OAH is aware that the Frequently Asked Questions below are out-of-date, however, a new version is expected to be released soon. (posted 10/24/07)
Yes, in part. The California Education Code specifies provisions, or parts of provisions, of the APA which apply to the due process hearing procedure. (See Cal. Code Regs., tit 5, §§ 3082-3089).
OAH's general procedural rules apply to special education hearings, except where they conflict with provisions of federal and state law. These procedural rules are found in California Code of Regulations (CCR), title 1, § 1000 et seq.
If a SEHO hearing officer has commenced a due process hearing in a case, the SEHO hearing officer will complete the case. OAH and its Administrative Law Judges (ALJs) have responsibility for all other cases, including those that were filed before July 1, 2005, but not heard. SEHO will continue to provide mediation for all cases until January 1, 2006, at which time OAH ALJs will provide mediation, as well as preside over due process hearings. (NOTE: OAH ALJs will never mediate and hear the same case.)
OAH does not send the parties written notice of the transfer of cases from SEHO to OAH.
How do parties timely receive the request for due process hearing from the filing party, as well as other communications sent to OAH?
By both state and federal law, it is the parties' responsibility to serve all documents filed with OAH on the other parties. A party who files a request for due process hearing is responsible for delivering or serving the request on all other named parties, as well as sending a copy to OAH for filing. The request sent to OAH should include some form of confirmation that all other parties have received the request. Parties represented by an attorney are expected to provide a proof of service.
At what stage of the proceedings are hearing dates scheduled?
It depends on which party is requesting the due process hearing. If a parent is requesting the due process hearing (other than an expedited hearing and absent a written waiver of the required resolution session signed by both sides), OAH will not set the matter for hearing until the expiration of the 30 days for the resolution session. At that point, if the matter has not resolved, OAH will set a hearing date approximately 20 to 25 days out to provide sufficient time to conduct a hearing and issue a decision within the 45 day time period.
When a school district is requesting a hearing date, OAH will almost immediately set the hearing date approximately 20 to 25 days out, as no resolution session is required.
In both scenarios, OAH will typically set the initial hearing date for one day only, because of the high percentage of cases which are continued during mediation. If mediation is unsuccessful, OAH will generally consult with the parties to determine a reasonable estimate of the number of days necessary to hear the matter and the availability of the parties and legal counsel.
For cases to be heard in Southern California which were filed before July 1, 2005, and placed in an "off calendar" status, OAH will send notice for a trial setting conference when one or more parties asks that the matter be set for hearing. At the trial setting conference, an ALJ will discuss time estimates for hearing, set prehearing dates, and seek consensus on the actual dates for hearing.
Should the parties advise OAH if the resolution session is unsuccessful, so as to initiate the scheduling of a hearing date?
Yes. However, if no communication is received, OAH will assume that the resolution session was unsuccessful and will set the matter for hearing. This is necessary because the 45 day time period begins to run at the end of the 30 days provided for the resolution session.
Do the parties have to wait 30 days before notifying OAH that they can't resolve issues in a resolution session and therefore need to proceed to hearing?
Yes, ordinarily. However, if the parties have reached impasse prior to expiration of the 30 day period and submit to OAH a written statement to that effect signed and dated by both sides, the matter will proceed to hearing. OAH will not set the matter for hearing based on one party's assertion that the parties are at impasse.
The parties may also jointly agree to waive the resolution session and communicate that in a dated, signed statement. OAH will then set the hearing date and refer the matter to mediation.
Should the parties advise OAH if the mediation is unsuccessful?
Yes. If the parties do not resolve the matter through mediation, the parties should notify OAH that the matter was not resolved through mediation, and the hearing date can be set or reset as necessary.
What timeline for scheduling hearings will OAH follow once they receive notification that the resolution solution has not been successful?
OAH follows all timelines specified in the IDEA. As noted above, if a parent filed the request for a due process hearing, the 45 day period begins to run with the expiration of the 30 days allowed for the resolution session. If the District filed the request, the time period begins to run immediately.
How will expedited hearings be handled?
Expedited hearings will be handled in accordance with applicable provisions of law. Please note that the 20 days in which to hold a hearing and the 10 days in which to issue a decision thereafter are school days.
How and when will the parties be advised that a hearing date has been scheduled?
OAH will mail a notice of the hearing date to parties (or designated legal counsel or lay advocate) when the matter has been set or reset for hearing.
