California OAH special education order · May 5, 2015
Order Following Prehearing Conference
OAH Case No. 2015030732 · ALJ Susan Ruff
OAH set Poway's case defending two 2014 assessments against an independent evaluation request for hearing on May 13, 2015, and allowed Student's expert, Dr. Jill Weckerly, to testify by phone.
This case went to decision
Poway Unified School District v. Student: Poway Unified's psychoeducational and academic assessments upheld; District need not fund independent evaluations for 10-year-old with autism. (2015)
Summary
After a telephonic prehearing conference with Poway's attorney and Student's father, the ALJ set the hearing for May 13–14, 2015, at the District's offices. The issues are whether Poway's April 2014 psychological and academic skills assessments were appropriate, so that Student is not entitled to independent educational evaluations at public expense. The ALJ granted Student's request for Dr. Jill Weckerly to testify by telephone. Student's father must give her a copy of Poway's exhibit binder before she testifies. At the parent's request, the hearing was opened to the public.
Why it matters
Parents representing themselves can rely on the district's exhibit binder and can ask in advance for an expert to testify by phone. The parent must make sure a phone witness has the exhibits before testifying.
Key authority cited
- Cal. Code Regs., tit. 5, § 3082, subd. (g)
People named in the order
- Ms. Klock, District witness
- Ms. Felker, District witness
- Ms. Howard, District witness
- Dr. Jill Weckerly, Student's witness (telephonic)
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:
POWAY UNIFIED SCHOOL DISTRICT, OAH Case No. 2015030732 v. ORDER FOLLOWING PREHEARING
CONFERENCE
PARENTS ON BEHALF OF STUDENT.
On May 4, 2015, a telephonic prehearing conference was held before Administrative Law Judge Susan Ruff, Office of Administrative Hearings. Justin Shinnefield, Attorney at Law, appeared on behalf of the Poway Unified School District. Student’s father appeared on behalf of Student. The PHC 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 13,
and 14, 2015, and continuing day to day thereafter, Monday through Thursday, as needed at the discretion of the ALJ. The hearing shall begin at 9:30 a.m. each day, unless otherwise ordered.
The hearing shall take place at the District’s offices located at:
15250 Avenue of Science San Diego, CA 92128 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 and Proposed Resolution. The issues at the due process hearing are
listed below.
a) Was Poway’s psychological assessment dated April 23, 2014, appropriately conducted, such that Student is not entitled to an independent educational evaluation at public expense? b) Was Poway’s academic skills assessment dated April 11, 2014, appropriately conducted, such that Student is not entitled to an independent educational evaluation at public expense? Poway’s proposed resolution is a finding that the two assessments were appropriately conducted and that Student is not entitled to an independent educational evaluation at public expense.
3. Exhibits. Poway’s exhibits shall be pre-marked and placed in a three-ring
exhibit binder prior to the hearing. The exhibit binder shall contain a detailed table of contents. Each of Poway’s exhibits shall be paginated, either internally by exhibit, or consecutively paginated, for example by Bates-stamping.
During the PHC, Student’s father stated that Student will be relying on Poway’s exhibit list for the hearing. However, should Student’s father believe that any other exhibits are necessary for the hearing, he will immediately provide Poway’s attorney with a copy of those exhibits and shall bring copies to the hearing.
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.
Poway plans to call the following witnesses in its case-in-chief: Ms. Klock, Ms. Felker, and Ms. Howard. Student plans to call Dr. Jill Weckerly, but may call additional witnesses, if Poway calls more witnesses than the three mentioned in this paragraph.
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.
Student’s motion to allow Dr. Jill Weckerly to testify telephonically is granted. If Dr. Weckerly will be testifying telephonically, Student’s father shall provide her with a copy of the binder containing all of Poway’s exhibits prior to the hearing. Poway shall ensure that the hearing room has sound equipment that allows everyone in the room to hear the witness.
7. Motions. No pretrial motions are pending or contemplated by either party.
8. Stipulations. Stipulations to pertinent facts, contentions or resolutions are
encouraged. Any proposed stipulation shall be submitted to the assigned ALJ in written form.
9. 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. There shall be no audio or video recording of any type or any photography during the hearing without the express permission of the ALJ hearing the case.
10. 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 case manager 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
11. Hearing Open To the Public. At the request of the parent, the hearing will be
open to the public.
12. 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.
13. Failure to comply with this order may result in the exclusion of evidence or
other sanctions.
IT IS SO ORDERED.
DATE: May 5, 2015
/ S/
SUSAN RUFF
Administrative Law Judge Office of Administrative Hearings