BEFORE THE
OFFICE OF ADMINISTRATIVE HEARINGS
STATE OF CALIFORNIA

In the Consolidated Matters of: PARENT ON BEHALF OF STUDENT,

v.

VICTOR VALLEY UNION HIGH SCHOOL DISTRICT, DESERT MOUNTAIN SELPA AND SAN BERNARDINO COUNTY SUPERINTENDENT OF SCHOOLS,

OAH CASE NO. 2011080031

————————————–

VICTOR VALLEY UNION HIGH SCHOOL DISTRICT,

v.
PARENT ON BEHALF OF STUDENT.

OAH CASE NO. 2011080382

DECISION

Administrative Law Judge June R. Lehrman, Office of Administrative Hearings, State of California, heard this matter in Victorville, California, on November 15, 16, 17, 28, 2011; December 5, 6, 7, 8, 12, 13, 2011; and January 17, 18, 19, 24, 25 and 26, 2012.

Student’s mother (Mother) represented Student, and attended the hearing on all days. Howard Fulfrost and Keith Yanov, Attorneys at Law, appeared on behalf of Victor Valley Union High School District (District), Desert Mountain Special Education Local Plan Area (SELPA), and San Bernardino County Superintendent of Schools. Denise Edge, Program Manager of SELPA, attended the hearing on all days. District Director of Special Education Gayle Hinazumi, attended the hearing on all days except January 17, 18 and 19, on which days Ms. Edge attended the hearing on behalf of both District and SELPA. Assistant Superintendent Sharon Bolle, School Psychologist Scott Hansen, and Area Director Stephen Vaughn, attended the hearing for San Bernardino County Superintendent of Schools on November 15, 16, 17, 28, 2011, and December 5, 2011. By Order dated December 1, 2011, and issued December 5, 2011, respondent San Bernardino County Superintendent of Schools was dismissed. Thereafter the matter proceeded as between Student, District, and SELPA.

Student filed the Due Process Request (Student’s complaint) on July 29, 2011. On August 8, 2011, District filed a Due Process Complaint (District’s complaint) naming Student as the respondent. Student filed an amended request for due process (Student’s amended complaint) on August 31, 2011. On September 16, 2011, District moved to consolidate District’s complaint with Student’s amended complaint. OAH granted the motion on September 23, 2011, and held that the 45-day timeline for issuance of a decision in the consolidated cases shall be based upon timelines calculated for Student’s amended complaint.

The parties jointly moved to continue the hearing, and the motion was granted for good cause on October 10, 2011. At hearing, the parties requested and were granted a continuance to file written closing arguments by February 21, 2012. Upon receipt of the written closing arguments, the record was closed and the matter was submitted.

ISSUES ¹

(1) District’s Issue:

1. Did District, in the June 2, 2011, individualized educational program (IEP), offer Student a free appropriate public education (FAPE) in the least restrictive environment (LRE), and, if so, may District implement its offer without parental consent?

(2) Student’s Issues against District:

1. In the Spring of 2010, did District deny Student a FAPE by:

1. denying appropriate aide support from March 18-26, 2010; and
2. denying adequate reading and resource support program (RSP) services in March and June 2010?

2. From the Spring of 2010, and continuing through the end of the 2010-2011 school year, did District deny Student a FAPE by:

1. failing to provide professional development to teachers, speech therapist, occupational therapist, and aides from March 17, 2010 until June 2011;
2. failing to provide appropriate behavior services from March 16, 2010 until July 21, 2011;
3. failing to complete appropriate SELPA forms for behavioral intervention from March 16, 2010 until July 21, 2011;
4. failing to refer Student for appropriate behavioral services and/or assessments;
5. failing to develop a behavior plan from May 2010 through July 2011;
6. allowing entry of behavior data on nonpublic agency (NPA) forms by unauthorized personnel from May 2010 until March 2011;
7. failing to provide educational supports to Student from May 2010 through July 2011;
8. failing to provide individual educational therapy or an “educational learning treatment plan” from May 2010 through July 2011;
9. failing to modify Student’s curriculum from May 2010 through July 2011; and
10. failing to provide appropriate occupational therapy (OT) from May 2010 until May 2011?

3. Did District deny Student a FAPE by performing an inappropriate functional analysis assessment (FAA) on or around May 21, 2010?

4. Did District deny Student a FAPE in the May 21, 2010, IEP by:

1. removing his eligibility category of Emotional Disturbance; ²
2. removing his eligibility category of Speech Language Impairment;
3. failing to discuss a continuum of placement and related services options;
4. denying appropriate OT;
5. offering an inappropriate placement and RSP services; and
6. failing to offer the recommendations of the FAA performed on May 21, 2010? ³

5. Did District deny Student a FAPE by failing to provide Student’s parent (Parent) with a copy of the May 21, 2010, IEP until June 29, 2010?

6. Did District deny Student a FAPE in the June 8, 2010, IEP by:

1. failing to comply with state standards in developing, and by improperly writing the June 8, 2010 IEP;
2. failing to offer appropriate full-time aide support; and
3. failing to offer inclusion supports?

7. Did District deny Student a FAPE by failing to monitor Student’s progress from June 8, 2010-June 8, 2011, and by failing to provide a quarterly progress report for the quarterly period beginning August 2010?

8. Did District deny Student a FAPE by monitoring goals in the June 10, 2010 progress report that were not stated in the June 8, 2010, IEP?

9. Did District deny Student a FAPE by failing to implement the June 8, 2010, IEP in the following respects:

1. failing to implement the NPA services during extended school year (ESY) 2010 from June 13, 2010 through July 21, 2010;
2. failing to implement OT from August 22, 2010 until June 8, 2011; and
3. failing to implement speech services from August 22, 2010 until June 8, 2011?

10. On or around August 25, 2010, did District deny Student a FAPE by failing to respond appropriately to an incident with another student and an aide?

11. Did District deny Student a FAPE in the August 25, 2010, IEP addendum, because it did not appropriately address an incident with another student and an aide?

12. In or around September 2010, did District deny Student a FAPE when an aide informed another student that Student had autism?

13. Did District deny Student a FAPE by failing to offer transition services from December 2010 until July 2011 regarding Student’s transition to high school?

14. Did District deny Student a FAPE at and after the January 6, 2011, manifestation IEP, by failing to conduct a FAA and create a behavior intervention plan (BIP)?

15. Did District, in the January 2011, IEP, deny Student a FAPE by:

1. failing to offer placement in the LRE; and
2. failing to provide a transition plan?

16. Did District, in the February 16, 2011, IEP, deny Student a FAPE by failing to offer appropriate placement in the LRE by failing to offer Student “cadet core?”

17. Did District, in the March 21, 2011 IEP, deny Student a FAPE by failing to offer appropriate related services to enable Student to attend “cadet core” five times per week?

18. In the Spring of 2011, did District deny Student a FAPE by:

1. denying appropriate reading services from March 2011 until June 2011;
2. failing to provide appropriate aide support from March 21-25, 2011; and
3. failing to provide behavioral supervision hours from April 2011 until August 2011?

19. During and subsequent to an incident on or around April 6, 2011, did District deny Student a FAPE by failing to provide appropriate behavioral supports, resulting in a 12-day suspension and a denial of access to campus on April 12, 2011?

20. Did District deny Student a FAPE by failing to give prior written notice of cancellation of an IEP meeting scheduled for April 12, 2011?

21. Did District deny Student a FAPE at the April 18, 2011, IEP, by failing to offer full-time NPA aide support?

22. After Parent consented to a FAA on April 18, 2011, did District deny Student a FAPE by failing to timely conduct the FAA, and by subsequently failing to develop a timely BIP?

23. Did District deny Student a FAPE in the June 2, 2011, IEP, by:

1. predetermining its offer of placement and services; and
2. failing to offer an appropriate placement in the LRE, after a discussion of the continuum of program options?

24. After the June 2, 2011, IEP, did District deny Student a FAPE by failing to assist Student to achieve his IEP goals?

25. Did District deny Student a FAPE by failing to give Parent a copy of the June 2011 IEP progress report?

26. Did District deny Student a FAPE by failing to hold an IEP team meeting to discuss a FAA that was conducted on June 10, 2011?

(3) Student’s Issues against SELPA:

27. Did SELPA deny Student a FAPE during the 2009-2010 and 2010-2011 school years by failing to modify the curriculum, and by failing to provide an inclusion specialist during Student’s seventh (2009-2010) and eighth (2010-2011) grade years?

28. From September 2009 until the filing of the complaint, did SELPA deny Student a FAPE in the following respects:

1. because SELPA program manager does not have a special education credential, made “terrible recommendations” regarding Student’s education and refused to coordinate special education services for Student;
2. because SELPA failed to use proper forms, as follows: observation form; utilized interventions form; suspension review form; evaluation report form; triennial assessment worksheet form; IEP compliance checklist form?
3. by failure to coordinate effective educational strategies; refer Student for an educational assessment; modify curriculum or provide assistance to help student access curriculum?
4. by failing to allow Student to participate in the “workability” program;
5. by denying Student’s request for independent education evaluations (IEE) for speech therapy, OT, and educational therapy?

29. In or around September 2009, did SELPA deny Student a FAPE by placing him in an overcrowded classroom?

30. Between September 2009 and November 20, 2009, did SELPA deny Student a FAPE by failing to implement his transfer IEP from a previous district, which provided for two periods of mainstreaming?

31. From September through December 12, 2009, did SELPA deny Student a FAPE by failing to coordinate an observation to determine autism services that had been requested August 30, 2009?

32. Between September 2009 and April 2010, did SELPA deny Student a FAPE by failing to implement his behavior plan dated March 2009?

33. From September 2009 until April 2011, did SELPA deny Student a FAPE by:

1. refusing to assign a special circumstances instructional assistant “SCIA” case manager;
2. failing to give Student’s aides proper support; and
3. by failing to use appropriate SCIA SELPA forms?

34. From September 2009 until June 8, 2011, did SELPA deny Student a FAPE by:

1. failing to provide him with SELPA behavior intervention support;
2. failing to refer him for a behavioral assessment; and
3. from September 2009 until April 2011 by failing to follow NPA behavior assessment services procedures?

35. From September 3, 2009 until July 21, 2011, did SELPA deny Student a FAPE by denying him access to the California Reading Initiative program that requires 2.5 hours of reading a day for grades 4 through 8?

36. From October 2009 until December 2009, did SELPA deny Student a FAPE by placing him in a classroom with a substitute teacher who lacked proper training and credential?

37. Did SELPA deny Student a FAPE by failing to implement the October 23, 2009 IEP in the following respects:

1. failing to provide a reading outline or reading instruction for 45 minutes per day until April 2010;
2. failing to provide RSP services until June 2010;
3. from January 2010 until June 2011, failing to provide NPA OT for 45 minutes per week.

38. From November 2009 until January 2010, did SELPA deny Student a FAPE by providing a teacher for math and science who lacked proper training and credentials?

39. From November 2009 until June 2010, did SELPA deny Student a FAPE by allowing an unlicensed speech therapist to work with Student?

40. Did SELPA deny Student a FAPE by not timely holding an IEP team meeting after a December 12, 2009, autism observation?

41. From February 2010 to June 2010, did SELPA deny Student a FAPE by providing a teacher for math and science who lacked proper training and credentials?

42. Did SELPA deny Student a FAPE in the April 2010 IEP addendum and May 21, 2010, IEP’s by using outdated forms when the IEP forms had been updated?

43. Did SELPA deny Student a FAPE on or around May 12, 2010, by performing an inappropriate psycho-educational assessment conducted without appropriate testing accommodations?

44. Did SELPA deny Student a FAPE from May 2010 until June 2011 by failing to offer inclusion support for mainstreaming?

45. Did SELPA deny Student a FAPE from May 2010 until June 2011 by failing to develop a behavior intervention plan and refusing to assign a Behavior Intervention Case Manager (BICM)?

46. Did SELPA deny Parent meaningful participation in the June 8, 2010 IEP?

47. Did SELPA deny Student a FAPE in the June 8, 2010, IEP, by failing to include inclusion support for mainstreaming in general education English and Language Arts classes?

48. Did SELPA deny Student a FAPE by failing to implement the consented-to portions of the June 8, 2010, IEP, specifically by failing to provide two NPA aides, without making such support temporary and without any change of placement?

49. Did SELPA deny Student a FAPE by failing to provide a copy of the June 8, 2010, IEP, until June 29, 2010?

50. Did SELPA deny Student a FAPE by failing to coordinate autism therapy from June 2010 until June 2011?

51. Did SELPA deny Student a FAPE from March 2011 to August 2011 by failing to coordinate NPA supervision consultation hours?

52. Did SELPA deny Student a FAPE by failing to implement the consented-to portions of the April 18, 2011, IEP, specifically by failing for one week until April 25, 2011, to provide NPA autism aide services?

53. Following consent to a FAA assessment plan signed on April 18, 2011, did SELPA deny Student a FAPE by failing to ensure that the NPA conducted a timely assessment and develop a BIP?

54. Did SELPA in the June 2, 2011, IEP, deny Student a FAPE by denying Student a “consortium of schools” and denying inclusion support?

55. After an incomplete FAA was reviewed at the June 2, 2011, IEP, did SELPA deny Student a FAPE by failing to timely provide an appropriate emergency behavior plan?

FACTUAL FINDINGS

Background

1. Student is a 14 year-old boy who moved into District at the beginning of the 2009-2010 school year, on or around September 1, 2009. Assessments from regional centers, service providers, and Student’s prior districts of residence, Los Angeles Unified School District (LAUSD), Palmdale, and Adelanto, indicated that Student had been diagnosed with attention deficit hyperactivity disorder (ADHD)-Combined Type, Asperger’s Disorder, mild Autistic Disorder, pervasive developmental delay not otherwise specified, and bipolar disorder. Those assessments reported a history of challenging behaviors such as physical aggression, tantrums, threats, insults, fighting, defiance, disobedience, and noncompliance.

2. After LAUSD determined Student eligible in 2000 for special education with an eligibility category of autistic-like behaviors, Student’s 2005 triennial psycho-educational assessment, conducted by Palmdale, changed his primary disabling condition category to emotional disturbance (ED), and made autistic-like behaviors a secondary eligibility category. His 2008 triennial assessment, conducted by Adelanto, left those eligibility categories unchanged. Thus, when Student moved into District on or around September 1, 2009, his preexisting eligibility categories for special education were ED and autistic-like behaviors.

3. Student’s educational program for 2008-2009 was governed by an Adelanto IEP dated November 4, 2008, and amended in December 2008 and in January, March, and April 2009. It provided for specialized academic instruction in small group classes, and mainstreaming 33% of the school day in general education for science, social studies, recess, lunch, and all activities. Services consisted of counseling, speech therapy, OT provided by an NPA once per week for 45 minutes, and a 1:1 aide. Adelanto did not offer ESY.

4. While at Adelanto, Student had a behavior support plan (BSP) prepared on or around March 11, 2009, by UHS, a NPA. The UHS BSP identified three problem behaviors that had been observed in the classroom: physical aggression; threats and insults to peers; and noncompliance with directions. It identified environmental factors contributing to these problem behaviors. It set forth a general approach of reinforcement through use of a token economy, prompting and modeling. It set forth three specific BSP measurable goals involving peer interaction, conflict resolution, and following of instructions, and three specific consequence strategies for procedures to be implemented following the display of problematic behavior. It set forth specific data that were to be collected with regard to each identified problem behavior. It also displayed all the above information in the form of a reference chart that showed events, antecedents, problem behaviors, desired behaviors, and consequences.

5. In the summer of 2009, Mother and Adelanto agreed that Student should be observed in his new school setting in District, at the onset of the upcoming 2009-2010 school year, by a NPA called CIBA Leafwing (CIBA) for a five-hour observation. Mother and Adelanto agreed that CIBA should generate a written report to inform District, as Student’s new local educational agency, about Student’s needs in the area of behavior supervision services. Adelanto and District were both located within SELPA.

6. Districts within SELPA did not access NPA services directly, but rather through the auspices of SELPA. SELPA entered into master contracts with NPA’s for each school year. The master contracts authorized districts within SELPA to request services from the NPA, and authorized the NPA to bill SELPA. SELPA then paid the NPA for the services provided. Districts within SELPA requisitioned individual services for students by means of documents entitled Individual Services Agreements (ISA’s), which named the individual student slated to receive services, and specified the services requested. These ISA’s, once requested by districts within SELPA, were signed by SELPA and NPA personnel, thus authorizing the provision and payment for the services rendered.

7. On or around August 31, 2009, Adelanto requested SELPA to complete the necessary ISA paperwork to authorize the five-hour observation by CIBA.

2009-2010 School Year

8. At the beginning of the 2009-2010 school year, Jeannette Anderson (Anderson) had just started her employment with District as its Director of Special Education. Her duties were to oversee programs and services, to administer special education offers and ensure compliance, and to develop new District programs. Anderson held a Master’s Degree in Education, a mild-moderate special education teaching credential and an administrative services credential.

9. Douglas Kubacki (Kubacki) was the Department Chair for special education at Lakeview Middle School (LMS). He held a Bachelor’s Degree in psychology and a teaching credential entitling him to teach students with mild-moderate disabilities. He had also participated in various ongoing professional development courses in topics including behavior intervention, through SELPA training programs. At or around the time of Student’s transfer into District, Kubacki met with Mother. After learning of Student’s history, Kubacki informed Mother that LMS might not be the best placement for Student due to Student’s multiple eligibility categories of ED and autistic-like behaviors. Kubacki felt LMS programs were not geared to these conditions. LMS offered specialized academic instruction in special day classes (SDC’s). It also offered general education with push-in resource support, known as the “Excel” collaboration model. Kubacki felt District’s middle school program for students with autism, located at Hook Middle School, would be more appropriate for Student, or another program for ED located at another campus. Kubacki, therefore, asked Mother to discuss Student’s placement with Anderson.

10. Anderson first met Student in August or September 2009, when Mother came to enroll him in District. At the time, Student was 11 years old, and an incoming seventh grader. Mother and Anderson reviewed the Adelanto IEP, and discussed placement and services. District’s process was to review incoming IEP’s and offer comparable placement and services, and hold a thirty-day IEP thereafter. Anderson and Mother agreed that Student would attend LMS with 1:1 aide support.

11. Kendall Dawson (Dawson) was a substitute instructional assistant with District. District assigned Dawson to serve as Student’s aide during the 2009-2010 school year. He had no specific education or training in working with students with autism, and only informal behavior intervention training.

12. On September 25, 2009, SELPA executed the ISA authorizing the five-hour observation, which had been requested on August 31, 2009 by Adelanto. CIBA signed the ISA on October 6, 2009.

13. On October 20, 2009, District administered to Student the Woodcock Johnson Test of Achievement, Third Edition (WJ-3) which measured Student’s academic achievement. Student’s results placed Student’s reading, writing and math proficiencies at third or fourth grade level equivalencies.

October 23, 2009, IEP

14. On October 23, 2009, District convened an IEP meeting. The document listed Student’s eligibility categories as ED and autistic-like behavior, as had Adelanto. Student was described as coming to school well-dressed and groomed, and thus appearing to have no needs in the area of daily living skills. While he had had behavioral issues in the past, he had been doing well since his entry into District, with cueing and redirection from his 1:1 aide, Dawson, who attended the IEP. Dawson reported that Student was doing well despite having ongoing issues with socialization.

15. The October 23, 2009, IEP stated that the method of reporting progress toward goals would be through the use of annual goal sheets, report cards, parent conferences, and IEP meetings, as needed, each semester. It also stated that progress reports would be mailed at the end of each semester.

16. The IEP stated nine goals in areas of reading, writing, math, speech and language, OT, behavior, and counseling. District offered a combined placement at LMS in a SDC for part of the day, and mainstreaming in general education with special education supports for the remainder. Specifically, Student was to be placed into a SDC four periods a day for math, reading, science, and an elective. The remaining two periods of the day for English Language Arts and World History were to be in general education with both a general education teacher, Maureen Casian (Casian), and a special education teacher, Jacqueline Quintero (Quintero), providing “push-in” resource support, within LMS’ collaboration Excel model. Student was also offered general education for physical education. Pursuant to this offer, Student would participate in the mainstream general education setting 44% of his school day. District also offered the following related services: 1:1 aide support to be provided by a District aide; OT once a week for 45 minutes to be provided by a NPA; speech and language therapy once a week for 30 minutes to be provided by a District speech language pathologist; and counseling. The IEP stated that the UHS BSP was to be implemented for the balance of the 2009-2010 school year. The IEP did not offer ESY for summer 2010.

17. CIBA had not begun the five-hour observation by the time of the IEP meeting. The IEP team, including Mother, agreed to wait at least a month while Student acclimated to his new surroundings before the commencement of CIBA’s observation.

18. The IEP stated generally that Student’s workload and curriculum would be modified, but it included no specifics about what modifications were to be implemented.

19. Mother consented to the implementation of the October 23, 2009, IEP.

20. The first date of CIBA’s five-hour observation was December 3, 2009. CIBA staff did not observe any challenging behaviors from Student.

Due Process Complaint in OAH Case No. 2009120327

21. Mother filed for due process against District in OAH Case No. 2009120327, on or around December 8, 2009.

CIBA Five-hour Observation

22. The second date of CIBA’s five-hour observation was December 10, 2009. CIBA staff did not observe any challenging behaviors from Student.

23. CIBA’s five-hour observation report was completed December 20, 2009. Its author was Ronia Wood (Wood), a Regional Director and a Clinical Director at CIBA. Her job duties were to supervise and create programs for individual students. She also had administrative duties, including hiring. She held Bachelor’s and Master’s degrees in Psychology, and was a doctoral candidate in Educational Leadership, but had not yet completed that coursework. She was a Board Certified Assistant Behavior Analyst, which allowed her to perform behavioral analysis services under the supervision of a Board Certified Behavior Analyst.

24. Wood generally concluded, and the report stated, that Dawson “lacks the skills needed to work through challenging behaviors that may occur during the school day,” and that he was over-prompting Student, thereby fomenting dependence on prompts. Although some of the strategies Dawson employed were effective, Wood opined that Dawson invaded Student’s space, and that he required training in how to fade out his prompting.

25. CIBA recommended that it consult with the aide, with up to ten hours per month supervision services, to be used for consultation and training.

26. The report stated some general goals both for Student and his aide: to introduce Student to a typing program; to type 30 words a minute; to provide Student with pre-written notes; to identify a group of friends and approach them daily 100% of the time; to identify precursor behaviors leading to challenging behaviors when presented in a receptive format; to vocally relay precursor behaviors that are part of the antecedent to a challenging behavior; to initiate walking away from potential disagreements in a non-provoking situation; to walk away from potential escalations 100% of the time; to engage in three reciprocal exchanges once daily in four out of five opportunities; and to raise his hand once daily to respond to a question.

27. The report did not identify how these goals were developed, as they were not based on any observation of problematic behavior. Wood’s recommendation was for more indepth observation that would enable her to create baseline data, and generate strategies to address challenging behaviors when they occurred.

28. At hearing, Wood explained that the purpose of the five-hour report was to observe Student and determine the level of his need, including whether he could function in the general education environment, and what level of support he would require. It was not to create a functional behavioral analysis (FBA) or a FAA. Those would require extensive interviews, observations and the collection of data allowing the analyst to draw conclusions regarding the functions that the problem behaviors served. The purpose of a FAA would be to determine an appropriate behavior plan. A behavior plan would identify and define problem behaviors, and their functions, and would then recommend strategies to shape the problem behaviors into more appropriate ones. Identifying the function of a behavior would generally be the most important component of a behavior plan. While writing the five-hour observation report, Wood had access to, and reviewed, the UHS BSP.

District’s Development of “Perspectives” Autism Program

29. In February or the early spring of 2010, Anderson asked District school psychologist Feliciano Joseph Inzunza (Inzunza), who had an extensive background working with students with autism, to develop a District program for students with autism. This was in the first set of Anderson’s list of priorities for District after being hired as Director of Special Education. As conceived and developed by Anderson and Inzunza, the program was intended to serve the needs of students: in the seventh through twelfth grades; with moderate to severe autistic behaviors and low cognitive abilities; with mild intellectual disability up through the “lower borderline” level of intellectual disability; on a certificate rather than a diploma track; and who would need functional, rather than academic skills.

Dawson Incident Reports February 2010

30. On February 17, 2010, Dawson filed an incident report stating that Student hit a female student in the chest area, martial-arts style. Dawson filed five other incident reports between February 18, 2010, and February 25, 2010, regarding altercations between Student and other students.

Settlement in OAH Case No. 2009120327

31. On March 16, 2010, Student and District settled OAH Case No. 2009120327 by means of a written settlement agreement (SA). The SA contained a full release of District of all claims arising from or related to Student’s educational program through and including the date of execution, March 16, 2010. SELPA was not a party to the case. Thus, the SA did not release SELPA.

32. The parties to the SA agreed that OT, speech and language, and psycho-educational assessments, as well as a FAA, would be conducted. Mother signed an assessment plan on March 16, 2010. The assessment plan specified that the FAA would be conducted by CIBA.

33. The SA further provided for a log book, to be signed by all personnel working with or assessing Student, as well as feedback regarding Student’s progress across all domains, including behavior, academics, and social skills.

34. The SA also provided that District would provide Student with a “Special Circumstances Instructional Assistant” (SCIA), a term used for a 1:1 aide, who met “highly qualified” standards under the No Child Left Behind Act (NCLB).

35. The SA also provided that an IEP meeting would be held on April 6, 2010, where the IEP team would “discuss, in detail, modifications to be provided to Student in order to assist Student with meaningfully accessing the curriculum.”

36. The SA also provided that the IEP team would discuss the CIBA five-hour observation report dated December 20, 2009, and that District would implement behavior intervention services recommended by CIBA.

37. The SA also provided that the IEP team would develop a training plan for the SCIA, including but not limited to: (i) behavior intervention training as recommended by CIBA at that IEP, and to be provided by CIBA; and (ii) SELPA’s Certificate in the Education of Students with Autism (CESA). The SA did not specify the time frame within which these training programs would occur.

38. The CESA training was developed by SELPA in conjunction with University of California at Riverside (UCR). It was an optional professional development class that could also count as credits toward UCR coursework. It consisted of ten training days, addressing issues including “autism and Asperger’s,” “intensive behavioral intervention,” “social stories,” “communication,” and other topics. It was designed to take place over the course of one full school year, with the first day of training taking place in September, and scattered other one-or two-day segments finishing in June. CESA training could be taken out of order, or taken in separate modules.

April 6, 2010, IEP

39. As required by the SA, the IEP team met on April 6, 2010. This IEP meeting was an addendum to the October 23, 2009, IEP.

40. The team briefly discussed the modifications and accommodations Student received in his general education Excel English Language Arts and World History classes, taught by Casian, where Student was mainstreamed. Mother requested additional modifications, specifically more time to complete written assignments. Student’s teachers reported on his progress. His SDC Math and Science teacher, Mr. Alsina, reported that Student was highly motivated in class, doing well and exhibited no behavioral problems. Student’s SDC Reading teacher Quintero reported that he was doing well in reading, attaining a grade of C+, with no behavior problems. PE was the class where most of his problems occurred. Casian reported that he was a “great student.”

41. By this date, Dawson had been replaced as Student’s aide by another District employee, Joe Malady (Malady). Malady attended the April 6, 2010, IEP meeting. The evidence at hearing did not establish precisely when Dawson had been replaced by Malady. There was a gap between the two aides such that Student was without an aide for several days or one week. During this time, various substitute aides and staff members accompanied Student, including Tosh Stephenson (Stephenson) and Kubacki. One morning, Student had to stay in Kubacki’s office and not go to PE, due to lack of aide coverage. However, there were no incidents during this brief gap in 1:1 aide coverage, and Student was never without the support of a staff member or teacher.

42. Malady had just started working at LMS. He had previously worked as a substitute aide at Hook Middle School for six months. Malady had a son with multiple disabilities, one of which was autism. Malady had worked with his son on social emotional functioning and social skills for 16 years. Malady had no college training and no formal training in behavior intervention.