When and where will the due process hearings be scheduled?
When: Hearings are scheduled on any regular business day, depending on the availability of an ALJ. The starting time will depend on the location and the time that will be required for the ALJ to travel to the hearing site. If the travel time is not excessive, the hearing will likely begin at 9:00 a.m.
Where: Typically, unless the parties agree otherwise, the hearings are set at school district sites.
Will OAH send copies of notices of due process hearings to a particular law firm for a school district upon receipt of written notice to do so?
That issue has not been decided. OAH is exploring whether it is practicable and manageable to serve the notice of due process hearing on law firms, in place of the school district. At present, OAH does not employ this procedure.
What is the OAH policy regarding scheduling more than one hearing on the same day for an attorney or school district?
In large school districts with many pending requests for hearing, OAH may initially set multiple matters for hearing on the same day. Generally, districts with multiple requests for hearings are expected to have an adequate number of attorneys available to handle the caseload.
Experience has shown that most of these matters will be resolved in mediation. However, when cases are continued and reset, there is a greater likelihood the hearing will take place. Thus, OAH will attempt to avoid resetting multiple hearings involving the same school district or attorney on the same dates. However, this may not be feasible for large school districts that have multiple requests for hearings.
CONTINUANCES
Are parties permitted to stipulate to continuances?
No. By law, the party or parties seeking a continuance must establish good cause. A stipulation by the parties is not a substitute for the requisite showing of good cause; however, the fact that the parties jointly request a continuance will be considered in the assessment of good cause.
Are parties permitted to stipulate to specific hearing dates as part of a continuance?
No. The parties may not stipulate to a date, however, OAH will consider the parties' preferences in resetting the matter.
May matters be taken off calendar if the parties agree?
No. OAH maintains control of the calendar. When a request for continuance is granted, OAH will always set another date for some further proceeding in the case.
PLEADING REQUIREMENTS
What are OAH pleading requirements? Must all motions and requests be on pleading paper or is a letter acceptable in some circumstances?
Pleading requirements are described in OAH Regulations, specifically CCR, title 1, sections 1006 and 1022, which regulate format and filing of papers and motions. (Pro per parties will be given some latitude, in that their filings need not rigidly conform to the requirements of these sections. Less latitude will be given to attorneys and/or experienced advocates, who are expected to adhere to the statutes and regulations governing their profession.)
What is the OAH standard in determining whether a complaint is sufficient pursuant to 20 U.S.C. sections 1415(b)(7)(A) and (B) and (c)(2)(C)?
The standards are the same as those articulated in the provisions of the IDEA cited. In addition to the name of the child, his or her address, and the school attended, the request must include a "description of the problem of the child and the facts relating to such problem and a proposed resolution for each problem alleged."
Please do not phrase problems ("complaint" in the IDEA) as "issues"; rather, list contentions or allegations as such. For example, if a parent is requesting a due process hearing and the perceived problem is the alleged failure of a school district to assess ("evaluate" in the IDEA) in an area of suspected disability, do not phrase the "issue" as: "Whether the district assessed in all areas of suspected disability." Rather, include in your contention the areas(s) of suspected disability allegedly known by the district and the assessments that you contend that the district failed to undertake.
When deadlines fall on a weekend or holiday, when will OAH expect the document to be served?
When deadlines fall on a weekend or holiday, the deadline is extended to the following business day.
By what time of day must documents be filed with OAH?
Between 8:00 a.m. and 5:00 p.m., on regular business days. OAH accepts documents delivered by mail, personal delivery, facsimile (FAX), and, in some cases, email. Usually, documents will be filed on the day received. However, documents received by FAX or, in some cases, e-mail, after 5:00 p.m., or outside of regular business hours, will be filed on the next business day. (CCR, title 1, section 1006, subd. (h)).
What forms should parties use: the forms on the OAH website, or the forms the parties were using with SEHO?
Parties should use the forms available on the California Department of Education (CDE) website. (CDE determines the content of the request form for hearing and mediation.)
Links to these forms are on the
OAH website, in the Special Education section.
Will OAH be developing its own forms (if so, when)?
As OAH develops other forms, the forms will be posted on the OAH website
CONFERENCES PRIOR TO HEARING
What occurs at the status conferences, trial-setting conferences, and pre-hearing conferences?
