California OAH special education order · September 21, 2016

Notice of Restated Issues Agreed to by the Parties on the First Date of Hearing; Notice of Continued Hearing Dates; and Order of Filing of ADA Compliance

OAH Case No. 2016060696, 2016061298 · ALJ Sabrina Kong

OAH denied District's motions to exclude Student's late-served evidence and to shift expenses. Instead it continued the hearing so District had extra days to review Student's documents.

Denied Sanctions and cost-shifting

This case went to decision

Student v. Los Angeles Unified School District (consolidated): Los Angeles Unified owes 69 compensatory hours for skipping a behavior assessment and ending speech services; graduation upheld. (2016)

Summary

On the first day of hearing, District moved to exclude Student's untimely served documentary evidence and to shift expenses to Student. Student opposed, and the ALJ heard oral argument and denied both motions. District said it had only four and a half days, not five, to review the evidence, so the ALJ continued the hearing to late September and early October 2016 to give it more review time. The order also restates the parties' agreed issues and directs District to file confirmation that the hearing location complies with the ADA and other accessibility laws.

Why it matters

Serving exhibits slightly late did not lead to exclusion or expense-shifting here. The ALJ fixed the problem by giving the other side more time. Parents should still meet the five-business-day evidence deadline, because late service can delay the hearing.

Key authority cited

  • 42 U.S.C. § 12101 et seq.
  • 29 U.S.C. § 794 et seq.
  • Civ. Code, § 51 et seq.

Topics

motion to exclude evidence expense shifting late evidence disclosure continuance restated issues ada accessibility

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:

LOS ANGELES UNIFIED SCHOOL OAH Case No. 2016060696

DISTRICT,

v.

PARENT ON BEHALF OF STUDENT,

PARENT ON BEHALF OF STUDENT, OAH Case No. 2016061298 v. NOTICE OF RESTATED ISSUES

AGREED TO BY THE PARTIES ON

LOS ANGELES UNIFIED SCHOOL THE FIRST DATE OF HEARING;

DISTRICT. NOTICE OF CONTINUED HEARING

DATES; AND ORDER OF FILING OF

ADA COMPLIANCE

TO ALL PARTIES AND THEIR COUNSEL OF RECORD:

On September 20, 2016, the first day of the hearing in this consolidated matter, Administrative Law Judge, Sabrina Kong, clarified the issues stated in the September 13, 2016 Order Following Pre-Hearing Conference, and restated the issues with the parties’ agreement as follows:

Student’s Issues:

1. Did District deny Student a free appropriate public education from July 27,

2014-July 27, 2016 by failing to conduct: (a) a behavioral assessment; and (c) an assistive technology assessment?1

2. Did District deny Student a FAPE from July 27, 2014-July 27, 2016 by

failing to conduct an appropriate: (a) speech and language assessment; and (b) a transition assessment? Student withdrew the issue regarding District’s failure to conduct an educationally related mental health assessment on the first day of hearing.

3. Did District deny Student a FAPE by failing to conduct a triennial

assessment by, or before, March 13, 2016?

4. Did District deny Student a FAPE by failing to ensure that a (a) general

education teacher was present at the (i) January 14, 2015 IEP team meeting; (ii) February 29, 2016 IEP team meeting; and (iii) May 18, 2016 IEP team meeting; and (b) transition service provider was at the January 14, 2015 IEP team meeting?

5. Did District deny Student a FAPE by failing to provide a prior written notice

to Parent regarding the District's recommendation to terminate speech and language services at the February 29, 2016 IEP team meeting?

6. Did District deny Student a FAPE from July 27, 2014-July 27, 2016 by:

(a) impeding his Parent's right to participate in the IEP process at the (i) January 14, 2015 IEP team meeting; (ii) February 29, 2016 IEP team meeting; and (iii) May 18, 2016 IEP team meeting; (b) predetermining its offer of general education placement at Vista High School, and services including speech and language services, counseling services, behavioral services, assistive technology services, and transition services at the (i) January 14, 2015 IEP team meeting; (ii) February 29, 2016 IEP team meeting; and (iii) May 18, 2016 IEP team meeting?

7. Did District deny Student a FAPE by failing to provide a performance

summary at the May 18, 2016 exit IEP team meeting?

8. Did District deny Student a FAPE by failing to respond to Parent's April 26,

2016 written request for Student's educational records?

9. Did District deny Student a FAPE by failing to offer and provide Student:

(a) at the January 14, 2015 IEP team meeting with appropriate: (i) placement; (ii) speech and language services; (iii) counseling services; (iv) behavioral services; (v) assistive technology services; and (vi) transition services; and (b) at the February 29, 2016 IEP team meeting with appropriate: (i) placement; (ii) speech and language services; (iii) counseling services; (iv)

behavioral services; (v) assistive technology services; and (vi) transition services?

10. Did District deny student a FAPE at the end of the 2015-2016 school year

by inappropriately: (a) awarding him a high school diploma and graduating Student; and (b)

terminating him from special education related services? District’s Issue:

1. Was District’s February 1, 2016 speech and language assessment

appropriate such that Student is not entitled to an independent educational evaluation at the public’s expense? After reviewing District’s Motion to Exclude Evidence and Motion to Shift Expenses, and Student’s Opposition to the Motions, and accepting oral arguments, the ALJ denied both Motions. Based on District’s argument that it had four and a half days, instead of five days, to review Student’s untimely service of documentary evidence, the ALJ continued the hearing to allow District extra days to review Student’s documentary evidence. The hearing is continued to September 22, 28, 29, October 4, and 5, 2016, and continuing day to day, Monday through Thursday, at the ALJ’s discretion. The hearing shall begin at 9:00 a.m. on all days, except on September 22, 2016, on which day the hearing shall begin at 9:30 a.m., unless otherwise ordered. The hearing shall be held at the Parent Engagement Center located at 1208 Magnolia Avenue, Gardena, CA 90247.

District will be filing with OAH before September 22, 2016 that the hearing location is compliant with the American with Disability Act of 1990 (42 U.S.C.A. § 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.

IT IS SO ORDERED.

DATE: September 21, 2016

SABRINA KONG

Administrative Law Judge Office of Administrative Hearings