California OAH special education order · March 27, 2015
Order Following Prehearing Conference
OAH Case No. 2014120504 · ALJ Ted Mann
OAH found the self-represented Parent showed good cause for missing a prior prehearing conference and not filing a prehearing statement, then set a two-day hearing on whether District denied FAPE by refusing a 1:1 aide.
This case went to decision
Student v. Los Angeles Unified School District: Los Angeles Unified did not have to offer a one-to-one aide to a third grader with a learning disability. (2015)
Summary
OAH heard an Order to Show Cause together with the telephonic prehearing conference. The OSC concerned Student's failure to attend the March 9, 2015, prehearing conference and failure to file a prehearing statement, witness list, or evidence list. The ALJ found Student established good cause for both failures. The ALJ then set the hearing for April 14 and 15, 2015, in Van Nuys and framed one issue: whether the November 12, 2014, IEP denied Student a FAPE by not offering a 1:1 aide. The order also set exhibit and witness rules, required a Spanish interpreter, and closed the hearing to the public at Mother's request.
Why it matters
A self-represented parent who misses a prehearing conference or a filing deadline can still keep the case going by showing good cause at an order to show cause hearing. After that, the parent must follow the prehearing order's exhibit and witness deadlines or risk having evidence excluded.
Key authority cited
- Ed. Code, § 56505, subd. (e)(7)
- Cal. Code Regs., tit. 5, § 3082, subd. (g)
People named in the order
- Ted Mann, Administrative Law Judge
- Donald Erwin, District attorney
- Victor Ramos, Spanish interpreter
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. 2014120504 v. ORDER FOLLOWING PREHEARING
CONFERENCE
LOS ANGELES UNIFIED SCHOOL
DISTRICT.
On Friday, March 27, 2015, a telephonic prehearing conference was held before Administrative Law Judge Ted Mann, Office of Administrative Hearings. Donald Erwin, Attorney at Law, appeared on behalf of the Los Angeles Unified School District . Maria Ortiz, Student’s Mother, appeared on behalf of herself and Student (collectively, Student)
The PHC was recorded. The proceedings were interpreted for Mother by Victor Ramos, a Spanish interpreter.
An Order to Show Cause was scheduled concurrently with the prehearing conference.
The Order to Show Cause was addressed first. Student established good cause for both the failure to attend the prior PHC of March 9, 2015, as well as Student’s failure to file and serve a PHC statement, witness list, or evidence list prior to the March 9, 2015, PHC or the March
27, 2015, PHC
Based on discussion of the parties, the ALJ issues the following order:
1. Hearing Dates, Times, and Location. The hearing shall take place on
Tuesday, April 14, 2015 and Wednesday, April 15, 2015, at OAH, located at 15350 Sherman Way, Suite 300, Van Nuys, CA, 91406. The hearing shall begin at 9:30 a.m. the first day of the hearing 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 and Proposed Resolutions. The issue to be heard at the due process
hearing is listed below.
Did the District deny Student a free appropriate public education in the November 12, 2014 IEP by not offering a 1:1 aide for Student?
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 represent that they have served their evidence binders on each other in compliance with Education Code section 56505, subdivision (e)(7), or that the evidence lists and binders will be served on the opposing party no later than five (5) business days prior to the hearing. 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. The parties are to exchange final witness lists five days before
hearing in accordance with Education Code section 5605, subdivision (e) (7). 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 final witness list except for good cause shown, supported by written declaration under penalty of perjury, and at the discretion of the ALJ.
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.
The parties shall attempt to reach agreement on a witness list for the first day of hearing. The District shall have witnesses available in case agreement on a witness list is not reached. The parties shall be prepared at the end of each day of hearing to discuss the witnesses to be presented the next day and the time the testimony of each such witness is expected to take.
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, at the discretion of the ALJ.
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. Unless otherwise ordered, the witness shall testify while alone in a private room and on a land-line. No witness will be heard by telephone unless all these requirements have been fulfilled.
7. Order of Presentation of Evidence. As the party requesting a due process
hearing, Student will present his evidence first.
8. Motions. No 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 PHC of March 27, 2015.
9. Stipulations. Stipulations to pertinent facts, contentions or resolutions are
encouraged. Any proposed stipulation shall be submitted to the assigned ALJ in written form.
10. 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.
11. 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.
12. 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.
A party or participant to this case, such as a witness, who requires reasonable accommodation to participate in the hearing may contact the assigned calendar clerk at (916) 263-0880, or the OAH ADA Coordinator at OAHADA@dgs.ca.gov or (916) 263-0880 as soon as the need is made known. Additional information concerning requests for reasonable accommodation is available on OAH’s website at http://www.dgs.ca.gov/oah/Home/Accommodations.aspx.
13. Hearing Open/Closed To the Public. At the request of Mother, the hearing
will be closed to the public.
14. 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.
15. Failure to comply with this order may result in the exclusion of evidence or
other sanctions.
IT IS SO ORDERED.
DATE: March 27, 2015
/S/
TED MANN
Administrative Law Judge Office of Administrative Hearings