43. As required by the SA, at the April 6, 2010, IEP, District offered CIBA training for Malady, and scheduled it to begin on April 7, 2010. Malady’s CIBA training did commence at or about that time. The IEP team did not make any specific arrangements with regard to the SA requirement that the aide obtain the CESA certificate.

44. As required by the SA, the IEP team also discussed the CIBA five-hour observation report dated December 20, 2009, in which CIBA had recommended up to ten hours per month supervision services for the duration of the 2009-2010 school year. As required by the SA, District agreed to implement these behavior intervention services recommended by CIBA.

45. There was no discussion at this IEP meeting about the UHS or any other BSP. CIBA did not discuss or make any recommendation concerning a BSP at this IEP meeting. However, some participants at the IEP had the understanding that the UHS BSP was being supplanted or superseded by CIBA, from this point forward.

46. Haley Papez (Papez), school psychologist, was involved with Student’s case management in consultation with Kubacki and Student’s teachers during his seventh grade year (2009-2010). She had frequent interactions with him on a daily basis in her office. She attended this IEP and considered the CIBA five-hour observation report to be Student’s new BSP. To her understanding, a decision was made at the April 6, 2010, IEP meeting to stop implementing the UHS BSP and replace it with the CIBA five-hour observation report, which was the only other behavioral intervention document that existed at that time.

47. At hearing, Papez opined that the goals in the CIBA five-hour observation report constituted a BSP, and the services recommended therein were to replace the UHS BSP, even though CIBA was, at the time of the IEP, about to undertake a more formal FAA. At hearing, CIBA’s Wood also testified that she understood that the recommendations she made in the five-hour observation report were thereafter implemented, either supplanting, or supplementing, those in the UHS BSP.

48. Mother consented to April 6, 2010, IEP addendum.

49. The next day, April 7, 2010, Mother wrote a letter partially revoking her consent to the April 6, 2010, IEP Addendum. District received this letter on April 14, 2010. Mother’s areas of concern were 1:1 aide assistance during sports events, and the training of aides. She reiterated that Student’s aide should be “highly qualified” according to the SA, and she disputed whether Dawson had been or whether Malady was. She also requested that the training envisioned by the SA should take place immediately.

50. Thereafter, on or around April 29, 2010, District wrote Mother a “prior written notice” letter in which it responded to Mother’s April 7, 2010, letter. In pertinent part, the response set forth the exact timing of the CESA training requirement that had been left blank in the SA. Specifically, CESA training for Student’s aide would begin with one CESA training module on September 23, 2010, and would continue with additional class modules through the balance of the 2010-2011 school year, as follows: one day in October, two days in November, two days in January, two in February, one in March, and one in April, with the training concluding in April 2011. District also laid out the definition of “highly qualified” under NCLB and represented that Malady met the qualifications, as required by the SA. District also consented to Mother’s request for additional modifications, specifically more time for written assignments, and reduced homework.

Assessments in April-May 2010

51. Pursuant to the SA, District conducted speech and language, psycho-educational, and OT assessments. Per the assessment plan, CIBA conducted a FAA.

52. Speech and language pathologist, Jana Holmer (Holmer), assessed Student and generated a written report dated April 14, 2010. Holmer concluded that Student met the legal criteria required for eligibility for special education and related services under the qualifying condition of Speech Language Impairment. At hearing, Mother presented no evidence that she had disagreed with the assessment or requested an independent educational evaluation (IEE).

53. On dates in March and on May 12, 2010, occupational therapist, Patricia Gonzales (Gonzales), assessed Student and generated a written report on or about May 12, 2010. Gonzales had been an occupational therapist for 24 years, held a Bachelor of Science degree, was licensed by the State of California as an occupational therapist, and certified by the National Board of Certification of Occupational Therapy. In order to maintain her license in good standing, she was required to complete 24 hours of professional development education every two years and had done so. The educational coursework she had completed included trainings in assessment tools, treatment strategies, therapy techniques, and serving specific populations, including autistic and orthopedically impaired persons, as well as trainings in sensory processing and neurological deficits. Her license allowed her to assess and provide services to all student populations, and she had in her career assessed and serviced many thousands of students.

54. Gonzales was employed by the Visiting Nurses Association of Inland County, which was certified as a NPA by the State of California to provide educational OT services to students pursuant to IEP’s, and which contracted with districts within SELPA to do so. For the 2009-2010 school year through the present, Gonzales was Student’s provider of OT services pursuant to his IEP’s.

55. Gonzales assessed Student in the areas of fine motor, visual motor, self-care, and handwriting skills, as they were the areas she had found relevant through her document review and discussions with teachers, as well as in the individual services she had been providing. Student’s performance in fine motor skills was below average, which could impact manipulation of pencils, scissors and other objects. He had visual motor deficits which could impact the accuracy of his perceptions and his ability to copy accurately. His handwriting was below average. He had some sensory processing deficits in visual, tactile and proprioceptive perception. His self-care skills were independent in the school setting with supervision, i.e., he could change clothes in PE, get items out of his backpack, etc.

56. Gonzales’ report recommended a reduction in service from the pre-existing level of once a week for 45 minutes direct service, down to once a month as a consultation service with Student’s teachers and aides. At hearing, Mother presented no evidence that she had disagreed with the assessment or requested an OT IEE.

May 12, 2010, Psycho-educational Assessment

57. In or around May 2010, school psychologist Papez conducted a psycho-educational assessment of Student and prepared a written assessment report dated May 12, 2010. Papez had a Masters degree in school psychology, and a pupil personnel services credential.

58. The report summarized the background of Student’s diagnoses and his eligibility categories, and summarized previous assessments from regional centers, service providers, and Student’s prior districts of residence. It mentioned Mother’s past reporting to the effect that Student did not engage with other members of the family unless he wanted something, needed constant reinforcement to complete tasks, fixated on electronics and video games, could become physically violent when frustrated, failed to take responsibility for his actions, and lied to avoid doing so or to gain attention.

59. The report summarized Student’s educational history, including his then-current seventh grade performance at LMS, where he maintained a C average.

60. Papez interviewed Student’s teachers, and reported their comments. Specifically, Quintero, Student’s teacher for SDC Reading class, reported that Student was reading in a third grade level book with good fluency, but had difficulty understanding the stories, because despite good comprehension, he was unable to draw inferences and conclusions. His SDC Math and Science teacher Mr. Alsina reported that he was working on seventh grade math, and had poor computational skills and conceptual understanding. Although Student appeared to learn, he quickly forgot basic facts. Regarding his social-emotional functioning, Student was reported to make inappropriate and negative comments to others, such as “you are stupid.” Although compliant overall, he could also be argumentative and defiant.

61. Papez interviewed Kubacki, who reported that Student followed directions, appeared to express himself adequately, and was compliant in class when his aide was with him.

62. Casian reported that in his general education Excel classes, Student was reading in a seventh grade level book with adequate fluency. He struggled with word recognition, but once he learned to decode the words, had good reading comprehension. He enjoyed the class, listened and seemed to understand the stories that were read aloud. He participated and was a “very valuable contributor to class.” He had trouble drawing conclusions and inferences, and had difficulties seeing the big picture, but could remember details.

63. Papez administered the following standardized tests: Cognitive Assessment System (CAS); Woodcock Johnson Test of Achievement, 3d Edition (WJ-3); Bender Visual-Motor Gestalt, 2d Edition (Bender-2); Wide Range Assessment of Memory and Learning, 2d Edition (WRAML-2); Vineland – II Adaptive Behavior Scales (Vineland-II); Behavior Assessment System for Children (BASC); Conners 3 Behavior Rating Scale (Conners-3); Behavior Rating Inventory of Executive Function (BRIEF); Devereaux Behavior Rating Scale-School Form (Devereaux); and the Gilliam Autism Rating Scale, 2d Edition (GARS-2). No test modifications were utilized, but Papez provided appropriate testing accommodations including frequent prompting and reinforcement, redirection to tasks, extra time and frequent breaks.

64. Student’s results on the CAS, which measured Student’s cognitive ability, indicated cognitive scores ranging from borderline and low-average down to mild-to-moderate developmental delay, equivalent to the lowest 2% of the scaled population. The CAS fullscale score indicated moderate developmental delay, within the lowest 2% of the scaled population. In Papez’ opinion, a student at this level of cognition would require a significant amount of modification and accommodation to access the general education curriculum

65. The results of the WJ-3, which measured Student’s academic achievement, indicated age equivalencies in reading, comprehension, spelling, writing, math and other academic subjects ranging from seven years old up to nine years old, with grade equivalencies ranging from second to fourth grade levels. His overall academic achievement fell within the very low range, with a third grade equivalence level. Papez concluded that his scores fell within the borderline to mild developmental delay range, and indicated that he had not mastered basic math and reading skills such as addition, subtraction, and calculation. In the area of written language, she concluded Student could create a sentence but not a paragraph.

66. On the Bender-2, which measured the integration of Student’s visual and motor abilities by testing Student’s abilities to draw geometric shapes, Student’s results were extremely low and indicated difficulties with fine motor tasks like copying, drawing, cutting, pasting, etc. Papez opined that Student was moderately developmentally delayed, and would be unable to take meaningful notes or comprehend grade level material in an age appropriate manner.

67. On the WRAML-2, which measured Student’s memory and his overall ability to learn, Student’s scores ranged from borderline down to mild-to-moderate developmental delay.

68. The Vineland-II measured Student’s adaptive behavior, as reported by Mother. The results indicated age equivalencies in communication, daily living skills, and motor skills ranging from two and one-half years old up to seven years old, in the mild-to-moderate developmental delay range. Student’s scores were much lower in the category of socialization skills, with age equivalencies under one year old, indicating severe developmental delay. His highest scores were in written communication and in the “domestic” and “community” daily living skills domain, where he was functioning at approximately the level of a typical six or seven year old. His score on the “personal” daily living skills domain was approximately at the level of a typical three year old.

69. The results of the BASC, which measured Student’s behavioral development, were generated by reports by teachers and parents, and intended to facilitate the differential diagnosis and classification of a variety of emotional and behavioral disorders. The responses were not consistent between Mother’s and teacher’s responses. Mother’s responses indicated hyperactivity, aggression, and behavioral problems, with “clinically significant” (i.e. requiring therapy or medical management) levels of oppositional defiance, acting out and “atypical” threatening behaviors that can endanger Student or others. As reported by Mother and interpreted by Papez, Student’s adaptive skills scores in the areas of adaptability, social skills, leadership, activities of daily living, and functional communication were “clinically significant” and consistent with Student’s diagnoses of ADHD and autism. Significantly, the rating of Student’s SDC teacher, Quintero, was higher, indicating better functioning at school than at home, and did not comprise activities of daily living, which on this instrument were assessed only in the home environment.

70. The results of the Conners-3, which measured Student’s attention, were generated by means of reporting by teachers and parents. The responses indicated clinically significant inattention, hyperactivity, learning problems, aggression, conduct disorder, and oppositional defiant disorder.

71. The results of the BRIEF, which measured Student’s executive functioning, were generated by means of reporting by teachers and parents. Student’s scores indicated that he functioned overall in the acceptable range, but had deficits with impulsivity, and problems with transitioning.

72. The results of the Devereaux, which measured behavioral problems in four subscales (interpersonal problems, inappropriate behaviors/feelings, depression and physical symptoms/fears), were generated by means of reporting by teachers and parents. Student’s scores indicated “very significant” interpersonal problems, inappropriate behaviors or feelings, depression, and physical symptoms or phobias. Papez interpreted Student’s scores to be consistent with Student’s diagnosis of autism.

73. The GARS-2 is a screening test for identifying persons who have autism based on the definitions of autism from the American Psychiatric Association and the Autism Society of America. The GARS-2 was the only autism-specific instrument Papez administered. It was generated by means of a parent interview and rating scales in the areas of stereotyped behaviors, communication, and social interaction. These were completed by Mother and Kubacki. The results from Mother overall indicated a “very likely” probability of autism; the results from Kubacki overall indicated a “possible” diagnosis of autism.

74. The report concluded that Student’s eligibility category for special education should be changed from a primary category of ED to one of autistic-like behavior. Papez interpreted the ED category to exclude a student whose behaviors were the result of cognitive delays. Papez concluded that Student’s behavioral problems appeared to be the result of his limited cognitive abilities, slow processing of information and emotional immaturity. Therefore, she concluded, Student did not appear to qualify under the eligibility category of ED, although it appeared that his behaviors mimicked those of an emotionally disturbed student.

75. The report further concluded that Student’s overall cognitive and executive functioning fell within the borderline to mild developmental delay range of functioning, indicating a significantly impaired ability to anticipate consequences, control impulses, and monitor his own behavior. The report concluded that his developmental cognitive delays were indicative of autism rather than intellectual disability because his cognitive functioning was not flat in all areas, but was significantly higher in some areas than others.

76. The report concluded that Student met the definition of a student with autistic-like behaviors by virtue of (1) having been identified with severe disorders in expressive and receptive language and delays in emergence of his use of language prior to age four or five; (2) Mother’s reports of early developmental delays prior to the age of three in Student’s smiling, crying, isolation and other normal social functioning; (3) prior reports of his inability to transition; (4) Student’s perseveration on video games and electronics; (5) tantrums when confronted with authority; (6) avoidance of eye contact and shutting out sounds by covering his ears; and (7) fidgeting and prior reports of hand flapping and other self stimulatory behaviors. The report is not clear as to when each of these behaviors was observed, and appears to rely heavily on Student’s historical documents rather than current observations.

77. Papez testified at hearing concerning her findings, and opined that Student did not receive any educational benefit from his seventh grade general education classes. His class contributions, although reported by Casian as “valuable,” were off-topic. Papez opined that Student could not interact with peers, or keep pace with the curriculum in the general education setting. In her opinion, the curriculum modifications that would be necessary would be so extensive as to make the general education curriculum not meaningful. Further, Papez predicted Student would never be able to perform at the seventh or eighth grade level. She believed he needed to be provided with more functional life skills training.

78. Papez also opined at hearing that the change in Student’s primary eligibility category from ED to autistic like behaviors was significant, because his prior program was designed for a student with ED. That kind of program would not be the same as what one would design for a student who fell where Student did on the autism spectrum, because his condition was not simply behavioral, but also cognitive and sensory. The eligibility category change was thus a change in the way the IEP team viewed Student. At hearing, Anderson agreed with this analysis.

May 15, 2010, FAA

79. Pursuant to the SA and the assessment plan, CIBA’s Wood performed a FAA and generated a written report dated May 15, 2010. On the cover page, the report is titled “Functional Assessment.” There is no indication in the written report itself that its intent was also to constitute a BSP.

80. Wood never obtained a release from Mother allowing her to review confidential information, and did not review any of Student’s medical records, prior assessments or discipline records. She did review a file she received from Mother, but did not record its contents, nor at hearing did she recall them. She interviewed Student’s aides, teachers, occupational therapist, speech pathologist, and Mother. She reviewed Student’s IEP’s, and records kept by Student’s aides. At hearing, Wood could not recall from whom she got these documents, although it may have been SELPA. She provided Mother with a Motivational Assessment Scale questionnaire, and reviewed Mother’s answers.

81. CIBA staff observed Student on five occasions in April and May. During the observations, CIBA observed no challenging behaviors. Wood, therefore, identified target behaviors for the FAA from reports by Student’s aides. From these, the FAA identified five target behaviors that were, in Wood’s opinion, impeding Student’s educational progress. These behaviors included running away; teasing (including name-calling, staring, touching, and talking about non-preferred topics); refusal or noncompliance; trading of objects or money; and repetitive talk (including talk relating to video games). Wood did not include physical aggression, threats, or insults as target behaviors, although these had been addressed in the UHS BSP. Wood had, from her interviews with Student’s aides, determined that these behaviors did not occur often enough to be identified as current target behaviors. The report noted that sexual statements to females had recently become an area of concern to Student’s aide; however, Wood did not include this as a target behavior.

82. The report presented operational definitions for the five chosen target behaviors and discussed their frequency, severity, duration and intensity. For each of the five target behaviors, the document contained “goals” not for Student, but rather for Student’s aide. Wood intended these to assist in Malady’s training. One of these, related to the target behavior of running away, stated that the aide should allow Student to take breaks from the aide for up to five minutes, two times a day. The document then proceeded to list general information regarding intervention strategies, including social scripts, and various proactive and reactive strategies. It did not link the strategies to any of the targeted behaviors or to any of the aide’s goals.

83. The last three pages of the document contained a list of “goals for skills to be taught,” in the areas of Attention, Peer Interaction, Communication/Conversation Skills, Nonverbal Communication, and Spatial Awareness. Each of these also contained a baseline stating Student’s current challenges in that area. Although not clearly delineated in the document, this portion of the document contained goals for Student. In the area of Attention, it stated two goals: to “look at the speaker for up to 80% opportunities when being spoken to;” and to respond to a question after being spoken to in four out of five opportunities. In the area of Peer Interaction, it stated five goals: to greet others during functional opportunities in four out of five opportunities; to identify a group of friends and approach them daily 100% of the time; to initiate walking away from potential disagreements in four out of five opportunities; to walk away from potential escalations (raising of volume of voice, tense muscles, verbal threats or comments) 100% of the time; and to engage in three reciprocal exchanges once daily in four out of five opportunities. In the area of Communication/Conversation, it stated five goals: to initiate statements during conversations in four out of five opportunities; to initiate questions in four out of five opportunities; to stay on topic during conversation with 80% accuracy; to appropriately end a conversation with 80% accuracy; and then to combine all the above skills. In the area of Nonverbal Communication, it stated three goals: to receptively identify communicative gestures in four out of five opportunities; to identify communicative gestures by others in four out of five opportunities; and to identify how others perceived situations in four out of five opportunities when presented with scenarios. The report identified three remaining goals in the area of Spatial Awareness: to identify “what is wrong” when presented with two dimensional stimuli in four out of five opportunities; to state “what is wrong” when presented with scenarios in four out of five opportunities; and to label scenarios when presented in four out of five opportunities. This made for a total of 18 total goals.

84. The FAA concluded with a recommendation of continuing ten hours per month supervision services by CIBA to be used for consultation and training.

85. At hearing, Wood testified that although not labeled as such, the FAA document also contained a behavior plan because it contained goals for Student’s aides and for Student himself. Wood testified that CIBA did generate documents that were explicitly titled as “behavior plans,” and did not explain why CIBA did not. Wood also testified that the plan was implemented from its inception in May 2010 forward until June 2011, and that CIBA performed the recommendations with Malady, teachers, Wood, CIBA supervisor Takia Fischer (Fischer), and CIBA aide Michael Barrett.

86. John Lubbers (Lubbers), the owner and Director of CIBA, testified at hearing regarding CIBA documents and business practices. Lubbers holds a Doctorate in Education with an emphasis in special education. Lubbers did not recognize the CIBA May 2010 FAA as a behavior plan. At most, the document contained “suggested interventions that could inform” a BSP.

May 21, 2010, IEP

87. On May 21, 2010, District convened an IEP meeting to make an offer of placement and services for eighth grade in the 2010-2011 school year.

88. Student was described as having no significant needs in the area of daily living skills in the school environment. The IEP form had a “special factors” checklist on which the following question was answered in the negative: “Does the student’s functional performance indicate needs in this area?”

89. The May 21, 2010, draft IEP stated 16 goals in areas of reading, writing, math, speech and language, OT, behavior, and social/emotional skills. None of these corresponded to any of the 18 student goals from the last three pages of the FAA.

90. The IEP stated that the method of reporting progress toward goals would be through the use of annual goal sheets, report cards, parent conferences, and IEP meetings, as needed, each semester. It also stated that progress reports would be mailed at the end of each semester.

91. The May 21, 2010, draft IEP document listed Student’s eligibility categories as ED and autistic like behavior.

92. In pertinent part, the team at the May 21, 2010, meeting discussed the psychoeducational assessment and the changing of the primary eligibility category from ED to autistic like behavior. Speech and language pathologist Cheryl Angel (Angel) confirmed Student’s eligibility as speech/language impaired. The occupational therapist discussed reducing Student’s services from the previous level of 45 minutes per week. There was extensive conversation regarding Student’s PLOPS and goals.

93. The team at the May 21, 2010, meeting discussed potential placements for Student. First they discussed various options including hospital settings, residential placement, and nonpublic schools, as well as County and SELPA-run programs for students with ED and autism.

94. This was the first time District initiated a discussion about the appropriateness of removing Student from the mainstream setting. District’s counsel attended the meeting and discussed the law of least restrictive environment, and the factors that were relevant in determining whether placement in the mainstream setting was appropriate. The team then reviewed a written report that had been prepared by general education Excel teacher Casian, who did not attend the meeting. The report expressed the opinion that Student fixated on other students, one female in particular; echoed the behavior of others; needed to be prompted to start work; did not finish assignments; and wrote illegibly. Casian’s report expressed the opinion that Student would benefit from a controlled therapeutic environment, with intense instruction. Casian further opined in her report that in the mainstream setting, Student would become fixated and distracted.

95. Papez discussed Student’s overall levels, and asked whether he had peaked, and whether the team must look at functional opportunities for Student to be successful in the real world. Anderson stated that Student had developmental delays, and that functional living skills needed to be a focus, and asked whether or not he was gaining meaningful interaction in his current setting. District’s counsel agreed with Papez’ and Anderson’s opinions, stating that Student had not received meaningful educational benefit from, and therefore did not qualify for, the mainstream setting. He, therefore, opined that the current placement was a disservice to Student.

96. Mother attended the meeting accompanied by Student’s grandfather. They expressed their opinions that expectations for Student should be set higher; that Student should still benefit from and stay in regular education; that a NPS was not appropriate; and that Student should stay in public school with additional services to enable him to be successful.

97. Wood attended the IEP and discussed her FAA report. Student’s goals from the last three pages of the report were specifically discussed as a “behavior plan.”

98. The IEP contained a “special factors checklist” box asking whether Student’s behavior impeded his learning or the learning of others, which had been checked “no.”

99. The IEP meeting did not conclude on May 21, 2010. Although the offer of placement and services had not been finalized, as of May 21, 2010, it consisted of placement and services similar to Student’s existing program per his then-current October 23, 2009, IEP. Specifically, it included a combined placement in a separate SDC for specialized academic instruction for part of the day, and mainstreaming in the regular general education class with special education supports for the remainder, with related services that included, in pertinent part, 1:1 aide support by a District aide with ten hours monthly supervision services by CIBA. The IEP team agreed to reconvene on June 8, 2010.

June 4, 2010, Incident

100. Between the May and June IEP meetings, on June 4, 2010, Kubacki and Papez filed incident reports documenting an incident in which Student had a dispute over money with another student. Malady intervened. Student became extremely agitated, and Kubacki could not de-escalate him. Student yelled obscenities. School security guards arrived after which Mother was called.

101. At hearing, Kubacki testified that during this incident Student was physically out of control, throwing chairs, and could not be calmed, reinforced or redirected. The CIBA May 2010 FAA was not modified as a result of this incident.

June 8, 2010, IEP

102. The May 21, 2010, IEP team meeting continued on June 8, 2010.

103. Student was again described as having no significant needs in the area of daily living skills in the school environment. The IEP form had a “special factors” checklist on which the team again answered in the negative the question of whether Student’s functional performance indicated needs in that area.

104.The June 8, 2010, IEP contained a statement of Student’s present levels of academic achievement and functional performance, including the manner in which Student’s disability affected his involvement and progress in the general education curriculum. Specifically, the statement indicated that due to Student’s diagnosis of autism, as well as Speech Language Impairment, Student needed additional support in order to be successful in all of his classes. The statement also indicated that Student needed small group instruction, extended time on all of his assignments, and a modified curriculum. Additionally, Student needed the support of a 1:1 aide to ensure appropriate socialization with his peers.

105. The 16 goals from the May meeting were expanded into 20 goals, in the same areas: reading, writing, math, speech and language, OT, behavior, and social/emotional skills. The four new goals were in the counseling/social-emotional area of need and related to compliance with adult directives; expressing feelings and using coping strategies; playground activities; and lying. None of the goals corresponded to any of the 18 student goals from the last three pages of the FAA.

106. The June 8, 2010, IEP, stated that reporting progress on goals would be reported through the use of annual goal sheets, report cards, parent conferences, and IEP meetings, each trimester. The IEP stated that regular school progress reports would be mailed at the end of each semester rather than each trimester, but that IEP goal progress reports would be mailed at the end of each trimester.

107. Student’s eligibility categories were changed between the May and June draft IEP documents, and were listed on the June 8, 2010, document as autistic like behavior and Speech Language Impairment. The June 8, 2010, document was the first time Speech Language Impairment appeared on any of Student’s IEP’s as one of his eligibility categories.

108. The placement discussion that had been initiated on May 21, 2010, continued on June 8, 2010. Anderson continued to opine that Student’s levels of cognitive functioning, and his behaviors, made mainstreaming for him inappropriate. Mother disagreed. The possible placements Anderson mentioned included one nonpublic school and the District SDC classroom at Hook Middle School (Hook) for students with mild cognitive delays. Anderson also mentioned at this meeting for the first time the likely availability (“about 95 percent sure”) of the new program for students with autism that she had asked Inzunza to create, and that was contemplated to be operating by the start of the 2010-2011 school year. The team continued the discussion of the meaning of “least restrictive environment,” with Anderson, Papez, and District counsel all questioning whether Student was accessing the general education curriculum in any way, or making any meaningful academic or social benefit. Finally, Anderson opined that Student would require support for the duration of his life in employment and daily living, and that a general education setting for academics would not benefit him in his future as an adult; and that he would be best served by focusing on giving him the right support so that he can function to his best ability in the future.

109. The District’s ultimate offer of placement and services continued to be similar to that made in Student’s October 23, 2009, IEP: a combined placement in a SDC for specialized academic instruction for part of the day, and mainstreaming in the regular general education class with special education supports for the remainder. Specifically, Student was to be placed into a SDC four periods a day for English, Math, Social Studies, and Reading. The remainder of the day was to be in a collaboration model general education setting, with a general education teacher and a special education teacher providing push-in RSP support, for two periods daily for Science and an elective. Student was also offered general education for physical education. Pursuant to this offer, Student was to be mainstreamed 44 percent of his day. District offered Student the following related services: OT once a week for 45 minutes to be provided by a NPA; speech and language therapy once a week for 30 minutes to be provided by a District speech and language pathologist; and counseling. The setting for this offer was to be Hook.

110. For the first time, this IEP offered ESY for summer 2010, including ten hours of monthly supervision services by CIBA.

111. With regard to supplementary aids and services to be offered, the IEP stated that “Modification of curriculum, instruction, time management, and educational setting will all be needed to ensure that [Student] is successful. [Student] needs to work with a 1:1 aide to keep him on task. All work will be modified to meet [Student’s] needs. Due to short-term memory and visual processing difficulties, work to be copied from the board will be presented to [Student] to work on to ensure that [Student] receives and comprehends the material.”

112. In regard to behavioral services, CIBA recommended full-time NPA aide support, as follows: two aides, on different days of the week, one for Monday, Wednesday and Friday, and the other for Tuesday and Thursday, as a temporary measure for 60 days, while Malady received his training required by the SA. CIBA also recommended ten hours monthly supervision services by CIBA. The notes indicated that the team agreed to make that offer.

113. The answers in the “special factors checklist” box asking whether Student’s behavior impeded his learning or the learning of others, which had been checked “no,” in the May IEP, was now changed to “yes.” Two additional boxes were checked “yes,” one asking whether behavioral goals and objectives had been included, and the other asking whether a behavior support plan had been written. Significantly, someone had stricken out the word “support” and replaced it with “intervention,” thus clearly intending to indicate that a behavior intervention plan (BIP) was in place.

114. At hearing, Papez and Wood both opined that even if not specifically so stated, the team intended to offer the goals/behavior plan portion of the FAA as part of the offer of placement and services made in the June 8, 2010, IEP.

Due Process Complaint in OAH Case No. 2011060578

115. At the conclusion of the June 8, 2010, IEP meeting, Mother served District with a copy of a due process complaint in OAH Case No. 2010060578, which she then formally filed on June 15, 2010.

