California OAH special education order · July 31, 2017
Order Following Prehearing Conference
OAH Case No. 2017060144 · ALJ Rebecca Freie
OAH set San Leandro's hearing on whether five spring 2017 assessments were appropriate, and told Student she cannot seek an eligibility finding by motion but must file her own due process complaint.
This case went to decision
San Leandro Unified School District v. Student: San Leandro Unified's five assessments upheld as appropriate; guardians not entitled to independent evaluations at public expense. (2017)
Summary
After a prehearing conference, OAH set a three-day hearing in August 2017 on San Leandro's complaint. The district asks OAH to find that its March-April 2017 psychoeducational, speech and language, academic, functional behavior, and occupational therapy assessments were appropriate, so Student would not be entitled to independent educational evaluations. The ALJ granted the district's requests to have witness Larry Winfield testify by telephone and to audio-record the hearing. The ALJ also ordered the district to certify that its hearing facility is ADA-compliant, and told Student that a request to be found eligible for special education cannot be made by motion and requires a separate due process complaint.
Why it matters
When a district files to defend its assessments, families cannot raise their own claims, such as eligibility, by motion inside that case. They must file their own due process complaint.
Key authority cited
- Ed. Code § 56320
- 20 U.S.C. § 1414(b)
- Ed. Code § 56505, subd. (e)(7)
- Cal. Code Regs., tit. 5, § 3082, subd. (g)
- Schaffer v. Weast (2005) 546 U.S. 49
People named in the order
- Larry Winfield, District witness (telephonic testimony)
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:
SAN LEANDRO UNIFIED SCHOOL OAH Case No. 2017060144
DISTRICT,
ORDER FOLLOWING PREHEARING
v. CONFERENCE
GUARDIANS ON BEHALF OF STUDENT.
On July 31, 2017, a telephonic prehearing conference was held before Administrative Law Judge Rebecca Freie, Office of Administrative Hearings. Leah Smith, Attorney at Law, appeared on behalf of San Leandro Unified School District. Guardians appeared on behalf of Student. 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 August
8, 9, and 10, 2017, continuing day to day, Monday through Thursday, at the discretion of the ALJ. The hearing shall take place at San Leandro’s offices located at 14735 Juniper Street, San Leandro, California 94579-1299. 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.
As ordered in the scheduling order, San Leandro is 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. San Leandro has failed to certify that it would provide a facility for this case that complies with the law. San Leandro shall provide OAH with certification that its facility complies with the law within two days of this order.
Prior to the beginning of the hearing, San Leandro shall ensure that the hearing room is configured into a courtroom setting and shall have at a minimum (1) a table for Student and her representatives; (2) a table for San Leandro’s legal representative and special education representative; (3) a table for the witness; and (4) a table for the ALJ, near an electrical outlet. San Leandro 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. San Leandro 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. Issues and Proposed Resolutions. The issues at the due process hearing, and
the proposed resolutions, are listed below:
Issues 1) Is San Leandro’s March-April 2017 psychoeducational evaluation appropriate within the legal definition? 2) Is San Leandro’s March-April 2017 speech and language evaluation appropriate within the legal definition? 3) Is San Leandro’s March-April 2017 academic evaluation appropriate within the legal definition? 4) Is San Leandro’s March-April 2017 functional behavior assessment appropriate within the legal definition? 5) Is San Leandro’s March-April 2017 occupational therapy evaluation appropriate within the legal definition? Proposed Resolutions OAH shall find that each of the assessments at issue were appropriate within the legal definition, and met the requirements of Education Code section 56320, and 20 U.S.C. section 1414(b), and as a result Student is not entitled to independent educational evaluations in these areas.
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 exhibit binder shall be consecutively paginated, or Bates-stamped.
Each exhibit binder shall contain a detailed table of contents. The parties shall serve their evidence binders on each other 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 timely exchanged shall not be admitted into evidence at the hearing unless 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 timely disclosed except for good cause shown, and at the discretion of the ALJ. 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.
The parties shall attempt to reach agreement on a witness list for the first day of hearing, and shall meet and confer concerning the schedule of witnesses no later than August 3, 2017. San Leandro 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.
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.
San Leandro’s motion to allow Larry Winfield to testify telephonically is granted, since Mr. Winfield is in Humboldt County. San Leandro shall provide Mr. Winfield with a complete exhibit binder from each party, 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.
7. Electronic Recording of Hearing.
a. Audio Recording. San Leandro’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 recorder will be turned on and off at the same time as the ALJ’s recorder, 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 Student desires to make such a recording, she 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, San Leandro is the petitioning party. Accordingly, San Leandro shall present its case-in-chief, followed by Student.
9. Motions. Student indicated that she might file a motion asking that the ALJ
find her eligible for special education. The ALJ advised Student that such a request cannot be made by motion, and Student must file a separate request for due process hearing . No other 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 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 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:
https://www.dgs.ca.gov/oah/Home/Accessibility.aspx.
14. Hearing Open/Closed 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 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 31, 2017
REBECCA FREIE
Administrative Law Judge Office of Administrative Hearings