California OAH special education order · June 12, 2017

Order Denying Request to Amend Decision and Notice of No Action

OAH Case No. 2016090104 · ALJ Penelope S. Pahl

OAH denied Student's request to amend a final decision to name specific independent assessors, because decisions are final, OAH loses jurisdiction once a decision issues, and Student gave no legal basis for amendment.

Denied Reconsideration

This case went to decision

Newport-Mesa Unified School District v. Student: Newport-Mesa Unified must fund an independent multidisciplinary evaluation after its flawed May 2016 initial assessment. (2017)

Summary

After OAH issued its decision ordering Newport-Mesa to contract with Mother's chosen independent assessors, Student asked OAH to amend the order to name specific assessors because arranging the evaluations had been difficult. Newport-Mesa opposed, arguing that no rule allows a party to ask for amendment of a final order. OAH denied the request. It explained that reconsideration is not available after a decision issues, that the request had no sworn declaration showing a basis such as a clerical error, and that the delays (missing contact details for one assessor, and Dr. Mack's refusal to contract with school districts) were not within the District's control. OAH also took no action on other documents Mother filed, because they were not served on the District and were unrelated to the request.

Why it matters

Once OAH issues a final due process decision, it generally cannot change it; problems carrying out the order must be raised through other channels, such as a new complaint, a compliance complaint, or a court appeal within 90 days. Parents also must serve every filing on the other side and follow OAH's filing rules, or OAH may ignore the documents.

Key authority cited

  • Gov. Code, § 11521
  • Code Civ. Proc., § 1008
  • Baldwin v. Home Savings of America (1997) 59 Cal.App.4th 1192
  • Ed. Code, § 56505, subd. (k)
  • 20 U.S.C. § 1400 et seq.

People named in the order

  • Dr. Mack, Independent assessor chosen by Parent
  • Natalie Neal, Speech pathologist, independent assessor chosen by Parent

Topics

independent educational evaluation final decision reconsideration jurisdiction self-represented parent proof of service

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:

NEWPORT-MESA UNIFIED SCHOOL OAH Case No. 2016090104

DISTRICT

ORDER DENYING REQUEST TO

v. AMEND DECISION AND NOTICE OF

NO ACTION

. PARENT ON BEHALF OF STUDENT.

On March 14, 2017, the undersigned administrative law judge issued a decision in the above-captioned case. On June 1, 2017, Student filed a request to amend the ruling, asking that OAH amend the order in the decision to name specific assessors, chosen by Student, to conduct the assessments. On June 6, 2017, Newport-Mesa filed an opposition to Student’s request.

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.)

However, reconsideration is not available after a decision has issued. Under the Individuals with Disabilities Education Act (20 U.S.C. § 1400, et seq.), decisions issued after an administrative due process hearing are final decisions. A party aggrieved by such an administrative decision may appeal that decision to a court of competent jurisdiction within 90 days of the issuance of the decision. (Ed. Code, § 56505 subd. (k).) Once a decision is issued, OAH loses jurisdiction over the matter.

DISCUSSION

Request to Amend Order Student seeks an amendment of the order in this case in response to difficulties arranging for independent educational evaluations with her chosen assessors. The order in this case directs Newport Mesa to supply Student’s Mother with a copy of the district’s assessment guidelines with which Mother was directed to comply. Newport-Mesa was then ordered to contract with Mother’s chosen assessors without delay.

The request to amend the order is not accompanied by a sworn declaration by Mother stating any basis on which the order could be amended such as the presence of a clerical error. Newport –Mesa opposes the request on the grounds that there is no provision for requesting amendment of a final order.

Documents filed by Newport-Mesa indicate that Student first asked for the District to contract with Dr. Mack on May 24, 2017. No documents indicate when the first request to approve a contract with Speech Pathologist Natalie Neal was made. However, email provided by Newport-Mesa indicates that Student may not have provided full contact details for Ms. Neal initially, causing a short delay in contracting that was not within Newport- Mesa’s control. Dr. Mack has informed Newport-Mesa that she does not contract with school districts, a fact that is not within Newport-Mesa’s control. Student has asserted no legal basis which would permit the order included with the decision to be amended.

Therefore, the request to amend the order is DENIED. Both parties are expected to comply with the order contained in the decision previously issued.

Attempt to File Additional Documents with OAH In addition to the June 1, 2017 letter from Mother, on June 6, 2017, Mother also filed Curriculum vitae for Dr. Mack and Ms. Neal, a tuition request by Student, and an email complaining of a violation of Student’s privacy by Newport-Mesa staff. None of these documents were authenticated or accompanied by proof of service on Newport-Mesa. The tuition request and privacy infringement complaint do not appear related to the issue of the request that the order be amended to identify specific assessors.

Mother has been referred to the rules regarding communication with OAH in the past.

She has been directed to the Special Education Handbook, available on OAH’s website, for assistance in properly preparing documents, the requirement that all documents filed with OAH be accompanied by a declaration proving that the document was also served on Newport-Mesa, as well as the limitations on ex parte communications with OAH. Newport- Mesa may have received some or all of these documents. The fact that Newport-Mesa responded to OAH makes it more likely than not that it did receive copies of the communications. However, that does not eliminate Mother’s responsibility to follow the rules. Should Mother believe Student has additional claims that need to be raised, Mother should consult the Special Education Handbook and other available resources on the OAH website that outline the procedures for raising special education claims. Alternatively, Mother should seek the assistance of counsel. Student is advised that NO ACTION shall be taken on the other documents filed on June 6, 2017.

ORDER

1. Student’s request to amend the decision is denied.

2. No action will be taken by OAH in regards to other documents filed by

Student on June 6, 2017.

IT IS SO ORDERED.

DATE: June 12, 2017 /s/

PENELOPE S. PAHL

Administrative Law Judge Office of Administrative Hearings