Mailing of May and June, 2010, IEP’s

116. District did not provide Mother with a copy of the IEP documents from the May 21, 2010, or the June 8, 2010, IEP’s until June 23, 2010, on which date Anderson mailed both documents under a single cover letter.

Partial Consent to June 8, 2010, IEP

117. By a document that purported to be dated July 1, 2010, but which District did not receive until July 29, 2010, Mother signed the June 8, 2010, IEP, indicating partial consent. She attached an explanatory letter. The letter disagreed with the proposed placement at Hook and all the other placement options that had been discussed. It also disagreed with the temporary 60-day CIBA NPA offer, stating that the CIBA aide should be permanent. It also disagreed with District’s position regarding mainstreaming of Student. At most, after reviewing the exceptions, the letter could be construed to agree to PLOPS, goals and ESY.

118. District understood that Mother was attempting to obtain a permanent CIBA NPA full-time aide, rather than the temporary service that had been offered, and that she wanted continuing placement at LMS. District did not agree to these requests. Rather, District implemented what it understood to be “stay put” during the pendency of OAH Case No. 2010060578. This consisted, in pertinent part, of the placement and services that had already been provided pursuant to the October 23, 2009, IEP, as supplemented by the SA and the resulting April 26, 2010, IEP. Therefore, during the following 2010-2011 school year, Student remained at LMS. Both parties understood, however, that Mother’s partial consent was effective with regard to the offer of ESY for summer school 2010.

Hearing Testimony Regarding Student’s 2009-2010, Seventh Grade Year

119. At hearing, Dawson testified that during the time he served Student in the 2009-2010 school year, concluding in April 2010, Student’s behavior was good for the beginning of the school year but escalated in the second part of the year, when he was more verbal and physical with other students. When Student had conflicts, Dawson did not utilize any behavior plan document, although he did use strategies to de-escalate Student. Student’s behavior problems during 2009-2010 were not during class periods. During class periods, Student was intent on trying to learn.

120. At hearing, Malady testified that during the portion of the seventh grade school year that he served as Student’s aide, beginning in April 2010, Student wanted to trade electronics around campus. However, in first period Excel class, he would settle down. Transitions between classes and after breaks were challenging, as Student had a tendency to “bolt” out the door. In seventh grade, Student’s greatest area of need was in social interactions. Sometimes Student was rude and did not approach people in the right way.

121. Kubacki and Quintero provided push-in RSP support to Casian’s general education Excel classroom throughout the 2009-2010 school year. As department chair, Kubacki also provided other support to Student and his teachers. He observed Student’s classes, and worked with Student and his aide. Kubacki observed Student wanting to participate in class, but not completely following along; however, overall, Student did well for a student with autism. Student performed academically at the second grade level. He attempted to take notes and tried to do the work. He raised his hand. He asked questions, which were sometimes, but not always, pertinent. For example, he would raise his hand, but then talk off-topic about games he liked to play. Kubacki felt Student performed better in Quintero’s SDC than in Casian’s general education classes. Kubacki believed Student’s thinking was concrete and not inferential, thus he could not follow the seventh grade curriculum using figurative language, poetry, abstract concepts, or idioms. For example, Student would not be able to understand a phrase like “raining cats and dogs.” In math class, he would need to see a picture of two objects and another two objects in order to add two plus two. Kubacki opined that Student received some educational benefit from general education during seventh grade in the form of taking notes and being in a classroom, but the benefit was negligible. In early seventh grade, Student obtained social benefits from general education, but this deteriorated over the course of the year.

122. Kubacki was the person who was called in for discipline issues. Kubacki explained that during seventh grade, Student caused very large disruptions from acting out, yelling, and knocking items off his desk. These incidents occurred approximately 20 times. Student had to be removed from class by Kubacki or the aide, on approximately eight or ten occasions during the second half of seventh grade. Kubacki confirmed Dawson’s testimony that Student’s behavior at the start of the year was compliant, but changed as the year progressed.

123. District protocol when behavior incidents occurred was to attend to safety first, investigate, and then file incident reports. All students and staff involved filed such reports, after which District administrators took whatever action they deemed appropriate. During seventh grade, Kubacki filed approximately 20 incident reports regarding disruptions by Student that Kubacki had to address. Except as specifically described herein, however, no such documents filed by Kubacki were presented as evidence at hearing.

124. Per Kubacki, Student’s social functioning also deteriorated over the course of the year. At the beginning of the year, Student functioned socially at a normal level for his seventh grade SDC classes, which was equivalent to a typically developing third or fourth grader. Students at that level were generally compliant, but required cuing and redirection, and were easily distracted. By comparison, a typical seventh grader would be expected to arrive in the classroom, sit down, do work, and attend to task without assistance. Student’s socialization skills deteriorated through the course of the year, down to the first or second grade level. He had an egocentric world view, which caused tensions between him and other students that sometimes escalated into conflicts. Student talked to others who did not want to interact, did not take turns talking, stole, lied, and used negative language, insults, and curse words.

125. District physical education teacher Lucinda Day (Day), taught Student during the 2009-2010 school year. She modified the curriculum for Student by giving him extra time to run a mile, for example. Student exhibited problematic behaviors in Day’s class. He had trouble following directions. He picked fights with other students. Day utilized the assistance of Student’s 1:1 aide. Day and Student’s aide would intervene by separating him from other students, and explaining to him what behaviors had been inappropriate. Day also, on occasion, called Papez for assistance. Day was familiar with the UHS BSP. Papez had a copy of it in her office, and the two of them would look to it for guidance. Day was not familiar with any CIBA documents. CIBA employees came out to her class once to observe Student.

126. District special education teacher Quintero taught Student’s reading SDC during the 2009-2010 school year. Quintero was a credentialed special education teacher with a clear credential, and a Master’s degree in education. She had not been trained in behavior intervention, but had received some training in BSP’s, and in data interpretation. Her seventh grade SDC reading class was for lower-skilled readers, similar to a class for English learners. She modified Student’s curriculum by, for example, reading questions to him and giving him work that was tailored to the level at which he was testing. She did not have a written plan for the modifications she provided, but she did give him individualized instruction tailored to his level. Student’s behavior during seventh grade, in Quintero’s opinion, was good. Quintero was familiar with the UHS BSP; she had a copy and implemented it. CIBA personnel came to her class once or twice during the last three months of the 2009-2010 school year. They informed her that they had a new BSP and were going to come in and help Student. Quintero was not familiar with any CIBA documents.

ESY 2010

127. Student attended ESY during the six-week summer program during June and July 2010. Jeremy Cornell was Student’s teacher. He was not aware of the UHS BSP, or the FAA, and had no interaction with CIBA during ESY 2010. However, Student exhibited no behavior problems in his class. Student did well and was very quiet in class.

128. For ESY 2010, Malady was not Student’s 1:1 aide; rather, District employee Duewing Hardrick (Hardrick) served as Student’s aide during ESY 2010. Hardrick had taken classes in autism, and some classes in behavior interventions, and worked with students with autism for eight years. He was not aware of the UHS BSP, or the FAA. However, Student exhibited no behavior problems while being served by Hardrick.

129. Hardrick completed a log entry every day recounting Student’s assignments and behaviors. Cornell also made entries.

130. Hardrick interacted with CIBA during the summer. Specifically, Wood consulted with him, and directed him to implement three goals. Hardrick did, in fact, implement the goals, and rewarded Student at the end of each week when he had met his goals. Hardrick implemented a token economy using computer game cards as rewards. CIBA did not formally train Hardrick, but did consult with him about how to serve Student.

131. CIBA’s first bill for supervision services indicated that no hours were expended in July, 2010. At hearing, Wood could not explain this, but confirmed that all ten monthly supervision hours had in fact been provided from April 2010 onward.

132. CIBA’s first written notes of its supervision services were dated June 25, 2010, and concerned a conversation Wood had with Hardrick. Wood also made entries in the log book.

133. Wood observed Student on June 28, 2010, from 9:40 a.m.-12:00 p.m. Her supervision notes referenced recommendations Wood made on the first visit on June 25, 2010. These recommendations concerned a “self-management system” which consisted of a sheet with questions for Student to answer “yes” or “no.” The questions included: “When I go up to people I will say ‘hi’; I will tell the truth when someone asks me something,” and others. Student was to sign the bottom of the “contract” which was to say “I [Student] will follow my contract in order to earn something at home, if I do not follow my contract I will not earn anything for that day.” The sheets also were to contain some information for Student to help identify people who were “friends vs. not my friends.”

134. Hardrick’s logs for the next several days indicated that Student had completed his contracts.

135. Wood observed Student and Hardrick on July 14, 2010, and made an entry in the log book stating that she had made a modification to the contract.

136. Wood’s supervision notes dated August 6, 2010, concerned the last week of summer school in July 2010, and reflected that Student had been using the self management chart, also referred to as a “checklist.” The notes stated that, in regard to the program “friends” vs. “non friends,” Student mastered sorting, so the aide had begun to add mastered items to the management list in order to transfer skills. None of these strategies had been mentioned or defined in the FAA.

137.The August 6, 2010, notes reflected a plan to transition the self management list into the 2010-2011 school year, in order to assist Student in managing his own behaviors, with the goal of teaching Student to rate himself, in order to build self-awareness concerning specific behaviors.

2010-2011 school year

Opening of “Perspectives” Autism Program

138. District’s new autism program, which Anderson had asked school psychologist Inzunza to develop in the Spring of 2010, opened in the Fall of 2010. It was housed at the Silverado Early College Campus (ECC), a new campus next to Silverado High School. ECC housed a number of different programs, including general education classes for District high school students who were simultaneously seeking AA degrees and/or were college bound. ECC also housed self-contained SDC classes for severely handicapped students; a class for students with emotional difficulties who were transitioning back into District schools from nonpublic placements; and County programs for severely disabled students.

139. The Perspectives program consisted of a highly structured day, with different workstations through which the students rotated. The beginning of the day was devoted to sensory exploration and circle-time. The end of the day was devoted to cleaning-up and preparing for the next day, including vacuuming and washing dishes, cleaning tables and blackboards, which was known as the “domestics” component. The domestics component also taught cooking skills, for which purpose the program purchased a stove and refrigerator. Other than domestics, the program components included functional academics, community and leisure activities, language and communication, and hygiene. In regard to hygiene, all the students in Perspectives were toilet-trained, but some required prompting in order to ensure cleanliness. With regard to functional academics, the curriculum was an alternative curriculum for moderate to severely disabled students. It was not based on grade level standards for mild to moderate students, for which the cognitive profile of the Perspectives students was too low. Academics could be individualized for particular students, but only within the general profile and intent of the target population. There could be some balancing of higher cognitive abilities with more severe autistic-like characteristics, such that the program might accommodate, as exceptions, students with higher cognition but more severe autistic-like behaviors.

140. The program had a sensory station with various objects for sensory exploration, builtin sensory breaks, and a “sensory diet.” It had lighting and sound systems geared towards the special sensitivities of students on the autism spectrum.

141. At hearing, Inzunza explained that, in order for a student to be a candidate for Perspectives, the student’s assessments and profile should generally indicate the following: a developmental range of a 5 year old up to a 10 year old; an academic equivalence of kindergarten to third grade level, topping out at third grade level, and, therefore, learning money math rather than academic math. The students in Perspectives would not be expected to be able to read for comprehension. For adaptive skills, Inzunza testified that he would expect Perspectives students to fall within the significantly/extremely low, or very deficient range on the Vineland-II, which measured adaptive behavior. Cognitively, students would be mildly intellectually disabled up through the lower borderline range, again with attention paid to the balance of their cognition with their behaviors.

August 2010

142. The 2010-2011 school year began the week starting Monday, August 23, 2010. Student’s District aide service transitioned back to Malady from Hardrick. Student remained at LMS.

143. Fischer was a Program Supervisor with CIBA. Her duties were to implement programs for individual students, and to analyze behavior data. She had a Bachelor’s degree in Sociology and was working towards her Masters’ degree. She was appointed as the CIBA supervisor on Student’s case during the 2010-2011 school year. From then forward, she was the CIBA individual most responsible for training and supervising Malady.

144. Fischer observed Student and Malady on the second day of school on August 24, 2010, from 11:45 a.m.-2:30 p.m., and noted no concerns. Student raised his hand appropriately in class during the observation, and complied with teacher requests.

145. On or around August 25, 2010, Student called Mother and reported that Malady was not helping Student in class, was being mean, and was touching Student. An IEP meeting occurred that same day to discuss the concerns. Student, Mother, Mother’s husband, Student’s grandfather, principal Greg Johnson, Papez, Malady, Quintero, and Kubacki attended the IEP. CIBA did not attend. Student accused Malady of not helping him in class, and of petting his arm. Student also accused Malady of calling him names. Malady stated that in Quintero’s class, Student had refused to correct his class work when asked to do so, and then became agitated when he was not permitted to participate in the other eighth grade activities. Student cursed at Malady, threatened to call Mother, and then went to the office to do so. Thereafter, Malady and Student proceeded to the next period where Student also refused to do his work, and continued to curse at Malady.

146. The team questioned Student closely about his allegations. Stepfather indicated that perhaps the allegations were fabricated. The team discussed cursing, name-calling, treating others with respect, and how to talk when upset. Mother suggested that Student be permitted to take a time-out from class when necessary, and Kubacki offered his office as a place to do so. The team agreed that Student should stay at school for the remainder of the day, and not go home early. The meeting ended with a discussion about honesty and respect. No recommendations or changes in placement or services were made as a result of this IEP team meeting. The CIBA FAA was not modified as a result of this incident.

September 2, 2010, CIBA Observation

147. Fischer observed Student and Malady from 11:30-3:00 p.m. on September 2, 2010. She presented Student with two “social scripts” concerning “people I don’t like” and “having friends.” Student read the scripts and put his self-management checklist in his backpack. Fischer gave 14 copies of the self-management checklist to Malady, and explained to him the procedure for Student to complete the checklists. Fischer noted no behavioral concerns. Fischer gave Student instruction in how to request that Malady give him more space. Malady appropriately prompted Student, and redirected him in class, and gave him appropriate space when Student interacted with peers, which he did appropriately. Student read aloud in class, copied from the board independently, raised his hand, and answered questions correctly.

148. At the conclusion of this observation, Fischer made recommendations to Malady. She spoke to him about possible reinforcers, discussed with him the FAA goals, gave him a copy of the FAA, gave him copies of social stories, and instructed him to allow Student to take breaks from Malady for up to five minutes while still maintaining Student in view.

149. Despite having made these notes at the time, Fischer testified at hearing to being unfamiliar with the CIBA May 15, 2010 FAA, and did not recognize it as containing a behavior plan that she and Malady had been charged with implementing. In her understanding, there was no particular document that governed her services. Rather, she learned what she should work on from Wood, who gave her instructions, and identified target behaviors. Wood orally directed Fischer to set up a token economy system, and a behavior contract with appropriate replacement behaviors, which were identified by Wood. The target behaviors Wood orally identified for Fischer to address were name-calling; blurting out in class; running away and obscenities. Wood periodically added new target behaviors. For example, when Student bolted from class on one occasion, Wood added that behavior to the token economy system.

150. At hearing, Malady confirmed that he and Fischer implemented different strategies at different times as directed by Wood. At hearing, Malady testified that some of the techniques he used with Student were verbal praise, high fives, thumbs up, and encouragement.

September 29-30, 2010, Incident Report

151. On or around September 30, 2010, an IEP team meeting was held at parent request. When Mother arrived she informed school principal, Gregory Johnson, that she had called the police. When the police arrived, they determined that Mother was alleging that Malady had informed other students that Student was autistic. Student had filed an incident report dated the previous day, September 29, 2010, in which Student alleged that Malady had revealed Student’s diagnosis of autism to another student, who then approached and confronted Student. Johnson decided to undertake an investigation of the allegation.

152. Thereafter, Johnson conducted an investigation during which he interviewed Malady, Student, and two other students. The investigation was credibly conducted and included an interview of Student himself. It revealed no evidence that Malady had disclosed any of Student’s personal information. At most, Malady had been approached by other students with questions about Student, and he had told those students that he was not at liberty to discuss the issue. Johnson concluded that the allegation that Malady had revealed confidential information was unsubstantiated. No further action was taken, and the matter was dropped.

153. At hearing, Malady credibly confirmed what had occurred. Another student had asked Student “do you have autism,” and Student had stated he did not want to talk about it. Thus, at hearing, Malady credibly confirmed what he told Johnson at the time, namely that he did not reveal Student’s confidential information to anyone.

September 30, 2010, IEP Meeting: Status of Aide Training and CIBA Services

154. After Mother made the above allegation to Johnson, the IEP meeting ensued. In pertinent part, Malady and Fischer reported on their behavior interventions with Student, and on Malady’s training.

155. Malady’s CIBA office training was intermittent, having begun in April 2010 when he was assigned Student’s case. Malady had completed portions of his CIBA training. Thus far, he had received instruction in the history and characteristics of autism, and research-based CIBA interventions.

156. Malady’s CIBA “field training” had started and was ongoing. It consisted of instruction in the functions of behaviors, data collection techniques, forms of reinforcement, discreet trials, and prompting. Fischer had been training Malady and she reported on his training at the IEP. She had trained Malady in data collection techniques, and ensured that he implemented the behavior plan, as she understood it. She instructed Malady to train Student to use replacement behaviors such as raising his hand instead of blurting out in class.

157. Regarding CESA training, per District’s letter that it had sent to Mother on April 29, 2010, shortly after the SA, CESA modules began with the first CESA training on September 23, 2010.

158. Fischer reported on the use of the “self monitoring checklist” given to Student to complete. Student was given reinforcements for completion of the checklist. Fischer also called the checklist a “behavior contract” and reported that Student had been given the document to take home. Fischer also reported on the use of “social scripts.” Student and Malady reviewed the “social scripts” at the beginning of every day. The scripts had been provided to Mother.

December 2010-January 2011

December 2010, Events

159. Student’s discipline records indicated that four incidents occurred in December 2010. The first, on December 1, 2010, involved the use of profanity. On December 3, 2010, Student, in the locker room, stated that another male student wanted to “suck his dick.” On December 14, 2010, two incidents were reported. The first involved Student passing out prescription pills on the school bus. The second involved Student passing notes containing lewd language like, “do you like to fuck” and “do you like to suck dick” to female students. Student was suspended for three days, from December 14, 2010 through December 16, 2010, which was the last day of school before Winter break. District recommended suspension and expulsion, and scheduled a manifestation determination meeting for Monday January 3, 2011, the first day of school following Winter break. That meeting actually took place on January 5, 2011.

January 5, 2011, Manifestation Determination

160. At the January 5, 2011, manifestation determination meeting, it was determined and agreed by the team, including Mother, that Student’s conduct had been a manifestation of his disability. Anderson checked the box on the form indicating that the conduct had not been a result of any failures to implement Student’s IEP’s. Mother signed, although the notes indicated that she dissented on this point.

161. District offered no follow-up, other than a suggestion to hold an IEP meeting in the future to follow-up and consider service alternatives. Specifically, Anderson wanted to discuss placement options, like an autism program. Mother did not agree to the follow-up IEP suggestion or to that placement option. The notes of this IEP indicated that Wood attended, and stated that CIBA “ha[d] some new protocols that they are attempting to implement,” but did not specify what those were. No further action was taken. There was no mention of a FAA or a behavior plan. The CIBA May 2010 FAA was not modified.

162. At hearing, Anderson testified that the FAA was the operative BSP at that time. Papez testified that no new assessment was recommended at this IEP because a BSP was already in place, and CIBA was trying new ways to implement it, and not enough time had yet passed to see if CIBA’s implementation would be successful.

January 5, 2011, IEP

163. Immediately following the January 5, 2011, manifestation determination meeting, an IEP team meeting was held at parent request to discuss Student’s ongoing program. Inzunza attended the meeting, and discussed the Perspectives program. Student’s teachers and service providers gave reports. Eighth grade general education teacher, Kathleen Hanson, stated Student was not a behavior problem and was doing well, participated in class and appeared to enjoy and benefit from her class. She also stated that she sent weekly reports to Mother regarding Student’s progress. Music appreciation teacher, Kevin Norton (Norton), indicated that Student attended to class sessions and was doing well.

164. Wood reported on Malady’s ongoing training, stating that he had almost completed his Level 1 field training. Wood discussed how she worked with Student, and explained that new incentives that were not implemented before break would be implemented starting with Student’s new sessions. She did not specify what the new incentives were.

165. There was a continuation of the ongoing discussion that had been initiated by District in the May and June 2010, IEP’s, specifically about the appropriateness of removing Student from the partial mainstream placement. Mother requested that Student’s elective be changed to Cadet Corps, a military elective class, and that he be in general education classes for 100 percent of the school day. Mother also requested “educational therapy” for Student. Mother’s requests were not directly granted or rejected but the team elected to put off the discussion for another time. Due to an upcoming semester break, it was agreed that the discussion would continue at a later IEP meeting.

January 18, 2011, Parent Request IEP

166. A further parent request IEP was held on January 18, 2011. Mother reiterated her request for 100% mainstreaming, and for Student’s elective to be changed to Cadet Corps. Anderson stated that “District has offered an autism program,” although it had not actually yet done so, and that that program would best suit Student’s needs and, in her opinion, his need for functional skills training.

Dismissal of OAH Case No. 2010060578

167. On January 28, 2011, OAH case No 2010060578 was dismissed.

February 2011

168. At another IEP meeting on February 16, 2011, Mother reiterated her request for Cadet Corps. District disagreed, because Cadet Corps took place during first period, when Student’s eighth grade SDC reading class with Quintero also occurred. Mother requested that Student’s schedule be re-worked to place him in a different reading class at a different time of the day. District did not agree, since the SDC Reading class first period was the one most appropriately suited to Student’s needs.

169. Fischer observed Student and Malady on February 18, 2011. She noted no behavior concerns. Student was compliant and worked quietly. He took his materials out independently, ignored distractions, and completed his assignment along with the rest of the class. Her observation notes mentioned an updated behavior plan for Student’s behaviors that occurred during school sessions, but did not set forth the specific updates. These notes appeared to be a summary of oral conversations between Wood and Fischer regarding new strategies to implement.

170. Fischer also observed Student and Malady on February 22, 2011, March 3, 2011, and March 10, 2011, and wrote observation notes. These notes contained suggestions, but no relevant issues or concerns.

Spring 2011

171. In March, 2011, District compromised, in part, with Mother’s request that Student be allowed to attend Cadet Corps. In order to accomplish this without pulling Student out of his SDC reading class every day, District offered Cadet Corps twice weekly rather than five times weekly. At an IEP meeting on March 22, 2011, Mother consented. Student was, thereafter, until the end of the school year, removed from Quintero’s eighth grade SDC reading class twice weekly to attend Cadet Corps. During this 2010-2011 school year, Quintero taught only one eighth grade SDC reading class a day. Mother requested that Student be allowed to attend another reading class that did not conflict with Cadet Corps, such as Quintero’s seventh grade SDC Reading class. District did not agree. Quintero felt that her seventh grade reading class would have been inappropriately low for Student’s level. Since the class was interactive, modifying its curriculum for Student’s level would have required adding a second teacher.

April 2011, Events

172. During Spring 2011, there were changes in Student’s aide personnel. Malady was reassigned to another student at or around the beginning or end of Spring break, which was from Monday, March 26, 2011, until Friday April 1, 2011, with school resuming on Monday

173. April 4, 2011. By this time, Malady had completed 20 hours of CIBA office training and had attended CESA modules regarding behavioral interventions, analysis, data collection, reinforcers and prompting, visual aides, and the functions of behaviors.

174. After Malady left, several different substitute aides were assigned to Student, with a result of a number of changes in personnel. For a brief time, Student was without an aide, so Quintero had to serve as his aide. Student was temporarily given substitute aides or SDC staff to supervise him.

175. On April 5, 2011, Student’s aide was Dawson, the same aide who had served during the 2009-2010 school year prior to the SA, and whom Malady had replaced. Dawson did not utilize the CIBA FAA document and testified at hearing to not recognizing it. On or around April 5 and 6, 2011, Student was referred for a five-day suspension. On April 5, 2011, the reason for the referral was that Student tried to hit another student. On April 6, 2011, the referral arose because Student’s aide Dawson thought that Student had brought contraband to school. Dawson attempted to search Student’s backpack, but Student would not comply. Dawson then called Mother, who came to school with her husband and father. The family and Dawson went into an administrative office, and the family searched the backpack. During this incident Student became extremely agitated, and verbally violent, toward Dawson and toward the family, and shouted obscenities. School security was called. Two security guards arrived. Student was, at this point, in addition to shouting obscenities, hitting and punching cabinets and the walls with his fists and head, and attempting to hit at others. He also hit at one of the guards, and after several attempts to subdue Student, the two guards successfully restrained him. Police were called and they took charge of the situation.

176. On that day, Student was suspended from April 6, 2011 through April 11, 2011. Student was scheduled to return to school on April 12, 2011, on which date an IEP team meeting was scheduled.

177. However, sometime between April 6 and April 12, 2011, District recommended Student for expulsion, and prepared an “expulsion packet.” According to that documentation, the five-day suspension was extended. Student’s attendance record confirmed that he did not return to school on April 12, 2011, as the suspension was extended through and including April 18, 2011. This extension brought the total number of days Student had been suspended during the 2010-2011 school year up to 15.

178. Meanwhile, the IEP that had been scheduled for April 12, 2011, was cancelled by District. District’s paperwork, including documents in the expulsion packet that bore multiple dates, was unclear regarding why and when the April 12, 2011, IEP meeting was cancelled, or if in fact any notice of cancellation was ever sent. Counselor, Jessica Martinez, appeared for the April 12, 2011, meeting as noticed, as she had received no notice of cancellation. Mother, Student’s grandfather, and other persons were waiting for the meeting to begin, when Kubacki told them the meeting had been cancelled, and he apologized that they had not been notified.

179. Principal, Greg Johnson, met with Mother on April 12, 2011. Mother requested and received a homework packet. By letter dated April 12, 2011, memorializing the meeting, District confirmed that it recommended expulsion. The letter informed Mother that she would get a packet of information about an upcoming expulsion hearing. The notice of that hearing, sent on April 12, 2011, scheduled it for April 18, 2011.

April 18, 2011, Manifestation Determination

180. When the April 18, 2011, meeting actually occurred, however, it was not styled as an expulsion hearing, but rather as a manifestation determination meeting. The team concluded that Student’s conduct had been a manifestation of his disability.

181. The team recommended that Dawson be replaced with a NPA aide through CIBA. The team recommended a temporary CIBA aide at first, while CIBA located and hired personnel to serve as Student’s permanent NPA aide throughout the balance of the school year. Mother misunderstood this, thinking that the offer was for a temporary NPA aide only. She, therefore, signed consent stating that she agreed with the NPA aide but disagreed with its being temporary only.

182. The team agreed that the FAA should be updated, and that the “behavior plan” should be reviewed and modified. The IEP notes did not indicate what, if any, document the team referred to as Student’s “behavior plan.” On that day, Mother signed an assessment plan that provided that CIBA would conduct a FAA.

183. During the discussion at this IEP meeting, Wood stated that CIBA had never seen the extent of negative behaviors from Student that resulted in his recent suspension. Others, including Kubacki, disagreed.

184. At hearing, Anderson testified that the team “reviewed his BSP and it was being implemented” but did not clarify what, if any document, was reviewed.

185. NPA aide services were implemented thereafter, for the balance of the 2010-2011 school year. CIBA initially appointed various persons to serve as Student’s aide, but then assigned Michael Barrett (Barrett) at the end of April, 2011, and he served as Student’s aide for two months until the end of the school year in June 2011. At hearing, Barrett did not recognize the FAA and, like CIBA Director Lubbers, testified that the document contained components of a BSP, but did not appear to be an actual BSP.

May 30, 2011, CIBA Draft Assessment Document

186. On or around May 30, 2011, CIBA generated a draft of a report that was not a complete FAA. It was entitled “Behavior Assessment Report.” It contained the beginning portions of a FAA that was then in progress. Wood was unable to complete a full FAA prior to May 30, 2011.

