Order Following Prehearing Conference

BEFORE THE

OFFICE OF ADMINISTRATIVE HEARINGS

STATE OF CALIFORNIA

In the Matter of:

BARSTOW UNIFIED SCHOOL OAH Case No. 2017040083

DISTRICT,

ORDER FOLLOWING PREHEARING

v. CONFERENCE

PARENT ON BEHALF OF STUDENT.

On July 31, 2017, a telephonic prehearing conference was held before Administrative Law Judge Clifford H. Woosley, Office of Administrative Hearings. Vivian Billups, Attorney at Law, appeared on behalf of Barstow Unified School District. The PHC was recorded.

ALJ Woosley telephoned the phone number that OAH has for Parent. Parent did not answer. Fifteen minutes later, ALJ Woosley convened the PHC with attorney Billups and, on the record, again telephoned Parent. A young woman answered, identified herself as Parent’s daughter, and said her mother was not home. ALJ Woosley identified himself, said why he was calling Parent, stated that the PHC would proceed without Parent, and that Parent would receive a copy of an order following the PHC within a few days.

ALJ Woosley thereafter proceeded with the PHC Based upon discussions with the appearing party, the ALJ issues the following order:

1. Hearing Dates, Times, and Location. The hearing shall take place on August

9 and 10, 2017, at 9:30 AM the first day, and 9:00 AM each hearing day thereafter, continuing day to day, Monday through Thursday, as needed at the discretion of the ALJ.

The hearing shall take place at the Barstow Unified School District Office, 551 South Avenue H, Barstow, California 92311.

As ordered in the scheduling order, the named local educational agency 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. The named local educational agency certified that the facilities used for this case comply with the law. The local educational agency shall inform OAH within two days of the date of this order if it is unable to comply with this order.

Prior to the beginning of the hearing, District shall ensure that the hearing room is configured into a courtroom setting and shall have at a minimum (1) a table for Student and his representatives; (2) a table for District’s legal representative and special education representative; (3) a table for the witness; and (4) a table for the ALJ, near an electrical outlet. District shall provide drinking water and tissue to all parties, witnesses and the ALJ.

The same hearing room shall be used for each day of hearing and shall be available at least one hour prior to the commencement of the hearing each day. The hearing room shall be locked following the hearing each night. District shall ensure that the hearing room and access to it are in compliance with the Americans with Disabilities Act.

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. Issue and Proposed Resolutions. The issue at the due process hearing, and the

proposed resolutions, are listed below.

Issue:

Does District’s April 13, 2017 individualized education program offer, which includes placement at a residential treatment center and related services, provide Student with a free and appropriate public education in the least restrictive environment? Proposed Resolution:

1. An order stating District’s April 13, 2017 IEP offers Student a FAPE

in the LRE.

2. An order that District is no longer required to provide Student with

special education services if Parent wants special education for Student but declines to allow implementation of District’s April 2017 offer of placement and services.

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 shall be separately identified, with a tabbed divider. Each exhibit binder shall contain a detailed table of contents. The parties were to serve their evidence binders on each other by close of business, August 2, 2017, in compliance with Education Code section 56505, subdivision (e)(7).

The District’s exhibits shall include its school calendar for all school years that are related to the issues herein.

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 shall 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 the exhibit lists 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. 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 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.

Each party shall provide current curriculum vitae for witnesses called to testify where the witnesses’ education and experience are relevant to the witnesses’ testimony, opinion, credibility and/or persuasiveness. These shall be properly numbered and placed in the parties’ exhibit binders.

The parties are ordered to meet and confer by August 4, 2017, to reach agreement on an hour-by-hour witness schedule for the first day of hearing. The parties shall have a proposed hour-by-hour witness schedule for the remainder of the hearing, which includes estimated time of direct and cross-examination by both parties. 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 witness is expected to take. The District shall have witnesses available in case agreement on a witness list is not reached.

The parties are encouraged to review and shorten 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.

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).)

District filed a motion requesting that its witnesses from Bright Futures Academy, located in Apple Valley, California, be permitted to telephonically testify. District argues that the testimony of witnesses from Bright Future Academy would cause each witness to most likely miss a full day of work, considering the time required for travel and testimony.

Bright Futures Academy’s ability to properly serve its students would be compromised if the witnesses are away from the Apple Valley campus for one or more days. District has demonstrated good cause. The motion is granted and the witnesses from Bright Futures Academy may telephonically testify at the scheduled hearing, subject to the following conditions.

Each witness shall be provided with a complete set of exhibit binders from all parties, containing all of each party’s exhibits, prior to the hearing. The witness will testify from a private location, outside the presence of any other persons. The witness will utilize a working landline telephone; the witness may not use a cell/mobile phone for testimony. The District 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. District’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 to avoid recording conversations while off the record; 3) that operation of the party’s recording mechanism will not be allowed to delay the hearing; 4) and that the audio recording – or transcript thereof – shall not be played or shown to any witness in the hearing (other than the parties or their representative). Parent may similarly make an audio recording of 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.

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, Student shall present his case-in-chief, followed by District.

9. Motions.

District’s Renewed Motion for Change of Hearing Venue During the PHC, District renewed its motion for a change of venue to a location closer to the non-public school Student currently attends. The proposed location is roughly 25 miles from the District office. District asked for a change of venue for the convenience of the substantial number of witnesses who work at the non-public school.

District initially made the motion to change the place of hearing at the prehearing conference of June 5, 2017. Parent had appeared and opposed the change of venue because it would be inconvenient for her to travel to the proposed location. District’s motion was denied, at that time.

The place for conducting a due process hearing must be reasonably convenient to the parents and student involved in the proceeding. California Education Code section 56505, subdivision (b), directs the place for a due process hearing. That code section provides that a due process hearing shall be held at a time and place reasonably convenient to the parent or guardian and the student The renewed motion for change of hearing location is denied. Parent did not appear at this PHC and was unaware that District would renew its motion. A change of hearing location, in light of Parent’s prior opposition, would decrease the availability of the hearing location to Parent and might discourage her attendance.

Other than District’s motion to allow telephonic testimony (paragraph 6, above), no other motion was made. 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 31, 2017.

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 provided by 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.

District knows of no attendees or parties who require special accommodations at the hearing.

14. Hearing Closed To the Public. The hearing will be closed to the public, unless

Parent requests otherwise.

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.

If the matter settles subject to board approval, in addition to a signed copy of the signature page of the settlement agreement as noted above, the parties shall submit a request for a status conference and provide the date of the next board meeting. The hearing dates will not be cancelled without this information.

16. Failure to comply with this order may result in the exclusion of evidence or

other sanctions.

IT IS SO ORDERED.

DATE: July 31, 2017

CLIFFORD H. WOOSLEY

Administrative Law Judge Office of Administrative Hearings