California OAH special education order · August 16, 2013
Order Following Pre-Hearing Conference
OAH Case No. 2013060104 · ALJ Judith L. Pasewark
OAH set the District's assessment case for hearing and limited Student to the District's exhibits and witnesses, plus Parents and rebuttal evidence, because no one for Student filed a prehearing statement or appeared.
This case went to decision
Fallbrook Union Elementary School District v. Student: Fallbrook Union Elementary may conduct an educationally related mental health assessment of a 14-year-old without his mother's consent. (2013)
Summary
OAH held a telephone prehearing conference in the District's case seeking permission to assess Student under its April 11, 2013 assessment plan. No one appeared for Student, and OAH could not reach Student's mother because her phone number was disconnected, even though she had asked for the current dates. The ALJ confirmed the hearing for August 21 and 22 at the District's offices, with the sole issue being whether the District may assess Student. Because Student filed no prehearing conference statement, exhibit list, or witness list, Student may use only exhibits and witnesses on the District's lists, except for Student's parents and rebuttal evidence.
Why it matters
Parents who skip the prehearing conference or fail to file a prehearing statement can lose the right to present their own exhibits and witnesses at hearing. They should also keep their contact information with OAH up to date.
Key authority cited
- Ed. Code § 56505(e)(7)
- Cal. Code Regs., tit. 5, § 3082(g)
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 Matter of:
FALLBROOK UNION ELEMENTARY OAH CASE NO. 2013060104
SCHOOL DISTRICT,
ORDER FOLLOWING PRE-HEARING
v. CONFERENCE
PARENT ON BEHALF OF STUDENT.
On August 16, 2013, a telephonic prehearing conference (PHC) was held before Administrative Law Judge (ALJ) Judith L. Pasewark, Office of Administrative Hearings (OAH). Susan B. Winkleman, Attorney at Law, appeared on behalf of Fallbrook Union Elementary School (District). No one appeared on behalf of Student (Student). The ALJ attempted to contact Student’s mother at the telephone number given to OAH. 1 The PHC was not recorded.
Based on discussion with counsel for the District, the ALJ issues the following order:
1. Hearing Dates, Times, and Location. The hearing shall take place on August
21, and 22, 201, at the District’s offices located at 321 N. Iowa Street, Fallbrook, California
92028. The hearing shall begin at 9:30 a.m. the first day of the hearing and at 9:00 a.m. all
other days unless otherwise ordered.
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 sole issue at the due process hearing is,
whether the District is entitled to assess Student pursuant to its April 11, 2013 assessment plan.
The telephone number on file with OAH has been disconnected. As with the prior PHC on this matter held June 26, 2013, OAH was unable to contact Student’s mother by telephone. Further, Mother is fully aware of this PHC date as she requested the continuance to the current dates scheduled for both PHC and due process hearing.
3. Exhibits. Student has not filed a PHC Statement or Exhibit List. Therefore,
Student shall be limited to introducing into evidence only those documents which appear on the District’s Exhibit List. Student shall be able to utilize additional exhibits in rebuttal to the District’s case which do not appear on the District Exhibit List.
Exhibits shall be pre-marked and placed in three-ring exhibit binders prior to the hearing. The District shall use numbers to identify exhibits. 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 District represents it has served its evidence binders on Student 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. Student has failed to file a PHC Statement or Witness List.
Therefore, Student will be limited to calling witnesses who appear on the District Witness List with the exception of Student’s parents. Student will be permitted to call a witness not on the District Witness List for rebuttal to the District’s case only.
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 ALJ has discretion to limit the number of witnesses who testify and the time allowed for witnesses’ testimony.
5. Telephonic Testimony. Whether a witness may appear by telephone is a
matter within the discretion of the ALJ. (Cal. Code Regs., tit. 5, § 3082, subd. (g).) Any party seeking to present a witness by telephone shall move in advance for leave to do so, unless the opposing party has stipulated that the witness may appear by telephone. The proponent of the witness shall provide the proposed witness with a complete set of exhibit binders from all parties, containing all of each party’s exhibits, prior to the hearing; and shall ensure that the hearing room has sound equipment that allows everyone in the room to hear the witness, and the witness to hear objections and rulings. No witness will be heard by telephone unless all these requirements have been fulfilled.
6. Motions. No pretrial motions are pending or contemplated. Any motion filed
after this date shall be supported by a declaration under penalty of perjury establishing good cause as to why the motion was not made prior to or during the prehearing conference of August 16, 2013.
7. Stipulations. Stipulations to pertinent facts, contentions or resolutions are
encouraged. Any proposed stipulation shall be submitted to the assigned ALJ in written form.
8. 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.
9. Special Needs and Accommodations. At present neither party anticipates the
need for special accommodation for any witness or party, or for translation services.
10. Hearing Closed To the Public. The hearing will be closed to the public.
11. 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.
12. All other orders issued in the Order Following Prehearing Conference, dated June
26, 2013, remain in full force and effect.
13. Failure to comply with this order may result in the exclusion of evidence or
other sanctions.
IT IS SO ORDERED.
Dated: August 16, 2013 /s/
JUDITH PASEWARK
Administrative Law Judge Office of Administrative Hearings