Order Following Prehearing Conference for Hearing by Videoconference, Denying Motion for an Order to Show Cause Regarding Standing, and Granting Motion to Limit Issues

BEFORE THE

OFFICE OF ADMINISTRATIVE HEARINGS

STATE OF CALIFORNIA

IN THE MATTER OF:

PARENT ON BEHALF OF STUDENT,

v.

PERRIS UNION HIGH SCHOOL DISTRICT.

OAH CASE NUMBER 2024090725

ORDER FOLLOWING PREHEARING CONFERENCE FOR

HEARING BY VIDEOCONFERENCE, DENYING MOTION FOR

AN ORDER TO SHOW CAUSE REGARDING STANDING,

AND GRANTING MOTION TO LIMIT ISSUES

OCTOBER 29, 2024

On October 28, 2024, Administrative Law Judge Linda Dowd, 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.

Attorney Michelle Wilkolaski appeared on behalf of Student. Attorney Dee Anna Hassanpour appeared on behalf of Perris Union High 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 5, 6, and 7, 2024, 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 six to eight days to complete the hearing. Additional hearing dates will be discussed with the ALJ during the hearing.

HEARING LOCATION

OAH is authorized to conduct due process hearings by videoconference or telephone. (Cal. Code Regs., tit. 5, § 3082, subd. (g).) OAH will conduct the due process hearing by videoconference using the Zoom application. Unless otherwise ordered, participants are required to appear by videoconference using a computer or device with video capability and Zoom.

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. Instructions for issuing and responding to subpoenas and optional forms for subpoenas can be found on the website at https://www.dgs.ca.gov/OAH/Case-Types/Special- Education/Forms/Subpoenas?search=special%20education%20subpoena.

ISSUES AND PROPOSED RESOLUTIONS

Free appropriate public education is called a FAPE. An individualized education program is called an IEP. There is a preliminary issue that will be heard prior to any testimony on the substantive issues.

The preliminary issue is Student’s capacity for assigning educational decision- making ability to his parent. Student will be the first witness to testify on the morning of November 5, 2024. The ALJ will swear Student in and ask a few questions to determine the validity of Student’s assignment of educational rights. Student is not conserved and called into question his capacity to understand an assignment of educational rights in his complaint. Specifically, Student alleged his is unable to use oral language for appropriate communication and his adaptive functioning is equivalent to that of a one to six-year-old.

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 Perris Union deny Student a FAPE at the March 6, 2023, IEP team

meeting by failing to offer an educationally related mental health services assessment?

2. Did Perris Union deny Student a FAPE at the March 6, 2023, IEP team

meeting by predetermining the IEP without Parent present?

3. Did Perris Union deny Student a FAPE in the August 22, 2023, IEP by failing

to offer necessary special education services to enable Student to receive educational benefit, specifically:

a. behavior intervention services,

b. college and career awareness services,

c. sufficient speech and language services,

d. sufficient occupational therapy services,

e. home applied behavior analysis therapy and clinic meetings,

f. parent training in autism, communication skills, and behavior, and

g. placement in the least restrictive environment?

4. Did Perris Union deny Student a FAPE by failing to hold Student’s three-

year-review IEP team meeting in September 2023?

5. Did Perris Union deny Student a FAPE in the August 20, 2024, IEP by failing

to offer necessary special education services to enable Student to receive educational benefit, specifically:

a. behavior intervention services,

b. college and career awareness services,

c. sufficient speech and language services,

d. sufficient occupational therapy services,

e. home applied behavior analysis therapy and clinic meetings,

f. parent training in communication skills and behavior, and

g. placement in the least restrictive environment?

A party must immediately file a written objection with OAH if the issues as described above do not reflect the party’s understanding of the issues as clarified at the PHC. The ALJ will address any objections on the first day of hearing.

PROPOSED RESOLUTIONS

Student requests an order that Perris Union hold an IEP team meeting to develop an IEP which contains appropriate goals, sufficient services, and placement in the least restrictive environment, educationally related mental health assessment, parent training, and compensatory education.

Perris Union filed its response to Student’s complaint on October 23, 2024. (M.C.

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

EXHIBITS

The parties shall serve their exhibits on each other in compliance with Education Code section 56505, subdivision (e)(7). The parties shall upload their exhibits electronically according to the Order Setting Procedures for Filing Exhibits Electronically.

Timely uploading electronic hearing exhibits five business days before the first day of hearing constitutes that party’s timely exchange of evidence in compliance with Education Code section 56505, subdivision (e)(7). If further assistance is needed, please contact OAH at OAHSEOps@dgs.ca.gov.

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.

