Order Following Expedited Prehearing Conference, Dismissing the San Luis Obispo County Office of Education From the Expedited Portion of the Proceeding Only, and Dismissing the Notice of Insufficiency as Moot

BEFORE THE

OFFICE OF ADMINISTRATIVE HEARINGS

STATE OF CALIFORNIA

IN THE MATTER OF:

PARENTS ON BEHALF OF STUDENT,

v.

ATASCADERO UNIFIED SCHOOL DISTRICT AND SAN LUIS OBISPO

COUNTY OFFICE OF EDUCATION.

OAH CASE NUMBER 2025010625

ORDER FOLLOWING EXPEDITED PREHEARING

CONFERENCE, DISMISSING THE SAN LUIS OBISPO

COUNTY OFFICE OF EDUCATION FROM THE EXPEDITED

PORTION OF THE PROCEEDING ONLY, AND DISMISSING

THE NOTICE OF INSUFFICIENCY AS MOOT

FEBRUARY 4, 2025

On February 3, 2025, Administrative Law Judge Charles Marson, Office of Administrative Hearings, held an expedited 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.

Colleen A. Snyder, Attorney at Law, appeared on behalf of Student. Sarah L.

Garcia, Attorney at Law, appeared on behalf of the Atascadero Unified School District.

Justin R. Shinnefield, Attorney at Law, appeared on behalf of the San Luis Obispo County Office of Education. 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 expedited hearing will take place on February 11, 12 and 13, 2025, and continue day to day at the discretion of the ALJ. The expedited 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 if necessary.

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 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

The issues at the expedited 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. Was the conduct for which Student was disciplined by Atascadero caused

by, or did it have a direct and substantial relationship to, his disabilities?

2. Did Atascadero fail to consider all relevant information in connection with

the manifestation determination review process, namely, relevant information concerning his attention deficit hyperactivity disorder, his impulse control, his emotional and behavior regulation, and his history of fighting?

PROPOSED RESOLUTIONS

The expedited resolutions requested by Student include a finding that the conduct for which Student was expelled was a manifestation of his disability, an order reversing his expulsion, and an order returning him to his previous placement at Atascadero High School.

Atascadero filed its response to Student’s complaint on January 31, 2025. (M.C. v.

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

EXHIBITS

The parties to the expedited proceeding shall serve their exhibits on each other in compliance with Education Code section 56505, subdivision (e)(7). They 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. Atascadero 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 Atascadero’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.

The parties to the expedited hearing should include a resume or curriculum vita for each witness expected to testify as an expert.

Atascadero’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 to the expedited hearing 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.

The parties to the expedited hearing 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 to the expedited hearing 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.

The parties to the expedited hearing are responsible for producing their own witnesses unless otherwise ordered by the ALJ. They shall make witnesses under their control reasonably available.

Student and Atascadero 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.

MEET AND CONFER

The parties to the expedited hearing 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 to the expedited hearing are ordered to meet and confer no later than the close of business on February 6, 2025, to discuss scheduling witnesses and how much time each witness will take. They 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 to the expedited hearing should attempt to eliminate duplicate exhibits from their hearing exhibits. They 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, Atascadero shall inform Student which proposed witnesses are District employees. Atascadero shall also identify the witnesses on Student’s list that require a subpoena. Atascadero 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

Student and Atascadero 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 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 expedited hearing and bears the burden of proof. Student’s case-in-chief shall be presented first, followed by Atascadero’s, unless otherwise ordered.

WITNESS LISTS

The parties to the expedited hearing 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. Atascadero must have witnesses available in case there is no agreement.

At the beginning of the hearing, the ALJ and the parties to the expedited hearing will discuss the length of time anticipated for each witness and scheduling issues for individual witnesses. The ALJ will finalize the witness schedule. The parties to the expedited hearing 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. The parties to the expedited hearing 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. At present neither party to the expedited hearing anticipates presenting a witness by audio only or telephone.

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 the following conditions:

1. the OAH recording is the only official recording;

2. the parties shall turn their recording devices 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 a 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.

The requests of the parties to the expedited hearing to make audio recordings of the expedited hearing are granted subject to the conditions above.

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. At present neither party to the expedited hearing anticipates offering a recording in evidence. There is an outstanding subpoena duces tecum that may produce such a recording.

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

1. The County Office of Education filed a Notice of Insufficiency on January 31,

2025, or in the alternative a motion to dismiss it as a party to the expedited portion of the proceeding only. Student’s complaint does not assert that the County Office of Education had any role in the events addressed in the expedited issues. The motion to dismiss the County Office of Education from the expedited portion only of the case was not opposed and was granted.

2. The Notice of Insufficiency is dismissed as moot.

3. No other 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 to the expedited hearing, and their representatives 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 to the expedited hearing requested a language interpreter or any other reasonable accommodation. A party or participant in this case, such as a witness, requiring reasonable accommodation to participate in the expedited 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 CLOSED TO THE PUBLIC

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

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 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.

Charles Marson Administrative Law Judge Office of Administrative Hearings