California OAH special education order · June 29, 2016
Order Denying Motion to Compel Production
OAH Case No. 2016040358, 2016020562, 2016031078 · ALJ Chris Butchko
OAH denied Student's motion to compel BASC and Conners 3 rating scales and protocols because District showed through sworn declarations that it had produced everything it had and the remaining protocols were apparently lost.
This case went to decision
Student v. Downey Unified School District (consolidated): Downey Unified must reimburse Pliha Center costs because its March 2016 IEP reused outdated goals; 2015 claims denied. (2016)
Summary
Student asked OAH to order Downey Unified to produce the rating scales and protocols from the Behavior Assessment System for Children and the Conners 3rd Edition, which were completed by Parent and by staff at the Phila Speech and Learning Center. District opposed the motion and filed sworn declarations from its school psychologist and a program administrator. They stated that all protocols in District's possession had been produced, that only the computer-generated BASC score report could be found, and that the hand-scored Conners 3 protocols could not be located. OAH found that District cannot be compelled to produce records that do not exist, so it denied the motion and made no ruling on whether the assessment is admissible or how much weight it should get.
Why it matters
Parents are entitled to assessment protocols as school records, but OAH will not order a district to produce documents it swears are lost or no longer exist. Missing protocols may still be raised at hearing to challenge the weight or admissibility of the district's assessment.
Key authority cited
- 20 U.S.C. § 1415(h)(2)
- Ed. Code, § 56506, subd. (d)
- Ed. Code, § 56504
- Newport-Mesa Unified Sch. Dist. v. State of Calif. Dept. of Educ. (C.D. Cal. 2005) 371 F.Supp.2d 1170
People named in the order
- Ms. Hampton, Staff, Phila Speech and Learning Center (rater)
- Ms. Wang, Staff, Phila Speech and Learning Center (rater)
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. 2016040358 v.
DOWNEY UNIFIED SCHOOL DISTRICT,
DOWNEY UNIFIED SCHOOL DISTRICT, OAH Case No. 2016020562 v.
PARENT ON BEHALF OF STUDENT,
STUDENT.
OAH Case No. 2016031078
DOWNEY UNIFIED SCHOOL DISTRICT,
ORDER DENYING MOTION TO
v. COMPEL PRODUCTION
PARENT ON BEHALF OF STUDENT.
On May 31, 2016, Student filed a motion to compel production of documents (Motion)
with the Office of Administrative Hearings. On June 3, 2016, District filed an opposition.
Student did not file in reply.
Student seeks the rating scales and protocols from the Behavior Assessment System for Children and the Conner’s 3rd Edition assessments prepared by Student’s parent and by Ms. Hampton and Ms. Wang at the Phila Speech and Learning Center.
APPLICABLE LAW
Special education law does not provide for prehearing discovery. A party to a due process hearing has the right to present evidence and compel the attendance of witnesses at the hearing. (20 U.S.C. § 1415(h)(2); Ed. Code, § 56506, subd. (d)(2) and (3).)
Education Code, section 56504, provides in pertinent part that “[t]he parent shall have the right and opportunity to examine all school records of his or her child and to receive copies ... five business days after the request is made by the parent, either orally or in writing.”
Educational records under Section 56504 include assessments and assessment protocols that are personally identifiable to the child, and must be disclosed to the parents. (Newport-Mesa Unified Sch. Dist. v. State of Calif. Dept. of Educ. (C.D. Cal. 2005) 371 F.Supp.2d 1170, 1175.)
Assessment protocols are school records if kept in Student’s main file or the school psychologist’s working file.
Student’s counsel has stated that District’s psychologist told him on May 27, 2016, by that she had provided the requested protocols to the District. District has provided declarations under penalty of perjury by District’s psychologist and a program administrator testifying that they have provided Student with all protocols within the possession of the school psychologist or District. Both have stated that they are unable to locate the protocols from and the Conner’s 3rd Edition assessments requested by Student. Only the computer generated score report for the Behavior Assessment System for Children has been found, and it has been provided to Student.
The Conner’s 3rd Edition assessment is hand-scored, and no records of the requested protocols exist in the records held by school psychologist or District.
The school psychologist affirmed in her declaration that she had administered the tests as part of her 2015 psychoeducational assessment and turned over all the protocols to District on some date prior to July 2015. The requested records connected to the administration of the Conner’s 3rd Edition assessment are presumably lost. The input of Parent and the staff at Phila Language and Learning Center to the Behavior Assessment System for Children exists only as part of the computer-generated score report as input into the scoring program, which has been provided to Student.
District has turned over all material in its possession and under its control. District cannot be compelled to turn over material that does not exist. This Order makes no ruling about the admissibility of or weight to be given to District’s psychoeducational assessment.
ORDER
Student’s Motion to compel production of documents is denied.
IT IS SO ORDERED.
DATE: June 29, 2016
CHRIS BUTCHKO
Administrative Law Judge Office of Administrative Hearings