California OAH special education order · August 29, 2014
Order Dismissing Issues
OAH Case No. 2014040312 · ALJ Deidre L. Johnson
OAH dismissed most of Student's issues at Student's request during hearing. After reviewing the prehearing conference recording, it rejected District's claim that Student had withdrawn the physical therapy assessment issue.
This case went to decision
Student v. Elk Grove Unified School District: Elk Grove Unified must reimburse $1,100 for private physical therapy after failing to assess and serve a preschooler with cerebral palsy. (2014)
Summary
During hearing, Student withdrew most of her issues, and OAH dismissed them. District argued that Student had also withdrawn Issue 1(b), on the legality of District's physical therapy assessments, during the telephonic prehearing conference in exchange for District's offer of an independent educational evaluation. Neither attorney had been on that call, so the ALJ reviewed the call recording. The ALJ found that Student never withdrew the issue. Issue 1(b), Issue 3(a) on the adequacy of physical therapy services, and Issue 3(f) on Student's safety remain for hearing, limited to the 2013-2014 school year.
Why it matters
When the parties dispute what was agreed at a prehearing conference, OAH will check the recording rather than accept one side's account. An issue stays in the case unless the record shows it was clearly withdrawn.
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:
PARENTS ON BEHALF OF STUDENT, OAH Case No. 2014040312 v.
ORDER DISMISSING ISSUES
ELK GROVE UNIFIED SCHOOL
DISTRICT.
Hearing in this matter began on August 27, 2014. During review of the issues as set forth in the Order Following Prehearing Conference dated August 18, 2014, Student withdrew three of her issues. Student also objected to the PHC order’s framing of Issue 1.
During the hearing on August 28, 2014, Student moved to withdraw most of the issues in her case and the motion was granted.
The following issues are dismissed based on Student’s withdrawal of them: Issues 1(a) and (c); Issues 2(a), (b), and (c); and Issues 3(b), (c), (d), (e), (g), (h), and (i).
Regarding Issue 1(b), District contended that Student agreed during the telephonic PHC that the issue was withdrawn based on District’s offer of an independent educational evaluation. Neither District’s attorney, Cathy Holmes, nor Student’s attorney, Daniel Shaw, participated in that call and disputed what had occurred. Upon review of the recording of the conference call, it is determined that Student did not withdraw Issue 1(b) and that the PHC order correctly lists it as an issue for hearing.
The following issues remain for hearing: Issue 1(b) as to the legality of District’s physical therapy assessments; Issue 3(a) as to the adequacy of physical therapy services; and Issue 3(f) as to Student’s safety. These issues are limited to the 2013-2014 school year.
IT IS SO ORDERED.
DATE: August 29, 2014
/S/
DEIDRE L. JOHNSON
Administrative Law Judge Office of Administrative Hearings