California OAH special education order · May 18, 2015
Order Following Prehearing Conference
OAH Case No. 2015010890 · ALJ Ted Mann
OAH set District's case defending its 2014 assessments for hearing on May 26–28, 2015, and allowed one District witness to testify by phone.
This case went to decision
Capistrano Unified School District v. Student: Capistrano Unified's case defending its assessments dismissed as moot after Parents withdrew their IEE requests on the hearing day. (2015)
Summary
After a telephonic prehearing conference, the ALJ framed one issue for hearing. The issue is whether District's July 28, 2014 multidisciplinary assessments, as supplemented by October 1, 2014 addendum testing, were appropriate, which would mean District does not have to fund independent educational evaluations. The order set hearing dates, exhibit and witness rules, and the order of evidence, with District bearing the burden of proof. It also granted District's request to let witness Aileen Deogracias testify by telephone. District must give her complete exhibit binders, provide adequate sound equipment, and ensure she testifies from a private location.
Why it matters
When a parent asks for an independent educational evaluation, the district must prove its own assessment was appropriate. A witness may testify by phone only if the requesting side meets strict conditions, such as giving the witness complete exhibit binders.
Key authority cited
- Ed. Code § 56505, subd. (e)(7)
- Cal. Code Regs., tit. 5, § 3082, subd. (g)
People named in the order
- Aileen Deogracias, District witness (permitted to testify by telephone)
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:
CAPISTRANO UNIFIED SCHOOL OAH Case No. 2015010890
DISTRICT,
ORDER FOLLOWING PREHEARING
v. CONFERENCE
PARENT ON BEHALF OF STUDENT.
On Monday, May 18, 2015, a telephonic prehearing conference was held before Administrative Law Judge Ted Mann, Office of Administrative Hearings. Ernest Bell, Attorney at Law, appeared on behalf of Capistrano Unified School District. Phillip VanAllsburg, Attorney at Law, appeared on behalf of Student. The prehearing conference 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 May 26,
27, and 28, 2015, continuing day to day as needed at the discretion of the ALJ, at the District’s offices located at 33122 Valle Road, San Juan Capistrano, CA, 92675. The hearing shall begin at 1:30 p.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 at the due process hearing is:
Whether the July 28, 2014 multidisciplinary assessments, as supplemented by the October 1, 2014 addendum testing, were appropriate and met the requirements of applicable federal and state laws.
District seeks an order that the assessments were appropriate such that District is not obligated to provide independent educational evaluations of Student 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. The parties shall serve 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 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.
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.
District’s motion to allow Aileen Deogracias to testify telephonically is granted.
District shall provide the witness with a complete exhibit binder from each party, 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 shall arrange for the testimony to be taken in a private location with no other persons present.
7. Timely Disclosure of Witnesses/Exhibits The parties timely disclosed
witness and exhibit lists.
8. Order of Presentation of Evidence. The order of presentation of evidence shall
be as follows: District has the burden of proof and shall call witnesses and introduce exhibits as appropriate. If a witness is to be called by more than one party, then the testimony from such a witness shall be obtained by both sides in consecutive order, beginning with the District, and continuing until questioning of a particular witness is concluded.
9. Motions. Other than the request for telephonic appearance for one District
witness, 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 of Monday, May 18, 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. 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. 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, 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 requests for reasonable accommodation is available on OAH’s website at http://www.dgs.ca.gov/oah/Home/Accommodations.aspx.
14. Hearing Closed To the Public. The hearing will be closed 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.
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.
16. Failure to comply with this order may result in the exclusion of evidence or
other sanctions.
IT IS SO ORDERED.
DATE: May 18, 2015
/ S/
TED MANN
Administrative Law Judge Office of Administrative Hearings