California OAH special education order · December 24, 2014

Order Denying District's Motion for Clarification or Reconsideration

OAH Case No. 2014080281 · ALJ Robert Martin

OAH denied District's motion to clarify or reconsider a final due process decision ordering an IEP meeting, because the decision was unambiguous and no law allows reconsideration of special education decisions.

Denied Reconsideration

This case went to decision

Student v. Long Beach Unified School District: Long Beach Unified denied FAPE by taking seven months to contract for an agreed auditory processing assessment; staff training ordered. (2014)

Summary

After OAH issued its decision, District asked OAH to clarify or reconsider the part ordering an IEP meeting within 10 working days after a pending auditory processing assessment was completed. District argued it no longer owed Student a FAPE because Student had enrolled in a charter school outside District's boundaries that District did not charter. Student opposed. OAH found the decision's language unambiguous, noted the decision did not order District to provide a FAPE going forward, and held that special education due process decisions are final when issued and cannot be reconsidered by OAH; the only review is a civil action in state or federal court.

Why it matters

Once OAH issues a special education due process decision, the losing side cannot ask OAH to reconsider it. The only way to challenge the decision is to file in state or federal court within 90 days.

Key authority cited

Gov. Code, § 11521
20 U.S.C. § 1415(i)
34 C.F.R. § 300.516
Ed. Code, § 56505, subd. (k)
Code Civ. Proc., § 1008
Poway Unified School District v. Student (2010) OAH Case No. 2009100310

Topics

reconsideration clarification final decision iep meeting order charter school auditory processing assessment

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:

PARENT ON BEHALF OF STUDENT, OAH CASE NO. 2014080281

v. ORDER DENYING DISTRICT’S

MOTION FOR CLARIFICATION OR

LONG BEACH UNIFIED SCHOOL RECONSIDERATION

DISTRICT.

This matter was filed on August 6, 2014, and heard on September 30, 2014 and October 7, 2014. The Office of Administrative Hearings issued its decision in this matter on November 12, 2014. On December 9, 2014 District filed a motion for reconsideration and/or clarification of that portion of the decision that directed District to hold an individualized education program meeting within 10 working days of the completion of an auditory processing assessment of Student that was pending at the time of the hearing, if the assessment had not been previously completed and presented at an IEP. District’s grounds for its request for reconsideration or clarification was that Student had given District notice on August 22, 2014 that Student would be attending a charter school located outside District’s boundaries and not chartered by the District, and District therefore no longer had any obligation to provide Student a free appropriate public education, or to hold an IEP meeting to review the assessment. Student opposed District’s motion on December 12, 2014.

APPLICABLE LAW

OAH may reconsider rulings on motions 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.) However, as discussed below, decisions are treated differently than rulings on motions.

Administrative agencies generally lack the power to order reconsideration of their decisions absent specific authority to do so. (Olive Proration etc. Com. v. Agri. etc. Com.

(1941) 17 Cal.2d 204, 209; Heap v. City of Los Angeles (1936) 6 Cal.2d 405, 407–408;

Bonnell v. Medical Bd. of California (2003) 31 Cal.4th 1255, 1260.) Section 11521 of the Administrative Procedure Act authorizes a state agency to order reconsideration of its administrative adjudication, upon its or a party’s application, as long as an order is issued within the time period for reconsideration applicable to the agency’s decisions. The OAH decisions subject to Government Code section 11521 are not final when issued, but become effective after 30 days (absent other orders). (Gov. Code, § 11519, subd. (a).)

However, the Administrative Procedure Act (Gov. Code §§ 11340 et seq.) is only applicable in part to special education hearings. (Poway Unified School District v. Student (May 24, 2010) OAH Case No 2009100310.) Unlike the decisions subject to APA Section 11521, OAH decisions rendered in special education due process proceedings under the Individuals with Disabilities Education Act are not subject to reconsideration by a state agency, but are instead final when issued. Any party wishing to contest the findings and decision in a special education due process proceeding may seek review by bringing a civil action in state or federal district court, within 90 days from the date of the ALJ’s decision.

(20 U.S.C. § 1415(i); 34 C.F.R. §§ 300.514 and 300.516 (2006); Ed. Code, § 56505, subd.

(k).) Government Code section 11521, which authorizes reconsideration of certain OAH decisions is therefore inapplicable to special education decisions, and no other federal or state special education statutes or regulations provide for reconsideration of a decision issued following a special education due process hearing.

DISCUSSION AND ORDER

District seeks reconsideration or clarification of that portion of the decision that directed District to hold an individualized education program meeting within 10 working days of the completion of an auditory processing assessment of Student that was pending at the time of the hearing, if the assessment had not been previously completed and presented at an IEP team meeting. The decision did not direct District to provide Student a FAPE going forward.

The language of the decision is unambiguous and District’s motion for clarification is denied. Because there is no provision under the law for reconsideration of a decision issued after a special education due process hearing, District’s motion for reconsideration must also be denied.