Generally, a trial-setting conference is conducted to obtain a time estimate for the hearing and to schedule hearing dates, pretrial motions, prehearing conferences, settlement conferences and status conferences. Any other matter which may be resolved at the time may be discussed and resolved.
A status conference may be scheduled to follow up on specific issues, such as progress on settlement or stipulations.
A pre-hearing conference may deal with the same topics as status and trial setting conferences. However, the focus of the pre-hearing conference is to ensure that the parties will be ready to proceed at the hearing. Motions may be brought and resolved, exhibit and witness lists are generally exchanged, and other expediting measures are taken. Pre-hearing conferences will not be set for all cases. They will generally be set for longer running cases and where there are legal and procedural issues which are appropriate to dispose of prior to the hearing. The Presiding Administrative Law Judge will determine whether a pre-hearing conference is appropriate and the timing thereof.
Which conferences are held telephonically?
Some conferences are conducted by telephone conference call. Several factors are taken into consideration in setting a conference telephonically. Some of these factors are calendar commitments and the travel time and distance for the parties, counsel and the ALJ.
Are the telephonic conferences recorded?
That depends; if only routine issues are discussed and resolved, there is generally no need for testimony or the recording of oral argument. If a significant legal issue is to be argued or evidence received in the form of oral testimony, that part of the pre-hearing conference will likely be recorded to provide a record for judicial review.
MOTIONS
Should motions be filed with OAH, even if there has been no notice the case has been transferred from SEHO?
Yes. Parties should not expect to be notified that a case has transferred to OAH.
Are pre-hearing motions assigned to the ALJ handling the case?
It depends on the timing of the motion. OAH has centralized special education case filing in Sacramento. Cases are transferred to a regional office close to the time of the scheduled hearing date.
Most motions filed before the transfer of the file to a regional office will be handled by the Presiding Administrative Law Judge of the Sacramento office or his designee. Motions filed after the file transfer may be handled by the regional Presiding Administrative Law Judge, his or her designee, or by the Administrative Law Judge assigned to hear the matter.
If motions are filed in Sacramento after the file transfer, the motion will be transferred by OAH to the appropriate office.
What types of motions will OAH consider (continuance, dismissal, motion for summary adjudication, consolidation, bifurcation or joinder)?
OAH will consider any motion over which it has apparent jurisdiction, including all of the cited examples.
What types of requests do not require a motion?
Most requests should be in the form of a motion. Some requests, such as a request for an interpreter, need not be.
What are the deadlines to respond, reply and rule on motions (briefing schedule)?
These will depend on the nature of the motion, the urgency with which the matter must be decided, and the proximity to the hearing date. OAH will, when appropriate, provide deadlines for response. Parties should refer to CCR, title 1, sections 1022 and 1026. OAH prefers an expeditious response by the party opponent without OAH prompting. No deadlines for rulings exist except where provided by law.
Does OAH request oral arguments on a motion?
The ALJ deciding the motion has the discretion whether to request oral argument on a motion. The ALJ may also seek declarations/affidavits where factual contentions must be addressed in order to rule upon a motion.
Before OAH rules on a motion, will OAH ensure that all parties get a copy of the motion and an opportunity to respond orally and/or in writing?
With the exception of those matters permitting ex parte motions, OAH will endeavor to ensure that the party opponent has been served and has an opportunity to respond either verbally or in writing. Generally, OAH will rely on proof of service documents attached to the proponent's motion.
CONDUCT OF HEARINGS
Are the hearings recorded?
Yes, currently, the hearings are recorded by multi-track electronic recording devices. In the near future, the hearings will be recorded by digital recording systems loaded as software into laptops with sound mixer and microphones.
May a party request a court reporter and who arranges it?
Yes. The parties, with the permission of the ALJ, may agree to use a certified shorthand reporter (court reporter) at their own expense to produce the official record. If a court reporter is used, the court reporter shall comply only with the directions of the assigned ALJ during the hearing.
Parties who agree to use a court reporter at their own expense must contact the OAH calendaring department to make arrangements for retaining a court reporter.
If the parties do not request a court reporter, the record provided by the OAH electronic recording device will be the exclusive record upon appeal.
May a party request that security be present at either the mediation or the due process hearing?
Yes. See CCR title 1, section 1019.
Who requests and makes arrangements for an interpreter?
A party who requires an interpreter makes the request to OAH. Upon request, OAH will arrange for the presence of the interpreter.