187. The report stated that CIBA had been requested to address the target behavior of “excessive dishonesty” which it defined as stealing electronics, selling, trading, and lastly, lying about these behaviors. CIBA requested additional time to complete the FAA with respect to this target behavior. The report stated that it contained a “hypothesized” behavior plan with respect to the target behavior of excessive dishonesty.

188. For the target behavior of dishonesty, the draft set forth three goals: to gain access to items by implementing an earning system in his home environment; to gain such access during the school day by engaging in appropriate peer interactions; and to purchase items independently from a store.

189. The report also stated that it contained a behavior support plan with respect to one other targeted behavior that had recently been observed, namely harassment of female peers.

190. For the target behavior of harassment, the draft set forth three goals: to complete a behavioral contract on a daily basis in which Student would rate his behavior in four out of five opportunities; to follow the behavioral contract on a daily basis in four out of five opportunities; to initiate up to 10 appropriate comments in order to gain the attention of a female, in four out of five opportunities.

191. The report also contained a “hypothesized” emergency behavior plan to address physical outbursts toward adults.

192. For the target behavior of physical outbursts, the draft set forth three goals: to vocalize Student’s needs to be left alone and given space 100% of the time; to request to go for a walk when precursor behaviors were observed, these being identified as tightening of the body, noncompliance or escalated tone; to request to type or write how Student feels when precursor behaviors occur in four out of five opportunities.

193. The draft also set forth intervention strategies for the target behaviors including proactive strategies like functional communication training and teaching alternative behaviors. Reactive strategies included differential reinforcement of alternative behaviors, and extinction.

194. CIBA did not complete the final version of the FAA until June 10, 2011.

June 2, 2011, IEP

195. Student’s annual IEP was scheduled for June 2, 2011. Shortly before the meeting, District held a staff meeting attended by Anderson, Papez, District counsel, SELPA’s Denise Edge, Quintero, Wood, eighth grade SDC Math and Science teacher, Stephenson, eighth grade general education Excel teacher, Kathleen Hanson (Hanson), eighth grade RSP teacher, Banae Kirby (Kirby), and speech pathologist, Angel.

196. These individuals all credibly testified at hearing that the District members of the IEP team did not have a predetermined placement or services in mind. The meeting was to focus on Student’s progress from the previous year’s goals. Some of those had been met, while others had not, despite significant progress. The team also met to review Student’s present levels of performance (PLOPS) and to write draft goals.

197. The staff generated a list of Student’s strengths at that meeting. It stated, in pertinent part, that Student had improved in his peer relations, was compliant, did not disrupt class, and was not aggressive. With regard to SDC reading and writing, it noted that Student independently accessed computer reading programs, completed the program levels and advanced to higher levels, answered the comprehension questions correctly, and had improved his spelling to the fourth grade level. With regard to SDC math, the summary noted that he could multiply up to ten, could verbalize simple formulae but not apply them, could do computations but only with assistance, and became lost on multiple step problems. In SDC science class, he was an eager participant, and did well with assistance.

198. On June 2, 2011, the full IEP team met, including Mother, her attorney, and her father. Mother participated, gave input, and asked questions. The meeting lasted from 9:30 a.m. until 3:00 p.m.

199. A draft IEP document was generated from the meeting. Student’s eligibility categories, which still had not been resolved from the change made at the June 2010, IEP, reflected that change, thus stating eligibility categories of autistic like behavior and Speech Language Impairment.

200. Student was described as having no needs in the area of daily living skills in the school environment, although he had some needs in the home environment. He came to school well-dressed and groomed and presented no difficulties in these areas while at school.

201. Student’s strengths were summarized as follows: Eighth grade general education Excel teacher, Hanson, and RSP Reading teacher, Quintero, reported that Student had done well with spelling at approximately the third grade to fourth grade level. He had done well with rhyming and poetry. His writing had been difficult to read, but was improving. In math, he worked at the third or fourth grade level, knew basic calculations and could verbally master the times tables up to ten. He could verbalize many mathematical formulae although he had difficulty when these were on paper. Generally he appeared happy and was well liked. His behavior had improved overall in relation to male students. He worked well with his CIBA aides and had become more compliant to directions and cues. He enjoyed engaging and volunteering in science class, although he had difficulty with abstract concepts. In Hanson’s general education Excel classes, he did well with peer support and assistance, participated in class discussions and lessons, enjoyed social studies and did well with visual aids. He had no interest in Norton’s Music Appreciation class.

202. In the portion of the document addressing how Student’s disability affected his involvement and progress in the general curriculum, the document stated: “Due to [Student’s] eligibility under Autistic Like Behavior combined with identified speech delays, [Student] requires modifications of curriculum, setting and assignments. [Student] requires both modifications and accommodations [] in order to gain access to core curriculum. Additionally, [Student] requires access to a functional curriculum.”

203. The IEP included 22 goals in the areas of reading, writing, math, speech and language, OT, behavior, and social/emotional skills. Many of the goals stated in this IEP were repeated from the May–June 2010 IEP draft IEP’s, because, while Student had made progress, some goals had not been mastered. Overall, the team consensus was he was close to meeting many of his previous year’s goals.

204. Student’s goals numbered 1, 2, 5 and 16 through 17 addressed his needs in the area of OT. The OT PLOPs indicated that Student had proprioceptive (i.e. where the body is in space) and vestibular (i.e. balancing) processing issues. Student also had needs in the areas of fine motor skills and penmanship. PLOP 1 reflected that Student arrived at school in an over-stimulated state, requiring supervision and redirection to enter his first class in a calm alert state for learning. The PLOPS were accurate. The goals developed from them were measurable, and met Student’s unique needs in this area. Goal 1 addressed Student’s issues with transitioning into the school day by suggesting that Student demonstrate improved selfregulation skills following a sensory diet as demonstrated by appropriate alert level transitioning into his first class in 4 out of 5 days, 80 percent of the time. The responsible persons identified to address and measure Student’s OT goals were the special education teachers, aides, and the OT.

205. The notes reflected that Gonzales provided Student with individual OT services once a week for 45 minutes. Gonzales discussed Student’s OT PLOPs and Goals at the IEP meeting, indicating that he had improved with transitions, and was compliant and receptive. She worked with him on fine motor precision in their OT sessions, i.e. copying, tracing and writing. He learned to work in space, and was improving his ability to utilize proprioceptive input; however, he had not shown correct proprioceptive responses and either over-or underresponded. Gonzalez reported that while he still became over-stimulated at times, he had shown great progress in that area.

206. Goals 3, 4, 6 through 10 and 18 were in the areas of speech and language/communication, behavior, and social/emotional skills. The PLOPs for these goals stated that Student struggled with social skills when interacting with peers, especially girls; struggled with following directions and required multiple prompts to return to task; exhibited impulsivity in his thoughts and actions; lied to avoid getting into trouble; and had difficulties with organization. The PLOPs were accurate. The goals developed from them were measurable, and met Student’s unique needs in this area. The IEP identified the special education teachers, aides, speech and language pathologist, and counselor to implement and measure these goals. For Goals 4 (organizational planning), 9 (speech language/communication) and 10 (speech language/communication), the responsible persons identified also included general education teachers and/or Excel staff.

207. Goals 11 through 13 and 22 addressed Student’s reading. The PLOPs for these goals stated that Student read well in the computer lab using reading programs, such as Reading Plus and Lexia; he read independently at the fourth grade level; had needs in the areas of understanding inference, figurative language and context, but could understand verbal and visual concrete ideas in text. In his core curriculum general education classes, he read far below average and at a slow rate, and struggled with speed and intonation; had trouble decoding multisyllabic words or those with diphthongs. The PLOPs were accurate. The goals developed from them were measurable, and met Student’s unique needs in this area. Goal 13 stated that Student would progress toward reading aloud materials that were at the fifth grade level. At hearing, Hanson credibly testified that in her opinion, this was a reasonable goal for Student, who read at fourth grade level. The responsible persons identified to address and measure goals 11 through 13 and 22 were the special education teachers and aides. For Goals 11 through 13, the responsible persons also included the general education teachers and Excel staff.

208. Goals PLOPS 14, 15 and 21 addressed Student’s writing. The PLOPs for these goals stated that Student had difficulties with penmanship and with the sentence structure of complex sentences and paragraphs. He could write simple and compound sentences with good structure and punctuation, but not complex sentences. His spelling was at the fourth grade level. The PLOPs were accurate. The goals developed from them were measurable, and met Student’s unique needs in this area. The IEP identified the responsible persons to address and measure goals 14, 15 and 21 as the special education teachers and aides. For goals 14 and 15, the responsible persons also included the general education teachers and Excel staff.

209. Student’s needs in math were addressed in goals 19 and 20. The PLOPs for these goals accurately showed that Student performed at the 4.5 grade level. He could do problems with formulae, and multi-step problems, but required prompting. The goals developed from them were measurable, and met Student’s unique needs in this area. The responsible persons identified to address and measure goals 19 and 20 were the special education teachers and aides. For goal 19, the responsible persons also included the general education teachers and Excel staff.

210. In summary, the PLOPS were current and accurate. They reflected Student’s continuing struggles with socials skills. Student had difficulties with transitions that his OT suggested be addressed with a sensory diet. Student’s academic performance in reading, writing, and math, was at approximately a fourth grade level. The goals were measurable, and met Student’s unique needs. Student had progressed from the previous year, although many of his goals were continuing and had not been met. None of the PLOPS or goals addressed functional living skills like domestics, personal hygiene, or cleanliness.

211. The team proceeded to discuss potential placements. Because Student was in eighth grade, the next year would normally involve a transition to high school. Mother’s view was that Student should be retained at LMS. Mother stated that she wanted Student to go on to college and wished him to work toward a high school diploma even if it meant keeping him in school past the age of 18. The team discussed the research on retention, which overall, did not support retention. The research indicated that better results were obtained with social promotion, with supports. Papez also expressed her opinion, that the research did not support retention, and concluded that Student had made progress in his behavior and social skills, and, as such, should move on to high school.

212. Anderson stated her view that, despite his progress, Student required access to a functional life skills curriculum including money management, safety, recreation and functional academics. She introduced Jeannette Gomez (Gomez) to the team. Gomez taught the Perspectives program at ECC.

213. Anderson suggested a hybrid schedule to address both Student’s functional and general education academic needs, with the day starting and ending in the Perspectives program and core subjects in between. The IEP notes indicated that the conversation at first revolved around core academic subjects in an Excel-type model, providing modified core curriculum based on state standards and leading to a high school graduation, as also reflected on the cover page of the IEP containing the offer of placement and related services. Specifically, the cover page stated that: 63 percent of the school day would be in the general education setting; Student would be on a diploma track and not a certificate of completion track; and three periods per day would be in the “regular class,” i.e. in the general education setting.

214. However, as the discussion progressed, District clarified its offer as involving no general education except for PE. Anderson explained that transitioning to regular classes was more difficult at the high school level. The IEP notes then set forth the final offer of placement and services, which consisted of placement at the Silverado High School campus, which was next door to the Early College Campus, at which location the Perspectives Autism program was housed, in a hybrid schedule with three mild-moderate SDC periods in core subjects (i.e. English, math, science, and/or social science) with a modified core curriculum according to state standards. Two periods a day, first period and last period, would be in the Perspectives program teaching an alternate curriculum.

215. The IEP offered related services as follows: speech and language once a week for 30 minutes; counseling three times per month for 30 minutes; full-time 1:1 NPA aide services plus ten hours a month supervision, both from CIBA; OT twice a month for 45 minutes; ESY for summer 2011 with related services in the same frequency and duration; and transportation.

216. The IEP team discussed modifications and accommodations. The discussion included alpha smart software, a portable keyboard; a digilock for PE; extra time for assignments, tests and quizzes; use of graphic organizers; preferential seating; and prompting as necessary and consistent with goals. Other items were discussed but not clearly defined: OT tools, as needed and to be defined after trials in occupational therapy; hand writing/ prepared notes/ Cloze notes Student could be assessed on; dictation for modification for classroom instruction.

217. The OT offered was a reduction from what had previously been provided, which was once a week for 45 minutes, but it was higher than what Gonzales had recommended in 2010. Gonzales felt Student could make progress with a lower level of service. She opined that the offered level was appropriate and sufficient to enable him to receive educational benefit.

218. Regarding behavioral services, the IEP did not contain a behavior plan. CIBA had not yet completed the FAA, so Wood presented her incomplete FAA report at the IEP meeting. She stated that it was not complete; however, the document “including goals as part of the behavior assessment report will be implemented for now.” The IEP notes reflected that CIBA would work on a new behavior plan, that the draft discussed would be offered once it was complete, and that the “current FAA and BIP” would remain in place until then. CIBA would present the new FAA and BIP at next IEP team meeting.

219. At hearing, Anderson testified that a primary eligibility category of autistic like behavior for Student was appropriate because “these designations would give us a solid methodological approach to address his unique needs,” and because “you would approach a Student with autism differently.” She felt that even though, at the time of the June 2, 2011 IEP, Student had made progress from the previous year and had either met or was close to meeting many of his previous year’s goals, he did so with “tremendous” amounts of support, i.e. the 1:1 aide, modifications and accommodations in the classroom, his SDC classes and the RSP collaboration support he received in his general education classes. Anderson’s focus was on independence. Anderson’s impression was that Student had not, during the 2009-2010 and 2010-2011 school years, been meaningfully participating in general education, but was “going through the motions.” She felt that Student had not really retained anything, that his participation in class had not been meaningful and had not given him the skills to be an independent adult. She felt that the general education teachers, most notably music teacher Norton, agreed with her assessment. To the extent other teachers, most notably Hanson, focused on Student’s progress, Anderson discounted their views. She testified that as educators, teachers had a tendency to focus on the positive, evidencing that she felt their views were overly optimistic.

220. At hearing, Anderson insisted that there was ample support for her views in the teachers’ impressions and in Student’s assessments. Although, she recalled Student as being very heavily assessed, she could cite to no assessment other than the May 2010 psychoeducational assessment. And, when pressed, the only teacher she could name whose views accorded with her own was Norton, the music appreciation teacher.

221. Anderson based her opinions very heavily on Students’ cognitive levels from the 2010 psycho-educational assessment, which she recalled as being in the second percentile, too low to attend college or even attain a regular high school diploma. She felt that the appropriate education would focus on a skill set to enable Student to become as functional and independent as possible when he left school.

222. Anderson testified that Student fell within the target population for the Perspectives program, due to his high degree of need, the requirement of a structured environment, and his need to learn functional skills for independent living. Although the IEP reflected no needs in the area of daily living skills in the school environment, at hearing Anderson opined that, although Student’s hygiene was okay, his organizational skills were weak. Anderson further opined that, because Student fell on the cusp between mild-moderate and moderate-severely handicapped, the Perspectives program would not have been appropriate for Student for his entire school day. Thus, he was offered SDC for most of his school day, with a modified curriculum based on grade level standards. However, she did feel that what the Perspectives program offered in the way of a functional life skills curriculum would be appropriate for Student. For example, she felt he could benefit from learning about kitchen safety, cooking and domestic skills, money management, and safety in the general environment.

223. The offer of first and last periods of the day at the Perspectives program, according to Anderson, would be a very common intervention for students with behavioral difficulties. It would provide Student with a transitional environment into and out of his school day, and a place to check in and out.

224. Papez testified at hearing that in her opinion, based on her psycho-educational assessment from the previous year, and her observations of Student, that he was not receiving any educational benefit from the general education placements. In her opinion, Student required an SDC that would focus on multiple learning modalities and go at a slower pace, with significant modifications of the curriculum. In her opinion, it was appropriate for Student to begin and end his day in the Perspectives program to address transition, sensory needs, get prepared for the day, wrap up at the end of the day, and transition home.

225. At hearing, Kubacki testified that he agreed with the offer. He felt Student’s behaviors needed to be addressed before education could be addressed. He felt it would be very unlikely for Student to attend college, although, vocational school was a possibility. Kubacki believed it was very unlikely Student would attain a regular high school diploma. Kubacki believed the Perspectives program for transitional periods at the beginning and end of the day, where Student’s problems had often occurred, would be appropriate because it was designed for students with autism. Kubacki believed Student had had the most success in his SDC classes and, therefore, agreed with the proposed SDC placement for the balance of the day. In Kubacki’s opinion, this was the LRE.

226. Anderson provided Mother with a copy of the June 2, 2011, draft IEP, on June 20, 2011, by delivering it to Mother’s home, where a family member signed a receipt for it.

Partial Consent to June 2, 2011, IEP

227. After the June 2, 2011, IEP, Mother filed for due process in the instant matter on July 29, 2011. At hearing, Mother presented a partial consent to the June 2, 2011, IEP, that she appeared to have signed on June 29, 2011, prior to her due process filing. The document stated that she partially consented, except for “placement, high school, restrictive environment for core subjects, and autism class.” District witnesses credibly testified that they did not receive this document from Mother until the resolution session in this due process matter on August 8, 2011.

Student’s Academic Performance During 2010-2011 School Year (Eighth Grade)

228. During the 2010-2011 eighth grade school year, Student had attended general education English Language Arts and World History classes with teacher Hanson, supported by RSP teacher Kirby; Music Appreciation with teacher Norton, supported by RSP teacher Stephenson; and Physical Education class with teacher Douglas Wakefield (Wakefield). From March 2011 onward, he also attended Cadet Corps twice a week, taught by Commandant of Cadets Kenneth Cook-Askins (Cook-Askins).

229. Student attended Quintero’s reading SDC class, and Stephenson’s Math and Science SDC classes.

230. Hanson testified credibly at hearing to Student’s performance in her eighth grade general education English Language Arts and World History classes. She modified the curriculum for Student. For example, she read vocabulary words aloud and posted a corresponding picture and a definition for Student, as well as color-coded the words to indicate the parts of speech. With aide and RSP assistance, Student was able to complete his assignments. Student received grades ranging from C to C-, based on the modified curriculum. In Hanson’s credible opinion, Student meaningfully participated in, and received educational benefit from Hanson’s general education classes, albeit with support. He retained information, and was not simply prompted by his aide. At hearing, she disagreed with opinions that Student’s participation was rote, not meaningful or a waste of time. For example, Student participated in a poetry project where Student wrote eight different types of poems and his work was compiled into a booklet with other students’ poems. He also completed a history project called “boomtown” where he created a diorama representing an old west town.

231. In general education Music Appreciation class, teacher Norton modified the curriculum for Student. The modifications consisted of limiting the amount of content Student was responsible for, and modifying his tests. Student required curriculum modifications and direct assistance from his aide to negotiate the music appreciation curriculum. Even with modifications, Norton felt the eighth grade music concepts were too abstract for Student.

232. Stephenson, who provided RSP support there, observed that Student had difficulties in music appreciation class, as the class was very abstract and Student did not get much educational benefit. He retained almost none of the information, and could only remember that there were different genres of music.

233. Wakefield modified the PE curriculum for Student and, in conjunction with the aide, redirected Student when necessary. The modifications consisted in part of breaking instructions down into smaller steps and reiterating the instructions numerous times. Student required some extra assistance from Wakefield, which took some of his attention away from other students, but not an excessive amount. With curriculum modifications and extra assistance from Wakefield and his aide, Student obtained educational benefit from his PE class.

234. Student attended Cadet Corps, the military education class, twice a week during first period from March 2011 until June 2011. Cadet Corps was an elective designed for attendance five days per week. Per the credible testimony at hearing of Cook-Askins, Student participated in and obtained educational benefit from attending Cadet Corps. Student received the grade of “B.”

235. For Math and Science, Student attended a SDC class with teacher Stephenson. Stephenson held a Bachelors degree and was working on his Masters degree in special education. He held an internship credential, entitling him to teach all subjects to special education students, aged K-12, under supervision. During the relevant time period, he worked under the supervision of his professor, who reviewed his lesson plans, and Kubacki, who observed him daily. He also took professional development courses through SELPA.

236. Stephenson modified Student’s curriculum by providing extra time on assignments, using repetition and foundational analysis, step-by-step analysis and instruction. Stephenson provided sequential teaching, individualized instruction, and individual attention to his students. For example in math class, Stephenson worked with Student on the order of operations in mathematical calculations. Stephenson also used a modified textbook which he compiled from math and science textbooks ranging from the fourth to seventh grade levels.

237. Student had trouble with material that was not concrete, or for which there were ambiguities or non-specific answers. Student took everything very literally, and had trouble with figurative or abstract concepts. It was difficult for Student to retain information if it was not presented in multiple steps. Because the material was at a level he could understand, and because the other students were all at the same cognitive level, Student received educational benefit in Stephenson’s SDC classes. Student behaved very well, raised his hand, volunteered and was a very active participant. Stephenson testified that in his view, the SDC was good for Student, due to its smaller class size and individual attention. Stephenson persuasively explained that the SDC would be the most appropriate placement for Student due to the success he showed there in eighth grade, the individual attention, the comparable cognitive levels of other students, and the additional time available to analyze and absorb the material. Stephenson felt that educational benefit from ninth grade general education would be minimal for Student, based on Stephenson’s perception of Student during the 2010-2011 eighth grade, because ninth grade would be more difficult and would build on past learning foundations which Student did not have. Stephenson also believed it was unlikely Student would attain a regular high school diploma or attend college, due to his cognitive levels and his processing problems.

238. RSP teacher Kirby provided RSP support in Hanson’s general education Excel classroom. She held a Bachelor’s and a Masters degree in Special Education and was currently working on a mild-moderate clear credential, with a focus in autism. She had received training in behavior supports from SELPA. Kirby observed Student’s low social skills. For example, Student would giggle and stare at girls, trade cards, and trade or bargain for other items belonging to other students, especially cell phones or electronics.

239. As collaborating RSP teacher in Hanson’s classes, Kirby modified the curriculum by re-teaching it for better absorption, going slower, skipping the harder parts and adjusting the pacing to aid absorption. She also used visual aids and a graphic organizer that, for example, showed different parts of speech in different colors. Kirby or Student’s aide would always have backup notes, and would point out to Student what to read, and explain what had just been read. Student understood nouns and punctuation, but not verbs or adjectives or abstract, figurative language. He could spell and write simple sentences. He could also write poetry. But he had challenges in multi-step thinking, so directions needed to be broken down into step-by step-instruction. His challenges included staying on task and learning to think abstractly.

240. At hearing, Kirby opined that Student did not obtain more than minimal educational benefit from Hanson’s Language Arts class, because he could not retain enough to master eighth grade standards even with a modified curriculum. He wanted to participate and raised his hand, but at times his participation was completely off-topic. In her opinion, he required more 1:1 instruction in a smaller group setting. Socially, Student made gains and friendships, but also alienated others by making false accusations. For example, he accused a peer of stealing a cell phone, and accused another peer of stealing a girlfriend. Kirby felt that Student had grown in the area of functional skills and organization.

241. At hearing, Kubacki opined that in Hanson’s general education classroom, Student learned rules and procedures, but not the core curriculum, such that the educational benefit he obtained was minimal. In part, this was due to the eighth grade curriculum increasing in difficulty over seventh grade. Student, in Kubacki’s opinion, obtained social benefit from friendships he developed, but over time these became strained.

242. Malady believed that Student had improved academically from seventh to eighth grade in that he was able to keep up with the coursework. Nonetheless, Malady believed the Excel classes were overwhelming for Student, and did not believe Student truly comprehended the content. Although Student was eager to participate and would raise his hand and occasionally answer correctly, his answers usually had nothing to do with the topic discussed. By contrast, Malady believed Student received academic benefit in his SDC’s. He was able to comprehend the material, as the teachers used reinforcing techniques such as rewards for completion of work, verbal praise, and other positive reinforcements. Student liked his SDC teachers and the workload was more tailored to his levels.

243. Per the CIBA aide Michael Barrett, who assisted student from April 2011 until June 2011, Student was most engaged in Stephenson’s SDC science class. He was less engaged in general education English class, and needed more prompting there, but with the right prompting and assistance he could complete the work.

Student’s Behaviors During 2010-2011 School Year (Eighth Grade)

244. Kubacki observed that Student’s behavior, which had deteriorated during seventh grade, continued to deteriorate during eighth grade. Although Student was, for the most part, not disruptive, he did have occasional outbursts and assaultive episodes, notably the events in December 2010 and April 2011 that led to the manifestation determinations. Although not all documented, Kubacki testified that other incidents such as knocking over tables, and throwing books, occurred 15-25 times during the 2010-2011 school year.

245. According to the teachers, Student was not a behavior problem in Hanson’s class or in Cadet Corps. Student’s behavior was controlled and controllable in Music Appreciation and PE class, although he had tendencies to pass notes and use graphic language with the opposite sex.

246. Kirby, Kubacki, and Stephenson were aware of the CIBA May 2010 FAA, and considered this document as Student’s behavior plan for the 2010-2011 school year. Hanson, Norton, Wakefield, and Cook-Askins were not familiar with the document, and had no consultations from CIBA, except one visit Wakefield recalled in the middle of the year.

247. For the eighth grade year, Wood testified Student was progressing on the goals stated in May 2010 FAA. Wood’s opinion was that, from when CIBA started their supervision services in April 2010 until June 2011, Student’s behaviors continually improved with both the severity and frequency of his behaviors decreasing, and no new maladaptive behaviors appearing. In Wood’s opinion, the events of June 4, 2010, the outbursts described by Kubacki, and those leading to the manifestation determination meetings on January 5, 2011, and April 18, 2011, were only the most severe spikes in a steadily improving arc in Student’s behaviors.

248. Malady took data regarding Student’s behavior, and wrote it in CIBA forms called data collection sheets, from September 2010 until March 2011. At hearing, Malady testified that Student had improved in some respects from seventh grade. He was more restrained in his movements and would walk rather than run, and no longer “bolted.” He made a friend in Hanson’s general education class, which helped him a great deal, as they shared interests in computers, cartoons and trading cards, and the friend motivated Student to do class work. However, Student’s social difficulties persisted and he had confrontations, engaged in namecalling, and had inappropriate social interactions. Malady testified that he had instructions from Mother and Kubacki to take away electronic gadgets from Student. When he took away Student’s electronic gadgets, Student would become agitated and would be inconsolable. Nevertheless, in general education Student was not a distraction as he was only occasionally disruptive. Specifically, on average of once per week, he would make an inappropriate comment, be vulgar to girls, name call, or use curse words.

249. From April 27, 2011 onward, CIBA employees provided Student’s aide support. They were trained in autism and behavioral therapies. They completed daily summaries for Mother’s information. Per CIBA aide Michael Barrett, Student was compliant in general, with prompting, and was a good student. He had the most trouble with transitions.

Speech Therapy Services 2009-2011

250. Angel was Student’s treating speech pathologist for the 2009-2010, 2010-2011 and 2011-2012 school years. She had been a District employee for the past three years. She had been a RSP teacher and had nineteen years experience in special education. She held a Bachelor’s degree and a Master’s degree in special education. At the time of hearing, she was working towards her Master’s degree in Speech Pathology, a four-to-five year program. She held a mild-moderate special education teaching credential. She did not yet have her clear credential to provide speech and language therapy, which required a Master’s degree in speech pathology. But credible documentation from the California state credentialing agency showed that she was on a “waiver” pursuant to which she was fully authorized to provide speech pathology services, despite not having yet obtained her clear credential. Pursuant to the waiver, holders of a Bachelor’s degree, like Angel, could provide speech services under the supervision of a licensed speech pathologist, while progressing toward the advanced degree. Angel met all these criteria.

251. Angel also obtained professional development over and above the training her waiver required, by attending two SELPA workshops per year relating to speech and language services, collaboration and other topics.

252. Angel’s credible testimony established her competence to perform her duties under supervision, by providing direct services, developing IEP goals, and performing assessments pursuant to the waiver.

253. Student’s October 23, 2009, IEP, to which Mother consented, had provided for speech and language therapy once a week for 30 minutes by a District speech language pathologist. Angel provided these services pursuant to that IEP for the 2009-2010 school year, and continued to do so throughout the 2010-2011 school year. From August 22, 2010, until June 8, 2011, Angel’s therapy notes showed that she provided Student with weekly services for 30 minutes sessions, except for the first week of October 2010.

