Order Following Prehearing Conference

BEFORE THE

OFFICE OF ADMINISTRATIVE HEARINGS

STATE OF CALIFORNIA

In the Matter of:

PALO ALTO UNIFIED SCHOOL OAH Case No. 2015010524

DISTRICT,

ORDER FOLLOWING PREHEARING

v. CONFERENCE

PARENT ON BEHALF OF STUDENT.

On February 2, 2015, a telephonic prehearing conference (PHC) was held before Administrative Law Judge B. Andrea Miles, Office of Administrative Hearings. Lenore Silverman appeared on behalf of Palo Alto Unified School District. Student’s parents chose not to participate in the hearing. 1 The PHC was recorded.

Based on discussion with Palo Alto, the ALJ issues the following orders:

1. Hearing Dates, Times, and Location. The hearing shall take place at 25

Churchill Avenue, Palo Alto on February 18, 2014 at 9:30 AM. Palo Alto indicated that only one day of hearing will be needed for presentation of its case. However, in the event that additional time is needed to complete the hearing, the hearing shall continue day to day, Monday through Thursday, at the discretion of the ALJ. Palo Alto shall ensure that the facility for the hearing 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 provide the hearing date to proposed witnesses, and shall subpoena witnesses if necessary, to ensure their availability. Failing to properly notify or subpoena a witness does not constitute good cause for their unavailability.

2. Issue and Proposed Resolutions. The issue below was discussed at the PHC

and reworded for clarity:

Prior to the start of the PHC, the ALJ spoke with Student’s mother. Student’s mother indicated that she and Student’s father were aware of the PHC, but they were electing not to participate in the PHC or the due process hearing.

Issue: Whether Student is no longer eligible for special education services as student with a speech or language impairment? Proposed Resolutions: Palo Alto is seeking an order finding that Student is no longer eligible for special education as a student with a speech or language impairment, and allowing Palo Alto to exit her from special education over parents’ objection.

3. Exhibits. Exhibits shall be pre-marked and placed in three-ring exhibit

binders prior to the hearing. The parties shall number exhibits in a way that clearly identifies the party offering the exhibit (for example “S-1” for Student or “D-1” for District). All pages of a party’s exhibit binder shall be consecutively numbered. Each exhibit will consist of only one document (for example, an individualized education program shall have its own exhibit rather than a single exhibit for all IEP’s). Each exhibit binder shall contain a detailed table of contents. At the hearing, each party shall supply an exhibit binder containing its exhibits for the ALJ, and a second exhibit binder for the 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.

Each party is expected to comply with Education Code section 56505, subdivision (e)(7) and timely serve an exhibit binder containing its respective exhibits on the other party.

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 will not be admitted into evidence at the hearing unless it is supported by a written declaration under penalty of perjury, and the ALJ rules that it is admissible.

4. Witnesses.

a) Each party is responsible for procuring their own witnesses; however, the parties shall make witnesses under its control reasonably available to the other party.

Witnesses shall be scheduled in a way that avoids delays and minimizes or eliminates having to call a witness twice or out of order.

b) The parties should meet and confer regarding scheduling of witnesses. The proposed schedule will be presented to the ALJ at the beginning of the hearing. Prior to commencing the hearing, the ALJ and the parties will discuss the proposed witness schedule and address scheduling issues for individual witnesses, before the schedule is finalized. The ALJ has discretion to limit the number of witnesses and the length of their testimony.

5. Scope of Witness Examination. After the first direct and cross-examinations,

each party will be permitted to question the witness on matters raised in the immediately preceding examination. Parties shall be required to establish their cases in chief (conducting both direct and cross) so that each witness only appears once.

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.

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. Palo Alto does not anticipate the need for telephonic testimony.

7. Electronic Recording of Hearing.

a. Audio Recording. At present, neither party intends to record the hearing. If a

request is made, the following conditions will apply to any recording: 1) that OAH’s recording is the only official recording; 2) that the recorder will be turned on and off at the same time as the ALJ’s recording, to avoid recording conversations while off the record; and 3) that the operation of the party’s recording mechanism will not be allowed to delay the hearing.

b. Video Recording. No party, witness or anyone else present may make any

video recording of any part of the proceedings. Any person doing so shall be subject to sanctions.

8. Motions. No motions are currently pending or anticipated. Any motion filed

after the prehearing conference must be accompanied by a showing of good cause as to why the motion was not made prior to the prehearing conference.

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 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.

Ms. Silverman requested to be allowed to keep her cellular phone accessible from 11:30 AM to 1:30 PM on February 18, 2015, in order to be able to answer an important telephone call regarding a medical appointment. Ms. Silverman’s request was granted. In the event that Ms. Silverman receives a call regarding her medical appointment, a brief recess will be taken so that Ms. Silverman will be able answer her call.

11. Special Needs and Accommodations. At present neither party indicated a need

for any special accommodation for any witness or party. 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, the OAH ADA Coordinator at OAHADA@dgs.ca.gov or 916-263-0880 as soon as the need is made known. Additional information concerning a request for reasonable accommodation is available on OAH’s website at http://www.dgs.ca.gov/oah/Home/Accommodations.aspx.

12. Hearing Closed To the Public. The hearing will be closed to the public, unless

Student requests to have the hearing opened to the public.

13. Settlement. The parties are encouraged to continue their attempts 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. If a settlement is reached five days or fewer than five days before the due process hearing is scheduled to begin, the parties shall, in addition, immediately inform OAH of that fact by telephone at (916) 263-0880. IF A FULL AND FINAL SETTLEMENT IS

REACHED AFTER 5:00 P.M. THE BUSINESS DAY PRIOR TO HEARING, THE

PARTIES SHALL LEAVE A VOICEMAIL MESSAGE REGARDING THE

SETTLEMENT AT (916) 274-6035, AND SHALL ALSO LEAVE CELLULAR PHONE

NUMBERS OF EACH PARTY OR COUNSEL FOR EACH PARTY.

Dates for hearing will not be vacated until OAH receives a letter of withdrawal, or those portions of the signed agreement withdrawing the case, with signatures. 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.

14. Failure to comply with this order may result in the exclusion of evidence or

other sanctions.

IT IS SO ORDERED.

DATE: February 9, 2015

/ S/

B. ANDREA MILES

Administrative Law Judge Office of Administrative Hearings