California OAH special education order · September 19, 2014
Order Following Prehearing Conference
OAH Case No. 2014080899 · ALJ Susan Ruff
OAH set five manifestation determination issues for an expedited hearing starting September 23, 2014. Over High Tech's objection, it ordered the hearing held at High Tech's San Marcos facility rather than OAH's San Diego office.
This case went to decision
Student v. High Tech Middle North County: High Tech Middle North County's manifestation finding in knife expulsion upheld, but the charter must hold an IEP meeting to offer services. (2014)
Summary
At a telephonic prehearing conference in Student's expedited case, the ALJ framed five issues for hearing. All five challenge High Tech's manifestation determination: failing to consider parental and expert input, predetermination, the finding that the behavior was not a manifestation of Student's disability, and failing to offer an alternative placement with services. Student withdrew a separate assessment issue. High Tech moved to move the hearing to OAH's San Diego office, and Student opposed and asked that it be held at High Tech's San Marcos facility. After discussion, the ALJ granted Student's motion, denied High Tech's, and made High Tech responsible for providing an accessible, courtroom-style hearing room.
Why it matters
Families can ask OAH to hold the hearing at the school's own facility, and OAH may grant that over the district's objection, with the district responsible for providing a suitable room. Parents challenging a manifestation determination should frame specific issues, such as ignored parental or expert input and predetermination, for the expedited hearing.
Key authority cited
- Cal. Code Regs., tit. 5, § 3082, subd. (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:
PARENTS ON BEHALF OF STUDENT, OAH Case No. 2014080899 v. ORDER FOLLOWING PREHEARING
CONFERENCE
HIGH TECH MIDDLE NORTH COUNTY.
On September 19, 2014, a telephonic prehearing conference was held before Administrative Law Judge Susan Ruff, Office of Administrative Hearings. Brian Sciacca, Attorney at Law, appeared on behalf of Student and Student’s parents. Megan Moore, Attorney at Law, and Barbara Hagberg, Attorney at Law, appeared on behalf High Tech Middle North County (High Tech). 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 begin at 9:30 a.m. on
September 23, 2014, shall continue as needed on September 24, 2014, and September 25, 2014, and shall continue thereafter day to day, Monday through Thursday, as needed at the discretion of the ALJ. The hearing shall begin each day at 9:30 a.m.
The hearing shall take place at the High Tech facility located at 1420 W. San Marcos Boulevard, San Marcos, California, 92078. High Tech’s counsel will send a written notice before the hearing to inform OAH and the parties which building the hearing will be in.
High Tech will ensure that the hearing location meets the accessibility requirements of the Americans with Disabilities Act, and that the hearing room can be configured in the manner of a courtroom, with a head table for the ALJ, a table for each party, and a table for the witnesses.
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 this expedited due process hearing are listed below. 1
a) Did High Tech deny Student a free appropriate public education by failing to properly consider parental input in making the manifestation determination? b) Did High Tech deny Student a FAPE by predetermining the outcome of the manifestation determination individualized education program? c) Did High Tech deny Student a FAPE by failing to properly consider input from Student’s experts presented by the parents during the manifestation determination IEP? d) Did High Tech deny Student a FAPE by improperly determining that the alleged behavior was not a manifestation of Student’s disability? e) Did High Tech deny Student a FAPE by failing to offer an alternative educational placement and accompanying services to allow Student to participate in the general education curriculum and to make progress on his IEP goals?
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. The parties may, but are not required to, submit a joint exhibit book. If the parties choose to do so, each party will retain the right to object to any of the exhibits included in that joint book.
Each exhibit shall be internally paginated by exhibit, or all of a party’s exhibits shall be consecutively paginated, for example by bates-stamping. Each exhibit binder shall contain a detailed table of contents. At the hearing, each party shall supply an exhibit binder containing its exhibits (or a joint exhibit binder) 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.
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.
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 In Student’s due process hearing request, Student initially included an additional issue regarding assessments. Student withdrew that issue during the PHC.
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. Prior to the PHC, High Tech made a motion to change the hearing
location to the Office of Administrative Hearings in San Diego, California. Student opposed the motion and made a motion to have the hearing held at the San Marcos High Tech facility.
After discussion during the PHC, Student’s motion was granted and High Tech’s motion was denied. The hearing will be held at the High Tech facility in San Marcos. High Tech is responsible for securing an appropriate room, as discussed above in paragraph one.
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. There is to be no audio or video recording or photography in the hearing room by anyone without the express permission of the ALJ hearing the case.
9. Compensatory Education or 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.
10. Special Needs and Accommodations. At present neither party anticipates the
need for special accommodation for any witness or party, or for translation services.
11. Hearing Closed To the Public. At the request of the parent, the hearing will be
closed to the public.
12. 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 4:00 P.M. ON 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.
13. Failure to comply with this order may result in the exclusion of evidence or
other sanctions.
IT IS SO ORDERED.
DATE: September 19, 2014
/ S/
SUSAN RUFF
Administrative Law Judge Office of Administrative Hearings