Order Following Prehearing Conference for Hearing by Videoconference

BEFORE THE

OFFICE OF ADMINISTRATIVE HEARINGS

STATE OF CALIFORNIA

IN THE MATTER OF:

PARENT ON BEHALF OF STUDENT,

v.

OAKLAND UNIFIED SCHOOL DISTRICT.

OAH CASE NUMBER 2020080333

ORDER FOLLOWING PREHEARING CONFERENCE FOR

HEARING BY VIDEOCONFERENCE

NOVEMBER 10, 2020

On November 9, 2020, Administrative Law Judge Marlo Nisperos, Office of Administrative Hearings, held a prehearing conference by videoconference. The Administrative Law Judge is called an ALJ. The Office of Administrative Hearings is called OAH. The prehearing conference is called a PHC.

Nicole Hodge Amey, Attorney at Law, appeared on behalf of Student. David Mishook, Attorney at Law, appeared on behalf of Oakland Unified School District. The PHC was recorded. Based upon discussion with the parties, the ALJ issues the following order:

HEARING DATES, TIMES, AND LOCATION

DUE PROCESS HEARING

The hearing will take place on November 17, 2020, through November 19, 2020, and continue day to day at the discretion of the ALJ. The hearing shall begin at 9:30 AM each day and generally end at 3:30 PM, unless otherwise ordered. The parties anticipate it will take three days to complete the hearing. Additional hearing dates will be discussed with the ALJ during the hearing.

Ms. Amey requested the afternoon recess from 11:00 AM to 12:00PM on November 18, 2020 to accommodate her schedule. Mr. Mischook did not object to the request. The undersigned granted Ms. Amey’s request.

HEARING LOCATION

OAH is authorized to conduct due process hearings by videoconference or telephone. (Cal. Code Regs., tit. 5, § 3082, subd. (g).) Based on state and federal guidance to address safety procedures due to the novel coronavirus, COVID-19, OAH will conduct the due process hearing by videoconference using the Microsoft Teams application. Unless otherwise ordered, participants are required to appear by videoconference using a webcam and Microsoft Teams.

The parties shall immediately notify all potential witnesses of the hearing dates, and shall subpoena witnesses, if necessary, to ensure that the witnesses will appear to testify. A party’s failure to notify or subpoena a witness to testify will not be considered good cause to continue the hearing.

ISSUES AND PROPOSED RESOLUTIONS

The ALJ has slightly altered the statement of some issues as allowed by the holdings in J.W. v. Fresno Unified Sch. Dist. (9th Cir. 2010) 626 F.3d 431, 442-443, and Ford v. Long Beach Unified Sch. Dist. (9th Cir. 2002) 291 F.3d 1086, 1090. (But see M.C.

v. Antelope Valley Union High Sch. Dist. (9th Cir. 2017) 858 F.3d 1189, 1196, fn. 2 [dictum].) No change in substance has been made. A party believing that an issue has been misstated or omitted shall promptly file a notice in writing stating its concern and citing relevant allegations in the complaint by page and lines. The issues at the due process hearing and proposed resolutions, as alleged in the complaint and clarified by the parties and the ALJ during the PHC, are:

ISSUES

1. Did Oakland Unified School District withhold information related to

procedural rights and safeguards it was required to provide to Parent, preventing Parent from filing a due process request as a result?

2. Did Oakland Unified School District deny Student a free appropriate public

education, called FAPE, during the 2015-2016 school year by:

a. failing to assess Student in all areas of suspected disability,

specifically: behavior, academics, and language and speech;

b. failing to perform a functional behavior assessment;

c. removing Student from placement in excess of 10 days without a

manifestation determination meeting;

d. failing to design and implement a behavioral intervention plan to

address Student’s unique and individual needs;

e. failing to identify Student as a child with a need in anxiety requiring

special education services;

f. failing to offer an appropriate program relating to Student as a

child with an anxiety disorder;

g. failing to offer appropriate services relating to Student as a child

with an anxiety disorder;

h. failing to offer appropriate interventions relating to a Student as a

child with an anxiety disorder;

i. failing to identify Student as a child with a need in attention;

requiring special education services;

j. failing to offer an appropriate program relating to Student as a child with attention deficit hyperactivity disorder;

k. failing to offer appropriate services relating to Student as a child with an attention deficit hyperactivity disorder l. failing to offer appropriate interventions relating to Student as a child with attention deficit hyperactivity disorder;

m. failing to offer Student an IEP reasonably calculated to enable him to make progress appropriate in light of his circumstances;

n. failing to offer appropriate services in the areas of behavior, academics, and language and speech;

o. predetermining placement, p. failing to consider a continuum of placements; and q. failing to provide Parent with prior written notice in October 2015, November 2015, February 2016, and May 5, 2016 when Parent requested assessments and additional supports.