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. Perris Union must use the letter D before the number to identify its exhibits. For example, S-1 means Student’s exhibit 1 and D-1 means Perris Union’s exhibit 1. A cover sheet with this identifying letter and number should be the first page of 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 expected to testify as an expert. Each resume or curriculum vitae shall be a separate exhibit.

Perris Union’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. Please refer to the General Order OAH issued with the Scheduling Order that contains the Order Setting Procedures for Filing Exhibits Electronically. It includes instructions for how to file exhibits electronically.

Beginning three business days before the hearing, the electronic evidence system will not allow parties to upload exhibits unless permitted by the ALJ during the hearing at the ALJ’s discretion.

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 who have not previously used the Zoom application, may find informative instructions on at by visiting, Getting Started with Zoom at https://support.zoom.us/hc/en-us/categories/200101697.

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. If a witness does not have the necessary equipment, the ALJ may permit the witnesses to appear by audio only or by telephone.

“Audio only” means using a computer without video. A witness’s inability to attend the hearing by videoconference will be discussed at the start of the hearing.

The 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.

The ALJ has discretion to limit the number of witnesses and the time allowed for 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 5:00 PM on October 31, 2024, to discuss scheduling witnesses and how much time each witness will take. The parties shall discuss any issues related to counsel and witnesses appearing by videoconference for hearing, electronically viewing exhibits during the hearing, and subpoenas, if any. 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 the authenticity and admissibility of documents to shorten the length of time needed for the hearing.

As part of the meet and confer process, Perris Union shall inform Student which proposed witnesses are Perris Union employees. Perris Union shall also identify the witnesses on Student’s list that require a subpoena. Perris Union may agree to accept service for a witness under its control or provide Student with the witness’s 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 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 a witness to attend the hearing. Any contact information shall not be disclosed to any other person.

EVIDENCE PRESENTATION

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 Perris Union, unless otherwise ordered.

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 is calling the witness to testify, and include dates and time estimates of each witness’s expected testimony. In the event an agreement cannot be reached, each party shall prepare a separate written list. Student 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 of each witness.

SCOPE OF WITNESS EXAMINATION

Each witness will be called to testify only once, except for rebuttal purposes. All parties must examine a witness on all issues when the witness is first called to testify.

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

Both Student and Perris Union may make an audio recording of the hearing.

Permission to make an audio recording is subject to the ALJ’s discretion and based upon the following conditions:

1. the OAH recording is the only official recording,

2. 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,

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

the hearing,

4. a party’s recording may not be given, provided or played to a witness, or

potential witness,

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

hearing, and

6. participants shall not take screenshots of the videoconference nor share or

publish any portion of the videoconference or audio recording.

VIDEO RECORDING

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

RECORDINGS AS EXHIBITS

Recordings may not be uploaded electronically without the ALJ’s permission. 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

MOTION FOR AN ORDER TO SHOW CAUSE REGARDING STANDING

On October 23, 2024, Perris Union filed a motion for an order to show cause that Parent has standing to file a complaint on his behalf or in the alternative, a motion to bifurcate the hearing. Student did not respond to Perris Union’s motion.

After a student has reached the age of majority, except for an individual who has been determined to be incompetent under state law, IDEA rights transfer from the parent to the student. (34 C.F.R. § 300.520; Ed. Code, § 56041.5.) After such time, a parent or guardian is "no longer authorized to file a request for hearing on behalf of the pupil unless the parent is appointed his or her conservator…or the pupil transfers his or her educational rights to the parent." (Student v. Lincoln Unified Sch. Dist. (OAH 2013)

Case No. 2013090535, Order Requiring Submission of Proof of Holding Educational Rights for Student or Authorization to File Request for Hearing on Behalf of Student.)

Here, Student purportedly signed a document on January 31, 2024, transferring his educational rights to his Parent. Perris Union challenges the validity of the document because Student’s complaint calls into question his capacity to understand an assignment of educational rights and the document was DocuSigned using the same email address for both Parent and Student. During the PHC, Student’s attorney alleged Student did sign the document he simply used Parent’s email address.

Perris Union’s request for an order to show cause that Parent has standing or in the alternative, to bifurcate is denied. Student made a prima facie showing that Parent has standing. Therefore, a separate order to show cause hearing or bifurcation is not appropriate. However, the issue of Parent’s standing to file this due process complaint shall be heard on the first day of hearing, prior to the commencement of Student’s case- in-chief. Upon review of the evidence presented on that preliminary issue, the ALJ shall provide an oral ruling regarding Parent’s standing which will also be included in the written decision at the end of the hearing. At the request of the ALJ, Student is ordered to be Student’s first witness, subject to questioning by the ALJ.

