset the prehearing conference for September 6, 2013, and the hearing for September 16, 2013.

Why it matters

A reconsideration request can succeed when it brings new, documented facts, such as a medical certificate showing counsel is unavailable. Concrete proof of unavailability carries more weight than general claims of scheduling conflicts.

Key authority cited

  • Gov. Code, § 11521
  • 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

Topics

reconsideration continuance new facts attorney unavailability expert witness good cause

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:

TUSTIN UNIFIED SCHOOL DISTRICT, OAH CASE NO. 2013040960

v. ORDER GRANTING MOTION FOR

RECONSIDERATION AND

PARENTS ON BEHALF OF STUDENT. GRANTING FURTHER

CONTINUANCE OF PREHEARING

CONFERENCE AND DUE PROCESS

HEARING

On May 20, 2013, in response to a contested Motion to Continue brought on behalf of Student, the Office of Administrative Hearings (OAH) issued an Order of Continuance which set a prehearing conference for June 10, 2013, and a due process hearing for June 17 – 20, 2013. On May 24, 2013, counsel for Student filed with OAH a Motion to Reconsider the Order of Continuance. On May 30, 2013, counsel for the Tustin Unified School District filed with OAH an opposition to the Motion to Reconsider.

Student’s Motion to Reconsider satisfies the standard for reconsideration which is the showing of new or different facts, circumstances or law justifying reconsideration, in a request brought in a timely manner. (Gov. Code, § 11521.) Here, Student has shown through a medical certificate that her attorney cannot participate in the currently scheduled due process hearing due to knee replacement surgery. Student has also shown that her retained expert witness will not be ready to offer opinions at the time of the currently scheduled trial.

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.) Here, there is good cause to support granting a further continuance of the hearing dates, in that Student’s counsel will not be available for the currently scheduled trial, District witnesses will not be available during the summer, and Student’s expert will not have his evaluation completed within the next three weeks. Accordingly, Student’s request for a further continuance is: Granted. All dates are vacated. This matter will be set as follows:

Mediation: To be determined by the parties.

Prehearing Conference: 09/06/2013, at 1:00 p.m.

Due Process Hearing: 09/16/2013, at 1:30 p.m.; 09/17/2013; 09/18/2013;

09/19/2013, and continuing day to day, Monday through Thursday, as needed at the discretion of the Administrative Law Judge.

IT IS SO ORDERED.

Dated: May 31, 2013 /s/

TIMOTHY L. NEWLOVE

Presiding Administrative Law Judge Office of Administrative Hearings