3. Did Oakland Unified School District deny Student a FAPE during the 2016-

2017 school year by:

a. failing to provide Parent with procedural rights and safeguards

during the initial request for assessments;

b. failing to timely present assessments to Parent within 60 days;

c. failing to conduct and present a language or speech assessment;

d. failing to assess Student in all areas of suspected disability,

specifically: behavior, academics, and language and speech;

e. failing to perform a functional behavior assessment;

f. removing Student from placement in excess of 10 days without a

manifestation determination meeting;

g. failing to design and implement a behavioral intervention plan to

address Student’s unique and individual needs;

h. failing to conduct an educationally related mental health services,

referred to as ERMHS, assessment, and failing to offer ERMHS services;

i. failing to identify Student as a child with an anxiety disorder;

j. failing to offer an appropriate program relating to Student as a child with an anxiety disorder;

k. failing to offer appropriate services relating to Student as a child with an anxiety disorder;

l. failing to offer appropriate interventions to Student as a child with an anxiety disorder;

m. failing to identify Student as a child with attention deficit hyperactivity disorder;

n. failing to offer an appropriate program, relating to Student as a child with attention deficit hyperactivity disorder;

o. failing to offer appropriate services relating to Student as a child with attention deficit hyperactivity disorder;

p. failing to offer appropriate interventions relating to Student as a child with attention deficit hyperactivity disorder;

q. failing to offer Student an IEP reasonably calculated to enable him to make progress appropriate in light of his circumstances;

r. failing to offer appropriate services in the areas of behavior, academics, and language and speech;

s. predetermining placement;

t. failing to consider a continuum of services placements; and u. failing to provide parent with prior written notice in December 6, 2016 and March15, 2017, when Parent requested assessments and additional supports.

4. Did Oakland Unified School District deny Student a FAPE during the 2019-

2020 school year, through August 12, 2020 by:

a. failing to include Parent in the decision making process beginning

March 13, 2020, by failing to provide Parent with Student’s complete education file; and

b. failing to provide Student records within five days of March 13,

2020, which caused Student to delay filing a complaint during the school year? During the prehearing conference, Oakland made an oral motion to dismiss issue 10 on Student’s PHC statement which alleged violations of Student’s and Parent’s rights under section 504 of the Rehabilitation Act of 1973 (29 U.S.C. § 701 et seq.), Section 1983 of Title 42 United States Code, the Americans with Disabilities Act (42 U.S.C. §§ 1201, et seq.), Title VI of the Civil Rights Act, and other related civil rights act statutes.

Student stipulated to the dismissal based on OAH’s lack of jurisdiction for decide these claims. Accordingly, Student's issue 10, as stated in Student PHC statement, is dismissed.

PROPOSED RESOLUTIONS

The resolutions requested by Student include placement and transportation to and from a non-public school or private school; compensatory education with transportation; independent educational evaluations in the areas of psycho-educational, speech and language, functional behavioral analysis by a board-certified behavioral analyst, and educationally related mental health services; reimbursement to Parents for educationally related costs; and reasonable attorney’s fees and costs.

Oakland filed its response to Student’s complaint on November 9, 2020. (M.C. v.

Antelope Valley Unified School Dist. (9th Cir. 2017) 858 F.3d 1189, 1199-1200.)

EXHIBITS

The parties shall upload their exhibits electronically according to the Order Setting Procedures for Filing Exhibits Electronically.

The parties shall serve their exhibits on each other in compliance with Education Code section 56505, subdivision (e)(7). Timely uploading electronic hearing exhibits five business days before the first day of hearing constitutes that party’s timely exchange of evidence on each other in compliance with Education Code section 56505, subdivision (e)(7).

