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. 2018080938 v.

IRVINE UNIFIED SCHOOL DISTRICT,

IRVINE UNIFIED SCHOOL DISTRICT, OAH Case No. 2018080860 v.

PARENT ON BEHALF OF STUDENT. ORDER FOLLOWING PREHEARING

CONFERENCE

On November 5, 2018, a telephonic prehearing conference was held before Administrative Law Judge Tara Doss, Office of Administrative Hearings. Tim Adams and Lauren Caron, Attorneys at Law, appeared on behalf of Student. Daniel Gonzalez, Attorney at Law, appeared on behalf of Irvine Unified School District. The PHC was recorded.

Based upon the parties’ PHC statements and discussion during the PHC, the ALJ issues the following order:

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

November 13, 14, and 15, 2018, continuing day to day, Monday through Thursday, at the discretion of the ALJ. 1 The hearing will be held at Irvine’s Learning Center located at 3387 Barranca Parkway, Room 5, Irvine, CA 92606. The hearing shall begin at 1:30 p.m. on the first day of the hearing and at 9:00 a.m. on all following days, unless otherwise ordered.

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 has certified that the The parties agreed that additional days for hearing would be necessary. The ALJ will discuss scheduling additional dates with the parties on the first day of hearing.

facilities used for this case comply with the law. The local educational agency shall inform OAH as soon as possible if it is no longer able to comply.

Prior to the beginning of the hearing, Irvine shall ensure that the hearing room is configured into a courtroom setting and shall have at a minimum (1) a table for Student and Student’s representatives; (2) a table for Irvine and its representatives; (3) a table for the witness; and (4) a table for the ALJ, near an electrical outlet. Irvine 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.

Irvine 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 to be resolved at the due process

hearing, as alleged in the respective complaints and clarified by the parties and the ALJ at the PHC, and the proposed resolutions, are:

Student’s Issues (1) Did Irvine deny Student a free appropriate public education by failing to convene an individualized education program team meeting within 30 days of Parent’s request on September 22, 2016? (2) Did Irvine deny Student a FAPE in the October 28, 2016 IEP by:

(a) refusing to allow Parents to meaningfully participate in the IEP development process;

(b) failing to offer appropriate goals to address Student’s needs in reading, writing, math, auditory processing, and social/emotional;

(c) failing to offer appropriate academic services, including reading, writing, and math;

(d) failing to offer appropriate services to address Student’s auditory processing needs;

(e) failing to offer appropriate services to address Student’s social/emotional needs, including anxiety;

(f) failing to offer an appropriate placement;

(g) failing to offer appropriate accommodations to address Student’s needs in academics, auditory processing, and social/emotional; and (h) offering a modified academic curriculum? (3) Did Irvine deny Student a FAPE by failing to obtain informed consent from Parents prior to implementing Student’s October 28, 2016 IEP? (4) Did Irvine deny Student a FAPE from October 28, 2016, through June 2018, by unilaterally modifying Student’s academic curriculum without parental consent? (5) Did Irvine deny Student a FAPE in the IEP developed on March 23 and 27, 2017, by:

(a) failing to offer appropriate goals to address Student’s needs in reading, writing, math, auditory processing, social skills, and motor skills;

(b) failing to offer appropriate academic services, including reading, writing, and math;

(c) failing to offer appropriate services to address Student’s auditory processing needs;

(d) failing to offer appropriate services to address Student’s social skills;

(e) failing to offer appropriate services to address Student’s motor skills, including developmental coordination;

(f) failing to offer an appropriate placement;

(g) failing to offer appropriate accommodations to address Student’s needs in academics, auditory processing, social skills, and motor skills; and (h) offering a modified academic curriculum? (6) Did Irvine deny Student a FAPE in the October 5, 2017 IEP by:

(a) failing to offer appropriate goals to address Student’s needs in reading, writing, math, auditory processing, social skills, motor skills, and social/emotional;

(b) failing to offer appropriate academic services, including reading, writing, and math;

(c) failing to offer appropriate services to address Student’s auditory processing needs;

(d) failing to offer appropriate services to address Student’s social skills;

(e) failing to offer appropriate services to address Student’s motor skills, including developmental coordination;

(f) failing to offer appropriate services to address Student’s social/emotional needs, including anxiety;

(g) failing to offer an appropriate placement;

(h) failing to offer appropriate accommodations to address Student’s needs in academics, auditory processing, social skills, motor skills, and social/emotional; and (i) offering a modified academic curriculum? (7) Did Irvine deny Student a FAPE by failing to assess Student and convene an IEP team meeting within 60 days of Parent’s consent to the assessment plan on October 11, 2017? (8) Did Irvine deny Student a FAPE in the IEP developed on January 8, 9, 17, 26, 31, February 8 and 13, 2018, by:

(a) failing to offer appropriate goals to address Student’s needs in reading, writing, math, auditory processing, phonological processing, social skills, motor skills, social/emotional, and assistive technology;

