California OAH special education order · February 9, 2015
Order Following Pre-Hearing Conference
OAH Case No. 2015010327 · ALJ Ted Mann
OAH held the prehearing conference without Parent and set District's case to defend its occupational therapy assessment for a February 17, 2015 hearing. Parent was on vacation, and repeated calls reached only a full voicemail.
This case went to decision
South Whittier School District v. Student: South Whittier School District's occupational therapy assessment upheld; it need not fund an independent OT evaluation for a preschooler. (2015)
Summary
District filed for due process to show that its occupational therapy assessment was appropriate, so that Student is not entitled to an independent educational evaluation at public expense. Parent did not appear at the telephonic prehearing conference. The ALJ and OAH staff called Parent several times, but the voicemail was full; Parent later called to say he was on a family vacation. The ALJ went ahead with only District's counsel present. The order set the hearing to start February 17, 2015, at District's offices, and gave rules for exhibits, witnesses, and disclosure deadlines. It also ordered Parent to meet and confer with District about exhibits and witnesses.
Why it matters
If a parent misses the prehearing conference, OAH can still frame the issues and set hearing rules without the parent's input. Parents defending a district's assessment-defense case should attend, or arrange to be reachable, so their witnesses and exhibits are properly disclosed.
Key authority cited
- Ed. Code, § 56505, subd. (e)(7)
- 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:
SOUTH WHITTIER ELEMENTARY OAH CASE NO. 2015010327
SCHOOL DIST,
ORDER FOLLOWING PRE-HEARING
v. CONFERENCE
PARENT ON BEHALF OF STUDENT.
On Monday, February 9, 2015, a telephonic prehearing conference was held before Administrative Law Judge Ted Mann, Office of Administrative Hearings. Darin Barber, Esq., Attorney at Law, appeared on behalf of South Whittier School District (District). The PHC was recorded.
There was no appearance on Student’s behalf. Parent filed a PHC statement with OAH but did not identify potential witnesses or exhibits. Numerous calls were placed by both the ALJ and by OAH Staff to Parent on the day of the PHC. In each instance the Parent was unavailable at the number provided by Parent, and the call went directly to voicemail.
Parent’s voicemail was full and the ALJ was unable to leave a message. Parent called OAH at 1:16 p.m. and indicated that he had received notice of the PHC hearing, he was on a family vacation at Disneyland, and he was not available to participate in the PHC. Reasonable efforts having been made to contact Parent, the PHC proceeded without a representative on behalf of Student.
Based on discussion with District’s counsel, the ALJ issues the following order:
1. Hearing Dates, Times, and Location. The hearing shall take place on
Tuesday, February 17, 2015, and shall continue day to day, Monday through Thursday as needed at the discretion of the ALJ. The hearing shall take place at the District’s offices located at 8036 S. Ocean View Ave., Whittier, CA, 90602. The hearing shall begin each day at 9 a.m. and end at 4:30 p.m. with the exception of the first day of hearing, on which day the hearing shall begin at 1:30 p.m. and end at 5:00 p.m.
The school district shall provide a facility for the hearing that fully complies with the Americans with Disabilities Act of 1990 (42 U.S.C. § 12101 et seq.), the Rehabilitation Act of 1973 ( 29 U.S.C. § 794 .), the Unruh Civil Rights Act (Civ. Code, § 51 et seq.), and all laws governing accessibility of government facilities to persons with disabilities.
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 sole issue at the hearing is:
Was District’s occupational therapy assessment appropriate, such that Student is not entitled to an independent educational evaluation at public expense.
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. Individually dated exhibits shall be separately identified. 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 shall not serve exhibits on OAH prior to the hearing.
Parent did specifically identify potential exhibits in the PHC statement. Parent is ordered to meet and confer with District’s counsel regarding exhibits, and to identify and produce to District any exhibits not listed in District’s PHC statement that they intend to offer into evidence. Both parties shall exchange exhibits at least five business days before the first day of hearing. (Ed. Code, § 56505, subd. (e)(7).)
The parties shall also meet and confer before the first day of hearing in order to delete duplicate exhibits from the exhibit binders and to consolidate exhibits where possible. The parties shall not serve exhibits on OAH prior to the hearing.
The parties shall exchange resumes or curriculum vitae for each witness who is expected to testify as to their professional credentials. Notwithstanding the requirements of Education Code section 56505, subd. (e)(7), the parties shall exchange resumes not later than 24 hours before the witness is scheduled to testify.
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.
Parents are ordered to meet and confer with District’s counsel regarding witnesses, and to identify to District any witnesses they intend to call at hearing, including their general area of testimony, not listed in District’s PHC statement. Except solely for rebuttal or impeachment purposes, neither party shall be permitted to call any witnesses not disclosed in the party’s prehearing conference statement or to the other party at least five business days prior to the hearing except for good cause shown, supported by written declaration under penalty of perjury, and at the discretion of the ALJ. (Ed. Code, § 56505, subd. (e)(7).)
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.
Prior to the commencement of the due process hearing, the ALJ and the parties will discuss the length of time anticipated for cross-examination of each witness and scheduling issues for individual witnesses, and the ALJ will finalize the witness schedule. The ALJ has discretion to limit the number of witnesses who testify and the time allowed for witnesses’ testimony. The District shall have witnesses available in case agreement on a witness list is not reached.
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. 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. The OAH order of January 12, 2015, specifically ordered the production of lists of all witnesses/documents by an earlier date, to wit: at least three business days prior to this PHC.
8. Order of Presentation of Evidence. The District shall present its case first as it
has the burden of proof as the party filing for a due process hearing.
9. 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 prehearing conference of Monday, February 9, 2015.
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. Special Needs and Accommodations. At present neither party has advised
OAH that it 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, requiring 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 Closed To the Public. In the absence of a request by Parent to the
contrary, 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.
If the matter settles subject to board approval, in addition to a signed copy of the signature page of the settlement agreement as noted above, the parties shall submit a request for a status conference and provide the date of the next board meeting. The hearing dates will not be cancelled without this information.
15. Failure to comply with this order may result in the exclusion of evidence or
other sanctions.
IT IS SO ORDERED.
DATE: February 09, 2015
/ S/
TED MANN
Administrative Law Judge Office of Administrative Hearings