Except for good cause shown, or unless used solely for rebuttal or impeachment, any exhibit not timely exchanged as required by Education Code section 56505, subdivision (e)(7) shall not be admitted into evidence at the hearing unless the ALJ rules that it is admissible. The electronic evidence system will not allow parties to upload any documents beginning three days prior to the start of the hearing. The admission of any additional documents after that time must be addressed during the hearing to be determined by the ALJ.

IDENTIFYING EXHIBITS AND PAGE NUMBERS

Each exhibit must be identified by a letter and number. Student must use the letter S before the number to identify Student’s exhibits. Oakland must use the letter D before the number to identify Oakland‘s exhibits. For example, S-1 means Student’s exhibit 1 and D-1 means Oakland‘s exhibit 1. A cover sheet with this identifying letter and number should be included with each exhibit. The electronic evidence program will automatically number the exhibits and additional page numbering or bates stamping should not be added.

CONTENT

Each exhibit must consist of one document. Separate documents may not be combined into one exhibit. Emails or letters may be consolidated into one exhibit if they are part of a single chain of messages. Exhibits should be in chronological order.

Parties should include resumes or curriculum vitae for each witness who is expected to testify as an expert.

Oakland’s exhibits must include a copy of the school calendar for each school year in question.

Electronic copies of exhibits filed with OAH shall be filed by 5:00 PM at least five business days before the first day of hearing. OAH will issue a separate Order Setting Procedures for Filing Exhibits Electronically that includes instructions for how to file exhibits electronically.

WITNESSES

The parties shall serve their list of witnesses on each other in compliance with Education Code section 56505. No party shall be permitted to call any witnesses not timely disclosed except for good cause shown, supported by written declaration under penalty of perjury, and at the discretion of the ALJ.

Parties are responsible for ensuring that all participants are familiar with and follow the Instructions for Joining the Online Due Process Hearing provided with this Order. Participants that have not previously used the MS Teams platform, may also find informative videos available like the one at this link from Microsoft:

https://support.office.com/en-us/article/join-a-teams-meeting-078e9868-f1aa-4414- 8bb9-ee88e9236ee4.

The parties are responsible for ensuring that witnesses join the virtual hearing room at the designated date and time to testify. Witnesses are required to join the due process hearing by computer and appear by videoconference unless they do not have the necessary computer equipment. In that situation, the ALJ may permit the witnesses to appear by audio only or by telephone. “Audio only” means using a computer without webcam. Witness ability to attend the hearing by videoconference shall be discussed at the start of the hearing.

Parties are responsible for producing their own witnesses unless otherwise ordered by the ALJ. Parties shall make witnesses under their control reasonably available. The parties must schedule their witnesses to avoid delays in the hearing and to minimize or eliminate the need for calling witnesses out of order. Neither party will be permitted to call any witnesses not timely disclosed except for good cause shown, and at the discretion of the ALJ.

The ALJ has discretion to limit the number of witnesses who testify and the time allowed for witnesses’ testimony. Education Code, section 56505.1, subdivision (h), empowers the ALJ to set a reasonable limit on the length of the hearing after consideration of four factors. The first two factors are the issues to be heard and the complexity of facts to be proven. The second two factors are the ability of the parties or their representatives to present their respective cases and the parties’ estimates of the time needed to present their cases.

MEET AND CONFER

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

The parties are ordered to meet and confer no later than November 10, 2020, at 5:00 PM to discuss scheduling witnesses and how much time each witness will take. The parties shall discuss any issues pertaining to the parties, counsel and witnesses appearing by videoconference for hearing and electronically viewing exhibits during the hearing. The parties should attempt to eliminate duplicate exhibits from their hearing exhibits. The parties shall discuss whether they can produce a written stipulation as to pertinent facts, contentions, resolutions and authenticity and admissibility of documents to shorten the length of time needed for the hearing.

As part of the meet and confer process, Oakland shall inform Student which proposed witnesses are district employees. Oakland shall also identify the witnesses on Student’s list that require a subpoena. Oakland may agree to accept service for witnesses under Oakland‘s control or provide Student with the witness’ most recent contact information.

PARTICIPANT INFORMATION FORM

Both parties have an ongoing obligation to ensure that OAH has current information on the Participant Information Form filed with OAH and shall file an updated Form as necessary. The Participant Information Form is not served upon the opposing party. The ongoing obligation to ensure that the Participant Information Form filed with OAH is current does not change the parties’ statutory obligation to timely disclose their witnesses to the other party(s) at least five business days prior to hearing.