(b) failing to offer appropriate academic services, including reading, writing, and math;

(c) failing to offer appropriate services to address Student’s auditory processing needs;

(d) failing to offer appropriate service to address Student’s phonological processing needs;

(e) failing to offer appropriate services to address Student’s social skills;

(f) failing to offer appropriate services to address Student’s motor skills, including developmental coordination;

(g) failing to offer appropriate services to address Student’s social/emotional needs, including anxiety;

(h) failing to offer appropriate assistive technology services;

(i) failing to offer an appropriate placement;

(j) failing to offer extended school year placement and services;

(k) failing to offer appropriate accommodations to address Student’s needs in academics, auditory processing, phonological processing, social skills, motor skills, and social/emotional; and (l) offering a modified academic curriculum? (9) Did Irvine deny Student a FAPE in the March 7, 2018 IEP by:

(a) failing to offer appropriate goals to address Student’s needs in reading, writing, math, auditory processing, phonological processing, social skills, motor skills, social/emotional, and assistive technology;

(b) failing to offer appropriate academic services, including reading, writing, and math;

(c) failing to offer appropriate services to address Student’s auditory processing needs;

(d) failing to offer appropriate service to address Student’s phonological processing needs;

(e) failing to offer appropriate services to address Student’s social skills;

(f) failing to offer appropriate services to address Student’s motor skills, including developmental coordination;

(g) failing to offer appropriate services to address Student’s social/emotional needs, including anxiety;

(h) failing to offer appropriate assistive technology services;

(i) failing to offer an appropriate placement;

(j) failing to offer extended school year placement and services;

(k) failing to offer appropriate accommodations to address Student’s needs in academics, auditory processing, phonological processing, social skills, motor skills, and social/emotional; and (l) offering a modified academic curriculum? (10) Did Irvine deny Student a FAPE in the IEP developed on June 6, 11, and 13, 2018, by:

(a) failing to offer appropriate goals to address Student’s needs in reading, writing, math, auditory processing, phonological processing, social skills, motor skills, social/emotional, and assistive technology;

(b) failing to offer appropriate academic services, including reading, writing, and math;

(c) failing to offer appropriate services to address Student’s auditory processing needs;

(d) failing to offer appropriate service to address Student’s phonological processing needs;

(e) failing to offer appropriate services to address Student’s social skills;

(f) failing to offer appropriate services to address Student’s motor skills, including developmental coordination;

(g) failing to offer appropriate services to address Student’s social/emotional needs, including anxiety;

(h) failing to offer appropriate assistive technology services;

(i) failing to offer an appropriate placement;

(j) failing to offer extended school year placement and services;

(k) failing to offer appropriate accommodations to address Student’s needs in academics, auditory processing, phonological processing, social skills, motor skills, and social/emotional;

(l) offering a modified academic curriculum;

(m) failing to offer a program consistent with Dr. Shari Giti’s neuropsychological assessment report; and (n) failing to address the bullying and humiliation Student experienced at school? Student’s Proposed Resolutions:

(1) An order that the IEP developed on October 28, 2016, was inappropriate.

(2) An order that the IEP developed on March 23 and 27, 2017, was inappropriate.

(3) An order that the IEP developed on October 5, 2017, was inappropriate.

(4) An order that the IEP developed on January 8, 9, 17, 26, 31, February 8 and 13, 2018, was inappropriate.

(5) An order that the IEP developed on March 7, 2018, was inappropriate.

(6) An order that the IEP developed on June 6, 11, and 13, 2018, was inappropriate.

(7) An order for Irvine to reimburse Parents for educational services for Student, including tutoring services provided by various tutors, Student’s participation in the Irvine’s Foundation Summer Enrichment Program for summer 2016 and 2017, Student’s participation in the Stowell Learning Center program, and mileage related to these services.

(8) An order for Irvine to reimburse Parents for the educational consultant they hired to help develop the IEP goals to address Student’s dyslexia and dyscalculia.

(9) An order for Irvine to reimburse Parents for tuition and mileage for transportation related to the Prentice School’s 2018 summer program.

(10) An order for Irvine to reimburse Parents for any tuition, related services, and mileage, that Parents have paid to date for the 2018-2019 school year.

(11) An order for Irvine to fund Student’s continued placement at Prentice School, including related services and transportation.

(12) Such other and further remedies as the ALJ deems fit.

Irvine’s Issue:

Did Irvine offer Student a FAPE for the 2018-2019 school year in the IEP developed on June 6, 11, and 13, 2018? Irvine’s Proposed Resolution:

(1) An order that Irvine’s IEP developed on June 6, 11, and 13, 2018 offered Student a FAPE.

(2) An order that Irvine is not responsible for funding Student’s private placement at Prentice School.

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 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.

Each party will include in its exhibits current resumes of its expert witnesses, and current resumes of any of its percipient witness whose education and employment are expected to be subjects of direct examination. Irvine shall include as part of its exhibits the school calendar(s) for all of the years at issue.

