California OAH special education order · August 21, 2015
Order Following Pre-Hearing Conference
OAH Case No. 2015060909 · ALJ Alexa J. Hohensee
OAH set a September 1, 2015 hearing on one issue: whether District's January 2015 speech and language assessment was inappropriate, entitling Student to an independent evaluation at public expense. OAH also granted Student's request to audio record.
This case went to decision
Student v. Los Angeles Unified School District: Los Angeles Unified did not unnecessarily delay its response to a parent's speech-language IEE request; all relief denied. (2015)
Summary
After a telephonic prehearing conference, the ALJ set the hearing for September 1-2, 2015, in Van Nuys. The sole issue is whether District's January 2015 speech and language assessment was inappropriately conducted, so that Student is entitled to an independent educational evaluation (IEE) at public expense. Student also seeks an IEP meeting to review the IEE and compensatory speech services. The ALJ granted Student's motion to let both parties audio record the hearing, with strict conditions on use, and deferred Student's motion to exclude witnesses from the hearing room until the first hearing day.
Why it matters
Parents challenging a district assessment can narrow the case to the single IEE question. Parties may be allowed to make their own audio recordings of the hearing, but only for that case and under tight limits on use and destruction.
Key authority cited
- Ed. Code § 56505(e)(7)
- Ed. Code § 56505(e)(8)
- Ed. Code § 56505.1(h)
- Cal. Code Regs., tit. 5, § 3082(g)
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. 2015060909 v. ORDER FOLLOWING PRE-HEARING
CONFERENCE
LOS ANGELES UNIFIED SCHOOL
DISTRICT.
On August 21, 2015, a telephonic prehearing conference was held before Administrative Law Judge Alexa J. Hohensee, Office of Administrative Hearings. Jennifer Guze Campbell, Attorney at Law, appeared on behalf of Student. Patrick J. Balucan, Attorney at Law, appeared on behalf of Los Angeles 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 shall take place on September 1-2,
2015, and continuing day to day, Monday through Thursday as needed at the discretion of the ALJ. The hearing shall begin each day at 9:00 a.m. and end at 4:30 p.m., with the exception of the first day of hearing, on which day the hearing shall begin at 9:30 a.m., unless otherwise ordered.
The hearing shall take place at the office of OAH located at 15350 Sherman Way, Suite 300, Van Nuys, California 91406. OAH facilities fully comply 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 Resolutions. The sole issue at the due process hearing is
listed below:
(1) Was District’s January 2015 speech and language assessment inappropriately conducted such that Student is entitled to an independent educational evaluation at public expense? As remedies, Student seeks an order (i) finding District’s assessment was inappropriate, (ii) requiring District to provide an IEE of Student in the area of speech and language at public expense, (iii) requiring District to hold an individualized education program team meeting within 30 days to review the IEE, and (iv) compensatory speech and language services for District having impeded Parent’s opportunity to participate in the decision making process.
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. Each party shall serve an exhibit binder containing its respective exhibits on the other party by 5:00 p.m. on August 25, 2015, 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.
The parties shall meet and confer by 5:00 p.m. on Wednesday, August 26, 2015, to eliminate duplicate exhibits from the exhibit binders. Duplicate exhibits and tabs should be removed from all binders prior to the first day of hearing. Exhibits do not need to be re- numbered after duplicates are removed. The parties are encouraged, if the total number of documents is not too large, to place the exhibits for both parties into one binder. Each exhibit shall consist of one document; separate documents may not be combined into one exhibit.
The parties shall exchange resumes or curriculum vitae for each witness who is expected to testify as to their professional credentials. Notwithstanding the requirements of Education Code section 56505, subd. (e)(7), the parties shall exchange resumes not later than 24 hours before the witness is scheduled to testify.