OT Services 2009-2011

254. Student received 45 minutes per week of individual OT therapy from an NPA throughout the 2009-2010 and 2010-2011 school years. His therapist, Gonzales, also collaborated with his teachers and aides, modeling for them fine motor and visual motor intervention techniques. The billing documents for OT services were inaccurate and reflected under-billing in certain months and over-billing in others, but that paperwork did not accurately reflect Gonzales’ ongoing regular services.

255. Gonzales attended the May 21, 2010, IEP meeting at which she recommended continuing with weekly OT for 45 minutes through the balance of the 2009-2010 school year, and then tapering down to 30 minutes every other week in the 2010-2011 school year. She based this recommendation upon her May 12, 2010, assessment, her ongoing familiarity with Student from being his service provider, and also upon the discussion at the team meeting. Gonzales recommended that Student’s aide do fine motor skills exercises with Student daily, and that Gonzales train the aide to carry out OT on a daily basis. She felt the 1:1 aide could practice these skills with Student, thus reducing the necessity of her individual services. Mother disagreed, feeling that Malady did not have the necessary skills to carry out OT services. Gonzales’ recommendation to decrease OT services was never adopted by the IEP team, which continued to offer 45 minutes of individual NPA OT per week.

Progress Reporting 2009-2011

256. District generated progress reports for the 2009-2010 and 2010-2011 school years. The reports were organized into quarterly reporting periods. The progress report for 2009-2010 stated it was reporting on an IEP dated November 30, 2009, which was an addendum to the October 23, 2009, IEP. However the goals it reported on were from the October 23, 2009, IEP itself. The 2009-2010 progress report was only completed for the quarterly period ending January 15, 2010.

257. The 2010-2011 progress report referred variously to the IEP addendum dated November 30, 2009, to the IEP dated June 8, 2010, and to a nonexistent IEP dated November 30, 2010. The goals it reported on were all taken from the June 8, 2010, IEP, but it stated only eight of the 20 goals stated in that IEP. It purported to report on six of those goals for the quarterly period ending January 15, 2010, which predated the June 8, 2010, IEP and was in any event before the 2010-2011 school year. It purported to report on two goals for the quarterly periods ending October 22, 2010, January 21, 2011, and March 25, 2011.

258. Student’s progress was also communicated to Mother through grades, meetings, IEP’s, school work sent home, and through the log book that was required by the SA.

259. At hearing, Student’s service providers and teachers confirmed that they regularly completed the log book. Malady logged Student’s daily activities every day he worked, reporting what Student did in each class, what Student worked on, and his assignments, as well as logged Student’s behaviors. In the 2009-2010 seventh grade school year, PE teacher Lucinda Day made entries in the log book that detailed Student’s assignments, and what he had done in class that day. Quintero wrote in the log book both during Student’s seventh and eighth grade years. During the 2009-2010 school year, Quintero made entries in the log book on a daily basis. During both school years, she not only reported on Student’s progress in the log book, but also wrote weekly progress reports for Mother. OT, Gonzales, testified that she completed the log book on a weekly basis for the 2010-2011 eighth grade year. Student’s aide during ESY 2010, Hardrick, also wrote into the log book. Stephenson monitored Student’s progress on goals through work samples, tests, quizzes, and also through IEP meetings.

260. The log book itself was voluminous, comprising many hundreds of pages, with detailed entries in the handwritings of Dawson, Malady, teachers and service providers for dates in every month from January 2010 to April 2010, June and July 2010 and from September 2010 to August 2011. From April 27, 2011 onward, CIBA employees provided Student’s aide support, and they completed daily summaries for Mother’s information.

ESY 2011

261. The last day of the regular school year was June 10, 2011. Neither party presented any evidence concerning Student’s program during ESY 2011, except CIBA’s Michael Barrett’s testimony that he did provide 1:1 aide service to Student at Silverado High School from June to July during ESY 2011. The first day of the regular 2011-2012 school year was August 22, 2011.

Role of the SELPA

262. SELPA was comprised of numerous local educational agencies within a large geographical area of San Bernardino County, all of whom signed assurances to abide by SELPA’s governing document, the “local plan.”

263. SELPA did not enforce school districts’ compliance with the local plan, and each member district was responsible for its own compliance. SELPA’s role was to provide resources, training, and information to its member school districts. It encouraged, but did not mandate, that its member districts access those resources. Thus, District staff and teachers could, but were not required to, attend SELPA training programs. SELPA services were available to those member school districts who voluntarily sought them out. SELPA personnel met with districts every year to assess their needs and develop educational programs, at the districts’ request.

264. SELPA maintained a Manual of Policies and Procedures (Manual), and a website on which the Manual was posted. Among other topics, the Manual addressed assessments, eligibility, the continuum of program options, positive behavioral interventions, suspension and expulsion. The Manual contained an appendix of forms that districts could use, including forms to use at IEP meetings and in connection with assessments, behavioral services and discipline. SELPA encouraged the use of its forms, which it developed to ensure compliance with the laws and regulations that governed those procedures and services. Districts were, however, free to choose their own methodologies in order to comply with the obligation to provide students a FAPE. The evidence established that District never used any of the various forms SELPA made available for behavioral intervention, or any other SELPA forms regarding Student.

265. SELPA employed various “program specialists” and “program managers” who focused on different topics of interest to districts, such as due process filings. Program specialists were required by SELPA, as a job qualification, to hold teaching credentials. Program managers, who supervised program specialists, had no such job qualification. During the relevant time period at issue here, Denise Edge was program manager for SELPA regarding due process filings. She did not hold a teaching credential. As program manager for due process, Edge started attending Student’s IEP meetings starting with the April 6, 2010, IEP meeting, due to the SA settling OAH Case No. 2009120327. She continued attending IEP meetings thereafter, due both to the SA and then the filing of OAH Case No. 2010060578 in June, 2010. Student presented no evidence that his educational program or services were affected by virtue of Edge’s credentials, or the fact she attended his IEP’s, or made recommendations there.

266. SELPA did not provide any direct services to students, other than certain fee-based physical therapy services for certain students, not at issue here. In addition, it provided “workability” and transition programs to students in smaller districts whose home districts did not have their own programs; however, District did have such programs and did not use SELPA’s. SELPA, therefore, did not provide any such direct workability and transition services to District’s students, although those services were listed in the Manual on the website. SELPA did not provide behavioral services to any students. SELPA did not modify curriculum for particular students; use or direct districts to use certain forms; refer students for assessments; provide students with assistance to access curriculum; or fund IEE’s. SELPA never received any request from Student to fund any IEE’s. SELPA did not implement IEP’s or behavior plans, or assign SCIA’s or case managers.

267. Desert Mountain SELPA Children’s Center (DMSCC) was a provider of mental health services pursuant to IEP’s. It provided Student with individual counseling, and was referenced in Student’s IEP’s as “SELPA,” “SELPA counselor,” “SELPA counseling,” and the like. DSMCC was not in fact, part of SELPA. It was a separate legal entity organized under the umbrella of the County. It served as a contractor. Districts contracted directly with DSMCC to comply with their obligation to provide educationally necessary mental health services pursuant to IEP’s. DSMCC used SELPA as an administrative agency. Numerous references in Student’s IEP’s to “SELPA” all relate to counseling provided by DMSCC. Student’s provider of counseling services, Jessica Martinez, was employed by DSMCC.

268. As mentioned above, SELPA entered into master contracts for each school year with NPA’s who provided services to individual students residing within districts within SELPA. These master contracts created a tripartite contractual structure between SELPA, the NPA, and the district, authorizing districts to access services and NPA’s to bill SELPA for them.

269. SELPA entered into master contracts with CIBA governing their services to Student here. It also entered into master contracts with Visiting Nurse’s Association, the NPA that provided OT. The master contracts, and the ISA’s, despite defining SELPA as a district, or as a local educational agency contracting for services, were clearly intended to memorialize SELPA’s role as merely a third part administrator for purposes of negotiating billing rates and making payments.

LEGAL CONCLUSIONS

Burden of Proof

1. The petitioning party has the burden of persuasion. (Schaffer v. Weast (2005) 546 U.S. 49, 56-62 [126 S.Ct. 528, 163 L.Ed.2d 387].) Therefore, Student has the burden of persuasion on all issues stated in his complaint, and District has the burden of persuasion on the issue stated in its complaint.

Definition of a FAPE

2. Under both State law and the federal Individuals with Disabilities Education Act (IDEA), students with disabilities have the right to a FAPE. (20 U.S.C. §1400; Ed. Code, § 56000.) A FAPE means special education and related services that are available to the child at no charge to the parent or guardian, meet state educational standards, and conform to the child’s IEP. (20 U.S.C. § 1401(9).) “Special education” is instruction specially designed to meet the unique needs of a child with a disability. (20 U.S.C. § 1401(29).) “Related services” are transportation and other developmental, corrective and supportive services as may be required to assist the child in benefiting from special education. (20 U.S.C. § 1401(26); Ed. Code, § 56363, subd. (a) [In California, related services are called designated instruction and services].)

3. In Board of Education of the Hendrick Hudson Central School District, et al. v. Rowley (1982) 458 U.S. 176, 201 [102 S.Ct. 3034, 73 L.Ed.2d 690] (Rowley), the Supreme Court held that “the ‘basic floor of opportunity’ provided by the [IDEA] consists of access to specialized instruction and related services which are individually designed to provide educational benefit to” a child with special needs. Rowley expressly rejected an interpretation of the IDEA that would require a school district to “maximize the potential” of each special needs child “commensurate with the opportunity provided” to typically developing peers. (Id. at p. 200.) Instead, Rowley interpreted the FAPE requirement of the IDEA as being met when a child receives access to an education that is “sufficient to confer some educational benefit” upon the child. (Id. at pp. 200, 203-204.)

4. In resolving the question of whether a school district has offered a FAPE, the focus is on the adequacy of the school district’s proposed program. (See Gregory K. v. Longview School District (9th Cir. 1987) 811 F.2d 1307, 1314.) A school district is not required to place a student in a program preferred by a parent, even if that program will result in greater educational benefit to the student. (Ibid.) For a school district’s offer of special education services to a disabled pupil to constitute a FAPE under the IDEA, a school district’s offer of educational services and/or placement must be designed to meet the student’s unique needs, comport with the student’s IEP, and be reasonably calculated to provide the pupil with some educational benefit. (Ibid.)

5. An IEP is evaluated in light of information available at the time it was developed; it is not judged in hindsight. An IEP is “a snapshot, not a retrospective.” (Adams v. State of Oregon (9th Cir. 1999) 195 F.3d 1141, 1149, citing Fuhrman v. East Hanover Bd. of Education (3d Cir. 1993) 993 F.2d 1031, 1041.)

6. The decision of a due process hearing officer shall be made on substantive grounds based on a determination of whether the child received a FAPE. (20 U.S.C. § 1415(f)(3)(E); Ed. Code, § 56505, subd.(f)(1).) The hearing officer “shall not base a decision solely on nonsubstantive procedural errors, unless the hearing officer finds that the nonsubstantive procedural errors resulted in the loss of an educational opportunity to the pupil or interfered with the opportunity of the parent or guardian to participate in the formulation process of the individualized education program.” (Ed. Code, § 56505, subd. (j).) In matters alleging a procedural violation, a due process hearing officer may find that a child did not receive a FAPE only if the procedural violation did any of the following: impeded the right of the child to a FAPE; significantly impeded the opportunity of the parents to participate in the decisionmaking process regarding the provision of a FAPE to the child of the parents; or caused a deprivation of educational benefits. (20 U.S.C. § 1415 (f)(3)(E); Ed. Code, § 56505, subds. (f)(2).); see, W.G. v. Board of Trustees of Target Range School Dist. No. 23 (9th Cir. 1992) 960 F.2d 1479, 1484 (Target Range).)

Student’s Issues Against District⁴

Issue 1 (a): Aide Support from March 18-26, 2010.

7. Student contends that District denied him a FAPE by denying appropriate aide support from March 18, 2010 through March 26, 2010. District contends that it provided Student with a FAPE at all times.

8. Legal Conclusions 1-5 above are incorporated herein by reference.

9. When a student alleges a denial of FAPE based on the failure to implement an IEP, in order to prevail, the student must prove that any failure to implement the IEP was “material,” meaning that “the services a school provides to a disabled child fall significantly short of the services required by the child’s IEP.” (Van Duyn v. Baker School Dist. 5J (9th Cir. 2007) 481 F.3d 770, 780.) “Minor discrepancies between the services provided and the services called for by the IEP do not give rise to an IDEA violation.” (Ibid.)

10. Here, District did not deny Student a FAPE by not providing Student aide services from March 18, 2010 through March 26, 2010. This time period fell just after the parties executed the SA on March 16, 2010, but prior to the April 6, 2010, IEP, that implemented the SA. During this time period, Student’s program was governed by the October 23, 2009, IEP, and the UHS BSP, providing for 1:1 aide support to be provided by a District aide. Dawson, who had served as Student’s aide during the 2009-2010 school year, was replaced by Malady at or around this time. The evidence at hearing did not establish precisely when Dawson was dismissed from his assignment and precisely when Malady had been hired, but did show Malady was assigned to Student’s case by the time of the April 6, 2010, IEP. There was a gap between the two aides such that Student was without an aide for several days or one week. However, during this brief period, Student was never without the support of a staff member or teacher, as he was accompanied by various substitute aides and staff members. Student only lost one class period of instruction during this time, specifically one PE class, due to lack of aide coverage, and there were no behavioral incidents during this brief gap in 1:1 aide coverage.

11. This brief gap in 1:1 aide service, and the single absence from PE, did not constitute a denial of FAPE. Student failed to establish that, during this time, District failed to provide him with access to an education that was sufficient to confer some educational benefit upon him. The gap in coverage was, at most, a minor discrepancy between the services provided and the services outlined in the October 23, 2009 IEP, and thus, did not give rise to an IDEA violation. (Factual Findings 1-50; Legal Conclusions 1-9.)

Issue 1 (b): Reading and RSP support in March and June 2010

12. Student contends that District denied him a FAPE by denying adequate reading and RSP support in March and June 2010. District contends that it provided Student with a FAPE at all times.

13. Legal Conclusions 1-5 above are incorporated herein by reference.

14. School districts, as part of a special education local plan area, must have available a continuum of program options to meet the needs of individuals with exceptional needs for special education and related services as required by the IDEA and related federal regulations. (34 C.F.R. § 300.115 (2006) ⁵ ; Ed. Code, § 56360.) The continuum of program options includes, but is not limited to: regular education; resource specialist programs; designated instruction and services; special classes; nonpublic, nonsectarian schools; state special schools; specially designed instruction in settings other than classrooms; itinerant instruction in settings other than classrooms; and instruction using telecommunication, instruction in the home or instructions in hospitals or institutions. (34 C.F.R. § 300.115; Ed. Code, § 56361.)

15. RSP programs provide: instruction and services for those students with IEP’s who are assigned to regular classroom teachers for a majority of a schoolday; information and assistance to students and parents; consultation, resource information, and material for parents and staff members; coordination of special education services with regular school programs; monitoring of student progress and review and revision of IEP’s; emphasis at the secondary school level on academic achievement, career and vocational development, and preparation for adult life. RSP programs must be under the direction of a resource specialist who is a credentialed special education teacher, or who has a clinical services credential with a special class authorization. (Ed. Code, § 56362, subds. (a) & (b).)

16. Here, Student failed to establish by a preponderance of the evidence that District denied him a FAPE by denying him reading and RSP support in March 2010 and June 2010. March and June 2010 fell within the 2009-2010 school year, student’s seventh grade. During this time period, Kubacki and Quintero provided push-in RSP support to Casian’s general education English Language Arts and World History classes, where Student was mainstreamed. In this time period, at the April 6, 2010, IEP, Casian reported that he was a “great student.” Student also attended Quintero’s SDC seventh grade SDC reading class. In this time period, at the April 6, 2010, IEP, Quintero reported that he was doing well in SDC Reading, attaining a grade of C+, with no behavior problems.

17. Also at or around this time, while preparing the May 12, 2010, psycho-educational assessment, Ms. Papez summarized Student’s then-current seventh grade performance at LMS, where he was maintaining a C average. Papez interviewed Quintero and Casian. Quintero reported that Student was reading at third grade level with good fluency; Casian reported that he was reading at seventh grade level with adequate fluency, and although he struggled with word recognition, he had good reading comprehension. He enjoyed the class, listened and seemed to understand the stories that were read aloud.

18. In short, Student was attaining educational benefit in both reading and general education with RSP support in March and June of 2010, and he failed to meet his burden of demonstrating he was denied a FAPE on this ground. (Factual Findings 1-78, 119, 126; Legal Conclusions 1-5, 14, 15.)

Issues 4 (a) and (b): Eligibility Categories in May 21, 2010, IEP

19. Student contends that District committed a procedural violation that resulted in a denial of FAPE in the May 21, 2010, IEP, by removing his eligibility categories of ED and Speech Language Impairment from his IEP. District contends that it committed no procedural violation, and provided Student with a FAPE at all times.

20. Legal Conclusions 1-6 above are incorporated herein by reference.

21. To be eligible for special education and related services, students must be found eligible by the IEP team, after review of the results of assessments. (Ed. Code, § 56026, subds. (a), (b) & (d); Cal. Code Regs., tit. 5, § 3030.) The IEP team must find that the student’s impairment falls within certain delineated categories, and that the degree of their impairment requires special education and related services. (Cal. Code Regs., tit. 5, § 3030.)

22. For the qualifying condition of autistic-like behavior, the student must exhibit any combination of behaviors like the following: (1) an inability to use oral language for appropriate communication; (2) a history of extreme withdrawal or relating to people inappropriately and continued impairment in social interaction from infancy through early childhood; (3) an obsession to maintain sameness; (4) extreme preoccupation with objects or inappropriate use of objects or both; (5) extreme resistance to controls; (6) peculiar motoric mannerisms and motility patterns; (7) self-stimulating, ritualistic behavior. (Cal. Code Regs., tit. 5, § 3030, subd. (g).)

23. For the qualifying condition commonly known as “serious emotional disturbance,” (hereafter ED) the student must, because of a serious emotional disturbance, exhibit one or more of the following characteristics over a long period of time and to a marked degree, which adversely affect educational performance: (1) an inability to learn which cannot be explained by intellectual, sensory, or health factors; (2) an inability to build or maintain satisfactory interpersonal relationships with peers and teachers; (3) inappropriate types of behavior or feelings under normal circumstances exhibited in several situations; (4) a general pervasive mood of unhappiness or depression; (5) a tendency to develop physical symptoms or fears associated with personal or school problems. (Cal. Code Regs., tit. 5, § 3030, subd. (i).)

24. For the qualifying condition commonly known as “speech language impairment,” a student must be assessed as having a language or speech disorder which makes him or her eligible for special education and related services when he or she demonstrates difficulty understanding or using spoken language to such an extent that it adversely affects his or her educational performance and cannot be corrected without special education and related services. In order to be eligible for special education and related services, difficulty in understanding or using spoken language shall be assessed by a language, speech, and hearing specialist who determines that such difficulty results from articulation disorders; abnormal voice; fluency difficulties; inappropriate or inadequate acquisition, comprehension, or expression of spoken language; or hearing loss. (Ed. Code, § 56333; Cal. Code Regs., tit. 5, § 3030, subd. (c).)

25. Here, contrary to Student’s contentions, the changes in categories of which he complains did not appear in the May 21, 2010, IEP, but rather in the continuation of that meeting that occurred on June 8, 2010. The May 21, 2010, draft IEP document continued to list Student’s eligibility categories as ED for the primary category and autistic like behavior as the secondary, as had the October 23, 2009, IEP.

26. Papez’ May 12, 2010, psycho-educational assessment recommended removing ED as a qualifying condition, and changing the primary eligibility category from ED to autistic like behavior. The April 14, 2010, speech language assessment found Student eligible under the legal criteria for Speech Language Impaired. Thus, the team at the May 21, 2010, meeting discussed these changes, which did not actually appear on the IEP document for the first time until the continuation IEP meeting on June 8, 2010.

27. In any event, District did not commit a procedural violation by virtue of any of these proposed changes. When a student is found eligible under any category, the analysis of whether he was denied a FAPE shifts to an examination of whether his IEP was tailored to meet his unique needs. “The IDEA does not concern itself with labels, but with whether a student is receiving a [FAPE]. A disabled child’s [IEP] must be tailored to the unique needs of that particular child…. The IDEA charges the school with developing an appropriate education, not with coming up with a proper label with which to describe [a student’s] disabilities.” (Heather v. State of Wisconsin (7th Cir. 1997) 125 F.3d 1045, 1055.) In other words, once a student is determined eligible, the category of eligibility becomes irrelevant to the analysis of whether he was denied a FAPE. Thus, the removal or addition of Student’s eligibility categories in and of themselves did not constitute denials of a FAPE. (Factual Findings 1-114; Legal Conclusions 1-6, 21-24.)

Issue 4(c): May 21, 2010, IEP, Discussion of Placement and Related Services

28. Student contends that District committed a procedural violation by failing to discuss a continuum of placement and related services in the May 21, 2010, IEP, which resulted in a denial of FAPE. District contends that it provided Student with a FAPE at all times.

29. Legal Conclusions 1-6 above are incorporated herein by reference.

30. As stated above in Legal Conclusion 14, school districts must have available a continuum of program options to meet the needs of individuals with exceptional needs for special education and related services as required by the IDEA and related federal regulations. (34 C.F.R. § 300.115; Ed. Code, § 56360.) The continuum of program options includes, but is not limited to: regular education; resource specialist programs; designated instruction and services; special classes; nonpublic, nonsectarian schools; state special schools; specially designed instruction in settings other than classrooms; itinerant instruction in settings other than classrooms; and instruction using telecommunication, instruction in the home or instructions in hospitals or institutions. (34 C.F.R. § 300.115; Ed. Code, § 56361.)

31. The parents of a child with a disability must be afforded an opportunity to participate in IEP team meetings. (34 C.F.R. § 300.501(a) & (b); Ed. Code, §§ 56500.4, 56341, subd. (b), 56341.5, subds. (a) & (b).) “Among the most important procedural safeguards are those that protect the parents’ right to be involved in the development of their child’s educational plan.” (Amanda J. ex rel. Annette J. v. Clark County School Dist. (9th Cir. 2001) 267 F.3d 877, 882.) A parent has meaningfully participated in the development of an IEP when he or she is informed of the child’s problems, attends the IEP meeting, expresses disagreement regarding the IEP team’s conclusions, and requests revisions in the IEP. (N.L. v. Knox County Schools (6th Cir. 2003) 315 F.3d 688, 693; Fuhrmann v. East Hanover Bd. of Educ. (3d Cir. 1993) 993 F.2d 1031, 1036 [parent who has an opportunity to discuss a proposed IEP and whose concerns are considered by the IEP team has participated in the IEP process in a meaningful way].)

32. Here, Student failed to establish by a preponderance of the evidence that District committed a procedural violation that resulted in a denial of FAPE. The purpose of the May 21, 2010, IEP meeting was to discuss placement and services for eighth grade in the 2010-2011 school year. The evidence showed that the team discussed various options on the continuum of placements including hospital settings, residential placement, and nonpublic schools, as well as County and SELPA-run programs for students with ED and autism. District initiated a discussion about the appropriateness of removing Student from his general education classes. Mother and Student’s grandfather expressed their opinions that expectations for Student should be set higher; that Student should still benefit from and stay in general education; that a NPS was not appropriate; and that Student should stay in public school with additional services to enable him to be successful. Although the team did not reach consensus, given the extensive discussions and input from Mother, there is no merit to the contention that the team failed to discuss the continuum of placement and related services at the May 21, 2010, IEP meeting, or that Student was denied a FAPE by virtue of the discussion. (Factual Findings 1-101; Legal Conclusions 1-6, 14, 30, 31.)

Issues 4(d) and 2 (j): OT

33. Student contends that District denied him a FAPE in the May 21, 2010, IEP, by not providing an appropriate amount of OT. Student also contends that District denied him a FAPE by failing to provide an appropriate amount of OT from May 2010 until May 2011. District contends that it did not deny Student a FAPE. As discussed below, Student has not met his burden of proof on these issues. Appropriate levels of OT were offered in the May 21, 2010, IEP, and were provided for the entire period from May 2010 until May 2011.

34. Legal Conclusions 1-5 above are incorporated herein by reference.

35. “Related services” include OT. (34 C.F.R. § 300.34 (a); Ed. Code, § 56363.)

36. Here, despite Student’s contention that District reduced Student’s OT hours, resulting in the provision of inappropriate OT services for Student, the evidence was to the contrary. Specifically, Student’s October 23, 2009, IEP, provided for OT by a NPA, once per week for 45 minutes, and Gonzales provided that level of services from that point forward. Although Gonzales prepared an OT assessment report on May 12, 2010, that recommended a reduction in service, from the preexisting level down to once a month, when Gonzales made that recommendation to the May 21, 2010, IEP team, her recommendation was never implemented or accepted by the IEP team. Specifically, a reduction of OT services was not reflected in the offers of placement and services District made in the May 21, 2010, IEP, nor in the June 8, 2010, continuation IEP. At all times, the offers for OT services remained at 45 minutes weekly by a NPA. Gonzales’ credible testimony established that was at or above the level required to constitute a FAPE, and Student failed to present credible evidence to the contrary. Student, therefore, failed to establish by a preponderance of the evidence that District failed to provide appropriate OT services in the May 21, 2010 IEP. (Factual Findings 1-20, 51-56, 87-118, 254-55; Legal Conclusions 1-5, 35.)

37. In addition, Mother failed to prove that District failed to provide appropriate OT services after the May 21, 2010 IEP. Mother did not consent to the May or June 2010, IEP’s, but filed for due process in OAH Case No. 20110060578. During the pendency of that due process matter, District continued to implement the preexisting services, including OT, until that matter was withdrawn in January 2011. Thereafter, District provided the same level of services, as reflected in the discussion of OT at the June 2, 2011, IEP, where Gonzales reported that she provided weekly service of 45 minutes. Moreover, notwithstanding some inaccuracies in the billing statements, Gonzales credibly testified at hearing that she actually provided OT services at the 45 minutes per week level, on an ongoing basis throughout the 2009-2010 and 2010-2011 school years. Her credible testimony established that Student received OT at or above the level required to constitute a FAPE with regard to this related service. (Factual Findings 1-20, 51-56, 87-118, 254-55; Legal Conclusions 1-5, 35.)

Issues 4 (e) and 6(c): Placement and RSP in May 21, 2010, IEP, and Inclusion Supports in June 8, 2010, IEP

38. Student contends that District denied him a FAPE in the May 21, 2010, IEP, by offering inappropriate placement and RSP services. Student further contends that District denied him a FAPE in the June 8, 2010, IEP, by failing to offer inclusion supports. District contends that it offered Student a FAPE at all times.

39. Legal Conclusions 1-5, 14, and 174-176 are incorporated herein by reference.

40. Here, Student failed to establish by a preponderance of the evidence that District denied him a FAPE by failing to offer appropriate placement and RSP services in the May 21, 2010, IEP, and inclusion supports in the June 8, 2010, IEP. As established above, the May 21, 2010, IEP meeting did not conclude until June 8, 2010, when District made an offer of placement and services for the 2010-2011 school year. With the exception of the specific courses he would take for the 2010-2011 school year, the offer was identical to Student’s October 23, 2009 IEP: combined placement in a “separate” SDC for specialized academic instruction for part of the day, and mainstreaming in general education with special education supports for the remainder. Specifically, Student was to be placed into an SDC four periods a day for English, Math, Social Studies, and Reading. The remainder of the day was in a collaboration model general education setting, with a general education teacher and a special education teacher, providing push-in RSP support for two periods daily for Science and an elective. Student was also offered general education for physical education. Pursuant to this offer, Student was to be mainstreamed 44% of his day. The setting was to be Hook Middle School, and this was to be the only substantive difference from his LMS program. Inclusion supports were to include the RSP push-in support in the general education classes, 1:1 aide services and supervision, and modifications of curriculum, instruction, and time expectations.

