California OAH special education order · March 4, 2013
Order Following Pre-Hearing Conference
OAH Case No. 2012090211, 2013010694 · ALJ June R. Lehrman
OAH quashed Student's subpoena duces tecum because it was not personally served and sought prehearing discovery. Student can still subpoena the documents for the hearing itself.
This case went to decision
Student v. Los Angeles Unified School District (consolidated): Los Angeles Unified must fund a speech and language IEE; child find violation found harmless, so private assessment reimbursement denied. (2013)
Summary
At a prehearing conference in consolidated cases, OAH set the hearing for March 12-14, 2013. The issues for hearing are Student's assessment and child find claims and District's claim that its speech and language assessment was appropriate. OAH granted District's motion to quash Student's subpoena duces tecum because it was not personally served and called for prehearing discovery. The ruling does not decide whether the documents are reasonably necessary at hearing, and Student may subpoena them for the hearing itself. OAH also denied Student's motion to audio-record the hearing.
Why it matters
A subpoena for records must be personally served, and it cannot be used for discovery before the hearing. Parents should aim document subpoenas at production for the hearing itself, or the subpoena may be quashed.
Key authority cited
- Ed. Code § 56505, subd. (e)(7)
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:
PARENT ON BEHALF OF STUDENT, OAH CASE NO. 2012090211
v.
LOS ANGELES UNIFIED SCHOOL
DISTRICT,
LOS ANGELES UNIFIED SCHOOL OAH CASE NO. 2013010694
DISTRICT,
v.
ORDER FOLLOWING PRE-HEARING
PARENT ON BEHALF OF STUDENT. CONFERENCE
On March 4, 2013, a telephonic prehearing conference (PHC) was held before Administrative Law Judge (ALJ) June R. Lehrman, Office of Administrative Hearings (OAH). Deborah Pepaj, Attorney at Law, appeared on behalf of Student. Patrick Balucan, Attorney at Law, appeared on behalf of Los Angeles Unified School District (District). The PHC was recorded.
Based on discussion of the parties, the ALJ issues the following order:
1. Hearing Dates, Times, and Location. The hearing shall take place on March
12, 13 and 14, 2013, at the OAH offices located at 15350 Sherman Way, Suite 300, Los Angeles, CA 91406. The hearing shall begin at 9:30 a.m. on all days unless otherwise ordered, and shall continue from day to day, Monday through Thursday, as needed, at the discretion of the ALJ.
The parties shall immediately notify all potential witnesses of the hearing dates, and shall subpoena witnesses if necessary, to ensure that the witnesses will be available to testify.
A witness will not be regarded as unavailable for purposes of showing “good cause” to continue the hearing if the witness is not properly notified of the hearing date or properly subpoenaed, as applicable.
2. Issues and Proposed Resolutions. The issues at the due process hearing are
listed below.
Student’s Issues:
1. Did District deny Student a free appropriate public education (FAPE) by
failing to assess him for special education and related services?
2. Did District deny Student a FAPE by failing in its child find obligations?
District’s Issue:
1. Was District’s speech and language assessment of Student appropriate,
such that Student is not entitled to an independent educational evaluation?
3. Exhibits. Exhibits shall be pre-marked and placed in three-ring exhibit
binders prior to the hearing. The parties shall use numbers to identify exhibits, but shall place the letter “S” or “D” in front of the exhibit to designate if it is a Student or District exhibit (for example, “S-5, S-6, or D-1, D-2”). Each exhibit shall be internally paginated by exhibit, or all of a party’s exhibits shall be Bates-stamped. Each exhibit binder shall contain a detailed table of contents. The parties shall serve their evidence binders on each other in compliance with Education Code section 56505, subdivision (e)(7). At the hearing, each party shall supply an exhibit binder containing its exhibits for use by the ALJ, and a second exhibit binder for use by witnesses. The parties may not serve exhibits on OAH prior to the hearing. In the event of duplicate exhibits, the most legible version will be used.
Except for good cause shown, or unless used solely for rebuttal or impeachment, any exhibit not included in the exhibit lists and not previously exchanged shall not be admitted into evidence at the hearing unless it is supported by written declaration under penalty of perjury, and the ALJ rules that it is admissible.