Each exhibit shall only contain one document. Any IEP and related documents (e.g.

IEP invitations, assessment plans, etc.) relied upon during the hearing shall include all pages of the original (or copy thereof) operative document, including signature pages and any pages with handwritten or type-written notes. Excerpts of an audio recording of an IEP team meeting, if any, should, in addition to the audio recording offered, be transcribed and offered as documentary evidence; that portion of the audio recording transcribed shall be provided to the opposing party along with the transcript to allow an opportunity to verify the accuracy of the transcription. Transcriptions need not be prepared by a certified court reporter.

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.

The parties are encouraged to review and shorten their exhibit lists prior to the hearing. Evidence may be excluded if it is repetitive, cumulative, or insufficiently probative to justify the time it would take to hear.

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.

a. Timely Disclosure of Witnesses and Exhibits. Education Code section

56505, subdivision (e)(7), requires each party to disclose, at least five business days prior to the hearing, a list of all witnesses and their general area of testimony that the parties intend to present at the hearing, and a copy of all documents, including all assessments completed by that date and recommendations based on the assessments, that the parties intend to use at the hearing. The parties shall exchange final witness lists and exhibit binders on or before Monday, November 5, 2018. Witnesses and documents not disclosed by that time may be excluded at the request of the other party from introduction at the hearing. Each party reserves the right to present additional witness and documents for purposes of rebuttal.

b. Meet and Confer Regarding Witnesses. The parties are ordered to

meet and confer on or before Thursday, November 8, 2018, regarding the schedule of witnesses for the hearing. Irvine shall provide the last known contact information for Student’s witness Asha Sharma no later than this date. The parties are to coordinate the availability and order of testimony of witnesses to ensure that there is a witness available to testify at all times during the hearing, and to ensure that the hearing is completed as scheduled. The parties shall discuss a time estimate of the length of each witness’s direct and cross-examination testimony, and identify those witnesses the party intends to call, as opposed to witnesses the party may call, depending on the flow of the hearing and the evidence.

The parties are encouraged to review and shorten their witness lists prior to the hearing. Evidence may be excluded if it is repetitive, cumulative, or insufficiently probative to justify the time it would take to hear.

On the first day of hearing, before the first witness testifies, the parties shall provide the ALJ with one detailed hour-by-hour schedule of all witnesses expected to testify at the hearing, which list shall also include an estimate of time for each party’s direct and cross- examination. The ALJ and the parties will discuss the length of time anticipated for testimony of each witness and any scheduling issues for individual witnesses. The ALJ will finalize the witness schedule. 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.

The ALJ has discretion to limit the number of witnesses who testify and the time allowed for witness testimony. Education Code, section 56505.1, subdivision (h), empowers the ALJ presiding at a due process hearing to set a reasonable limit on the length of the hearing after consideration of: (i) issues to be heard, (ii) complexity of facts to be proven, (iii) ability of the parties or their representatives to present their respective cases, and (iv)

estimates of the parties as to the time needed to present their respective cases.

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. 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, 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 with all of each party’s exhibits prior to the hearing. The proponent of the witness shall ensure the witness testifies from a private location with no other persons present, using a “land-line,” 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 met.

Irvine’s request to have Erin Bennett and Sarah Low testify telephonically is granted as long as the conditions above are satisfied.

7. Electronic Recording of Hearing.

a. Audio Recording. Student’s request to make an audio recording of the

hearing is granted, subject to the following conditions: (1) OAH’s recording is the only official recording, unless otherwise determined by the ALJ; (2) the recording device shall be turned on only when the ALJ states that the matter is on the record, and shall be turned off when the ALJ states that the matter is off the record; (3) such recording shall be for the party’s personal use only and only for review and preparation of the hearing ; (4) the audio recording may not be shared with any witnesses or third parties; (5) the party shall not use the recording in any subsequent due process hearing; (5) operational challenges with the party’s recording equipment will not delay the hearing; and (6) the party shall dispose of the unofficial recording when the time for appeal of the ALJ’s decision in this matter has expired. Irvine may also make an audio recording under the same conditions.

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, Student has the burden of proof on its issues and Irvine has the burden of proof on its issue. The parties may determine who will present its case-in-chief first.

9. Motions. No 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.

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 set to vibrate during the hearing unless permission to the contrary is obtained from the

ALJ.

13. Special Needs and Accommodations. Neither party requested

accommodations for the hearing.

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, or email the OAH ADA Coordinator at OAHADA@dgs.ca.gov, 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 Closed To the Public. The hearing shall 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 EMAIL THE SIGNATURE PAGE OF THE

SIGNED AGREEMENT OR A LETTER WITHDRAWING THE CASE TO THE

OAH AT https://www.dgsapps.dgs.ca.gov/oah/oahsftweb.

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: November 8, 2018

TARA DOSS

Administrative Law Judge Office of Administrative Hearings