California OAH special education order · April 25, 2016
Order Denying Motion to Compel
OAH Case No. 2015100813, 2016030606 · ALJ Chris Butchko
OAH denied District's motion to compel the names of private aides serving Student, because prehearing discovery is not authorized in special education hearings and District showed no sufficient cause.
Summary
District asked OAH to order Student to identify the Creative Behavior Interventions, Inc. aides who had served Student since the start of the 2015-2016 school year, so District could subpoena them. Student was seeking reimbursement for those services. OAH denied the request. It explained that prehearing discovery is ordinarily not allowed in special education hearings, that District does not carry the burden of proving the private services were appropriate, and that District would be able to cross-examine any aides Student calls as witnesses. If District later decides the aides are indispensable to its defense, it may ask for a continuance.
Why it matters
Districts generally cannot use prehearing discovery to make parents identify private providers when parents seek reimbursement, because the parent carries the burden of proof. Parents should still expect any providers they call to testify to be cross-examined.
Key authority cited
- Gov. Code § 11507.5
- Cal. Code Regs., tit. 5, § 3089
- Ed. Code § 56505, subd. (e)(3)
- Shiveley v. Stewart (1966) 65 Cal.2d 475
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 Consolidated Matters of:
PARENT ON BEHALF OF STUDENT, OAH Case No. 2015100813 v.
IRVINE UNIFIED SCHOOL DISTRICT,
IRVINE UNIFIED SCHOOL DISTRICT, OAH Case No. 2016030606 v. ORDER DENYING MOTION TO
COMPEL
PARENT ON BEHALF OF STUDENT.
On October 23, 2015, Student filed a request for Due Process Hearing naming Irvine Unified School District.
On April 18, 2016, District filed a Motion to Compel Identity [sic] of Aide or Aides Serving Student.
Special Education hearings are not formal hearings governed by chapter 5 of the California Administrative Procedure Act. (Govt. C §§11340-11529.) The discovery mechanisms provided by Government Code for formal hearings in §11507.5 to 11507.7 are therefore not available in special education proceedings. In addition, under California Code of Regulations, title 5, section 3089, special education due process hearing procedures are exempted from a number of provisions of the Administrative Procedure Act, including Government Code §11445.60 (disclosure of identity of witnesses under informal hearing procedure) and §11450.05 -30 (subpoena procedures). No prehearing discovery is authorized in special education due process hearings. No precedent supports the granting of discovery in a special education hearing. (See Shiveley v. Stewart, 65 Cal.2d 475 (1966):
discovery available on a case-by-case basis in administrative actions by analogy to criminal cases where agency is “accuser.”)
Prehearing discovery is ordinarily not allowed in special education administrative hearings. Both Student and District are presumed to be in possession of sufficient information to justify their request or defend their position. Sufficient cause must be shown to justify deviation from that practice. Here, District seeks the names of staff members at Creative Behavior Interventions, Inc., who have provided services to Student since the commencement of the 2015-2016 school year. As part of his action, Student seeks reimbursement for the cost of their services. District asserts that it needs to know the names of the persons providing services so that it may subpoena them for testimony about whether Student’s placement and services were appropriate. Without the names of such persons, District is concerned that it will not be able to identify those aides in time to subpoena them to attend the hearing. District asserts that it would otherwise be denied its rights under Education Code Section 56505, subdivision (e)(3)1 to confront, cross-examine, and compel the attendance of witnesses. District’s argument is not persuasive.
District does not bear the burden of proof to show that Student’s placement at St. John the Baptist school or his services from Creative Behavior Interventions, Inc., were appropriate. If Student does not put on a case in support of those facts, he will not carry that burden. If he does do so, District will have an opportunity to confront and cross-examine those witnesses. District may compel the attendance of any witnesses it wishes, but has not argued that the persons providing services to Student are necessary witnesses to District’s case. District has not shown or argued that Student will be able to justify his placement and services without presenting any witnesses, and any such witnesses would be available for District’s cross-examination. If, after the presentation of Student’s case, District believes that the Creative Behavior aides are indispensable to its defense, it may request any necessary continuance to secure their attendance.
The request to identify aides who have provided services to Student is denied.
IT IS SO ORDERED.
DATE: April 25, 2016
CHRIS BUTCHKO
Administrative Law Judge Office of Administrative Hearings District’s variant citations of Education Code Sections 56505, subdivision (c)(3)
and 56505, subdivision (e)(2) are presumably typographical errors.