4. Witnesses. Each party is responsible for procuring the attendance at hearing
of its own witnesses. Each party shall make witnesses under its control reasonably available. The parties shall schedule their witnesses to avoid delays in the hearing and to minimize or eliminate the need for calling witnesses out of order. Neither party shall be permitted to call any witnesses not disclosed in the party’s prehearing conference statement except for good cause shown, supported by written declaration under penalty of perjury, and at the discretion of the ALJ.
The parties are ordered to meet and confer by March 7, 2013, as to the schedule of witnesses, to coordinate the availability and order of testimony of witnesses, to ensure that there is a witness available to testify at all times during the hearing, and to ensure that the hearing is completed as scheduled.
The parties are encouraged to review and shorten their witness lists prior to the hearing, bearing in mind that evidence will be excluded if it is repetitive, cumulative, or insufficiently probative to justify the time it would take to hear.
5. Scope of Witness Examination. After the first direct and cross-examinations,
each party shall be limited in examining the witness to only those matters raised in the immediately preceding examination.
6. Telephonic Testimony. None requested.
7. Timely Disclosure of Witnesses/Exhibits. Education Code section 56505,
subdivision (e)(7), provides for disclosure of witnesses and exhibits at least five business days prior to the hearing.
8. Order of Presentation of Evidence. This matter is consolidated, and involves
two parties. The order of presentation of evidence shall be as follows: Student’s case followed by District’s case, however if a witness if to be called by more than one party, that witness shall be questioned on all issued whenever first called.
9. Motions.
District’s motion to quash Student’s subpoena duces tecum is granted on the following grounds: the subpoena was not personally served; and calls for pre-hearing discovery. This ruling does not determine the issue of reasonable necessity for the documents at hearing, and is without prejudice to any right Student may have to subpoena the documents for the hearing itself.
Student’s motion to audio-record the hearing is denied.
10. Stipulations. Stipulations to pertinent facts, contentions or resolutions are
encouraged. Any proposed stipulation shall be submitted to the assigned ALJ in written form.
11. Conduct of Counsel and Hearing Room Decorum. Counsel, all parties, and all
witnesses shall conduct themselves in a professional and courteous manner at all times.
Cellular phones, pagers, recorders, and other noisemaking electronic devices shall be shut off or set to vibrate during the hearing unless permission to the contrary is obtained from the
ALJ.
12. Compensatory Education/Reimbursement. Any party seeking reimbursement
of expenditures shall present admissible evidence of these expenditures, or a stipulation to the amount of expenditures, as part of its case in chief. A party seeking compensatory education should provide evidence regarding the type, amount, duration, and need for any requested compensatory education.
13. Special Needs and Accommodations. A Spanish language interpreter is
required.
14. Hearing Open To the Public. At the request of the parent, the hearing will be
open to the public.
15. Settlement. The parties are encouraged to continue working together
to reach an agreement before the due process hearing. The parties shall inform OAH in writing immediately should they reach a settlement or otherwise resolve the dispute before the scheduled hearing. In addition, if a settlement is reached within five days of the scheduled start of the due process hearing, the parties shall also inform OAH of the settlement by telephone at (916) 263-0880.
IF A FULL AND FINAL WRITTEN SETTLEMENT AGREEMENT IS REACHED
AFTER 5:00 P.M. THE DAY PRIOR TO HEARING, THE PARTIES SHALL LEAVE A
VOICEMAIL MESSAGE REGARDING THE SETTLEMENT AT (916) 274-6035. THE
PARTIES SHOULD ALSO LEAVE CONTACT INFORMATION SUCH AS CELLULAR
PHONE NUMBERS OF EACH PARTY OR COUNSEL FOR EACH PARTY. THE
PARTIES SHOULD SIMULTANEOUSLY FAX THE SIGNATURE PAGE OF THE
SIGNED AGREEMENT OR A LETTER WITHDRAWING THE CASE TO THE OAH AT
THE FAXINATION LINE at 916-376-6319.
Dates for hearing will not be cancelled until the letter of withdrawal or signature page of the signed agreement has been received by OAH. If an agreement in principle is reached, the parties should plan to attend the scheduled hearing unless different arrangements have been agreed upon by the assigned ALJ. The assigned ALJ will check for messages the evening prior to the hearing or the morning of the hearing.
16. Failure to comply with this order may result in the exclusion of evidence or
other sanctions.
IT IS SO ORDERED.
Dated: March 04, 2013 /s/
JUNE R. LEHRMAN
Administrative Law Judge Office of Administrative Hearings