California OAH special education order · February 23, 2016

Order Denying District's Motion to Allow Admittance of Supplemental Evidence

OAH Case No. 2015100365 · ALJ Cole Dalton

OAH denied the District's post-hearing request to add Parent's note accepting compensatory services as evidence, finding its minimal probative value was outweighed by undue consumption of time and delay.

Denied Evidence and witnesses

This case went to decision

Student v. Los Angeles Unified School District: Los Angeles Unified must fund 590 hours of compensatory behavior services and train staff; comparable-services claims denied. (2016)

Summary

After the hearing closed, Parent signed a note accepting a District offer of compensatory behavior intervention services. The District moved to admit the note as a supplemental exhibit, with telephone testimony to authenticate it, to avoid duplicate remedies. Student opposed. OAH denied the motion because whether Student uses any offered compensatory hours does not affect the decision. The ALJ will decide on the hearing record whether compensatory education is warranted and in what amount, so the note's minimal value did not justify more testimony and delay.

Why it matters

A district's offer of compensatory services made outside the IEP or settlement process does not limit what the ALJ may award, even if the parent accepts it. OAH is also reluctant to reopen the evidence after hearing for items of little relevance.

Key authority cited

  • Ed. Code, § 56505, subd. (e)
  • Ed. Code, § 56505.1, subd. (f)
  • Evid. Code, § 352
  • Gov. Code, § 11513, subd. (f)
  • Notrica v. State Comp. Ins. Fund (1999) 70 Cal.App.4th 911
  • School Committee of the Town of Burlington v. Department of Education (1985) 471 U.S. 359

Topics

supplemental evidence post-hearing evidence compensatory education evidence code 352 undue consumption of time

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. 2015100365 v. ORDER DENYING DISTRICT’S

MOTION TO ALLOW ADMITTANCE

LOS ANGELES UNIFIED SCHOOL OF SUPPLEMENTAL EVIDENCE

DISTRICT.

On October 8, 2015, Student filed a Request for Due Process Hearing (complaint)

naming Los Angeles Unified School District. The matter proceeded to due process hearing on January 19, 20, 21, 22, 25, 26, 27 and 28, 2016, and on February 2 and 3, 2016. Both parties were represented by counsel throughout the hearing. The matter was completed on February 3, 2016, with the exception of written closing arguments, due on March 23, 2016.

On February 3, 2016, after the close of hearing, Student’s attorney handed District’s attorney a note signed by Parent on February 3, 2016, accepting an offer made by District for behavior intervention implementation compensatory education services. The offer was initially set forth in the District’s letter of January 8, 2016, which was admitted into evidence as District’s exhibit 54. District seeks to have the February 3, 2016 note entered into evidence as exhibit 71, in order to avoid the potential for duplication of remedies. On February 12, 2016, District filed a motion and declaration to admit the note as supplemental evidence and requested telephonic testimony to authenticate the note.

On February 16, 2016, Student filed an opposition on the grounds the new evidence is not relevant or timely and would necessitate an undue consumption of time. In the opposition, Parent and counsel authenticate the February 3, 2016 note.

DISCUSSION AND ORDER

Education Code section 56505, subdivision (e), states that a party shall be afforded the following rights consistent with state and federal statutes and regulations:

“(2) The right to present evidence, written arguments, and oral arguments.

(3) The right to confront, cross-examine, and compel the attendance of, witnesses.

… (7) The right to receive from other parties to the hearing, at least five business days prior to the hearing, a copy of all documents and a list of all witnesses and their general area of testimony that the parties intend to present at the hearing. . .

(8) The right pursuant to Section 300.512(a)(3) of Title 34 of the Code of Federal Regulations, to prohibit the introduction of any evidence at the hearing that has not been disclosed to that party at least five business days before the hearing.”

Education Codes section 56505.1 states that the hearing officer may do the following during the hearing:

“(f) Bar introduction of any documents or the testimony of any witnesses not disclosed to the hearing officer at least five business days prior to the hearing and bar introduction of any documents or the testimony of any witnesses at the hearing without the consent of the other party not disclosed to the parties at least five business days prior to the hearing pursuant to paragraph (7) of subdivision (e) of Section 56505.”

The Order Following Prehearing Conference, issued on January 14, 2016, provided, “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.”

District has not provided legal authority requiring the admission of the February 3, 2016 note. Although the note could not have been identified five days prior to hearing, the note lacks sufficient probative value. Even relevant evidence can be excluded when its probative value is substantially outweighed by the probability that its admission will consume too much time. (Evid. Code, § 352.) Evidence may be unduly time consuming where it necessitates extended hearings on matters of minimal probative value. (Notrica v.

State Comp. Ins. Fund (1999) 70 Cal.App.4th 911, 950.)

District’s exhibits 26, 29, 28 and 54 each contain offers of compensatory hours for related services made to Student by District at various times from June 2015 through January

2016. Whether Student has or will avail himself of any of these compensatory hours has no

bearing on the decision in this matter. The ALJ will determine, based on the oral and documentary evidence presented at hearing, whether compensatory education is warranted and in what form and amount. (School Committee of the Town of Burlington v. Department of Education (1985) 471 U.S. 359, 369 [105 S.Ct. 1996](discussing broad discretion of a court to fashion appropriate relief in a special education due process case).)

As such, the probative value of the February 3, 2016 note is minimal and does not outweigh the undue consumption of time and further delay in issuing a hearing decision that would result from taking in additional evidence and testimony. (Gov. Code, § 11513, subd.

(f).) Therefore, District’s motion is denied.

IT IS SO ORDERED.

DATE: February 23, 2016

COLE DALTON

Administrative Law Judge Office of Administrative Hearings