Order Following Prehearing Conference

BEFORE THE

OFFICE OF ADMINISTRATIVE HEARINGS

STATE OF CALIFORNIA

In the Consolidated Matters of:

PARENT ON BEHALF OF STUDENT, OAH Case No. 2016030815 (Primary)

v.

LAWNDALE ELEMENTARY SCHOOL

DISTRICT,

LAWNDALE ELEMENTARY SCHOOL OAH Case No. 2016031094

DISTRICT,

v.

ORDER FOLLOWING PREHEARING

PARENT ON BEHALF OF STUDENT. CONFERENCE

On May 9, 2016, a telephonic prehearing conference was held before Administrative Law Judge Caroline A. Zuk, Office of Administrative Hearings. Adriana Nusbickel, Attorney at Law, appeared on behalf of Student. Debra Ferdman, Attorney at Law, appeared on behalf of Lawndale Elementary School District. The PHC was recorded.

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

1. Hearing Dates, Times, and Location. The hearing shall take place on May 17,

18, 19, and 24, 2016, and continuing day to day, Monday through Thursday, at the discretion of the ALJ. Considering the issues in this consolidated matter, and Student’s request for two additional hearing days, the ALJ agreed to add added one additional day of hearing on May 23, 2016. However, please note the change of date to Tuesday, May 24, 2016. The ALJ will discuss the hearing dates with the parties on the first day of hearing. The hearing shall take place at the District’s offices located at 4161 West 147th Street, Lawndale, California

90260. The hearing shall begin at 9:30 a.m. the first day of the hearing, and at 9:00 a.m. all

other days, unless otherwise ordered.

As ordered in the scheduling order, the named local educational agency 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 certified that the facilities used for this case comply with the law. The local educational agency shall inform OAH within two days of the date of this order if it is unable to comply with this order.

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 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 ensure that the hearing room and access to it are in compliance with the Americans with Disabilities Act. District shall also ensure that parking is available for Parents, the ALJ, and counsel for the parties.

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

the proposed resolutions, are listed below.

Student’s issues for the hearing are:

a) Did District deny Student a free appropriate public education, beginning March 11, 2014 through October 27, 2015, by failing to assess in the areas of attention, behavior, social-emotional functioning, communication, and academics to determine Student’s eligibility for special education?

2. Did District deny Student a FAPE by failing to identify Student as eligible for

special education under the category of other health impairment beginning March 11, 2014 through October 27, 2015? Student’s proposed resolutions are:

a) Compensatory education, consisting of one-to-one academic tutoring, speech and language services, applied behavioral analysis services, and counseling;

b) District-funded independent educational evaluations in the areas of psychoeducation, speech and language, and central auditory processing by parent’s preferred evaluators;

c) IEP team meetings within 30 days of completion of each independent educational evaluation to consider the results and adopt any recommendations as appropriate;

d) Reimbursement of parent’s private educational expenses for Student’s tutoring; and e) District training for its staff on how to respond to a request for an assessment.

District’s issue for the hearing is:

3. Did District conduct appropriate assessments in September and October 2015

in the areas of (a) psychoeducation, (b) academics, (c) speech and language, (d) occupational therapy and (c) health, such that Student is not entitled to independent educational evaluations at public expense? District’s proposed resolution is an order that Student is not entitled to any independent educational evaluations in psychoeducation, academics, speech and language, occupational therapy, and health, because District conducted appropriate assessments.

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. 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.

The ALJ encouraged the parties to review and shorten their exhibits lists, and to include resumes or curriculum vitae for each witness who is expected to testify as to their professional credentials. The parties represented that they intended to include resumes or curriculum vitae when they exchanged their exhibit binders.

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 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, and agreed to meet and confer on May 12, 2016 to discuss the witness list. The 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.

5. 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.

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. The parties did not request telephonic testimony for any witness, and no witness will be heard by telephone unless all these requirements have been fulfilled.

7. 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) that OAH’s recording is the only official recording; 2) that the recording will be turned on and off at the same time as the ALJ’s recording, in order to avoid recording conversations while off the record; 3) that operation of the party’s recording mechanism will not be allowed to delay the hearing; and 4) the audio recording shall be destroyed upon the expiration of the time period for an appeal. If District desires to make such a recording, the same conditions shall apply.

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.

8. 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].) This matter is consolidated, and involves two parties. The order of presentation of evidence shall be as follows: Student shall present his case first. If a witness is to be called by more than one party, then the parties shall complete direct and cross-examination of the witness on the same day to the extent possible.

9. Motions. During the prehearing conference, the ALJ ruled on Student’s

four motions in limine. Student’s request to admit a transcript of Student’s October 28, 2015 IEP team meeting prior to the hearing is denied. Rulings regarding the admission of the parties’ exhibits shall be made at hearing. Student’s request to exclude District’s representative and potential witness, Libby Vracin, Director of Special Education, from the hearing is denied. Each party shall be allowed to have its chosen representative present during the entire hearing. Student’s request that the parties’ witnesses be admonished to not confer with the parties’ respective attorney prior, during, and after direct or cross examination is denied. The ALJ shall make rulings as appropriate during the hearing to protect the integrity of the testimony of the parties’ witnesses, including admonishing each witness not to discuss their testimony with any other witness. Student’s request to question District employees who have been designated as expert witness regarding their communications with District’s attorney to prepare for the hearing is denied, because the communications are protected by the attorney-client privilege.

No other 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 May 9, 2016.

10. 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.

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

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

12. 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.

13. Special Needs and Accommodations. A Spanish language interpreter is

required for Student’s parent. 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/Accessibility.aspx.

14. Hearing 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: May 11, 2016

CAROLINE A. ZUK

Administrative Law Judge Office of Administrative Hearings