California OAH special education order · May 29, 2015
Order Following Prehearing Conference
OAH Case No. 2015030347 · ALJ Joy Redmon
OAH set a June 2015 hearing on whether Manhattan Beach denied FAPE by not implementing the IEP placement, and kept Student's framing of the issue while treating the District's funding argument as an affirmative defense.
This case went to decision
Student v. Manhattan Beach Unified School District: On remand, Manhattan Beach Unified must reimburse parents $8,314.89 for nonpublic school tuition and residential-placement travel costs. (2020)
Summary
After a prehearing conference, OAH set the hearing for June 8 through 10, 2015, at the District's offices. The single issue is whether Manhattan Beach denied Student a FAPE by failing to implement the November 10, 2014 IEP placement at TLC and Journey. Student asks for funding of that placement and $2,288 in travel reimbursement. Manhattan Beach argued the dispute was really about who must legally fund the placement, not a FAPE denial. The ALJ ruled that Student may plead the issue as Student chooses and treated the District's position as an affirmative defense it may present at hearing. OAH also granted Student's unopposed request for telephonic testimony from northern California witnesses, allowed both parties to audio-record the hearing, and closed the hearing to the public at Student's request.
Why it matters
The party filing for due process controls how its issue is framed. A district's argument that someone else must pay for an IEP placement does not change the issue, though the district can still argue it at hearing as a defense.
Key authority cited
- Ed. Code § 56505(e)(7)
- 42 U.S.C. § 12101 et seq.
- 29 U.S.C. § 794
- Civ. Code § 51 et seq.
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. 2015030347 v. ORDER FOLLOWING PREHEARING
CONFERENCE
MANHATTAN BEACH UNIFIED
SCHOOL DISTRICT.
On May 29, 2015, a telephonic prehearing conference was held before Administrative Law Judge Joy Redmon, Office of Administrative Hearings. Attorney David Grey appeared on Student’s behalf. Attorney Chris Fernandes appeared on Manhattan Beach Unified School District’s behalf. The PHC was recorded.
Based upon discussion with the parties the following orders are issued:
1. Hearing Dates, Times, and Location. The hearing shall take place at
Manhattan Beach Unified School District’s offices located at 325 South Peck Avenue, Manhattan Beach, CA 90266. It is scheduled for June 8, 2015, from 1:30 p.m. to 5:00 p.m., June 9, 2015, and June 10, 2015, from 9:00 a.m. to 5:00 p.m. 1 The hearing will continue day-to-day Monday through Thursday as needed and at the discretion of the ALJ.
Manhattan Beach 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 hearing dates 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.
June 11, 2015, was eliminated as a hearing day because the original estimates contemplated other respondents that have been dismissed from the case.
Issue: Did Manhattan Beach deny Student a free appropriate public education by failing to implement the November 10, 2014, IEP regarding placement at TLC and Journey? 2 Proposed Resolution: Student seeks an order requiring Manhattan Beach to implement the November 10, 2014, IEP and fund placement at TLC and Journey from December 1, 2014, through the expiration of the IEP; reimburse the family $2,288 for travel expenses to and from TLC; and additional remedies deemed appropriate by the ALJ.
2. 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. The exhibits should consist of one document or short series of documents that are related (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 only be admitted if the ALJ rules that it is admissible.
3. Witnesses.
a) Each party is responsible for procuring their own witnesses; however, the parties shall make witnesses under their 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 are ordered to meet and confer to develop a proposed joint witness schedule. 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.
Manhattan Beach asserted that the issue is not one of a denial of FAPE because there is no dispute that it has not implemented the IEP. Rather, Manhattan Beach asserted the issue involves a question of who is legally obligated to fund Student’s placement. This ALJ determined that Student is entitled to plead the issue to be decided and that Manhattan Beach’s assertion is deemed an affirmative defense. Manhattan Beach will be entitled to present evidence regarding its position during the hearing.
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. Student will present his case first followed by Manhattan Beach.
6. Telephonic Testimony. A party must ask in advance if it intends to present a
witness via telephone; if granted, the party shall provide the proposed witness with a complete set of exhibit binders from all parties, 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. Student requested to have witnesses from northern California testify telephonically. Manhattan Beach did not oppose the request. The request was granted subject to the evidentiary requirements outlined above.
7. Electronic Recording of Hearing.
a. Audio Recording. At present, both parties asked to record the hearing. The
request was granted with the following conditions: 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; 3) that the operation of the party’s recording mechanism will not be allowed to delay the hearing; and 4) that the recording will not be shared with any individuals outside of the hearing room during 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 pending or anticipated prior to hearing. 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. Compensatory Education and Reimbursement. Any party seeking expense
reimbursement shall present admissible evidence of these expenditures, or a stipulation to the amount, as part of its case in chief. Any party seeking compensatory education shall provide evidence regarding the type, amount, duration, and need for any requested compensatory education.
11. 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.
12. Special Needs and Accommodations. At present neither party anticipates the
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.
13. Hearing Closed To the Public. At Student’s request the hearing will be closed
to the public.
14. 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.
15. Failure to comply with this order may result in the exclusion of evidence or
other sanctions.
IT IS SO ORDERED.
DATE: May 29, 2015
/ S/
JOY REDMON
Administrative Law Judge Office of Administrative Hearings