California OAH special education order · April 21, 2014
Order Following Pre-Hearing Conference
OAH Case No. 2013110175 · ALJ June R. Lehrman
OAH denied Parent's request to delay District's hearing to finish pending independent evaluations, because the hearing concerns only the November 2013 IEP offer.
This case went to decision
Burbank Unified School District v. Student: Burbank Unified may place a 9-year-old with autism at Five Acres therapeutic nonpublic school without parental consent. (2014)
Summary
At the prehearing conference, OAH set District's case for hearing on one issue: whether its November 19, 2013 IEP offer of placement at Five Acres nonpublic school was a free appropriate public education that District could carry out without Parent's consent. Parent, representing herself, asked to continue the hearing until pending independent educational evaluations were finished. District opposed, noting the evaluations had been pending for over a year and had already caused earlier delays. The ALJ denied the continuance because the evaluation results were not highly relevant to an offer made in November 2013, and noted Parent could still file her own complaint based on those results. OAH also granted District's request for a Five Acres witness to testify by phone, ordered Parent to serve her witness and exhibit lists by April 22, 2014, provided a Spanish interpreter, and opened the hearing to the public at Parent's request.
Why it matters
Parents cannot count on delaying a district-filed hearing to wait for independent evaluations when the case is about an earlier IEP offer. Filing a separate complaint once the results come in is still available. Self-represented parents should also file prehearing statements on time to avoid last-minute disclosure orders.
Key authority cited
- Ed. Code § 56505, subd. (e)(7)
- Cal. Code Regs., tit. 5, § 3082, subd. (g)
People named in the order
- June R. Lehrman, Administrative Law Judge
- Melissa Hatch, Attorney for District
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:
BURBANK UNIFIED SCHOOL OAH CASE NO. 2013110175
DISTRICT,
ORDER FOLLOWING PRE-HEARING
v. CONFERENCE
PARENT ON BEHALF OF STUDENT.
On April 21, 2014, a telephonic prehearing conference (PHC) was held before Administrative Law Judge (ALJ) June R. Lehrman, Office of Administrative Hearings (OAH). Melissa Hatch, Attorney at Law, appeared on behalf of District. Mother appeared on behalf of Student. 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 April 29, 30, May 1, and 5, 2014, at the District’s offices located at 1900 West Olive Avenue, Burbank, CA 91505. The hearing shall begin at 9:30 a.m. the first day of the hearing, 1:30 p.m. on Monday May 5, 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. The issues at the due process hearing are listed below.
Is District’s November 19, 2013 individualized education program (IEP) offer of placement in Five Acres non-public school a free appropriate public education, such that District may implement the IEP without parental consent?
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 compliance with Education Code section 56505, subdivision (e)(7), except for good cause shown, supported by written declaration under penalty of perjury, and at the discretion of the ALJ.
The witness schedule will be finalized at the commencement of the due process hearing.
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. 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.
District’s motion to allow a Five Acres representative to testify telephonically is granted. District shall provide the witness with a complete exhibit binder from each party, 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.
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. District has provided notice of its witnesses and exhibits in its PHC Statement, served by mail on Mother on April 16, 2014. District is hereby ordered to provide an additional courtesy copy of its PHC Statement to Mother via email by close of business today. Mother did not submit a PHC Statement; Mother is hereby ordered to serve her list of exhibits and witnesses on District’s counsel by close of business on April 22, 2014.
8. Order of Presentation of Evidence. The order of presentation of evidence shall
be as follows: District’s witnesses followed by Student’s witnesses.
9. Motions. Mother moved at the PHC to continue the hearing, to permit
currently-pending independent educational evaluations (IEE’s) to be completed. District opposed the motion, arguing that the IEE’s have been pending for over a year and were the basis for prior continuances. The motion to continue is denied for the following reasons.
The issues for hearing relate to the IEP developed on November 19, 2013, therefore, the results of the IEE’s are not highly relevant to the offer that was made at that time. Moreover, Mother’s right to bring her own complaint relating to the results of the IEE’s, when completed, is not affected by this ruling.
At present no other prehearing motions are pending or contemplated. Any prehearing motion filed after this date shall be supported by a declaration under penalty of perjury establishing good cause why the motion was not made prior to or during the prehearing conference.
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.
DATE: April 21, 2014 /s/
JUNE R. LEHRMAN
Administrative Law Judge Office of Administrative Hearings