MOTION TO LIMIT ISSUES

On October 23, 2024, Perris Union filed a motion to limit Student’s issues to the two-year statute of limitations. Student did not respond to the motion. Student’s complaint alleges multiple issues regarding an August 31, 2022, IEP. Perris Union argues Student filed two previous claims with identical issues about the August 31, 2022, IEP and failed to plead sufficient facts alleging an exception to the statute of limitations applies. During the PHC, the undersigned ALJ ordered that the statute of limitations issue would be heard on the first day of hearing as a preliminary matter. However, after further consideration, Perris Union’s motion to limit the issues to issues arising within the two-year statute of limitations is granted.

The statute of limitations in California is two years, consistent with federal law.

(Ed. Code, § 56505, subd. (l); see also 20 U.S.C. § 1415(f)(3)(C).) However, title 20 United States Code section 1415(f)(3)(D) and Education Code section 56505, subdivision (l), establish exceptions to the statute of limitations in cases in which the parent was prevented from filing a request for due process due to specific misrepresentations by the local educational agency that it had resolved the problem forming the basis of the complaint, or the local educational agency’s withholding of information from the parent that was required to be provided to the parent.

Student’s complaint makes a cursory allegation that Perris Union failed to provide Parent all of Student’s IEPs. Specifically, that Parent had “only fragments of the August 22, 2023, IEP, and parent has not received the August 20, 2024, IEP on or about September 5, 2025.” The September 5, 2025, date is likely a typo, however, it applies to the August 20, 2024, IEP, not the August 31, 2022, IEP. Student does not make any allegation that Perris Union failed to provide any of the August 31, 2022, IEP.

During the PHC, Student’s attorney alleged Perris Union misrepresented that it was working to resolve Student’s complaints about the August 31, 2022, IEP throughout the 2022-2023 school year. However, that allegation does not appear anywhere in Student’s complaint. Additionally, Student filed two previous complaints, one on February 8, 2024, and one on May 2, 2024. Both included identical issues regarding the August 31, 2022, IEP, and Student dismissed both complaints without prejudice days prior to the due process hearing.

Student’s allegation that Perris Union did not provide all of Student’s IEPs in 2023 or 2024 does not allege any misrepresentation or withholding of documents related to the August 31, 2022, IEP. Because the misrepresentation allegation Student’s attorney made during the PHC was not included in the complaint, it bears no weight on the analysis if Student plead sufficient facts to pierce the statute of limitations.

Notwithstanding Student’s two previous complaints, Student’s current complaint is devoid of any facts regarding how Student was prevented from filing a complaint due to Perris Union’s specific misrepresentations that it had resolved the problem forming the basis of the complaint, or Perris Union withheld information regarding the August 31, 2022, IEP that it was required to provide. Consequently, Perris Union’s motion to limit the issues to those arising within the two-year statute of limitations is granted. All issues related to the August 31, 2022, IEP are dismissed.

Perris Union reserves the right to file a motion for sanctions for Student frivolously filing the issue regarding the August 31, 2022, IEP. No additional 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 PARTICIPANTS AND HEARING ROOM DECORUM

All participants to the videoconference should observe the same decorum as in an in-person due process hearing. Participants 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. Participants should appear from a private location, unless otherwise ordered. Participants should take reasonable efforts to minimize background noise and 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. The parties, their representative 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

Neither party requested an accommodation or language interpretation.

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/Request-Reasonable-Accommodations- for-OAH-Legal-Proceedings.

HEARING OPEN TO THE PUBLIC

The hearing is open to the public. Special education hearings are closed to the public unless a 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 case.

Student has requested an open hearing. Either party may forward the Zoom link invitation to observers. Observers will only be admitted to the hearing at the beginning of the hearing day and after the lunch break. Observers need to identify themselves by using their full name as their username when joining the hearing. Any prospective witness may not observe the hearing until their testimony is completed and with the ALJ’s permission.

By choosing an open hearing, Student is on notice that highly sensitive personal information will be seen and heard by observers.

The following Order applies to observers:

1. Microphone and video shall be off at all times, unless otherwise ordered by

the ALJ.

2. Hearing observers will not be allowed to record, photograph, or broadcast

the hearing. (California Rules of Court, rule 1.150.) Any person who suspects a member of the public violating this rule, must immediately report the violation to the ALJ.

An ALJ may exclude persons whose actions impede the orderly conduct of the hearing, 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, subd. (e).) Further, an ALJ may 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 case, including to protect a minor witness or a witness with a developmental disability. (Gov. Code § 11425.20, subd. (a).)

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 by visiting OAH Secure e-file 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 PHC. 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.

Linda Dowd Administrative Law Judge Office of Administrative Hearings