How does OAH handle in pro per proceedings? Does OAH provide any special assistance to parents representing themselves?
The ALJ will do his or her best to help the pro per litigant comprehend the proceedings, beginning with an explanation of the rights accorded pro per parties and answering any questions posed by the pro per litigant about the hearing process. However, the ALJ may not act as an advocate for the pro per party.
OAH has many years of experience presiding over matters in which one or more of the parties appear in pro per.
Does OAH set time limits for hearings?
OAH will, in consultation with the parties, attempt to determine a reasonable number of days necessary to complete the presentation of evidence. OAH will typically "reserve" that number of days on the calendar for the case and notice the hearing accordingly. If the hearing does not conclude in the days allotted, normally the parties and the ALJ will obtain the necessary additional hearing days to complete the matter.
Does OAH set time limits for witness testimony?
OAH has not historically limited time for the presentation of evidence. However, ALJs have the power to do so in any particular case in the exercise of their discretion.
What can the parties expect to happen at the first day of a due process hearing?
The ALJ will address any preliminary motions and issues, invite opening statements, and begin the process of receiving evidence. Parties must appear at the hearing prepared to proceed with the hearing. Parties should not assume the first day of hearing (or any significant portion of the day) will be spent in settlement discussions.
Is telephonic testimony permitted?
Yes, telephonic testimony is permitted under the California Education Code at the discretion of the assigned ALJ.
Are the technical rules of evidence followed in hearings?
No. CCR, title 5, sections 3082, subdivision (b) and 3089, apply. These regulations generally incorporate the APA rules of evidence found in California Government Code section 11513.
Are closing briefs accepted?
Yes, if the assigned ALJ, in consultation with parties and counsel, determines that closing briefs are appropriate in a particular case.
DECISIONS
Does OAH use a format for writing decisions?
Yes. The general OAH format for decisions includes identification of parties, hearing dates and location(s) and other preliminary information. This will typically be followed by a statement of the issue(s) presented; factual findings; legal conclusions, and the order.
What is the timeframe for issuing decisions after the hearings?
Unless timelines are waived by the parties, OAH will endeavor to meet the timelines within applicable federal and state law.
Does OAH abide by the 45-day timeline in which to issue a decision following a hearing?
Forty-five days is the deadline to complete the hearing process. Absent a waiver by the parties, OAH will comply with the timelines of the IDEA and implementing federal regulations for issuance of decisions.
What precedential value will OAH give to SEHO decisions and to its own decisions?
OAH will follow California Code of Regulations, title 5, section 3085, which characterizes prior decisions (by SEHO or OAH) as "persuasive, but not binding authority."
Will OAH post its decisions on a website? Will the decisions be published? Will OAH send the decisions to a publisher such as LRP and allow them to publish the decisions?
The decisions, after redaction of confidential information, will be sent to the CDE, which will continue to post them on its website. OAH will not independently publish decisions. OAH intends to discuss with LRP the logistics and propriety of including decisions on the LRP website.
RESOLUTION SESSIONS
What is the process for notification of the resolution session? How will meetings be scheduled after notification?
The obligation for convening the resolution session and assembling the required participants falls on the school district. It is not clear that OAH has any responsibility for resolving disputes which arise in the course of the resolution session. OAH's responsibility is limited to ruling on motions that relate generally to the matter and processing of the case if no resolution is reached within the 30 days.
If parents don't want to attend the resolution session, can a district move to have the request for hearing dismissed? (The statute states that parties "may proceed" to hearing if no resolution has been reached.)
No. As noted above, both parties may waive the resolution session or opt to go to mediation. The agreement must be signed by both (or all) parties.
Does OAH expect the parties to notify OAH of the outcome of the resolution session?
OAH does not expect to be notified of the outcome of the resolution session other than whether there was or was not a resolution. If the parties do not notify OAH that the matter was resolved, OAH will assume after 30 days that the case was not resolved and will set the matter for hearing and refer it to SEHO for mediation.
Does the resolution session have to include the entire IEP team? (The statute says it has to include the IEP team.)
This is covered in IDEA, which does not, as suggested by the question, require the entire IEP team. The IDEA requires participation by "relevant" IEP members who have knowledge of the complaint.
How does OAH interpret the phrase "relevant members of the IEP team" as it relates to the resolution session?
