Order Following Prehearing Conference; Order to Show Cause Why Case Should Not Be Dismissed

BEFORE THE

OFFICE OF ADMINISTRATIVE HEARINGS

STATE OF CALIFORNIA

In the Matter of:

PARENT ON BEHALF OF STUDENT, OAH Case No. 2015090860 v. ORDER FOLLOWING PREHEARING

CONFERENCE; ORDER TO SHOW

HEMET UNIFIED SCHOOL DISTRICT. CAUSE WHY CASE SHOULD NOT BE

DISMISSED

On February 12, 2016, a telephonic prehearing conference was held before Administrative Law Judge Paul H. Kamoroff, Office of Administrative Hearings. Student’s mother appeared on behalf of Student. Peter Sansom, Attorney at Law, appeared on behalf of the Hemet Unified School District. Leah Davis, District’s Director of Special Education, also appeared on behalf of District. The PHC was recorded.

Based upon discussion with the parties, the ALJ issues the following order:

1. Order to Show Cause: On October 30, 2015, the undersigned ALJ ordered that

Mother, if she is representing Student, who is an adult, must possess his education rights, which can be accomplished with Student transferring his educational rights to Mother, or submit an authorization from Student approving of her representation of him. Education Code section 56041.5 provides that when a student reaches the age of 18, the student’s educational rights transfer to the student. Student and Mother failed to comply with this OAH order, and Student failed to appear at the February 12, 2016 prehearing conference.

If the parent and local education agency have not resolved the due process complaint within 30 days of the receipt of the complaint, OAH is required to issue a decision within the next 45 days, unless a continuance is granted for good cause. (20 U.S.C. § 1415(f)(1)(B)(ii);

34 C.F.R. § 300.510 (2006); Ed. Code, § 56502, subd. (f).) Given the short time frames applicable to this case, it is critical that both parties follow orders issued by OAH and participate in advancing the matter to hearing. The burden of proof in this case is on Student.

Student’s failure to participate in the prehearing conference may indicate his intent to abandon his case. Absent receipt of notification from Student withdrawing his request for a hearing, or asking to dismiss his case, District faces investment of time and expenses in preparation for a hearing, and OAH is obligated to hold a hearing.

Student will be provided an opportunity to establish if he intends to go forward with this case, whether he has transferred his educational rights to his mother, or if his mother is authorized to represent him in this matter. As such, an Order to Show Cause is hereby issued for Student to establish that he intends to go forward with this case, whether he has transferred his educational rights to his mother, or if his mother is authorized to represent him in this matter, and why this matter should not be dismissed.

Therefore, Student is ordered to show cause in writing no later than February 18, 2016, at 5:00 p.m., why this matter should not be dismissed for failure to prosecute or advance the case for hearing, against District. Student shall address the questions of why he was not available for the February 12, 2016 prehearing conference, whether Student intends to proceed to a hearing in this matter, whether he has transferred his educational rights to his mother, or authorized his mother to act as his advocate for this matter. A copy of the response shall be served on counsel for District by mail and facsimile.

Should Student fail, without cause, to timely file a response as ordered above, OAH may dismiss this case without further notice.

2. Hearing Dates, Times, and Location. The hearing shall take place on

February 22 and 23, 2016, and continue day by day thereafter, Monday through Thursday, at the discretion of the ALJ. The hearing shall begin at 1:30 p.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 1791 West Acacia Avenue, Hemet, CA 92545.

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 et seq.), the Unruh Civil Rights Act (Civ. Code, § 51 et seq.), and all laws governing accessibility of government facilities to persons with disabilities. The named local educational agency shall certify that it will provide a facility for this case that complies with the law. The local educational agency shall inform OAH within two days of the date of this order it is able to certify that it will provide a facility that complies with the law.

Prior to the beginning of the hearing, 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 her 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 ensure that the hearing room and access to it are in compliance with the Americans with Disabilities Act.

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.

3. Issues and Proposed Resolutions. The issues at the due process hearing, and

the proposed resolutions, are listed below.

a. Whether District denied Student a free appropriate public education during

the 2013-2014 school year and extended school year, beginning September 11, 2013, and the 2014-2105 school year and extended school year, by:

i) Failing to provide Student an appropriate psycho-educational evaluation;

ii) Failing to offer appropriate behavior and academic support services;

iii) Failing to offer appropriate goals and objectives; and iv) Failing to offer appropriate reading interventions.

To remedy Student’s issues, he seeks various compensatory educational services from non-public agencies.

4. 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 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 other 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.

5. 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 other witness who was 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 regarding the scheduling of witnesses by 5:00 p.m. on February 17, 2016. 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 has agreed to make witnesses employed by District available to testify during the hearing. District shall have witnesses available in case agreement on a witness list is not reached. Prior to the commencement of the due process hearing, the ALJ and the parties will discuss the length of time anticipated for direct and cross-examination of each witness and scheduling issues for individual witnesses, and the ALJ will finalize the witness schedule. Additionally, 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.

6. Scope of Witness Examination. Each witness shall be called to testify only

once, except for rebuttal purposes, and all parties shall examine the witness on all issues when the witness is first called. 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. The order in which the parties present their cases in chief shall be subordinate to the need for each witness to appear only once.

7. 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.

8. Electronic Recording of Hearing.

a. Audio Recording. Student’s motion to make an audio recording of the

hearing is granted, subject to the following conditions: 1) OAH’s recording is the only official recording; 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; and 3) operation of the party’s recording mechanism will not be allowed to delay 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.

9. 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 his 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.

10. Motions. No 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 February 12, 2016.

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. Stipulations. Stipulations to pertinent facts, contentions or resolutions are

encouraged. Any proposed stipulation shall be submitted to the assigned ALJ in written form.

13. 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.

14. Special Needs and Accommodations. At this time, neither party has requested

special needs or accommodations.

A party or participant to this case, such as a witness, requiring reasonable accommodation to participate in the mediation or hearing may contact the assigned calendar staff, identified in the scheduling order, at (916) 263-0880, as soon as the need is known.

Additional information concerning requests for reasonable accommodation is available on OAH’s website at: http://www.dgs.ca.gov/oah/Home/Accommodations.aspx

15. Hearing Closed To the Public. The hearing will be closed to the public.

16. 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 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.

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

other sanctions.

IT IS SO ORDERED.

DATE: February 12, 2016

/S/

PAUL H. KAMOROFF

Administrative Law Judge Office of Administrative Hearings