Order Following Prehearing Conference

BEFORE THE

OFFICE OF ADMINISTRATIVE HEARINGS

STATE OF CALIFORNIA

In the Matter of:

PARENT ON BEHALF OF STUDENT, OAH Case No. 2017030443 v. ORDER FOLLOWING PREHEARING

CONFERENCE

LOS ALTOS SCHOOL DISTRICT.

On May 26, 201, a telephonic prehearing conference was held before Administrative Law Judge Penelope Pahl, Office of Administrative Hearings. James Sibley, Attorney at Law, appeared on behalf of Student. Laurie Reynolds, Attorney at Law, appeared on behalf of Los Altos 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 June 6,

2017 at 9:30 a. m., on June 7, and 8, 2017 at 9:00 a.m. and on June 13, 2017 at 9:30 a.m.

continuing day to day, Monday through Thursday, at the discretion of the ALJ. The hearing shall take place at the District’s offices located at 201 Covington Road, Los Altos, CA

94024. Counsel for Student has noted that his son’s high school graduation is scheduled for

3:00 p.m. on June 8, 2017. District agreed to accommodations being made in the hearing schedule for Mr. Sibley to be excused early to attend.

As ordered in the scheduling order, Los Altos shall provide a facility for the hearing that fully complies with the Americans with Disabilities 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. Los Altos has filed the required certification of ADA with OAH. Los Altos shall inform OAH no later than two days prior to the date of this hearing if it is unable to provide ADA compliant facilities for the scheduled hearing.

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 to be determined at the due

process hearing, and the proposed resolutions, are listed below:

Issues1

1. District failed to provide Student a FAPE during the 2014-2015 school year,

beginning March 6, 2015, by2:

a. Failing to assess in all suspected areas of need specifically, academic

achievement, intelligence and social emotional needs;

b. Failing to provide/offer appropriate support and services at the April 21 2015

IEP to address Student’s unique needs including but not limited to her attention, executive functioning, reading writing , math and social emotional needs;

c. Failing to provide/offer appropriate placement to enable student to make

progress or gain educational benefit.

2. District failed to provide Student a FAPE during the 2015-2016 school year by:

a. Failing to assess in all suspected areas of need specifically, academic

achievement, intelligence and social emotional needs;

b. Failing to provide/offer appropriate support and services at the March 21, 2016

IEP to address Student’s unique needs including but not limited to her attention, executive functioning, reading writing , math and social emotional needs;

c. Failing to provide/offer appropriate placement to enable student to make

progress or gain educational benefit

3. District failed to fund or file for a Due Process Hearing in response to Parents request

for an IEE on April 4, 2016.

The ALJ has re-worded the issues for clarity with the assent of Student’s counsel.

The ALJ has authority to reword and re-organize a party’s issues, so long as no substantive changes are made. (J.W. v. Fresno Unified School Dist. (9th Cir. 2010) 626 F.3d 431, 442- 443.)

The ALJ has limited issue No. 1 to the statute of limitations. While Parents are entitled to raise claims within two years of the date they “knew or should have known” of a denial of FAPE, (Avila v. Spokane School District No. 8 (9th Cir. 2017) 852 F. 3d 856, 944), no allegations of facts stating a basis to pierce the statute have been pled. OAH has no jurisdiction over issues not pled in the complaint. 20 U.S.C. §1415 (f)(3)(B); Ed. Code §56502, subd. (i); County of San Diego v. California Special Education Hearing Office (9th Cir. 1996) 93 F. 3d 1458. 1465.

4. District failed to provide Student a FAPE during the 2016-20173 school year by:

a. Failing to provide/offer appropriate support and services at the June 2, 2016

IEP to address Student’s unique needs including but not limited to her attention, executive functioning, reading writing , math and social emotional needs;

b. Failing to provide/offer appropriate placement to enable student to make

progress or gain educational benefit Proposed Resolutions:

1. A finding that he District violated the substantive and procedural protections of IDEA

and denied Student a FAPE;

2. Reimbursement for all costs associated with Parents’ unilateral placement of Student

at Los Altos Christian School;

3. Reimbursement for all costs associated with private therapy;

4. Reimbursement for all costs associates with travel for Student and Parents to/from her

private placement;

5. Reimbursement for the IEE completed by Dr. Brendan Pratt;

6. Compensatory education for the 2014-2015 school year;

7. Compensatory education for the 2015-2016 school year;

8. Reimbursement for attorney’s fees and costs;

9. Attorney’s fees and costs as permitted by law; and

10. Any and all appropriate remedies as supported by law.

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 A clerical error in the pleading was corrected by stipulation. The original complaint stated this time frame as “the 2016-2016 school year”. This was changed to the intended “2016-2017 school year.”

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 timely exchanged shall not be admitted into evidence at the hearing unless the ALJ rules that it is admissible.

Parties are encouraged to present resumes or curriculum vitae for each professional witness.

The District shall include a color copy of the school calendar for each school year in question and shall have witnesses available to testify as to any legend notations that might be unique to Los Altos.

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 timely disclosed except for good cause shown, and at the discretion of the

ALJ.

5. Meet and Confer

The parties are encouraged to review and shorten their witness lists and lists of Exhibits 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. To that end, parties are ordered to meet and confer no later than 3 p.m. on June, 1, 2017 to discuss whether routine information can be the subject of stipulations to shorten the hearing by avoiding the necessity of testimony, particularly as to routine matters, and/or exhibits. The parties shall also discuss provision of notice to District witnesses so that substitute teachers and lesson plans can be arranged, the order of witnesses and the length of witness testimony and be prepared to present the ALJ with a written joint witness list with time estimates and dates of expected testimony on the first day of hearing.

Should agreement on a list not be reached, each party shall prepare separate lists and Student shall have witnesses available so the hearing can proceed promptly. 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. 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, Student requested the hearing and shall present his case-in-chief first, followed by District.

7. Telephonic Testimony. Neither party has requested that a witness appear by

telephone at this time. 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.

8. 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) the recording device will be removed by the party recording during any recess where the party leaves the room; and 4) that operation of the party’s recording mechanism will not be allowed to delay the hearing.

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.

9. Motions. At present no prehearing motions are pending or contemplated.

Any motion filed after this date shall be supported by a declaration under penalty of perjury establishing good cause why the motion was not made prior to or during this prehearing conference.

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 and Exhibits. Stipulations to pertinent facts, contentions or

resolutions are encouraged to promote hearing efficiency. Stipulations to routine foundational facts and avoiding duplicative exhibits are particularly favored. 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. At present neither party anticipates the

need for special accommodation for any witness or party, or for the services of an interpreter.

A party or participant to this case, such as a witness, requiring reasonable accommodation to participate in the hearing may contact the assigned calendar clerk identified in the scheduling order, at (916) 263-0880, or the OAH ADA Coordinator at OAHADA@dgs.ca.gov or 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/Accommodations.aspx.

14. Hearing Closed To the Public. At the request of Student, the hearing will be

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 26, 2017

PENELOPE S. PAHL

Administrative Law Judge Office of Administrative Hearings