Order Following Prehearing Conference

BEFORE THE

OFFICE OF ADMINISTRATIVE HEARINGS

STATE OF CALIFORNIA

In the Matter of:

PARENTS ON BEHALF OF STUDENT, OAH CASE NO. 2015050300

v. ORDER FOLLOWING PREHEARING

CONFERENCE

LOS ALAMITOS UNIFIED SCHOOL

DISTRICT.

On June 12, 2015, a telephonic prehearing conference was held before Administrative Law Judge Paul H. Kamoroff, Office of Administrative Hearings. James D. Peters, paralegal, appeared on behalf of Parents on behalf of Student. Tracy P. Johnson, Attorney at Law, appeared on behalf of the Los Alamitos Unified School District. 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 June 23,

24, 25, 30, and July 1 and 2, 2015, and continuing day by day thereafter, Monday through Thursday, at the discretion of the ALJ. The hearing shall begin at 9:30 a.m. on the first day, and at 9:00 a.m. on each subsequent day, unless otherwise ordered. The hearing shall take place at District’s offices located at 10293 Bloomfield Street, Los Alamitos, CA 90720.

District shall ensure that the hearing room is configured into a courtroom setting and shall have at a minimum 1) a table for Student and his representatives; 2) a table for District’s legal representative and special education representative; 3) a table for the witness;

and 4) a table for the ALJ, near an electrical outlet. District shall provide drinking water and tissue to all parties, witnesses and the ALJ. The same hearing room shall be used for each day of hearing and shall be available at least one hour prior to the commencement of the hearing each day. The hearing room shall be locked following the hearing each night.

District shall also ensure that there is parking available for Student’s parents and representative, District’s representative, the ALJ, and witnesses.

District shall provide a facility for the hearing that fully complies with the Americans with Disabilities Act of 1990 (42 U.S.C. § 1210 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 Resolutions. The issues at the due process hearing, and

proposed resolutions, are listed below.

a) Whether District denied Student a free appropriate public education during the 2013-2014 school year, beginning September 1, 2013, and extended school year, and 2014- 2015 school year, by:

i) Failing to offer Lindamood Bell services for language, language processing, literacy, and memory development;

ii) Failing to offer an appropriate assessment plan;

iii) Failing to offer appropriate behavioral services;

iv) Failing to offer appropriate parent training specific to students with structural brain differences and related disorders;

v) Failing to offer an educationally related mental health services assessment to enable the development of an accurate functional behavior assessment;

vi) Failing to offer an appropriate functional behavior assessment;

vii) Failing to offer appropriate speech and language services;

viii) Failing to offer an appropriate academic placement;

ix) Failing to appropriately assess Student in the areas of psychoeducational development, vision therapy, physical therapy and auditory processing;

x) Failing to provide an appropriate applied behavior analysis trained school aide;

xi) Failing to develop appropriate goals;

xii) Failing to offer an appropriate applied behavior analysis home program;

xiii) Failing to offer appropriate occupational therapy services;

xiv) Failing to offer appropriate assistive technology;

xv) Failing to offer appropriate vision therapy;

xvi) Failing to offer auditory integration training therapy;

xvii) Failing to make an offer of FAPE at the February 5, 2015, and February 24, 2015 IEP meetings;

xviii) Failing to allow Student’s parents to meaningfully participate in the development of her IEP’s;

xix) Failing to offer appropriate physical therapy services; and xx) Failing to offer aqua-therapy? To remedy Student’s issues, she seeks education services provided by private agencies, compensatory education services, and reimbursement for privately funded educational services.

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 bates stamped. Each exhibit binder shall contain a detailed table of contents. The parties shall serve their 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 ordered to meet and confer by the close of business on June 16, 2015, regarding scheduling witness testimony. 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. 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.

7. Order of Presentation of Evidence. In an administrative proceeding, the

burden of proof is ordinarily on the party requesting the hearing. (Schaffer v. Weast (2005)

546 U.S. 49, 56-62 [126 S.Ct. 528, 163 L.Ed.2d 387].) Here, Student is the petitioning party.

Accordingly, Student shall present her case-in-chief, followed by District. If a witness is to be called by more than one party, each party shall ask questions of the witness so that the witness does not need to return for testimony.

8. Motions. Student’s request to audio record the hearing is granted subject to

the following: 1) OAH’s recording is the only official recording, unless otherwise ordered;

2) the recording will be turned on and off at the same time as the ALJ’s recording, to avoid recording conversations while off the record; 3) the audio recording may not be shared with the public in any manner or witnesses; and 4) operation of the party’s recording mechanism will not be allowed to delay the hearing. No party, witness or anyone else present may make any video recording of any part of the proceedings. Any person who does not comply with these instructions shall be subject to sanctions.

District’s request to limit the media’s presence by prohibiting video-taping of the hearing, and prohibiting witnesses and parties from discussing the hearing with any person from the media, until the matter is fully closed, is granted. District’s request for any person from the media to identify themselves to the ALJ during the hearing is denied.

No additional 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 June 12, 2015.

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 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.

11. 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.

12. Special Needs and Accommodations. At present, neither party anticipates

requiring any special needs or accommodations for this hearing.

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 the need is made known. Additional information concerning requests for reasonable accommodations is available on OAH’s website at htp.www.dgs.ca.gov/oah/Home/Accomodations.aspx.

13. Hearing Open to the Public. At the request of Parents, the hearing will be

open 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.

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

other sanctions.

IT IS SO ORDERED.

DATE: June 15, 2015

/ S/

PAUL H KAMOROFF

Administrative Law Judge Office of Administrative Hearings