41. This offer did not deny Student a FAPE. Student provided no evidence at hearing regarding Hook Middle School, or why it would be inappropriate. Otherwise, except for the particular subjects, the offer was identical in terms of placement, percentage of the time in mainstreaming, and RSP services as Student had received during the 2009-2010 school year pursuant to the October 23, 2009, IEP. As addressed in detail below in Legal Conclusions 98-100 and 193, that combination of placement, RSP and inclusion was reasonably calculated to provide Student with educational benefit for 2010-2011 school year. Student did not meet his burden of proof on these issues. (Factual Findings 1-114, 119-126, 228-243; Legal Conclusions 14, 98-100, 174-176, 193.)

Issue 5: Copy of May 21, 2010, IEP

42. Student contends that District committed a procedural violation that resulted in a denial of FAPE by failing to provide Parent with a copy of the May 21, 2010, IEP, until June 29, 2010. District contends that it did not deny Student a FAPE.

43. Legal Conclusions 1-6 above are incorporated herein by reference.

44. Parents are legally entitled to be provided with a copy of the IEP at no charge. (Ed. Code, § 566341.5, subd. (j); Cal. Code Regs., tit. 5, § 3040, subd. (b).) The IDEA or California law do not provide a time frame within which parents are entitled to receive copies of IEP’s.

45. Here, Student failed to show that District took an unreasonable amount of time to provide him with a copy of the IEP. More importantly, Student presented no evidence that the short delay interfered with Mother’s right to participate in IEP team decisions or resulted in any substantive denial of FAPE. The May 21, 2010, offer, finalized on June 8, 2010, was intended to govern Student’s program for the following eighth grade 2010-2011 year, which would not commence until August 2010. Therefore, Mother received the documents in sufficient time to consent if she chose, or to take any other action with respect to the offers that she felt was appropriate, prior to their scheduled implementation. Student has thus established neither a procedural nor a substantive denial of FAPE, from the timing of receipt of these documents. (Factual Findings 87-116; Legal Conclusions 1-6, 44.)

Issue 6(a): Development and Contents of June 8, 2010, IEP

46. Student contends that District committed a procedural violation that resulted in a denial of FAPE by failing to comply with State standards in developing, and improperly writing, the June 8, 2010, IEP. Specifically, Mother argues that there was insufficient detail in the description of modifications and accommodations offered, and that the IEP did not include frequency, duration, and start and end date for modifications and accommodations. District contends that it committed no procedural violations, and did not deny Student a FAPE.

47. Legal Conclusions 1-6 above are incorporated herein by reference.

48. When developing an IEP, the team must consider: the student’s strengths; the parents’ concerns; the results of assessments; the academic, developmental, and functional needs of the child; and in the case of a pupil whose behavior impedes his or her learning or that of others, must consider the use of positive behavioral interventions and supports, and other strategies, to address that behavior. (Ed. Code, § 56341.1.)

49. An IEP is a written statement that includes the student’s present levels of academic achievement and functional performance, including the manner in which the student’s disability affects the student’s involvement and progress in the general education curriculum. (20 U.S.C. § 1414(d)(1)(A)(i)(I); 34 C.F.R. § 300.320 (a)(1); Ed. Code, § 56345, subd. (a)(1).)

50. An IEP must also contain a statement of measurable annual goals, designed to meet the child’s needs that result from the child’s disability to enable the child to be involved in and make progress in the general curriculum, and to meet each of the child’s other educational needs that result from the child’s disability. (20 U.S.C. § 1414(d)(1)(A)(i)(II); 34 C.F.R. § 300.320 (a)(2); Ed. Code, § 56345, subd. (a)(2).)

51. Further, the IEP must include a description of how the child’s progress toward meeting the annual goals will be measured, and when periodic reports on the progress the child is making toward meeting the annual goals (such as through the use of quarterly or other periodic reports, concurrent with the issuance of report cards) will be provided. (20 U.S.C. § 1414(d)(1)(A)(i)(III); 34 C.F.R. § 300.320 (a)(3); Ed. Code, § 56345, subd. (a)(3).)

52. The IEP must show a direct relationship between the present levels of performance, the goals, and the educational services to be provided. (Cal. Code Regs., tit. 5, § 3040, subd. (c).)

53. An IEP must include a statement of the special education and related services, based on peer-reviewed research to the extent practicable, that will be provided to the student to enable the student to advance toward attaining the annual goals, and to be involved in and make progress in the general education curriculum. (20 U.S.C. § 1414(d)(1)(A)(i)(IV); 34 C.F.R. § 300.320(a)(4); Ed. Code, § 56345, subd. (a)(4).) The IEP must include: a projected start date for services and modifications; and, the anticipated frequency, location and duration of services and modifications. (20 U.S.C. § 1414(d)(1)(A)(i)(VII); 34 C.F.R. § 300.320(a)(7); Ed. Code, § 56345, subd. (a)(7).)

54. Only the information set forth in Title 20 United States Code section 1414(d)(1)(A)(i) must be included in the IEP and the required information need only be set forth once. (20 U.S.C. § 1414(d)(1)(A)(ii); 34 C.F.R. § 300.320(d); Ed. Code, § 56345, subds. (h) & (i).)

55. The June 8, 2010, complied substantially with all these procedural requirements. The team, evidenced by the discussions held at the IEP meeting, considered Student’s strengths, Mother’s concerns, assessments, and Student’s academic, developmental, and functional needs. In addition, the team considered behavioral interventions and supports, and other strategies, to address Student’s behavior. The IEP document included PLOPS, including the manner in which Student’s disability affected his involvement and progress in the general education curriculum. It stated 20 annual goals that addressed all of Student’s identified areas of need, and stated how each was to be measured. It linked the PLOPS to the goals. It included a statement of the special education and related services to be provided, including: a projected start date for services; and, the anticipated frequency, location and duration of services. Although the IEP did not state a specific frequency, duration, location, start and end date for modifications or accommodations, it described those more generally by indicating that curriculum, instruction, and time expectations would all be modified, and that Student would be provided with a separate copy of work presented on the chalkboard. The document clearly indicated that the frequency, duration, location, start and end date for these modifications would be the entire school year and in all of Student’s academic classrooms. Thus, Student has not established a violation of IEP procedural requirements or a denial of FAPE. (Factual Findings 87-114; Legal Conclusions 1-6, 48-54.)

Issues 9(a) (b) and (c): Implementation of June 8, 2010, IEP offer regarding OT, Speech, and NPA during ESY

56. Student contends that District denied him a FAPE by failing to implement the June 8, 2010, IEP with regard to OT and speech services from August 22, 2010 until June 8, 2011. Student further contends that District denied him a FAPE by failing to implement the June 8, 2010, IEP, with regard to NPA services during ESY 2010. District contends it did not deny Student a FAPE.

57. Legal Conclusions 1-5 above are incorporated herein by reference.

58. In general, a parent may consent to some IEP services, but not others. Education Code section 56346, subdivision (e), provides: “If the parent of the child consents in writing to the receipt of special education and related services for the child but does not consent to all of the components of the individualized education program, those components of the program to which the parent has consented shall be implemented so as not to delay providing instruction and services to the child.”

59. Until due process hearing procedures are complete, a special education student is entitled to remain in his or her current educational placement, unless the parties agree otherwise. (20 U.S.C. § 1415(j); 34 C.F.R. § 300.518(a) (2006); 56505, subd. (d).) This is referred to as “stay put.” For purposes of stay put, the current educational placement is typically the placement called for in the student’s IEP, which has been implemented prior to the dispute arising. (Thomas v. Cincinnati Bd. of Educ. (6th Cir. 1990) 918 F.2d 618, 625.)

60. Here, as an initial matter, the evidence shows that except for ESY, Mother did not consent to the offer made in the June 8, 2010, IEP, but rather filed for due process, and then wrote a partial consent letter which could not be construed as agreeing to the implementation of the related services offered in the June 8, 2010, IEP. Thus Student’s contention that District denied Student a FAPE by failing to implement the services offered in the June 8, 2010, IEP, fails because the services were never consented to.

61. Furthermore, Student’s contentions regarding OT and speech services are factually without merit. After Mother served the complaint on June 8, 2010, District implemented the preexisting October 23, 2009, IEP, in accordance with the law of “stay put.” Thus, during the period at issue, August 2010 through June 2011, District implemented OT services according to the offer made in the October 23, 2009, IEP, which was exactly the same as that made in the May-June IEP’s. The same was true of speech services. The credible testimony of service providers Gonzales and Angel established that these service levels were actually provided and were appropriate to Student’s needs. Thus, for all the above reasons, with regard to OT and speech therapy services per the June 8, 2010, IEP, Student failed to establish that District failed to implement these services. (Factual Findings 1-20, 51-56, 87118, 250-255; Legal Conclusions 1-5, 58 -59.)

62. As for ESY, Mother did consent to the offer made in the June 8, 2010, IEP, which provided for 10 hours monthly supervision services by CIBA. District implemented those services during ESY. This was established at hearing by the credible testimony of District aide, Hardrick, bolstered by the credible testimony of Wood, and her supervision notes from summer 2010, that demonstrate that the services were delivered. For these reasons, Student failed to establish that District denied him a FAPE with regards to NPA supports for ESY 2010 per the June 8, 2010, IEP. (Factual Findings 87-118, 127-37; Legal Conclusions 1-5, 58 -59.)

Issues 7, 8 and 25: Progress Reports

63. Student alleges District committed procedural violations that resulted in a denial of FAPE because District failed to monitor his progress from June 8, 2010, through June 8, 2011; failed to provide quarterly progress reports for the quarterly period beginning August 2010; monitored goals in the June 10, 2010, progress report that were not stated in the June 8, 2010, IEP; and failed to give parent a copy of the June 2011, IEP progress report. District contends it did not commit any procedural violations, and that it did not deny Student a FAPE.

64. Legal Conclusions 1-6 above are incorporated herein by reference.

65. As stated above in Legal Conclusions 50-51, an IEP must contain a statement of measurable annual goals, a description of how the child’s progress toward meeting the annual goals will be measured, and when periodic reports on the progress the child is making toward meeting the annual goals (such as through the use of quarterly or other periodic reports, concurrent with the issuance of report cards) will be provided. (20 U.S.C. § 1414(d)(1)(A)(i)(II) & (III); 34 C.F.R. § 300.320 (a)(2) & (3); Ed. Code, § 56345, subd. (a)(2) & (3).)

66. The October 23, 2009, May 21, 2010, and June 8, 2010, IEP’s stated that the method of reporting progress toward goals would be by progress reports mailed each semester or trimester, and through the use of annual goal sheets, report cards, parent conferences, and IEP meetings.

67. District failed to comply with one of these reporting methods, namely the semester or trimester progress reporting. The progress reports it did complete appeared incomplete, and were not meaningful. However, District complied with the other reporting mechanisms stated on the IEP’s, namely report cards, parent conferences, IEP meetings, and the copious notes of the log book, all of which provided Mother with a complete picture of Student’s progress for purposes of participation in making decisions about Student’s program.

68. Thus, there was no procedural violation; the IEP’s stated how they would report on progress and District’s compliance with at least some of those methods kept Mother fully apprised of Student’s progress throughout both 2009-2010 and 2010-2011. Moreover, Student failed to show at hearing how any loss of educational benefit or denial of a FAPE resulted. Thus Student has failed to establish any procedural violation or any denial of FAPE. (Factual Findings 15, 90, 106, 256 -260; Legal Conclusions 1-6, 50-51.)

Issues 10 and 11: August 25, 2010, Incident

69. Student contends that on or around August 25, 2010, and in the IEP addendum of that same date, District denied Student a FAPE by failing to appropriately respond to, and address, an incident with another student and an aide. District contends it did not deny Student a FAPE.

70. Legal Conclusions 1-5 are incorporated herein by reference.

71. Here, Student’s contentions are without factual support. During the first week of the 2010-2011 school year, when Student transitioned back to Malady from Hardrick’s aide services during ESY, Student accused Malady of not helping Student in class, being mean, and petting Student’s arm. The allegations were appropriately investigated through the team’s questioning of Student and Malady at an IEP meeting on that same day. The overall consensus at the meeting, including one of Student’s family members who attended the meeting, was that Student’s accusations were unfounded, and that no further action was necessary. Student failed to establish that Malady actually behaved improperly or that any change in placement or services was warranted as a result of this unsubstantiated accusation. Therefore, Student has failed to meet his burden of persuasion regarding this incident. (Factual Findings 142-146; Legal Conclusions 1-5.)

Issue 12: September 2010 Alleged Revealing of Confidential Information

72. Student contends that in or around September 2010, District denied Student a FAPE when Malady informed another student that Student had autism. District contends that no such event actually occurred, and that there was no denial of FAPE.

73. Legal Conclusions 1-5 are incorporated herein by reference.

74. Except where disclosure is specifically permitted by law, students generally have a right to confidentiality with respect to their education records or personally identifiable information contained therein, unless disclosure is consented to in writing by parents. (20 U.S.C. § 1232g; Ed. Code, § 49076.)

75. Here, Student failed to establish Malady disclosed any confidential information concerning Student. When Student accused Malady of revealing his autism to others, Principal, Gregory Johnson, credibly conducted an investigation during which he interviewed Malady, Student, and two other students. The investigation revealed no evidence that Malady had disclosed any of Student’s personal information, and Malady credibly established at hearing that he never revealed Student’s diagnosis. Given the above, Student failed to establish that he was denied a FAPE. (Factual Findings 151-153; Legal Conclusions 1-5, 74.)

Issue 13: Transition Services

76. Student contends that District denied Student a FAPE by failing to offer transition services from December 2010 until July 2011 regarding Student’s transition to high school. District contends it did not deny Student a FAPE.

77. Legal Conclusions 1-5 are incorporated herein by reference.

78. Student failed to put on any evidence to support this contention. The relevant time period in contention covers the period during which the December 2010 discipline and January 2011 manifestation determination occurred, followed by Mother’s requests for mainstreaming and Cadet Corps, followed by the disciplinary events in April and the manifestation determination in that month, and concluding with the June 2, 2011, IEP, and ESY thereafter. During that entire time frame, the only point at which transition services to high school, if necessary to provide a FAPE, should have been offered was at the June 2, 2011, IEP. This was the IEP addressing Student’s upcoming ninth grade, or his first year of high school. Significantly, at that IEP, Mother’s contention was that Student should be retained in eighth grade at LMS. It was District, particularly Papez, who presented the research on retention and opined that Student had made progress and should matriculate to the next grade level.

79. Although the placement was in dispute, District at that IEP offered full-time 1:1 NPA aide service and supervision for the upcoming school year, transportation, counseling, and NPA OT.

80. At hearing, Student presented no evidence as to what other transitional services should have been part of District’s offer. For all the above reasons, Student has failed to establish a denial of FAPE as a result of District’s failure to offer transition services to facilitate his transition to high school. (Factual Findings 1-260; Legal Conclusions 1-51.)

Issue 15(b): Transition Plan

81. Student contends that District committed a procedural violation that resulted in a denial of FAPE by failing to offer a transition plan in the January 2011, IEP. District contends it did not deny Student a FAPE.

82. Legal Conclusions 1-6 are incorporated herein by reference.

83. Beginning not later than the first IEP to be in effect when the student is 16 years of age, or younger if determined appropriate by the IEP team, and updated annually thereafter, the IEP shall include appropriate measurable postsecondary goals based upon ageappropriate transition assessments related to training, education, employment, and where appropriate, independent living skills; and the transition services, including courses of study, needed to assist the pupil in reaching those goals. (20 U.S.C. § 1414 (d)(1)(A)(i)(VIII); Ed. Code, §§ 56345, subd. (a)(8); 56043, subd. (g)(1).) "Transition services" are defined as a coordinated set of activities designed within an results-oriented process, focused on improving the academic and functional achievement of the individual to facilitate movement from school to postschool activities, including postsecondary education, vocational education, integrated employment, including supported employment, continuing and adult education, adult services, independent living, or community participation. Transition services are to be based upon individual needs, taking into account individual strengths, preferences, and interests. Transition services include instruction, related services, community experiences, development of employment and other postschool adult living objectives, and, if appropriate, acquisition of daily living skills and provision of a functional vocational evaluation. Transition services may be special education or related services. (Ed. Code, § 56345.1, subd. (a); 20 U.S.C. § 1401(34); 34 C.F.R. § 300.43(b).) The failure to properly formulate a transition plan may be a procedural violation of the IDEA that warrants relief only upon a showing of a loss of educational opportunity or the denial of a FAPE. (Board of Education v. Ross (7th Cir. 2007) 486 F.3d 267, 276 [despite transition plans being a mandatory component of an IEP, notation in IEP that the transition plan would be “deferred” was a procedural violation]; A.S. v. Madison Metro School Dist. (D. Wis. 2007) 477 F.Supp.2d 969, 978 [allegation of inadequate transition plan treated as a procedural violation].)

84. Here, the three January, 2011 IEP meetings at issue in this contention were addenda IEP meetings to address particular topics, namely discipline, mainstreaming, and Cadet Corps for the then-current eighth grade school year. They were not annual IEP meetings intended to address an upcoming offer of placement and services. Therefore the relevant time period for an IEP team to address a transition plan, if appropriate, would have been the annual IEP on June 2, 2011. At that time Student was 13 years old.

85. There was no IEP team consensus about his placement for the upcoming year or about his longer-term prospects. Whereas Mother wanted Student to be retained at LMS and proceed on to a high school diploma and college, even if that meant keeping him in school past the age of 18, District’s focus was on whether he had peaked and required access to a functional skills curriculum. This evidence shows that developing measurable postsecondary goals would have been premature. The IEP team’s views of Student’s middle and high school objectives were still in flux. Opinions differed significantly about what his postschool adult living objectives and functional vocational prospects were. In the absence of IEP team agreement to the contrary, the law does not mandate transition planning for students under the age of 16. There was no such agreement that a transition plan for this 13 year old student was appropriate, nor does the evidence support Mother’s contention that it would have been. Thus, the lack here of a transition plan or transition services for this younger Student did not constitute a procedural violation of IDEA. (Factual Findings 1-260; Legal Conclusions 1-6, 83.)

Issue 23 (a): Predetermination of June 2, 2011, IEP Offer

86. Student contends that District committed a procedural violation that resulted in a denial of FAPE by predetermining the offer of placement and services it made at the June 2, 2011, IEP. District contends that it did not predetermine the offer and did not deny Student a FAPE.

87. Legal Conclusions 1-6 and 31 are incorporated herein by reference.

88. An education agency’s predetermination of an IEP seriously infringes on parental participation in the IEP process, which constitutes a procedural denial of FAPE. (Deal v. Hamilton County Bd. of Educ. (6th Cir. 2004) 392 F.3d 840, 858.) Predetermination occurs “when an educational agency has made its determination prior to the IEP meeting, including when it presents one placement option at the meeting and is unwilling to consider other alternatives.” (H.B., et al. v. Las Virgenes Unified School Dist. (9th Cir. 2007) 2007 WL 1989594 [107 LRP 37880, 48 IDELR 31]; see also, S. ex rel G. v. Vashon Island Sch. Dist. (9th Cir. 2003) 337 F.3d 1115, 1131 [“A school district violates IDEA procedures if it independently develops an IEP, without meaningful parental participation, then simply presents the IEP to the parent for ratification.” (citing Target Range, supra, 960 F.2d at p. 1484)].)

89. Here, Student failed to establish that District predetermined its June 2, 2011, IEP offer. As District members credibly testified at hearing, District members had not, as a team, made a determination at the staff meeting prior to the IEP meeting. In addition, Mother attended the June 2, 2011 IEP meeting, expressed disagreement, and requested revisions. Although Mother’s requests were ultimately rejected by District, it did not mean the IEP team did not consider her concerns. For example, the evidence shows that the team discussed, at length, Mother’s proposal that Student should be retained at LMS. In addition, District’s placement offer evolved as the meeting progressed. Specifically, the offer started out as an Excel-type model with 63% mainstreaming, with modified core curriculum based on state standards and leading to a high school graduation, as reflected on the cover page of the IEP.

90. However, during the meeting, the resulting final offer contained no general education, except for PE. In short, District did not present only one placement option at the meeting, indicate unwillingness to explore other options, or merely present the offer to Mother for ratification. For these reasons, Student failed to establish that District committed a procedural violation by predetermining its offer at the June 2, 2011 IEP team meeting. (Factual Findings 195-226; Legal Conclusions 1-6, 31, 88.)

Issue 2 (a): Professional Development

91. Student contends that from the spring of 2010, and continuing through the end of the 2010-2011 school year, District denied Student a FAPE by failing to provide professional development to teachers, speech therapist, occupational therapist, and aides from March 17, 2010, until June 2011. District contends it did not deny Student a FAPE.

92. Legal Conclusions 1-5 are incorporated herein by reference.

93. Under California law, each school district must operate under a “local plan.” (Ed. Code, § 56195.1.) Local plans must provide policies and procedures governing the provision of FAPE. (Ed. Code, § 56205.) They must contain provisions for making staff development programs available to staff, teachers, special education teachers, service providers and others. (Ed. Code, § 56240-45.)

94. Here, Student has failed to establish any legal basis for this claim. The local plan provisions of California law governing making professional development available do not mandate attendance, do not affect what does or does not constitute FAPE, and do not create a right for parents to enforce the local plan through special education due process complaints. Nevertheless, the evidence shows that Kubacki, Gonzales, Malady, Quintero, Stephenson, Kirby, and Angel all availed themselves of professional development opportunities through SELPA, or obtained other trainings through their schooling. Student has failed to establish that he was denied a FAPE by virtue of District’s failure to provide professional development opportunities to teachers, speech therapist, occupational therapist, or aides from March 17, 2010 until June 2011. (Factual Findings 10, 43, 53, 126, 235, 238, 250; Legal Conclusions 1-5, 93.)

Issues 2(g), 2(h), 2(i): Educational Supports, Educational Therapy, “Educational Learning Treatment Plan,” Curriculum Modifications

95. Student contends that District denied him a FAPE by failing to provide him with “educational supports” from May 2010 through July 2011; failing to modify Student’s curriculum from May 2010 through July 2011; and by failing to provide individual “educational therapy” or an “educational learning treatment plan.” District contends it provided Student with a FAPE at all relevant times.

96. Legal Conclusions 1-5 and 14 are incorporated here by reference.

97. Here, Student has failed to present any credible evidence to support his contentions. Specifically, in regard to “educational supports,” Student argued that he was not provided with appropriate RSP services. However, during the 2009-2010 school year, when Student was in seventh grade, Kubacki and Quintero provided push-in RSP support to Casian’s general education English Language Arts and World History classes, where Student was mainstreamed. During the 2010-2011 eighth grade school year, Student attended general education English Language Arts and World History classes with teacher Kathleen Hanson, supported by RSP teacher Banae Kirby and Music Appreciation with general education teacher Norton, supported by RSP teacher Tosh Stephenson. Student presented no credible evidence to demonstrate that the level of RSP services was insufficient or inappropriate. (Factual Findings 40, 60, 62, 119-126, 197, 201, 228-243; Legal Conclusions 1-5, 14.)

98. With regard to curriculum modifications, during 2009-2010 school year, when Student was in seventh grade, Casian modified Student’s curriculum in general education, Day modified his curriculum in PE, and Quintero modified his curriculum in SDC Reading. For example, Quintero read questions aloud to him and tailored individualized instruction to the level at which he tested. In addition, in April, 2010, District specifically granted Mother’s requests for particular modifications in Casian’s general education Excel class, including more time for written assignments, and reduced homework. In eighth grade, Hanson, Norton, Wakefield, Stephenson, and Kirby all modified the curriculum for Student. They read vocabulary words aloud, posted corresponding pictures and definitions, colorcoded words to indicate the parts of speech, limited the amount of content Student was responsible for, modified his tests, broke instructions down into smaller steps and gave extra time on assignments. They used repetition, step-by-step analysis, and sequential teaching techniques, and used modified written materials. They also re-taught concepts, proceeded at a slower pace, skipped the harder parts, adjusted their pacing and used visual aids and graphic organizers. These factors demonstrated that District provided Student with appropriate modifications to the curriculum. (Factual Findings 40, 60, 62, 119-126, 197, 201, 228-243; Legal Conclusions 1-5, 14.)

99. Student also contends that District denied him a FAPE by failing to agree to Mother’s request in the January 5, 2011, IEP for “educational therapy,” and by failing to provide him with an “educational learning treatment plan.” However, Student failed to present any evidence at hearing establishing what, if anything, constituting a “learning treatment plan” was missing from his educational program that denied him a FAPE. Student has therefore failed to meet his burden of persuasion with respect to any alleged denial of FAPE as a result of the absence of these services. (Factual Findings 1-261; Legal Conclusions 1-5, 14.)

100. Furthermore, the evidence shows that Student received educational benefit in both grades. Specifically, in seventh grade, as of the April 6, 2010, IEP, Student’s SDC teacher Alsina reported that Student was highly motivated, and did well in class. In addition, Quintero reported that in SDC Reading, Student had performed well, and attained a grade of C+. Moreover, Casian reported that in his general education Excel class, Student was a “great student.” Also, as of the May 12, 2010, psycho-educational assessment, Quintero had reported to Papez that Student read in a third grade level book with good fluency and comprehension, while Casian reported that he read in a seventh grade level book with adequate fluency and good comprehension, participated, and was a “very valuable contributor to class.” In eighth grade, the evidence shows that Student read well in the SDC Reading in the computer lab using reading programs Reading Plus and Lexia, read independently at the fourth grade level, and had improved his spelling to the fourth grade level. He also performed well in the areas of rhyming and poetry. His writing was difficult to read, but had improved. In addition, in SDC math, he performed at the 4.5 grade level, and could perform problems with formulae, as well as multi-step problems, with prompting. He knew basic calculations and verbally mastered the multiplication tables up to ten. He could verbalize many mathematical formulae although he had difficulty when they were on paper. Also, in Hanson’s general education Excel classes, he performed well with peer support and assistance, participated in class discussions and lessons, enjoyed social studies and performed well with visual aids. Given the educational progress Student demonstrated in seventh and eighth grade, Student has failed to meet his burden of persuasion that the absence of educational supports, educational therapy, an “educational learning treatment plan,” or curriculum modifications resulted in a denial of FAPE. (Factual Findings 40, 60, 62, 119-126, 197, 201, 228-243; Legal Conclusions 1-5, 14.)

Issue 24: Assistance to Achieve June 2, 2011, IEP Goals

101. Student contends that District denied Student a FAPE by failing to assist Student to achieve the goals set forth in the June 2, 2011 IEP. District contends it provided Student a FAPE at all times.

102. Legal Conclusions 1-5 and are incorporated here by reference.

103. The June 2, 2011, IEP, made an offer of placement, services, goals, and modifications and accommodations for the 2011-2012 school year. Student did not consent to that offer but filed for due process in the instant matter on July 29, 2011. During the relevant time period for this contention, from June 2, 2011 until July 29, 2011, no portion of the June 2, 2011, IEP, governed Student’s educational program because it had never been consented to by Mother. District cannot be faulted for not providing assistance to implement goals that were not consented to. Accordingly, Student’s claim that he was denied assistance to achieve them fails. Student failed to show a denial of a FAPE on this ground.

104. At hearing in this matter, Student presented no evidence with respect to Student’s program after the June 2, 2011, IEP, except that CIBA’s Michael Barrett confirmed that he provided 1:1 aide service to Student at Silverado High School from June-July during ESY 2011. As the party with the burden of persuasion on this issue, Student failed to establish his burden of proof demonstrating that District denied him a FAPE by failing to provide assistance to achieve the goals set forth in the June 2, 2011, IEP. (Factual Findings 195-227, 261; Legal Conclusions 1-5.)

Issues: 3, 4(f), 6(b), 14, 18(b), 19, 20, 21, 18(c), 22, 26, 2(b), 2(d), 2(e), 2(c), 2(f): Behavioral Supports, Services, and Assessments; Discipline and Manifestation Determinations ⁶

Issue 3: May 15, 2010, FAA

105. Student contends that District committed a procedural violation by not performing an appropriate FAA in May 2010, which resulted in a denial of FAPE. District contends that the FAA was appropriate, and that it did not deny Student a FAPE.

