California OAH special education order · August 2, 2018
Order Denying Request for Reconsideration
OAH Case No. 2018060522, 2018061024 · ALJ Linda Johnson
OAH denied Student's request to reconsider an order denying stay put because Student offered no new facts, circumstances, or law, and the district's late response could properly be considered.
Summary
Student asked OAH to clarify or correct an order denying Student's stay put motion, or to strike Beverly Hills' response to that motion. OAH treated the request as a motion for reconsideration and denied it. The emails Student cited were already part of the stay put motion and were considered. OAH also explained that its three-business-day guideline for responses only sets when a judge may review a motion, so a response filed later can still be considered.
Why it matters
Reconsideration requires new facts, circumstances, or law, not disagreement with how the judge weighed the same evidence. OAH may consider a response filed after the three-business-day window, and the ALJ noted Student can file a new stay put motion if the district actually blocks attendance.
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:
PARENTS ON BEHALF OF STUDENT, OAH Case No. 2018060522 v.
BEVERLY HILLS UNIFIED SCHOOL
DISTRICT,
BEVERLY HILLS UNIFIED SCHOOL OAH Case No. 2018061024
DISTRICT,
ORDER DENYING REQUEST FOR
v. RECONSIDERATION
PARENTS ON BEHALF OF STUDENT.
On June 11, 2018, Student filed a request for due process with the Office of Administrative Hearings naming Beverly Hills Unified School District. On July 13, 2018, Student filed a motion for stay put which Beverly Hills responded to on July 19, 2018 1. On July 24, 2018, the undersigned administrative law judge issued an order denying the motion for stay put. On July 26, 2018, Student filed a request for clarification or in the alternative a motion to strike Beverly Hills’ response to stay put and issue a corrected order; which OAH deemed a request for reconsideration. Beverly Hills filed an opposition to Student’s request on July 30, 2018. Student filed a reply on August 1, 2018.
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 The Order Denying Motion for Stay Put incorrectly labeled Beverly Hills’ response to the motion as an opposition. Beverly Hills did not oppose Student’s motion for stay put, it simply filed a response.
previously provide the different facts, circumstances or law. (See Baldwin v. Home Savings of America (1997) 59 Cal.App.4th 1192, 1199-1200.)
DISCUSSION
Student alleges no new facts, circumstances, or law in support of the request for reconsideration. Student instead takes issue with the order denying stay put contending that it should have addressed the emails between Student and Beverly Hills and alleges that Beverly Hills took the position that Student could not attend Beverly Hills High School.
Student requests a corrected order stating that Student can attend Beverly Hills High School.
The emails Student references in the request for reconsideration were included in the motion for stay put and considered in the subsequent order.
Student also argues that OAH should not have consider Beverly Hills’ response because it was filed four business days after Student filed his motion, and OAH’s mediation and due process hearing information packet states that “If a party wishes to oppose a motion, such opposition must be received by OAH at the Sacramento location no later than 3 business days after service of the motion.” The statement concerning three business days is a based on OAH’s policy that makes motions available for review by an Administrative Law Judge only after the passage of three business days. If a response is received after that time, the judge reviewing the motion and making any necessary order may consider it, unless there are other legal reasons for not doing so. Accordingly, Beverly Hills’ response was considered.
The order denying stay put delineated what stay put was and directed Beverly Hills to continue to implement Student’s educational program as stated in the August 2017 Interim Settlement Agreement, May 10, 2017 IEP that was amended on August 8, 2017, and speech and language services listed in the October 12, 2017 IEP. Both Student and Beverly Hills agree that stay put for Student is placement in the general education setting; specialized academic instruction for 50 minutes daily; a one-to-one instructional aide for 350 minutes daily; 60 minutes weekly of group speech and language services, 40 minutes in a social skills group and 20 minutes in the yard; an additional 30 minutes weekly of speech and language services delivered as a push-in service during lunch once a week; and 240 minutes per month of psychological services.
Student did not present any new facts, circumstances, or law that warrant reconsideration. If Beverly Hills does not permit Student to attend Beverly Hills High School when the 2018-2019 school year commences, Student can file for stay put.
Accordingly, Student’s request for reconsideration is denied.
ORDER
Student’s Motion for Reconsideration is denied.
DATE: August 2, 2018
LINDA JOHNSON
Administrative Law Judge Office of Administrative Hearings