California OAH special education order · July 15, 2016
Order Following Prehearing Conference
OAH Case No. 2016050233 · ALJ Marc Levine
OAH set District's hearing to defend its psychoeducational assessment against an independent evaluation request. Student, who missed the prehearing conference and filed no statement, may not offer exhibits or witnesses other than Parent.
This case went to decision
Los Angeles Unified School District v. Student: Los Angeles Unified's 2015 psychoeducational assessment was appropriate; parent's request for a publicly funded IEE denied. (2016)
Summary
District filed for due process to show that its February 25, 2015 psychoeducational assessment was appropriate, so that Student is not entitled to an independent educational assessment at public expense. Student did not appear at the July 15, 2016 telephonic prehearing conference and did not file a prehearing conference statement, exhibit list, or witness list. The ALJ set the hearing for July 26 and 27, 2016, in Van Nuys, with District presenting first because it carries the burden of proof. Because Student filed nothing, the ALJ barred Student from presenting exhibits or calling any witness other than Parent.
Why it matters
Families who skip the prehearing conference or fail to file a prehearing statement with exhibit and witness lists can lose the right to present evidence. In a district-filed case defending its assessment, that can mean Parent's testimony is the only rebuttal.
Key authority cited
- Schaffer v. Weast (2005) 546 U.S. 49
- Cal. Code Regs., tit. 5, § 3082, subd. (g)
- Ed. Code § 56505, subd. (e)(7)
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 Matter of:
LOS ANGELES UNIFIED SCHOOL OAH Case No. 2016050233
DISTRICT,
ORDER FOLLOWING PREHEARING
v. CONFERENCE
PARENT ON BEHALF OF STUDENT.
On July 15, 2016, a telephonic prehearing conference was held before Administrative Law Judge Marc Levine, Office of Administrative Hearings. Mary Kellogg, Attorney at Law, appeared on behalf of District. Student did not appear. 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 July 26
and 27, 2016, and continuing day to day, Monday through Thursday, at the discretion of the ALJ. The hearing shall take place at OAH offices located at 15350 Sherman Way, Suite 300, Van Nuys, CA 91406. 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.
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 issue at the due process hearing is
whether District’s February 25, 2015 psychoeducational assessment is appropriate such that Student is not entitled to an independent educational assessment at public expense. The proposed resolution is for an order that its February 25, 2015 psychoeducational assessment is appropriate such that Student is not entitled to an independent educational assessment at public expense.
3. Exhibits. Student did not file a prehearing conference statement or an exhibit
list, and so Student is precluded from presenting exhibits. District’s exhibits shall be pre- marked and placed in three-ring exhibit binders prior to the hearing use numbers to identify exhibits. Each exhibit shall be internally paginated by exhibit, or all of the exhibits shall be Bates-stamped. The binder shall contain a detailed table of contents. District shall serve its evidence binder on Student in compliance with Education Code section 56505, subdivision (e)(7). At the hearing, District shall supply an exhibit binder containing its exhibits for use by the ALJ, and a second exhibit binder for use by witnesses. District may not serve exhibits on OAH prior to the hearing.
Except for good cause shown, or unless used solely for rebuttal or impeachment, any exhibit not included in the exhibit list 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. Student did not file a prehearing conference statement or a
witness list, and so Student is precluded from calling its own witnesses, other than Parent.
District is responsible for procuring the attendance at hearing of its own witnesses. District shall make witnesses under its control reasonably available. District shall schedule its 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.
District is encouraged to review and shorten its witness list 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 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. No witness will be heard by telephone unless all these requirements have been fulfilled.
7. Electronic Recording of Hearing.
a. Audio Recording. Although neither party has filed a motion for audio
recording, if a party seeks to record the proceedings, and if the motion is granted, it will be 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; and 3) that operation of the party’s recording mechanism will not be allowed to delay the hearing. If opposing party desires to make such a recording, the party shall move for leave to do so in advance of the hearing, and 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].) Here, District is the petitioning party.
Accordingly, District shall present its case-in-chief, followed by Student.
9. 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 July 15, 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 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. The hearing will be closed to the public unless
Student requests it be open.
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: July 15, 2016
MARC LEVINE
Administrative Law Judge Office of Administrative Hearings