106. Legal Conclusions 1-6 are incorporated herein by reference.

107. Both before and after discipline or serious behavior incidents, whenever a child’s behavior impedes his learning or that of others, the IEP team must consider the use of positive behavioral interventions and supports, and other strategies, to address that behavior. (20 U.S.C. § 1414(d)(3)(B); 34 C.F.R. § 300.324(a)(2)(i)(2006); Ed. Code, § 56341.1, subd. (b)(1).) In California, a behavior intervention is “the systematic implementation of procedures that result in lasting positive changes in the individual’s behavior.” (Cal. Code Regs, tit. 5, § 3001(d).) It includes the design, evaluation, implementation, and modification of the student’s individual or group instruction or environment, including behavioral instruction, to produce significant improvement in the student’s behavior through skill acquisition and the reduction of problematic behavior. (Ibid.)

108. Behavioral interventions should be designed to provide the student with access to a variety of settings and to ensure the student’s right to placement in the least restrictive educational environment. (Ibid.) If a student’s behavior impedes learning, but does not constitute a serious behavior problem, the IEP team must consider behavior interventions as defined by California law. An IEP that does not appropriately address behavior that impedes a child’s learning denies a student a FAPE. (Park v. Anaheim Union High School Dist. (9th Cir. 2006) 444 F.3d 1149; Neosho R-V School Dist. v. Clark (8th Cir. 2003) 315 F.3d 1022, 1028.

109. When behaviors rise to the level of “serious behavior problems,” California law imposes more formal requirements for addressing them, even when they have not yet resulted in formal discipline. “Serious behavior problems” means the individual’s behaviors which are self-injurious, assaultive, or cause serious property damage and other severe behavior problems that are pervasive and maladaptive for which instructional/ behavioral approaches specified in the student’s IEP are found to be ineffective. (Cal. Code Regs., tit. 5, § 3001, subd. (ab).)

110. A FAA shall occur after the IEP team finds that instructional/behavioral approaches specified in the student’s IEP have been ineffective. (Cal. Code Regs., tit. 5, § 3052, subd. (b).) A FAA must be conducted by, or be under the supervision of a person who has documented training in behavior analysis. FAA personnel shall gather information from direct observation, interviews with significant others, and review of available data such as assessment reports prepared by other professionals and other individual records. Prior to conducting the assessment, parent notice and consent shall be given and obtained. A FAA procedure shall include: systematic observation of the occurrence of the targeted behavior for an accurate definition and description of the frequency, duration, and intensity; systematic observation of the immediate antecedent events associated with each instance of the display of the targeted inappropriate behavior; systematic observation and analysis of the consequences following the display of the behavior to determine the function and communicative intent the behavior serves for the individual; ecological analysis of the settings in which the behavior occurs most frequently; review of records for health and medical factors which may influence behaviors; and review of the history of the behavior to include the effectiveness of previously used behavioral interventions. (Cal. Code Regs., tit. 5, § 3052, subd. (b)(1).)

111. Following the assessment, a written report of the assessment results shall be prepared and a copy shall be provided to the parent. The report shall include: a description of the nature and severity of the targeted behavior(s) in objective and measurable terms; a description of the targeted behavior(s) that includes baseline data and an analysis of the antecedents and consequences that maintain the targeted behavior, and a functional analysis of the behavior across all appropriate settings in which it occurs; a description of the rate of alternative behaviors, their antecedents and consequences; and recommendations for consideration by the IEP team. (Cal. Code Regs., tit. 5, § 3052, subd. (b)(2).) Upon completion of the FAA, an IEP team meeting shall be held to review results and, if necessary, to develop Behavioral Intervention Plan.

112. Assessments must be sufficiently comprehensive to identify all of the child’s special education and related service needs, whether or not commonly linked to the disability category of the child. (34 C.F.R. § 300.304 (c)(6).) The local educational agency must use technically sound testing instruments that demonstrate the effect that cognitive, behavioral, physical and developmental factors have on the functioning of the student. (20 U.S.C. § 1414(b)(2)(C); 34 C.F.R. § 300.304 (b)(3); Ed. Code, § 56320, subds. (e), (f).) A school district’s failure to conduct appropriate assessments or to assess in all areas of suspected disability may constitute a procedural denial of a FAPE. (Park v. Anaheim Union High School District, et al. (9th Cir. 2006) 464 F.3d 1025, 1031-1033.)

113. “Behavioral intervention plan” (BIP) is a written document which is developed when the individual exhibits a “serious behavior problem” that significantly interferes with the implementation of the goals and objectives of the individual’s IEP. (Cal. Code Regs., tit. 5, § 3001, subd. (g).) The BIP shall include: (1) a summary of relevant and determinative information gathered from a functional analysis assessment (FAA); (2) an objective and measurable description of the targeted maladaptive behavior(s) and replacement positive behavior(s); (3) the individual’s goals and objectives specific to the BIP; (4) a detailed description of the behavioral interventions to be used and the circumstances for their use; (5) specific schedules for recording the frequency of the use of the interventions and the frequency of the targeted and replacement behaviors; including specific criteria for discontinuing the use of the intervention for lack of effectiveness or replacing it with an identified and specified alternative; (6) criteria by which the procedure will be faded or phased-out, or less intense/frequent restrictive behavioral intervention schedules or techniques will be used; (7) those behavioral interventions which will be used in the home, residential facility, work site or other non-educational settings; and (8) specific dates for periodic review by the IEP team of the efficacy of the program. (Cal. Code Regs., tit. 5, § 3001, subd. (g).)

114. BIP’s shall be based upon a FAA, and shall be used only in a systematic manner. (Cal. Code Regs., tit. 5, § 3052, subd. (a)(3).) The IEP team shall facilitate and supervise all assessment, intervention, and evaluation activities related to an individual’s BIP. BIP’s shall only be implemented by, or be under the supervision of, staff with documented training in behavior analysis, including the use of positive behavioral interventions. (Cal. Code Regs., tit. 5, § 3052, subds. (a)(1) & (2).)

1115. Evaluation of the effectiveness of BIP shall be reviewed as appropriate at scheduled intervals determined by the IEP team. If the IEP team determines that changes are necessary to increase program effectiveness, additional FAA’s shall be conducted and, based on the outcomes, changes proposed to the BIP. (Cal. Code Regs., tit. 5, § 3052, subd. (f).) The BIP shall become a part of the IEP and shall be written with sufficient detail so as to direct its implementation. (Cal. Code Regs., tit. 5, § 3052, subd. (c).)

116. “Behavior Support Plan” (BSP) is not a term that is defined by law or regulation.

117. The evidence showed that CIBA’s May 15, 2010, FAA, was not properly conducted. Specifically, it gathered insufficient information from observation, interviews and review of available data, and not sufficiently comprehensive to identify all of Student’s special education and related service needs with regard to his behaviors. During CIBA’s five observations of Student in April and May, 2010, it witnessed no challenging behaviors. CIBA’s Wood therefore identified the five target behaviors the FAA addressed (running away; teasing; refusal or noncompliance; trading; and repetitive talk) from reports by Student’s aides. She did not include physical aggression, threats, or insults as target behaviors, although these had been addressed in the UHS BSP, because from her interviews, she determined that these behaviors did not occur often enough to be identified as current target behaviors. The FAA also did not include sexual conduct as a target behavior, even though an aide had noted it as an area of recent concern. Consequently, the FAA resulted in a mis-identification and non-identification of Student’s most problematic behaviors. Without proper identification of target behaviors, the FAA could not serve its intended uses. It could not define or describe the behaviors it intended to address, determine their antecedents or consequences, or determine their function or communicative intent.

118. CIBA never obtained a release from Mother allowing it to review confidential information, and did not review any of Student’s medical records, prior assessments nor discipline records. Thus CIBA had not reviewed the prior assessments from regional centers, service providers and Student’s prior districts of residence that reported a history of physical aggression, tantrums, threats, insults, fighting, defiance, disobedience and noncompliance. Nor did it see the five incident reports Dawson filed between February 18, 2010, and February 25, 2010, regarding altercations between Student and others.

119. Moreover, Wood did not learn from Kubacki that during seventh grade, Student caused very large disruptions from acting out, yelling, and knocking items off his desk; that these occurred approximately 20 times; that Student had to be removed from class by Kubacki or the aide on approximately eight or ten occasions during the second half of seventh grade; and that during seventh grade, Kubacki filed approximately 20 incident reports regarding disruptions by Student. She also did not learn from Day that Student picked fights with other students.

120. CIBA also was unaware of the results of Papez’ then-ongoing psycho-educational assessment, including the BASC, and Conners-3, that showed some “clinically significant” scores in areas of aggression, oppositional defiance, acting out and “atypical” threatening behaviors that could endanger Student or others.

121. As a result of the FAA’s deficiencies, there was insufficient information to identify the function and communicative intent that Student’s most problematic behaviors served. As such, the FAA was inappropriate, and, therefore, a procedural violation on the part of District. (Factual Findings 1-126; Legal Conclusions 1-6, 107-120.)

122. In order to prove a denial of a FAPE from the deficiencies in the FAA, Student must demonstrate that they impeded Student’s right to a FAPE; significantly impeded the opportunity of Mother to participate in the decision-making process regarding the provision of a FAPE; or caused a deprivation of educational benefits to Student. Here, as of the time of its creation and in the immediately ensuing May 21, 2010, IEP, the FAA’s procedural deficiencies did not result in any denial of educational benefit. The FAA’s recommendations, for ten hours per month supervision services by CIBA to be used for consultation and training, were appropriate at the time they were offered by the IEP team at the May 21, 2010, IEP. These were the same services that had first been recommended in CIBA’s December 20, 2009, five hour report, which were then agreed to in the SA and the April 6, 2010, IEP, and implemented thereafter. An IEP is evaluated in light of information available at the time it was developed, i.e. as of May 21, 2010; it is not judged in hindsight. Therefore the deficiencies of the FAA did not deprive Student of educational benefit. (Factual Findings 1-126; Legal Conclusions 1-6, 107-121.)

123. However, the inappropriate FAA did significantly impede the opportunity of Mother to participate in the decision-making process regarding the provision of a FAPE. As a result of the FAA’s deficiencies, all parties had insufficient information to identify the function that Student’s most problematic behaviors served, and all of their decision-making was significantly impeded regarding what Student’s individual needs were, and what positive behavioral interventions were appropriate to address them. For this reason, Student has established that he was denied a FAPE on this issue. (Factual Findings 1-126; Legal Conclusions 1-6, 107-122.) Student’s remedy for this denial of a FAPE will be discussed separately below.

Issue 4(f): May 21, 2010, IEP Offer of FAA’s Recommendations

124. Student contends that District denied Student a FAPE by failing, in the May 21, 2010, IEP to offer the recommendations of the CIBA FAA. District contends that it did not deny Student a FAPE.

125. Student’s contentions are factually inaccurate. Although the May 21, 2010, IEP meeting did not conclude on that day, District’s offer as of the May 21, 2010, IEP included what the FAA recommended: ten hours per month supervision services by CIBA to be used for consultation and training. Therefore, because the evidence showed District offer of behavior services was consistent with CIBA’s recommendation, Student failed to establish a denial of FAPE on this ground. (Factual Findings 79-99; Legal Conclusions 1-6.)

Issue 6(b): June 8, 2010, IEP’s Offer of Behavioral Services and Supports

126. Student contends that District denied Student a FAPE in the June 8, 2010, IEP because NPA aide support was only offered temporarily, for 60 days, while District aide Malady received training. District contends that it did not deny Student a FAPE.

1127. Legal Conclusions 1-6 and 107-116 are incorporated herein by reference.

128. Here, the evidence showed that the District’s offer was appropriate at the time. Between the May and June IEP meetings, on June 4, 2010, Student had a behavioral incident after a dispute over money with another student, where he had become extremely agitated, yelled obscenities, acted physically out of control, threw chairs, and could not be deescalated, after which school security guards and Mother were called. To address this, District appropriately changed the behavioral services offered as of the June 8, 2010, IEP, to full-time NPA aide support, consisting of two aides, on different days of the week, one for Monday, Wednesday and Friday, and the other for Tuesday and Thursday, as a temporary measure for 60 days, while Malady received training, plus ten hours monthly supervision services by CIBA. After the elapse of 60 days, the NPA services were scheduled to be replaced by District aide services. This was the first time NPA aide service had been offered.

129. Although she did not specifically state at the June 8, 2010, IEP meeting, Wood clearly thought that the June 4, 2010, incident could have been either avoided by, or more appropriately handled by, an aide with more training and experience than Malady had at that time, since he was just embarking upon the training program envisioned by the SA. As such, the offer represented a reasonable, and more comprehensive, change in the services that District had previously provided. Student presented no evidence to suggest the offer was unreasonable at the time, or that providing NPA aide services on a temporary basis, and then subsequently transferring to District aide services once the District aide was better trained by CIBA, would have prevented Student from obtaining educational benefit. An IEP is evaluated in light of information available at the time it was developed, i.e. as of June 8, 2010; it is not judged in hindsight. Thus, Student has failed to establish that at the time of the June 8, 2010, IEP, the offer resulted in a substantive denial of FAPE. (Factual Findings 1-114; Legal Conclusions 1-6, 107-128.)

Issue 14: FAA/BIP after January 5, 2011, Manifestation Determination

130. Student contends that District denied Student a FAPE at and after the January 5, 2011, manifestation determination meeting, by failing to conduct a FAA and create a BIP. District contends it did not deny Student a FAPE.

131. Legal Conclusions 1-6 and 107-116 are incorporated herein by reference.

132. If a child is removed from his or her current placement for 10 days or more for disciplinary reasons, a “manifestation determination” meeting must be held in which relevant personnel determine whether or not the conduct is a manifestation of the child’s disability. (20 U.S.C. § 1415(k)(1)(E).) The meeting must occur within 10 days of the decision to change the child’s placement; and the District must provide parents with procedural safeguards. (20 U.S.C. § 1415(k)(1)(E)(i); 34 C.F.R. § 300.530(h).) Specified parties shall convene and review relevant information in the student’s file to determine if the conduct in question “was caused by, or had a direct and substantial relationship to, the child’s disability” or the child’s conduct “was the direct result of the local educational agency’s failure to implement the IEP.” (20 U.S.C. § 1415(k)(1)(E)(i); 34C.F.R. § 300.530(h).)

133. If the conduct is determined to have been a manifestation of the child’s disability, the IEP team must either conduct a functional behavioral assessment, unless one had been conducted before the behavior that resulted in the change of placement occurred, and implement a BIP for the child; or if a BIP already has been developed, review the BIP, and modify it, as necessary, to address the behavior. (20 U.S.C. § 1415 (k)(1)(E)&(F); 34 C.F.R. § 300.530 (f).

134. Here, the evidence shows that in the discussion of the FAA at the May 21, 2010, IEP, Wood made references to a “behavior plan.” Although testimony at hearing established that both District and CIBA intended to offer Student some sort of behavior plan based on the FAA, there was no clarity regarding what the plan was to be. Specifically, both Papez and Wood testified that the “goals” in the last pages of the FAA report constituted Student’s “behavior plan.” However, the FAA itself did not so state, and not all of Student’s teachers and service providers knew the document existed. Quintero, and aides Hardrick and Dawson, did not recognize the FAA. Surprisingly, at hearing, CIBA supervisor Fischer who oversaw Student’s program in the 2010-2011 school year, also did not recognize the FAA. Although Kirby, Kubacki and Stephenson were aware of the FAA, and considered it to constitute Student’s behavior plan for the 2010-2011 school year, Hanson, Norton, Wakefield and Askins were not. In addition, the “goals” in the FAA were not incorporated into the 18 goals of the May 2010 IEP or into the 20 goals of the June IEP. Additionally, Lubbers, CIBA’s owner, stated at hearing that, at most, those pages of the FAA contained “suggested interventions that could inform” a behavior plan.

135. The evidence established that as early as the April 2010 SA, and then after the FAA was written and discussed at the May-June, 2010, IEP meetings, CIBA’s services were not in fact governed by any document. Although the FAA and its “goals” pages existed, it did not actually serve as the roadmap for the services. From ESY 2010 up through the January manifestation determination, CIBA improvised, both with respect to the behaviors they targeted and the interventions they used, and these evolved over time without reference to the FAA. For example, Wood created some recommendations in summer 2010 that she told Hardrick to implement, including a self-management checklist or contract, and a “friends vs. not my friends” program, which District carried through into the 2010-2011 school year, but were not in the FAA document. Also, in the fall of 2010, Wood told Fischer to target blurting out in class, and obscenities, as target behaviors, even though these target behaviors were not in the list of target behaviors in the FAA. Neither CIBA nor District modified the FAA to include them.

136. Once the January 5, 2011, manifestation determination was made, District was legally obligated to create a BIP. It did not do so. This constituted a procedural violation. District did not modify the behavior plan portion of the FAA, and failed to develop a legallycompliant BIP at this time. Although the June 8, 2010, IEP, following the June 4, 2010, incident, had represented that Student had a BIP in place, there was not at that time nor in January any such document, other than the May 2010 FAA and its “goals” pages. If the final “goals” pages of the FAA did constitute a behavior plan, it did not comply with the law’s stringent requirements for BIP’s following manifestation determinations. Specifically, it did not describe the behavioral interventions to be used and the circumstances for their use; schedules for recording the frequency of the use of the interventions; criteria for discontinuing the use of the intervention or fading it out, nor did it set specific dates for periodic review by the IEP team of the efficacy of the program. It was not written with sufficient detail so as to direct its systematic implementation, as required.

137. Following the manifestation determination, District did not modify the FAA in light of the maladaptive behaviors that had emerged since CIBA had prepared it. District argues that a FAA was recommended as a result of the January 5, 2011, manifestation determination. This is contrary to all the evidence, which shows that although an FAA was created in April of 2011, it was not as a result of the manifestation determination meeting on January 5, 2011. As of January 2011, the FAA was not modified to include Student’s outburst on June 4, 2010, or his increased use of profane sexual language, and distributing prescription pills, that led to the December 2010 discipline. Also, by this time, per Kubacki’s testimony at hearing, Student knocked over tables, and threw books, 15-25 times during the 2010-2011 school year. In addition, per teacher reporting in this school year, Student had tendencies to pass notes and use graphic language with the opposite sex, and per Malady, on average of once per week Student made inappropriate comments, was vulgar to girls, or used curse words. Also, when Malady took away electronic gadgets from Student, Student became inconsolable. Because District did not modify the FAA, neither the antecedents nor the function and communicative intent of these behaviors were understood.

138. There also appears to have been a disconnect between District and CIBA over how well Student actually functioned. Although Student’s aides Hardrick and Malady had been instructed to take data, no evidence was presented at hearing that the data were ever analyzed. As discussed above, Kubacki and Malady thought Student’s maladaptive behaviors had escalated during the 2010-2011 school year. Wood, in marked contrast, considered the behaviors of June 4, 2010, and the events of December, 2010, to be “spikes,” but overall felt that for the eighth grade 2010-2011 year, Student’s behaviors continually improved, that negative behaviors decreased in both the severity and frequency, and that no new maladaptive behaviors had appeared. In Wood’s opinion, there was a steadily improving arc in Student’s behaviors. Consequently, CIBA did not believe new maladaptive behaviors were emerging, and did not modify the FAA or its “behavior plan” to address them, with the exception of Wood’s statement at the January 5, 2011, manifestation determination meeting that CIBA “had some new protocols that they are attempting to implement.” Although District and CIBA were not on the same wavelength regarding the presence of Student’s maladaptive behaviors, and the fact that Student’s behaviors had escalated, District wholly relied on CIBA for guidance on how to address Student’s behaviors. District’s failure to revisit the FAA after the manifestation determination, and create a legally compliant BIP, resulted in a procedural violation. The fact that CIBA services were implemented pursuant to the SA did not absolve District of its responsibility to ensure the provision of FAPE; the SA did not prospectively release District of its duty to follow IDEA procedures and provide a FAPE.

139. The procedural violation resulted in the loss of an educational opportunity, impeded Student’s right to a FAPE, and caused a deprivation of educational benefits. On January 5, 2011, Student placement and services consisted of District’s implementation of “stay put” pursuant to the October 23, 2009, IEP, as supplemented by the SA and the resulting April 26, 2010, IEP, namely a District aide with CIBA supervision services for ten hours per month. Obviously, if these new, more severe behaviors that were a manifestation of Student’s disability were interfering with Student’s education, District was required to address them through a BIP. The following month, Fischer’s observation notes for February 18, 2011, mention an “updated behavior plan for [Student’s] behaviors that occur during school sessions.” There is no such document. Thus these notes appear to refer to ongoing oral conversations between Wood and Fischer regarding strategies to implement. At and following the manifestation determination, there was no BIP in place, no systematic implementation of behavioral interventions, and no schedule in place to evaluate their effectiveness. Student required more effective behavioral interventions at this time, yet District made no change in its offer of behavioral supports and services. The services that were in place had failed to meet Student’s unique needs, and were no longer reasonably calculated to provide him with educational benefit. Therefore, the failure to modify Student’s behavioral program constituted a denial of FAPE. (Factual Findings 1-261; Legal Conclusions 1-6, 107-133.) To the extent Student is entitled to a remedy, it will be discussed separately below.

Issues 18 (b) and 19: Aide Support March 21-25, 2011; Behavioral Supports Following April 6, 2011, Events

140. Student contends District denied Student a FAPE by failing to provide appropriate aide support from March 21, 2011 through March 25, 2011. Student also contends that during and subsequent to an incident on or around April 6, 2011, District denied Student a FAPE by failing to provide appropriate behavioral supports, resulting in a 12-day suspension, and denial of access to campus on April 12, 2011. District contends it did not deny Student a FAPE.

141. Legal Conclusions 1-6 and 107-116, 132-133 are incorporated herein by reference.

142. A school district’s breach of a mediated settlement agreement that results in a denial of FAPE, is a proper subject for a due process hearing. (Pedraza v. Alameda Unified Sch. Dist., 2007 WL 18 949603 (N.D. Cal. 2007).)

143. Here, the changes in Student’s aide personnel at or around Spring break 2011 were in violation of the SA. District reassigned Malady to a different student immediately before or immediately after spring break (which was from Monday, March 26, 2011, until Friday, April 1, 2011, with school resuming on Monday, April 4, 2011). He was replaced with aides who had not received the CIBA or CESA training that Malady had received since April 2010 pursuant to the SA. Student had several different substitute aides, with a number of changes in personnel, and was without an aide for a short time, so Quintero or SDC staff had to supervise him. On April 5, 2011, Student’s aide was Dawson, the same aide who had served during the 2009-2010 school year prior to the SA, and whom Malady had replaced. Dawson had no specific training working with students with autism, and only informal behavioral intervention training. When he had served as Student’s aide before the SA, Wood had observed him in December 2009 in connection with the CIBA five-hour report and found he lacked the skills to work through challenging behaviors, and invaded Student’s space.

144. Dawson’s lack of training and skills appear to have either created or exacerbated the events of April 2011. Immediately after the transition of spring break and Malady’s change of assignment, Dawson attempted to search Student’s backpack, and then called Mother and family to do so. Student escalated into an incident in which he became extremely agitated, verbally violent, shouted obscenities, hit and punched cabinets and the walls with his fists and head, and attempted to hit others, which resulted in District calling security guards and the police. The antecedent and function of such behaviors was unknown, given the inadequacies of the behavioral assessment. But it is reasonable to conclude that the transition from one familiar, trained aide to an unfamiliar, untrained one, combined with a search of Student’s possessions, triggered Student.

145. Previously, after the June 4, 2010, incident, Wood had appropriately suggested a NPA aide while Malady received training, apparently believing that Student’s escalations then could have been avoided by more skilled aide assistance. The same analysis applies here. Overall, the evidence established that District’s failure to provide appropriately trained aides as required by the SA either caused or escalated the April events.

146. Although of brief duration, the events of April 2011 were significant both in intensity and in the long-term effect on Student’s educational program, resulting as they did in the suspension, the extension of the suspension, the proposed expulsion, and the manifestation determination. The evidence overall suggests that thereafter, when the District members of the June 2, 2011, IEP team suggested a more restrictive placement, it was based, at least in part, on the severity of Student’s April behaviors. Moreover, the April behaviors were Student’s most severe behaviors that the evidence revealed. Overall, although of brief duration, District denied Student a FAPE by its failure to provide appropriate aide support at and after Spring break, 2011, and by its failure to provide appropriate behavioral supports, resulting in a 12-day suspension, and denial of access to campus on April 12, 2011. (Factual Findings 1-261; Legal Conclusions 1-6, 107-145.)

Issue 20: Prior Written Notice of Cancellation of April 12, 2011, IEP meeting

147. Student contends that District committed a procedural violation resulting in a denial of FAPE by failing to give prior written notice of cancellation of an IEP meeting scheduled for April 12, 2011. District contends it committed no procedural violation, and did not deny Student a FAPE.

148. Legal Conclusions 1-6, 107-116, and 132-133 are incorporated herein by reference.

149. Each public agency must take steps to ensure that one or both of the parents of a child with a disability are present at each IEP Team meeting or are afforded the opportunity to participate, including (1) notifying parents of the meeting early enough to ensure that they will have an opportunity to attend; and (2) scheduling the meeting at a mutually agreed on time and place. (34 C.F.R. § 300.322 (a).)

150. A parent must be provided “written prior notice” when a school district proposes, or refuses, to initiate or change the identification, evaluation, or educational placement of the child, or the provision of a FAPE to the child. (20 U.S.C. § 1415(b)(3); Ed. Code, § 56500.4.) The notice must include a description of the action proposed or refused by the school district, an explanation of why the district proposes or refuses to take the action, a description of each evaluation procedure, test, record, or report used as a basis for the proposed or refused action, a description of any other factors relevant to the district’s proposal or refusal, a statement that the parents have protection under the procedural safeguards of IDEA, and sources for the parents to contact to obtain assistance. (20 U.S.C. § 1415(c); 34 C.F.R. § 300.503(b); Ed. Code, § 56500.4.)

151. A “change of placement” is a fundamental change in, or elimination of, a basic element of a child’s educational program. (34 C.F.R. § 300.536(a).) Expulsion or suspension for more than 10 days is a “change of placement.” (Honig v. Doe (1988) 484 U.S. 305.)

152. As stated above in Legal Conclusions 132-133, if a child is removed from his or her current placement for 10 days or more for disciplinary reasons, a “manifestation determination” meeting must be held in which relevant personnel determine whether or not the conduct is a manifestation of the child’s disability. (20 U.S.C. § 1415(k)(1)(E).) The meeting must occur within 10 days of the decision to change the child’s placement; and the District must provide parents with procedural safeguards. (20 U.S.C. § 1415(k)(1)(E)(i); 34 C.F.R. § 300.530(h).) Specified parties shall convene and review relevant information in the student’s file to determine if the conduct in question “was caused by, or had a direct and substantial relationship to, the child’s disability” or the child’s conduct “was the direct result of the local educational agency’s failure to implement the IEP.” (20 U.S.C. § 1415(k)(1)(E)(i); 34C.F.R. § 300.530(h).)

153. The law provides no specific requirements for notice of cancellation of IEP team meetings. Cancellation of an IEP meeting is not, in and of itself, a proposal to change the identification, evaluation, or educational placement of the child. Thus it is not one of the events requiring formal prior written notice. While regrettable, the failure to advise IEP team members that a meeting was cancelled did not constitute a procedural violation of any applicable law or regulation.

154. Nevertheless on or about on or around April 12, 2011, District recommended Student for expulsion. That recommendation did constitute a proposal to change Student’s placement, of which prior written notice is required. District did not provide prior written notice of this proposed change in placement. This technically constituted a procedural violation.

155. The lack of prior written notice did not deny Student a FAPE, result in a deprivation of educational benefit, nor did it impede Mother’s opportunity to participate in the decisionmaking process. Although prior written notice of the proposed change of placement was not given, District convened the manifestation determination meeting that was required to discuss it. There it followed the required procedures within the required time frames. Thus the failure to give prior written notice prior to April 12, 2011, did not result in harm, did not result in a denial of FAPE, and did not deny Mother the right to participate in the decisionmaking process about Student’s program. (Factual Findings 1-261; Legal Conclusions 1-6, 107-154.)

