California OAH special education order · April 12, 2024

Order Granting Request for Reconsideration and Granting Motion to Amend

OAH Case No. 2023120870 · ALJ Alexa Hohensee

OAH reconsidered and granted Student's motion to amend after Student's attorney filed a declaration explaining the substantive changes in the amended complaint. The earlier denial was based on the missing explanation.

Granted Reconsideration

Summary

OAH denied Student's motion to amend on April 10, 2024, because Student did not explain what substantive changes the amended complaint made, and Paramount had filed only a non-opposition rather than written consent. The next day Student asked OAH to reconsider and attached a declaration from Student's attorney. The declaration identified new allegations supporting Student's claims that he should have been assessed, found to have communication and sensory regulation deficits, and offered occupational therapy and speech and language services. OAH found the request timely and supported by new facts, granted the amendment, deemed the amended complaint filed as of the order date, and reset all timelines.

Why it matters

When asking to amend a due process complaint, explain exactly what substantive changes the amendment makes. A district's non-opposition is not the same as written consent, so a vague motion can be denied even if it is unopposed. A prompt reconsideration request with a supporting declaration can fix the problem.

Key authority cited

  • Gov. Code, § 11521
  • Code Civ. Proc., § 1008
  • Baldwin v. Home Savings of America (1997) 59 Cal.App.4th 1192
  • 20 U.S.C. § 1415(c)(2)(E)(i)
  • 20 U.S.C. § 1415(c)(2)(E)(ii)

Topics

reconsideration amended complaint occupational therapy speech and language timelines reset

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:

PARENTS ON BEHALF OF STUDENT,

v.

PARAMOUNT UNIFIED SCHOOL DISTRICT.

OAH CASE NUMBER 2023120870

ORDER GRANTING REQUEST FOR RECONSIDERATION

AND GRANTING MOTION TO AMEND

APRIL 12, 2024

On April 10, 2024, the undersigned Administrative Law Judge issued an order denying Student’s motion to amend. On April 11, 2024, Student filed a motion for reconsideration. Paramount Unified School District, called Paramount, had filed a non- opposition to Student’s motion to amend.

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, generally within 10 days. (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.)

Student’s motion to amend was denied because Student did not explain what substantive changes were made to the amended complaint, and Paramount did not consent to the amendment, although it filed a non-opposition to the motion to amend.

Student’s motion for reconsideration includes the declaration of Student’s attorney. The declaration identifies additional substantive allegations supporting Student’s claims that he should have been assessed, found to have significant communication and sensory regulation deficits, and offered occupational therapy and speech and language services in his educational program.

The motion for reconsideration was timely filed and offers new facts to support reconsideration. The motion for reconsideration is granted.

An amended complaint may be filed when the other party consents in writing and is given the opportunity to resolve the complaint through a resolution session, or when the hearing officer grants permission. The hearing officer may grant permission at any time more than five days before the due process hearing. (20 U.S.C.

§ 1415(c)(2)(E)(i).) The filing of an amended complaint restarts the applicable timelines for the due process hearing. (20 U.S.C. § 1415(c)(2)(E)(ii).)

The motion to amend was filed more than five days prior to the due process hearing, and states that Student seeks to amend his complaint to add issues and resolutions. The declaration of Student’s attorney now explains where substantive changes were made in the amended complaint to explain and support Student’s Issues 1 and 2, that Student should have been found eligible for and offered occupational therapy and speech and language services.

The motion to amend is timely and is granted. The amended complaint will be deemed filed on the date of this order. All applicable timelines will be reset as of the date of this order. OAH will issue a scheduling order with the new dates.

IT IS SO ORDERED.

Alexa Hohensee Administrative Law Judge Office of Administrative Hearings