California OAH special education order · September 29, 2014
Order Following Prehearing Conference
OAH Case No. 2014070012 · ALJ June R. Lehrman
OAH denied, without prejudice, District's oral motion to dismiss Student's English learner services claim for lack of jurisdiction. It set 11 issues for an October 2014 hearing with a Spanish interpreter.
This case went to decision
Student v. Los Angeles Unified School District: Los Angeles Unified prevails on all 11 claims over inclusion activities and services for a 10-year-old with an intellectual disability. (2014)
Summary
At the telephonic prehearing conference, District made an oral motion to dismiss Issue 3. That issue claims District failed to provide appropriate English language learner services, and District argued it was outside OAH's jurisdiction. The ALJ denied the oral motion without prejudice, so District may still bring a written motion before the hearing or raise it in post-hearing briefs. The order set 11 issues for hearing beginning October 7, 2014, in Van Nuys. It also required a Spanish interpreter and opened the hearing to the public at Parent's request.
Why it matters
A district's oral motion at a prehearing conference to throw out a claim, such as English learner services, as outside OAH's power may be denied without a written motion and briefing. The district can raise the challenge again, though, so families should be ready to explain how such services connect to the student's special education program.
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 Matter of:
PARENT ON BEHALF OF STUDENT, OAH Case No. 2014070012 v. ORDER FOLLOWING PREHEARING
CONFERENCE
LOS ANGELES UNIFIED SCHOOL
DISTRICT.
On September 26, 2014, a telephonic prehearing conference was held before Administrative Law Judge June Lehrman, Office of Administrative Hearings. Seymour Amster, Attorney at Law, appeared on behalf of Student. Patrick Balucan, Attorney at Law, appeared on behalf of 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
October 7, 8 and 9, 2014, and continuing day to day, Monday through Thursday as needed at the discretion of the ALJ, at the OAH offices located at 15350 Sherman Way, Ste. 300, Van Nuys, CA 91406. The hearing shall begin each day at 9:00 a.m. with the exception of the first day of hearing, on which day the hearing shall begin at 9:30 a.m., 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 issues at the due process hearing are
listed below.
Did District deny Student a free appropriate public education by:
1. Failing to provide appropriate vocational therapy services;
2. Failing to provide appropriate speech and language services;
3. Failing to provide appropriate English language learner services;
4. Failing to provide appropriate inclusion activities designed for the Student’s
individual needs;
5. Failing to provide appropriate non-academic and extracurricular activities including
sports, assemblies, and school theatrical productions;
6. Failing to provide Student with an iPad;
7. Failing to provide appropriate adapted physical education services;
8. Placing Student at an educational facility that is no longer a special education center,
but is a co-located general and special education campus;
9. Failing to provide appropriate occupational therapy services;
10. Failing to provide appropriate toilet training;
11. Failing to provide an appropriate one-on-one aide ?
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 October 3, 2014 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 Anticipated
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. The order of presentation of evidence shall
be as follows: Student’s evidence followed by District’s. However witnesses to be called by both sides shall be fully questioned on all issues whenever first called to the stand.
9. Motions. District’s oral motion at the PHC to dismiss Issue 3 as outside OAH
jurisdiction is denied, without prejudice to District’s right to bring a written motion prior to the hearing or in post-hearing briefs. No other 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.
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.
At present neither party anticipates the need for special accommodation for any witness or party, or for translation services.
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: September 29, 2014
/ S/
JUNE R. LEHRMAN
Administrative Law Judge Office of Administrative Hearings