The parties must file an updated Participant Information Form to inform OAH of any changes, additions, or deletions, including the required information no later than 5:00 PM at least two business days before the first day of hearing.

Any contact information provided shall be used for the limited purpose of issuing subpoenas or for contacting the witness(es) for purposes of attending the hearing and shall not be disclosed to any other person(s).

EVIDENCE PRESENTATION

a. In an administrative proceeding, the burden of proof is ordinarily on the party

requesting the hearing. (Schaffer v. Weast (2005) 546 U.S. 49, 62.) In this case Student requested the hearing and bears the burden of proof. Student’s case-in-chief shall be presented first, followed by Oakland, subject to the exception in paragraph b, below.

b. On the morning of the first day of hearing, the ALJ will only hear evidence

pertinent to the statute of limitations and whether Student may assert claims arising more than two years before the filing of the complaint on August 12,

2020. This is called phase one of the hearing. First, Student will offer his

evidence of the reasons he believes the statute of limitations should be extended. Then, Oakland will offer its evidence in favor of the application of the two-year statute of limitations. Student will have a brief period for rebuttal. The parties will then give oral concluding statements. Subsequently, the ALJ will announce a ruling whether Student may assert claims arising before August 12, 2018, and the time period at issue in the hearing.

Thereafter, the parties will receive a short recess to determine any changes to the witness order based on the ruling. The hearing will proceed as described in paragraph a, above, which is called phase two of the hearing. The statute of limitations ruling will be explained in the Decision. There is no break between phase one and two of the hearing. Student’s counsel should be prepared to have witnesses available to timely begin phase two of the hearing.

WITNESS LISTS

The parties must provide a joint proposed witness list to the ALJ on the first day of hearing. The list should include the first and last name of the witness, which party(s)

are calling the witness to testify, and include dates and time estimates of each witness’ expected testimony. In the event an agreement cannot be reached, each party shall prepare a separate written list. Oakland must have witnesses available in case there is no agreement.

At the beginning of the hearing, the ALJ and the parties will discuss the length of time anticipated for each witness and scheduling issues for individual witnesses. The ALJ will finalize the witness schedule. Parties must be prepared at the end of each day to discuss the witnesses to be presented the next day and the estimated time for the testimony each witness.

SCOPE OF WITNESS EXAMINATION

Each witness will be called to testify only once, except for rebuttal purposes. All parties must examine witness on all issues when the witness is first called. Requiring a witness to appear only once takes priority over the order in which parties present their case in chief.

AUDIO ONLY OR TELEPHONIC TESTIMONY

Whether a witness may appear by audio only or telephone instead of videoconference 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 audio only or telephone shall request permission to do so before the hearing. Any party seeking to present a witness who cannot access exhibits electronically must inform the ALJ at the beginning of the hearing.

ELECTRONIC RECORDINGS

AUDIO RECORDING

A party may request permission to make an audio recording of the hearing.

Permission to make an audio recording is subject to the ALJ’s discretion and based upon certain conditions. The conditions are:

1. the OAH recording is the only official recording;

2. participants shall not use Teams to record the hearing;

3. the parties shall turn their recording device on and off at the same time

that the ALJ is on and off the record to avoid recording conversations while off the record;

4. operation of the party’s recording mechanism will not be allowed to delay

the hearing;

5. a parties’ recording may not be given, provided or played to a witness, or

potential witness;

6. the recording is subject to the same confidentiality as the due process

hearing;

7. use of the chat function in the videoconference is prohibited and shall not

be part of the official record; and

8. participants shall not take screenshots of the videoconference, or share or

publish any portion of the videoconference or audio recording.

Neither party has made a request to audio record the hearing. If either party wants to record the hearing, the request must be made before the hearing.

VIDEO RECORDING

No party, witness or anyone else may make any video recording of any part of the proceedings or stream live through any means.