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. Education Code section 56505, subd. (e)(8), affords each party the right to prohibit the introduction of any evidence at the hearing that has not been disclosed at least five days before 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 to the other party. The parties shall schedule their witnesses to avoid delays in the hearing and to minimize or eliminate the need for calling witnesses twice or out of order. Neither party shall be permitted to call any witnesses not disclosed in the party’s prehearing conference statement and listed below, except for good cause shown, supported by written declaration under penalty of perjury, and at the discretion of the ALJ. Education Code section 56505, subd. (e)(8), affords each party the right to prohibit the introduction of any evidence at the hearing that has not been disclosed at least five days before the hearing.
On the first day of hearing before the first witness testifies, the parties shall provide the ALJ with one joint detailed hour-by-hour schedule of all witnesses expected to testify at hearing, which list shall also include an estimate of time for each party’s direct and cross- examination.
The parties are ordered to meet and confer by 5:00 p.m. on Wednesday, August 26, 2015, as to the schedule of witnesses. The parties shall coordinate the availability and order of testimony of witnesses to ensure that there is a witness available to testify at all times during the hearing, and to ensure that the hearing is completed as scheduled. The parties shall prepare a joint witness schedule prior to the first day of hearing, identifying the witnesses each party intends to call, as opposed to witnesses the party may call, depending on the flow of the hearing and the evidence, with an estimate of the duration of each witness’s direct, cross, re-direct and re-cross testimony. The ALJ will finalize the witness schedule, and will revisit the schedule at the beginning and end of each hearing day. Counsel shall meet and confer each day of hearing to revise the witness schedule as needed.
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 ALJ has discretion to limit the number of witnesses who testify and the time allowed for witnesses’ testimony.
Education Code, section 56505.1, subd. (h), empowers the ALJ presiding at a due process hearing to set a reasonable limit on the length of the hearing after consideration of all of the following: (i) issues to be heard, (ii) complexity of facts to be proven, (iii) ability of the parties or their representatives to present their respective cases, and (iv) estimates of the parties as to the time needed to present their respective cases.
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. Timely Disclosure of Witnesses/Exhibits. Education Code section 56505,
subdivision (e)(7), provides for disclosure of witnesses and exhibits “at least” five business days prior to the hearing.
8. Order of Presentation of Evidence. Student shall present his evidence first,
followed by District. The order in which the parties present their cases in chief shall be such that each witness need appear only once, so the parties shall be required to establish their cases in chief during the first appearance of a witness.
9. Motions. Student’s motion to audio record the hearing was granted, with both
parties permitted to audio record the hearing subject to the following conditions: (1) The parties shall turn on and off the recording device at the same time that the ALJ is on and off the record, in order to avoid recording conversations while off the record; (2) the parties shall not play any part of the recording for a prospective witness; (3) the parties shall not publish or play any part of the recording for any purpose other than assisting in the representation and presentation of this due process hearing; (4) the parties will erase, or otherwise destroy, the recording after the hearing and all opportunities for appeal from any decision herein has been exhausted; and (5) the parties shall not use this recording in any subsequent due process hearing. The recording is not the official record and is permitted as a courtesy. The operation of the party’s recording mechanism will not be allowed to delay the hearing Student’s motion that all witness testifying at the hearing be barred from the hearing room during testimony, except parents, was deferred to the first day of hearing. Student expects to make motions in limine to (i) limit conversations between counsel and witnesses during breaks in the hearing, and (ii) for a finding that the conversations between counsel and witnesses is not subject to the attorney/client privilege. District expects to move to quash Student’s subpoena duces tecum, and to move for sanctions.
Any prehearing motion filed after this date shall be supported by a declaration under penalty of perjury establishing good cause why the motion was not made prior to or during the PHC of August 21, 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.
16. Failure to comply with this order may result in the exclusion of evidence or
other sanctions.
IT IS SO ORDERED.
DATE: August 21, 2015
/ S/
ALEXA J. HOHENSEE
Administrative Law Judge Office of Administrative Hearings