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. 2016060145 v.

BASSETT UNIFIED SCHOOL DISTRICT,

BASSETT UNIFIED SCHOOL DISTRICT, OAH Case No. 2016080019 v. ORDER FOLLOWING PREHEARING

CONFERENCE

PARENT ON BEHALF OF STUDENT.

On October 24, 2016, a telephonic prehearing conference was held before Administrative Law Judge Elsa H. Jones, Office of Administrative Hearings. Lisa Dennis, Attorney at Law, appeared on behalf of Parent and Student (collectively, Student). Tara C.

Doss, Attorney at Law, appeared on behalf of Bassett Unified 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

November 2-3, 2016, and November 9, 2016, and shall continue day to day thereafter, Monday through Thursday, at the discretion of the ALJ. The hearing shall take place at the District’s offices located at 904 N. Willow Avenue, La Puente, California 91746. Unless otherwise ordered, the hearing shall begin at 9:30 a.m. on November 2, 2016, and at 9:00 a.m.

on all other days.

As ordered in the scheduling order, the named local educational agency was to 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 failed to certify that it would provide a facility for this case that complied with the law. The local educational agency shall inform OAH within two days of the date of this Order it is able to certify that it will provide a facility that complies with the law.

Prior to the beginning of the hearing, District shall assist ensure that the hearing room is configured into a courtroom setting, including (1) a table for Student and his representatives; (2) a table for District’s representatives; (3) a table for the witness; and (4) a table for the ALJ, near an electrical outlet. District shall also make reasonable effort to ensure that drinking water and tissue are available to all parties, witnesses and the ALJ.

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 are:

1. Whether District denied Student a free appropriate public education by making

a predetermined offer of placement in Student’s February 29, 2016 individualized education program, which resulted from IEP team meetings held on February 29, 2016, March 22, 2016, and April 21, 2016, thereby impeding Parent’s right to participate in the development of Student’s IEP?

2. Whether District denied Student a FAPE by failing to offer an appropriate

placement in the least restrictive environment in Student’s February 29, 2016 IEP, which resulted from IEP team meetings held on February 29, 2016, March 22, 2016, and April 21, 2016.

The remedies Student seeks include an Order that District place Student at Bassett High School, in the program he had prior to the February 29, 2016 IEP.

District’s Issue is:

1. Whether District’s offer of placement and services in the February 29, 2016,

March 22, 2016, and April 21, 2016 IEP’s constitute a FAPE in the least restrictive environment.

As a remedy, District seeks an Order that it be permitted to implement the February 29, 2016, March 22, 2016, and April 21, 2016, IEP’s.

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 whether it is a Student or District exhibit (for example, “S-5, S-6, or D-1, D-2”). It is preferred that each exhibit shall be internally paginated by exhibit, or all of a party’s exhibits shall be consecutively numbered, by Bates stamp or other similar method, beginning with the first page of the first exhibit and ending with the last page of the last exhibit. Each exhibit binder shall contain a detailed table of contents. The parties shall serve their evidence binders on each other by no later than 5:00 p.m. on October 26, 2016, 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.

Except for good cause shown, or unless used solely for rebuttal or impeachment, any exhibit not included in a party’s exhibit list and not previously exchanged shall not be admitted into evidence at the hearing at the request of that party except for good cause shown, and unless the ALJ rules that it is otherwise admissible.

4. Witnesses. The parties shall exchange their final witness lists in accordance

with Education Code section 56505, subdivision (e)(7), by no later than 5:00 p.m. on October 26, 2016. Each party is responsible for procuring the attendance at hearing of its own witnesses. Each party shall make witnesses under its control reasonably available, upon timely notice. 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 final witness list except for good cause shown, and at the discretion of the ALJ.

The parties are encouraged to review and curtail 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 ALJ has discretion to limit the number of witnesses who testify and the time allowed for witnesses’ testimony.

Except for parties, and individuals who are serving as representatives of parties for purposes of appearance at hearing, no witnesses will be allowed in the hearing room during the proceedings except when that witness has been called to testify.

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. At all times throughout the hearing, the parties shall be prepared to discuss the witness schedule and the time the testimony of each 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, at the discretion of the ALJ. 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.

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 witness shall testify on a landline, while alone in a private room. 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 denied without prejudice.

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].) In these consolidated cases, both parties have the burden of proof to present their respective cases. Student shall present its case-in-chief first.

9. Motions. No pretrial motions are pending or contemplated, except as

otherwise described in this Order. Any motion filed after October 24, 2016, 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 PHC.

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 writing.

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 placed on the vibrate setting during the hearing unless permission to the contrary is obtained from the ALJ. There shall be no texting or tweeting during the hearing unless the ALJ grants permission. There shall be no weapons in the hearing room except those that are borne by authorized law enforcement personnel.

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

required.

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 Open to the Public. At the request of Student, the hearing will be

open 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 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 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 and with the provisions of Evidence Code

section 56505, subdivision (e)(7) may result in the exclusion of evidence or other sanctions.

IT IS SO ORDERED.

DATE: October 26, 2016

ELSA H. JONES

Administrative Law Judge Office of Administrative Hearings