California OAH special education order · September 29, 2014
Order Following Pre-Hearing Conference
OAH Case No. 2014051236 · ALJ Judith L. Pasewark
OAH set a three-day hearing on whether District's May 14, 2014 IEP offered Student a FAPE, denied Parents' renewed continuance request, moved the hearing to San Diego, and ordered a bailiff present.
This case went to decision
Vista Unified School District v. Student: Vista Unified may implement its May 2014 IEP placing a student with autism at Stein Education Center over parents' objections. (2014)
Summary
After a telephonic prehearing conference in District's case, the ALJ framed the sole issue as whether District's May 14, 2014 IEP offered Student a free appropriate public education in the least restrictive environment. The hearing was set for October 7–9, 2014, at OAH's San Diego office, starting at 9:30 a.m. to accommodate Parents' transportation concerns. The ALJ again denied Student's request for a continuance, which had already been denied on September 26, 2014. She granted Parents' request to change the venue to San Diego, ordered on her own motion that a California Highway Patrol bailiff be present, and confirmed that a Spanish interpreter is required.
Why it matters
Self-represented parents can get practical accommodations such as a closer venue, a later start time, and an interpreter. A renewed continuance request without new good cause is likely to be denied, so parents should be ready to go forward on the set dates.
Key authority cited
- Ed. Code § 56505, subd. (e)(7)
- Cal. Code Regs., tit. 5, § 3082, subd. (g)
People named in the order
- Victor Ramos, Certified Spanish interpreter
- Jonathan P. Read, Attorney for Vista Unified School 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:
VISTA UNIFIED SCHOOL DISTRICT, OAH Case No. 2014051236 v. ORDER FOLLOWING PRE-HEARING
CONFERENCE
PARENT ON BEHALF OF STUDENT.
On, September 29, 2014, a telephonic prehearing conference was held before Administrative Law Judge Judith L. Pasewark, Office of Administrative Hearings.
Jonathan P. Read, Attorney at Law, appeared on behalf of Vista Unified School District.
Parents appeared on behalf of Student. Victor Ramos, certified Spanish interpreter, translated English into Spanish and Spanish into English for Mother. 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
October 7, 8, and 9, 2014, and continue day to day thereafter as needed, as determined by the ALJ. The hearing shall take place at OAH offices located at 1350 Front Street, Suite 3005, San Diego, California 92101. To accommodate Parents’ transportation concerns, the hearing shall begin at 9:30 a.m. each day of the hearing, 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 District’s May 14, 2014 individualized education plan offered Student constitutes a free appropriate public education in the least restrictive environment.
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 District shall serve its evidence binders on Student in compliance with Education Code section 56505, subdivision (e)(7). Student shall provide District’s counsel and OAH with a copy of her witness and evidence lists no later than 4:30 p.m. on October 3, 2014. 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.
District is encouraged to review and shorten its 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. The ALJ has discretion to limit the number of witnesses who testify and the time allowed for witnesses’ testimony.
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.
7. Motions. (1) The ALJ denied Student’s renewed request for continuance,
which was previously denied on September 26, 2014. (2) The ALJ granted Student’s request that the hearing venue be changed to the OAH offices in San Diego, California. (3) The ALJ granted her own motion that a bailiff from the California Highway Patrol be present throughout the hearing.
No further 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 September 29, 2014.
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. A Spanish language interpreter is
required. The hearing room shall provide access and accommodations pursuant to existing state and federal law.
10. 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.
11. Failure to comply with this order may result in the exclusion of evidence or
other sanctions.
IT IS SO ORDERED.
DATE: September 29, 2014
/ S/
JUDITH PASEWARK
Administrative Law Judge Office of Administrative Hearings