The phrase "relevant members of the IEP team" will be interpreted by the assigned ALJ in the context of any case in which this becomes an issue. However, OAH will not typically become involved in issues which relate exclusively to the conduct of the resolution session.
MEDIATIONS
When will OAH start conducting mediations?
OAH will begin conducting mediations for cases filed on and after January 1, 2006.
How are mediations currently scheduled?
At least until January 1, 2006, mediations in conjunction with due process hearing requests will be scheduled by SEHO contract mediators consistent with their past practice.
How are mediation dates selected?
Mediators schedule the dates of mediation with the parties.
How will the parties be advised that a mediator has been assigned to the case?
That information is included in the notice of hearing. SEHO is currently advising OAH of the name of the mediator assigned for cases filed after July 1, and OAH is including the mediator's name and resume in the hearing notice.
Will the mediations have to be held during the 30 day period for the resolution session?
No. If the school district files the due process hearing request, a hearing date will be noticed and the parties notified of the name of the SEHO mediator who will contact them. The SEHO mediator will schedule the mediation.
If a parent files the due process hearing request, OAH will wait the requisite 30 days to notice the matter for hearing and notify the parties of the name of the mediator. Mediations will not be held during the 30 days allocated for a resolution session. The parties can opt to proceed to mediation by joint agreement or may jointly agree to waive the resolution session in writing.
May the parties agree to mediation and extend the hearing timelines?
OAH will, for the present, continue the long-standing SEHO policy permitting matters to be taken "off calendar" during initial mediation efforts by SEHO mediators.
How does OAH ensure that the same ALJ does not mediate a case and then hear a case involving the same school district but a different student? For example, on July 1st the ALJ mediates a case involving student 1 and school district A and on August 1st hears a case involving student 2 and school district A.
There is no legal or ethical impediment to this practice. Civil courts, arbitrators, and dispute resolution services follow this practice. In some of the larger school districts, ALJs will regularly mediate and hear cases involving the school district. ALJs, of course, will not hear cases they have mediated.
SUBSTANTIVE LEGAL ISSUES
How does OAH deal with the current differences between IDEA as amended in 2004, the federal regulations, and state law?
OAH follows case law regarding the relative precedence of federal law, state law and state regulations whenever a conflict exists.
Will there be consistency in terms of rulings and procedures within each Regional Office and among the Regional Offices?
OAH will endeavor to provide a generally consistent hearing process among all of the regional offices and ALJs. However, each ALJ has an individual responsibility to hear and resolve issues that come before him or her. As is true with any adjudicative body, ALJs may not always agree on the correct manner in which to interpret the law.
What is OAH's position with regard to the applicability of IDEA 2004 for cases filed before July 1, 2005?
As a general matter, while the reauthorized IDEA provisions do not appear to apply retroactively, these kinds of issues will be resolved by Presiding ALJs or assigned ALJs on a case by case basis within the context of matters assigned to them.
MISCELLANEOUS
EX PARTE COMMUNICATIONS
When is it appropriate, if ever, to receive calls from ALJs even to discuss procedural matters? (See CCR, title 5, Section 3084 and California Government Code Section 11430.10.)
These matters are covered in the sections cited. See also Government Code section 11430.20 for permissible communications to the Administrative Law Judge. Generally, communications regarding "issues in the proceeding" are prohibited, although communications concerning "a matter of procedure or practice, including a request for a continuance, that is not in controversy" are permitted.
ADMINISTRATIVE LAW JUDGE TRAINING
Is OAH ensuring that the ALJs are properly trained pursuant to Education Code section 56505(c)?
Yes.
AVAILABILITY OF INFORMATION
How long does it take for information concerning a case to appear on the OAH website?
Information about cases on the OAH calendar is posted automatically to the OAH website. The information should appear on the website with minimal delay.
When will OAH send out procedures?
OAH sends "procedural safeguards" to the parties with the initial notice of hearing. Other procedures will typically be included on our website and those which are defined as regulations will be promulgated as such.
Will OAH develop a written procedural manual?
Not as such. Existing procedural regulations will be augmented to add procedural rules specific to Special Education matters.
REGIONAL OFFICES
Will OAH open more Regional Offices; if so, where?
Yes.
Where?
Two new regional offices will be located in Southern California. The locations have not yet been determined, but will likely be in the San Fernando Valley near the intersection of Highways 405 and 101, and in Orange County, probably near the City of Irvine.