RECORDINGS AS EXHIBITS

At present neither party proposes to introduce all or part of a recording of an individualized education program team meeting. The ALJ has discretion to admit or exclude evidence in the form of a recording. Any request to submit a recording shall be considered at the time of hearing. The ALJ may grant or deny the request or grant the request subject to certain conditions. The party offering the recording must establish that all or a part of the recording is relevant. The ALJ may request a transcript of the portion of the recording requested or have the party offering the recording to provide an exact identifiable portion of the recording the party seeks to admit. The identities of any person speaking on the portion of the tape being introduced must be established.

An ALJ may allow the opposing party to offer additional portions of a recording to establish the context, or to rebut, the recording.

COMPENSATORY EDUCATION OR REIMBURSEMENT

Any party seeking reimbursement for expenditures shall present admissible evidence of these expenditures, or a stipulation to the amount of the expenditures. A party seeking compensatory education should provide evidence regarding the type, amount, duration, and need for any requested compensatory education. Documents offered as evidence to support a request for reimbursement must be separated by vendor.

MOTIONS

No prehearing motions are pending or contemplated. Any motion that was not filed three business days before the PHC, shall be supported by a declaration under penalty of perjury establishing good cause why the motion was not timely filed.

STIPULATIONS

Stipulations to pertinent facts, contentions, resolutions and authenticity and admissibility of documents are encouraged. Any proposed stipulation shall be submitted to the assigned ALJ in writing prior to the start of the hearing.

CONDUCT OF COUNSEL AND HEARING ROOM DECORUM

All participants to the videoconference should observe the same decorum as in an in-person due process hearing. Counsel, all parties, and all witnesses must conduct themselves in a professional and courteous manner at all times. Cellular phones, telephones and computer notifications must be shut off or set to silent during the hearing unless the ALJ grants permission otherwise. Counsel, parties, and witnesses shall appear from a private location, unless otherwise ordered. Participants should take reasonable efforts to minimize background noise maintain adequate room lighting. Use of virtual background images are at the discretion of the ALJ. Witnesses are prohibited from reading exhibits, documents, notes, text messages, telephones or computers while testifying, unless permitted to do so by the ALJ. Parties, counsel and witnesses are prohibited from passing notes to, exchanging electronic messages with, or signaling the witness in any way while the witness is testifying.

LANGUAGE INTERPRETERS AND REASONABLE ACCOMMODATIONS

A party or participant in this case, such as a witness, requiring reasonable accommodation to participate in a mediation or hearing may contact OAH at (916) 263-0880, or send an email to OAHADA@dgs.ca.gov as soon as the need is known. The e-mail should have “Request for Accommodation” in the Subject Line.

Additional information concerning requests for reasonable accommodation is available on OAH’s website at: https://www.dgs.ca.gov/OAH/Services/Page-Content/Office-of- Administrative-Hearings-Services-List-Folder/Accommodations-at-OAH.

HEARING OPEN TO THE PUBLIC

The hearing is open to the public. Special Education hearings are closed to the public unless Student requests the hearing to be open to the public.

An ALJ may restrict attendance because of the physical limitations of the hearing facility, or take other action to promote due process or the orderly conduct of the hearing. (Cal. Code Regs., Tit. 1, § 1030.) Government Code, section 11425.20 empowers the ALJ to order an open hearing to be closed or make other protective orders to the extent necessary or proper to ensure a fair hearing in the circumstances of the particular case. Currently, amid COVID-19 concerns, all hearings are being conducted via videoconference without observers present or participating in the videoconference. OAH will provide the hearing recording upon request.

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 if 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. At the same time, the parties should send the signature page of the signed agreement or a letter withdrawing the case to OAH at https://www.applications.dgs.ca.gov/oah/oahsftweb.

If a full and final written settlement agreement is reached after 4:00 PM 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.

Dates for hearing will not be cancelled until the letter of withdrawal or signature page of the signed agreement has been received and processed 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 before the hearing.

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

FAILURE TO COMPLY

The failure to comply with this Order may result in the exclusion of evidence or other sanctions.

ORDER INCLUDES ALL RULINGS

This Order includes all rulings made at the prehearing conference. Any discussion and conversation not referenced in this Order is not binding on the ALJ conducting the hearing and may not be relied upon by the parties. The parties should be aware that, at hearing, the ALJ conducting the hearing has discretion to reconsider any part of this Order.

IT IS SO ORDERED.

{{sig1_es_:signer1:signature}} Marlo Nisperos Administrative Law Judge Office of Administrative Hearings