Issues 21 and 18(c): April 18, 2011, IEP, Offer of Aide Support; Behavioral Supervision Hours from April-August 2011

156. Student contends that District denied Student a FAPE at the April 18, 2011, manifestation determination meeting, by failing to offer full-time NPA aide support. Student also contends District denied Student a FAPE by failing to provide behavioral supervision hours from April 2011 until August 2011. District contends it did not deny Student a FAPE.

157. This issue arises from Mother’s misunderstanding of the offer that District made at the April 18, 2011, manifestation determination meeting. The team recommended that District aide Dawson be replaced with a NPA aide through CIBA. Except for the offer of sixty days of NPA 1:1 aide service that had been made at the June 8, 2010, meeting to cover Malady’s training period (an offer to which Mother did not consent), this was the first time that NPA 1:1 aide services had ever been recommended, and it was appropriate to the circumstances leading up to the discipline and meeting. The team recommended a temporary CIBA aide at first, while CIBA located and hired a permanent employee to serve as the NPA aide throughout the balance of the school year. Mother misunderstood this, thinking that the offer was for a temporary NPA aide only. She therefore signed consent, stating that she agreed with the NPA aide but disagreed with its being temporary only. In fact, the offer was not for a temporary but for a permanent NPA aide.

158. There was no denial of FAPE arising out of the offer of aide support at the April 18, 2011, meeting. The offer was appropriate. NPA aide services were in fact implemented thereafter, for the balance of the 2010-2011 school year. CIBA appointed various persons and then Michael Barrett from CIBA came on at the end of April, 2011, and served as Student’s aide for two months until the end of the school year in June 2011, and ESY, during which time there were no further behavioral incidents. (Factual Findings 1-261; Legal Conclusions 1-6, 107-157.)

159. Student presented no evidence that supervision hours were not also provided. Thus, as the party with the burden of persuasion on this issue, Student has failed to establish any denial of FAPE regarding supervision hours from April to August 2011. (Factual Findings 1-261; Legal Conclusions 1-6, 107-158.)

Issues 22 and 26: FAA and BIP Following April 18, 2011, Manifestation Determination; IEP Meeting Following June 10, 2011, FAA

160. Student contends that, after Mother consented to a FAA at the April 18, 2011, manifestation determination meeting, District committed procedural violations which resulted in a denial of FAPE by failing to timely conduct the FAA, failing to hold an IEP team meeting within the required timeframes, and failing to develop a BIP. Student also contends District committed a procedural violation by failing to hold an IEP team meeting to discuss the FAA that CIBA completed on June 10, 2011. District contends it did not commit any procedural violations, and did not deny Student a FAPE.

161. Legal Conclusions 1-6, 107-116, 132-133 and 151 are incorporated herein by reference.

162. A school district or local educational agency is required to conduct an assessment and convene an IEP meeting within 60 days of receiving parental consent to assessment. Days between regular school sessions or terms are not counted in the calculation. (Ed. Code, §§ 56344, subd. (a) & 56043, subd. (f).)

163. Here, at the manifestation determination meeting of April 18, 2011, the team determined that Student’s conduct on April 6, 2011, had been a manifestation of his disability, and District, as a result, offered a new FAA. Pursuant to the legally required timelines, District was obliged to ensure the completion of the assessment, as well as hold an IEP meeting to discuss it, by or before 60 days from April 18, 2011, i.e., by June 17, 2011. However, the last day of the regular school year was June 10, 2011.

164. Therefore the procedural requirement would be to hold the IEP meeting within 7 days of the beginning of the next regular school term. The first date of the 2011-2012 school year was August 22, 2011. However, Student filed his complaint in this matter on July 29, 2011, before the District’s maximum time to conduct the IEP team meeting had expired. Moreover, Student offered no evidence regarding whether a subsequent IEP meeting was ever convened during the first 7 days of the 2011-2012 school year to discuss the FAA. As the party with the burden of persuasion on this issue, Student failed to establish a procedural violation within the relevant time period for this contention prior to the filing of the due process complaint on July 29, 2011. (Factual Findings 1-261; Legal Conclusions 1-6, 107164.)

Issues 2(b), 2(d), 2(e): Behavior Assessment, Services, and Behavior Plans Generally, from March 2010-July 2011

165. Student generally contends that for the entire time period from the signing of the SA until the filing of the complaint, District denied him a FAPE by failing to provide appropriate behavior services and failing to refer Student for appropriate behavioral services and/or assessments; and from May 2010 through July 2011, by failing to develop a behavior plan. District contends it did not deny Student a FAPE.

166. Legal Conclusions 1-6, 107-116, 132-133 and 151 are incorporated herein by reference.

167. Here, the law and facts pertaining to each of these issues has been addressed in detail above, given that Student’s issues for hearing have covered the multitude of possible denials of a FAPE during this period. As discussed above, Student prevails only on those contentions addressing specific time periods, i.e. the FAA as of the time it was written (Issue 3), then the manifestation determination meeting of January 5, 2011, when no FAA, BIP or change to existing services was offered (Issue 14), then the aides provided in April 2011 (Issue 18(b)). These were the only time periods during which District’s procedural errors with regard to Student’s FAA and BIP, or its behavioral services, substantively denied Student a FAPE. Therefore, Student has failed to meet his burden of persuasion that he was denied a FAPE generally by virtue of the behavior assessments, services, and behavior plans from March 2010-July 2011. (Factual Findings 1-261; Legal Conclusions 1-6, 107-167.)

Issues 2(c) and 2(f): Forms

168. Student contends that District committed procedural violations that resulted in a denial of FAPE by failing to complete appropriate SELPA forms for behavioral intervention from March 16, 2010 until July 21, 2011; and by allowing entry of behavior data on NPA forms by unauthorized personnel from May 2010 until March 2011. District contends it did not commit any procedural violations, and did not deny Student a FAPE.

169. Here, the evidence established that District never used any of the various forms SELPA made available for behavioral intervention, or any other SELPA forms, regarding Student. Student presented no authority to support the proposition that school districts are mandated to use SELPA forms.

170. The evidence also shows that Malady took data, and wrote it in CIBA forms called data collection sheets, from September 2010 until March 2011. Student offered no support for the contention that District employees are prohibited from entering behavior data on NPA forms, and even if they were, how such entries constitute a procedural violation of any sort. To the contrary, behavior programs are data driven and require such input.

171. Moreover, Student failed to put on any evidence establishing that the failure to use SELPA forms, or the use of CIBA forms by non-CIBA employees, resulted in an impediment of the Student’s right to a FAPE; a significant impediment of Mother’s opportunity to participate in the decision-making process regarding the provision of a FAPE; or caused a deprivation of educational benefits. (Factual Findings 1-261; Legal Conclusions 1-6, 107-171.)

District’s Issue 1; Student’s Issues 15 (a), 16, 17, 18 (a), 23 (b): Placement in the LRE ⁷

Issue15 (a): Requests for Mainstreaming in January 2011, IEP’s

172. Student contends that District denied him a FAPE in the January 2011, IEP, by failing to offer placement in the LRE. Specifically, Student contends that at the two Parent Request IEP meetings on January 5, 2011, and January 18, 2011, where Mother requested that Student be 100% mainstreamed, District should have changed Student’s placement accordingly. District contends it did not deny Student a FAPE.

173. Legal Conclusions 1-5, above, are incorporated by reference.

174. School districts are required to provide each special education student with a program in the least restrictive environment (LRE), with removal from the regular education environment occurring only when the nature or severity of the student’s disabilities is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily. (20 U.S.C. § 1412(a)(5)(A); 34 C.F.R. § 300.114(a)(2)(ii).) The term “supplementary aids and services” means aids, services, and other supports that are provided in regular education classes or other education-related settings to enable children with disabilities to be educated with nondisabled children to the maximum extent appropriate in accordance with the LRE mandate. (20 U.S.C. § 1401 (33).) Supplementary aids and services must also include access to nonacademic and extracurricular services and activities, including special interest groups or clubs. (34 C.F.R. § 300.107.)

175. In providing or arranging for the provision of nonacademic and extracurricular services and activities, children with disabilities are entitled to participate with nondisabled children in the extracurricular services and activities to the maximum extent appropriate to the needs of that child. The public agency must ensure that each child with a disability has the supplementary aids and services determined by the child’s IEP team to be appropriate and necessary for the child to participate in nonacademic settings. (Ed. Code, § 56364.2, subd. (b); 34 C.F.R. § 300.117.)

176. In Sacramento City Unified School District v. Rachel H. (9th Cir. 1994) 14 F.3d 1398, 1404, the court established a four-part test that provides guidance on the question of whether a placement is in the LRE. The four factors are: 1) the educational benefits of placement full time in a regular class; 2) the non-academic benefits of such placement; 3) the effect the child will have on the teacher and children in the regular class; and 4) the costs of mainstreaming the student. (Sacramento City Unified School Dist. v. Rachel H. (9th Cir. 1994) 14 F.3d 1398, 1404 (Rachel H.) [adopting factors identified in Daniel R.R. v. State Board of Ed. (5th Cir. 1989) 874 F.2d 1036, 1048-1050]; see also Clyde K. v. Puyallup School Dist. No. 3 (9th Cir. 1994) 35 F.3d 1396, 1401-1402 [applying Rachel H. factors to determine that self-contained placement outside of a general education environment was the LRE for an aggressive and disruptive student with attention deficit hyperactivity disorder and Tourette’s Syndrome].) Whether education in the regular classroom, with supplemental aids and services, can be achieved satisfactorily is an individualized, fact specific inquiry. (Daniel R.R. v. State Bd. of Educ., supra, 874 F.2d at p. 1048.) If it is determined that a child cannot be educated in a general education environment, then the LRE analysis requires determining whether the child has been mainstreamed to the maximum extent that is appropriate in light of the continuum of program options. (Daniel R.R. v. State Board of Ed., supra, 874 F.2d at p. 1050.)

177. Here, Student has failed to meet his burden of establishing that 100% mainstreaming was appropriate for him. The nature and severity of his disabilities was such that 100% education in regular classes full-time, even with the use of supplementary aids and services, could not be achieved satisfactorily. As discussed in more detail below, Student obtained some educational benefit from general education, and some participation in general education was appropriate. However, applying the four-factor test for the appropriateness of full-time general education, full time placement in general education would not have been appropriate for Student.

178. With regard to the first factor, addressing the academic benefits of general education, the evidence showed that Student had difficulties accessing the curriculum even in his seventh and eighth grade SDC classes, with their modified curriculum and slower pacing. In his general education classes, although he was an eager participant, his questions and answers were often off-topic. He had difficulty with multi-step directions, figurative or abstract concepts and non-concrete thinking. He could not follow figurative language or idioms, even with prompting and RSP support. He was reading far below average and at a slow rate, struggled with speed and intonation, and had trouble decoding. He also had difficulties with the sentence structure of complex sentences and paragraphs. In abstract classes such as music appreciation, Student could retain almost none of the information even with modifications. Student had trouble with material with ambiguities or non-specific answers. His challenges were staying on task and learning to think abstractly. He could not retain enough to be able to master eighth grade standards, even with modified curriculum. In addition, Stephenson credibly testified that educational benefit from ninth grade general education would be minimal for Student, because ninth grade would be more difficult and would build on past learning foundations which Student did not have.

179. With regard to the second factor, considering the non-academic benefits of the general education setting, the evidence showed that although some of Student’s nonacademic performance might improve with more focused behavioral interventions, Student significantly struggled in the area of his social skills in the general education environment, even with 1:1 aide assistance. Specifically, Student’s friendships in seventh and eighth grade became strained and his social functioning deteriorated, which caused tensions that escalated into conflicts. Student talked to others who did not want to interact, did not take turns talking, stole, lied, and used negative language, insults and curse words. He struggled with social skills when interacting with peers, especially girls; struggled with following directions and required multiple prompts to return to task; exhibited impulsivity in his thoughts and actions; lied to avoid getting into trouble; and had difficulties with organization. He alienated others by means of accusations. Thus, the non-academic benefits of general education do not favor of 100 percent mainstreaming.

180. The third factor, the effect on teachers and other children, was minimal overall. Student’s more severe behaviors appear not to have occurred in the academic classrooms, thus according to his teachers, Student was not a behavior problem in Hanson’s class or in Cadet Corps in eighth grade. Student’s behavior was controlled and controllable in Music Appreciation and PE class, although he had tendencies to pass notes and use graphic language with the opposite sex. Per Malady, when Student was in general education classes, he was not a distraction, and was only occasionally disruptive. On average of once per week he would make an inappropriate comment, be vulgar to girls, name call or use curse words. These behaviors, while inappropriate, were not shown to have been disruptive of the classroom.

181. As for the fourth factor, the costs associated with mainstreaming Student, neither party presented any evidence in that regard, other than Anderson’s opinion that Student required tremendous amounts of support.

182. Overall, after applying the four-factor test, Student fails to meet his burden of establishing that full-time general education placement was the appropriate environment for him. Therefore, as discussed in further detail below with respect to the offer made at the June 2, 2011, IEP, the LRE analysis requires determining whether he was mainstreamed to the maximum extent that was appropriate in light of the continuum of program options. As addressed in detail in Legal Conclusions 95-99 and 183-201, Student’s placement in January 2011 consisted of a combination of general education with RSP support and SDC’s that was reasonably calculated to provide Student with educational benefit. Therefore, Student failed to meet his burden of establishing that District denied him a FAPE in the January 2011, IEP, by failing to offer placement in the LRE. (Factual Findings 1-261; Legal Conclusions 1-6, 95-99, 174-201.)

Issues 16, 17, 18(a): Cadet Corps

183. Student contends that District, in the February 16, 2011, IEP, failed to offer appropriate placement in the LRE by failing to offer Student “Cadet Corps.” Student further contends that District denied him a FAPE in the March 21, 2011, IEP, by failing to offer appropriate related services to enable Student to attend “Cadet Corps” five times per week. Student also contends that District denied him a FAPE by denying appropriate reading services from March 2011 until June 2011 by not giving him an alternate reading class schedule when he was pulled from his SDC reading class in order to attend Cadet Corps twice weekly from March 2011 until June 2011. District contends that it did not deny Student a FAPE.

184. Legal Conclusions 1-5 and 174-176 above are incorporated herein by reference.

185. Mother first requested Cadet Corps in January 2011. Initially, District rejected Mother’s request, because Cadet Corps was a military elective that was offered only at the same period as Student’s eighth grade SDC reading class with Quintero. Ultimately, in March 2011, District compromised and permitted Student to miss two weekly periods of SDC reading in order to attend two weekly sessions of Cadet Corps. Mother agreed to that compromise and signed the March 22, 2011, IEP amendment to that effect. The compromise was implemented for the rest of the 2010-2011 school year.

186. Mother insisted at the time, and at hearing, that Student’s schedule should be modified to afford him the opportunity to attend both Cadet Corps and SDC reading class five times per week each. To that end, she wanted Student to be pulled from Quintero’s SDC eighth grade reading class and placed in another reading class that met at another time, specifically Quintero’s seventh grade SDC reading class. District did not agree, as that class was not appropriate to Student, who was at a higher academic level than that class addressed. Moreover, as Quintero credibly testified, because the class was interactive, modifying its curriculum for Student’s level would have required adding a second teacher.

187. None of District’s actions with regard to Cadet Corps denied Student a FAPE in the LRE. The LRE analysis applies to whether a student should be placed within or outside the mainstream general education, not to whether he was offered a particular class. Applying the LRE analysis by analogy to these facts, Student was afforded the maximum amount of participation in Cadet Corps that was appropriate to Student’s individual needs, given the nonexistence of an alternate appropriate eighth grade reading class during that particular period, and the costs of creating an alternate reading program for him. Under these facts and circumstances, it was not a denial of FAPE in the LRE for District not to offer Cadet Corps five times weekly. (Factual Findings 1-261; Legal Conclusions 1-6, 95-99, 174-182.)

188. Similarly, it was not a denial of FAPE for District to refuse to rearrange Student’s reading class to permit him to attend both Cadet Corps and a different SDC reading class five times weekly. As addressed in detail in Legal Conclusions 95-99 and 183-201, the evidence shows that Student was afforded educational benefit in the LRE from the placement and services he attended, even with Cadet Corps only twice a week and SDC reading only three times a week. Thus, he was not denied a FAPE. In resolving the question of whether a school district has offered a FAPE, the focus is on the adequacy of the school district’s proposed program, and here it was adequate. A school district is not required to place a student in a program preferred by a parent, even if that program will result in greater educational benefit to the student. (Factual Findings 1-261; Legal Conclusions 1-6, 95-99, 174-187.)

District’s Issue 1, Student’s Issue 23 (b): June 2, 2011 IEP

189. Student contends that District denied him a FAPE in the June 2, 1011, IEP by failing to offer appropriate placement in the LRE. District contends that in the June 2, 2011, IEP, it offered Student a FAPE in the LRE. District seeks an order allowing it to implement its offer without parental consent.

190. Legal Conclusions 1-5 and 174-176 above are incorporated herein by reference.

191. Here, Student met his burden of establishing that the June 2, 2011, IEP did not offer him a FAPE in the LRE, while District did not meet its burden of showing that the offered placement was the LRE. The June 2, 2011 IEP offered Student a placement that would result in removing Student entirely from general education except for PE. After applying the Rachel H factors, although full time general education was inappropriate for Student, it was equally inappropriate to propose removing him entirely. The LRE analysis requires determining whether the child has been mainstreamed to the maximum extent appropriate in light of the continuum of program options. District’s June 2, 2011, IEP offer did not do so.

192. The testimony of District’s witnesses that Student did not obtain any educational benefit from placement in the general education setting was not persuasive, and was outweighed by the more credible testimony of his teachers. Specifically, for seventh grade, Papez opined that Student did not receive any educational benefit from his general education classes, and that the curriculum modifications that would be necessary for Student would be so extensive as to make the general education curriculum not meaningful. Similarly, Kubacki’s opinion was that although Student did receive some educational benefit from general education during seventh grade, in the form of taking notes and being in a classroom, it was negligible, and Kirby echoed this opinion for eighth grade. In addition, Anderson opined Student went through “the motions” for eighth grade, felt that he had not retained anything, and that his participation in class was not meaningful. To the extent that general education teachers Casian and Hanson expressed a different view, Papez and Anderson discounted their views as overly optimistic.

193. However, the contemporaneous observations of Student’s actual general education teachers Casian in seventh grade and Hanson in eighth grade, and Hanson’s testimony at hearing, were more credible and showed that in the immediately proceeding school years, Student was able to successfully participate and obtain educational benefit from inclusion in some general education classes. Specifically, in seventh grade, as of the April 6, 2010, IEP, Casian reported that Student was a “great student.” As of the May 12, 2010, psychoeducational assessment, Casian reported that he had good reading comprehension, enjoyed class, listened and seemed to understand the stories that were read aloud, participated and was a “very valuable contributor.” Although Casian wrote a contrary written report for the May 21, 2010, IEP that advocated a more restrictive environment, Casian’s contemporaneous prior observations were more persuasive. Similarly, in eighth grade, Hanson observed that Student meaningfully participated in, and received educational benefit from her classes, albeit with support. He retained information, and was not simply prompted by his aide. At hearing, she credibly disagreed with opinions that his participation was rote, not meaningful or a waste of time. Hanson’s actual observations of Student in class were more credible and persuasive than the opinions of the special education administrators who did not actually teach him.

194. Given these factors, the offer to remove Student entirely from general education except for PE did not comply with the IDEA’s mandate for inclusion in general education to the extent appropriate. Consequently, the June 2, 2011, IEP did not offer Student a FAPE in the LRE, because given the facts, it did not offer to mainstream Student to the maximum extent appropriate in light of the continuum of program options.

195. As for the offer of two periods a day in the Perspectives program, District appeared to have focused on Student’s proposed eligibility category and on the designation of Perspectives as District’s “autism program.” But the evidence shows that academically, Student performed at a higher level than appropriate for the Perspectives program. Specifically, Inzunza credibly testified that Perspectives was geared toward students who were academically topping out at third grade level. The students in Perspectives were not expected to read for comprehension, and they were not expected to perform academic math skills. The evidence shows that Student’s strengths, PLOPS and goals, in the June 2, 2011, IEP, indicated higher academic functioning. Specifically, Student could independently access computer reading programs, and maintain good comprehension. He could spell at the fourth grade level. In math, he worked at the third or fourth grade level, up to grade level 4.5, knew basic calculations, and could verbally master his multiplication tables up to ten. He could also read independently at the fourth grade level and could understand verbal and visual concrete ideas in text. In fact, Goal 13 of the June 2, 2011 IEP stated that Student should progress toward reading aloud materials that were at the fifth grade level. In sum, Student’s academic performance in reading, writing, and math, was at approximately a fourth grade level, higher than the levels for which Perspectives was geared.

196. For adaptive skills, Inzunza testified that he would expect Perspectives students, to fall within the significantly/extremely low, or very deficient range on the Vineland-II, which measured adaptive behavior. Student’s results from the May 2010 assessment, on the Vineland-II, were higher than Inzunza would expect for Perspectives. Student fell in the mild-to-moderate developmental delay range.

197. Moreover, every IEP, as well as Gonzales’ OT assessment from May 2010, stated that Student had no needs in the area of self-care or daily living skills

198. Anderson’s view was that despite his progress, Student required access to a functional life skills curriculum including money management, safety, recreation and functional academics. She relied heavily on his cognitive levels, which did fall within the cognitive range Inzunza stated was appropriate for Perspectives students, i.e. mildly-moderately intellectually disabled up through the lower borderline range. However, the other information about Student does not support the offer of placement there, even for a partial day program. Nothing in Student’s profile indicated propriety of Perspectives’ circle time at the beginning of the day, nor the end-of-day cleaning-up, vacuuming, washing dishes, cleaning tables and blackboards, cooking or other aspects of the “domestics” component that District offered.

199. Student’s OT PLOPs and Goals (stating that Student arrived at school in an overresponsive state, requiring supervision and redirection to enter his first class in a calm alert state for learning; that Student should follow a sensory diet; and that he could get over ramped up), may have warranted the sensory exploration incorporated in the Perspectives program. Student’s OT PLOPS and Goals do indicate his need for a sensory diet and a transition into each school day. But these OT needs, and a transition into a school day, could be addressed by a less restrictive offer of placement and services.

200. As for Student’s behaviors, the evidence did not show that they justified his entire removal from mainstreaming. From the May 21, 2010, IEP onward, District reacted to pivotal events in Student’s behaviors either with discipline or more restrictive offers of placement, rather than with a more focused program of behavioral intervention. Thus, the June 4, 2010, behaviors led to the discussion at the June 8, 2010, IEP of the autism program that was expected to be in place the following year. The December 2010, discipline led not to a FAA and BIP at the January 5, 2011, manifestation determination meeting, but to District’s invitation of Inzunza to attend the January 5, 2011, IEP meeting to discuss Perspectives. The April 2011 discipline yielded the suspension and expulsion, which was then reversed by the April 18, 2011, manifestation determination. That ultimately resulted in the June 2, 2011, offer which proposed removing Student from the mainstream entirely. As discussed above, Student’s behavioral needs could be addressed without resort to the change in placement proposed by District.

201. Given the above, Student met his burden of establishing that the June 2, 2011, IEP did not offer him a FAPE in the LRE, while District failed in its burden. In short, the June 2, 2011, IEP did not offer Student appropriate placement and services in the LRE. (Factual Findings 1-261; Legal Conclusions 1-200.) Student’s remedy for this denial of a FAPE is discussed separately below.

Student’s Issues Against SELPA; Issues 27-55

202. Student makes numerous contentions that SELPA denied him a FAPE through alleged actions and inactions pertaining to his assessments, IEP’s, program and services. Applying the statutes that define the role of the SELPA, and considering the facts presented at hearing, there is no merit to any of these contentions.

203. Legal Conclusions 1-6 above are incorporated herein by reference.

204. Special education due process hearing procedures extend to the parent or guardian, to the student in certain circumstances, and to “the public agency involved in any decisions regarding a pupil.” (Ed. Code, § 56501, subd. (a).) A “public agency” is defined as “a school district, county office of education, special education local plan area, . . . or any other public agency under the auspices of the state or any political subdivisions of the state providing special education or related services to individuals with exceptional needs.” (Ed. Code, §§ 56500 and 56028.5.)

205. Under California law, each school district must operate under a “local plan.” If of sufficient size, a district may create its own local plan. (Ed. Code, § 56195.1, subd. (a).) Otherwise, districts generally join with other districts to create a “local plan.” (Ed. Code, § 56195.1, subd. (b).) The service area covered by the local plan is known as the special education local plan area. (Ed. Code, § 56195.1, subd. (d).) The SELPA administers the local plan. (Ed. Code, § 56195.)

206. Local plans must provide policies and procedures governing the provision of FAPE. (Ed. Code, § 56205.) They must contain provisions for staff development programs for special education teachers. (Ed. Code, § 56240-45.) They must also provide a governance structure and any necessary administrative support to implement the plan; establishment of a system for determining the responsibility of participating agencies for the education of each individual with exceptional needs residing in the special education local plan area; designation of a responsible local agency with respect to distribution of funds, provision of administrative support, and coordination of the implementation of the plan (Ed. Code, 56195.1, subd. (b).)

207. None of these provisions affects what does or does not constitute FAPE, or creates a right for parents to enforce the local plan through special education due process complaints. Parents have the right to present a complaint “with respect to any matter relating to the identification, evaluation, or educational placement of the child, or the provision of a free appropriate public education to such child.” (20 U.S.C. § 1415(b)(6); Ed. Code, § 56501, subd. (a).) This limited jurisdiction does not include jurisdiction over claims alleging a failure by a SELPA to enforce a local plan. Nor does it include jurisdiction over claims alleging a school district’s failure to comply with a local plan.

208. Here, SELPA did not provide, and was not legally obligated to provide, any special education or related services to Student, who was, during all relevant time periods, served by his home school district. SELPA did not control or direct District’s decisions regarding Student. Although SELPA was a “public agency,” and by virtue of Edge’s attendance at Student’s IEP meetings, SELPA was “involved in” decisions regarding Student, there is no factual or legal basis for Student’s contentions against SELPA. Specifically, Student presented no evidence that Edge’s credentials, or the fact she attended his IEP’s meetings, or fact that she made recommendations at the meetings with which Mother disagreed, impacted Student’s educational program in a negative way. Student presented no evidence or legal argument that SELPA’s failure to offer Student a workability program, for which he was not eligible because District had its own workability program, resulted in a denial of FAPE. The evidence shows that SELPA had no involvement in modifying Student’s curriculum; providing inclusion specialists for him; coordinating his special education services; using particular forms relating to Student; coordinating educational strategies pertaining to Student; referring Student for assessments; responding to requests for IEE’s pertaining to him; placing Student in particular classrooms or dealing with overcrowding there; implementing his IEP’s; implementing his behavior plans; assigning SCIA case managers to Student; giving Student’s aides support; providing him with behavior intervention support; referring him for behavioral assessments; following NPA behavior assessment procedures with regard to him; providing reading outlines or reading instruction to Student; providing or denying him access to the California Reading Initiative; providing RSP services to him; ensuring proper credentials or licensure for his teachers or service providers; ensuring his IEP meetings were timely; using outdated forms for his IEP’s; performing his assessments or ensuring appropriate testing accommodations; offering him inclusion support; developing his behavior intervention plans; assigning a Behavior Intervention Case Manager to his case; denying or ensuring Parent meaningful participation in IEP’s; providing copies of IEP’s to Student or Mother; coordinating autism therapy for him; ensuring that he was assessed timely following consent; ensuring the development of BIP; providing Student with a “consortium of schools;” or providing him with an appropriate emergency behavior plan.

209. To the extent Student contends that SELPA denied him a FAPE: from September through December 12, 2009, by failing to coordinate the CIBA five-hour observation to determine autism services that had been requested on August 30, 2009; from March 2011 to August 2011, by failing to coordinate NPA supervision consultation hours; and from January 2010 until June 2011, by failing to provide NPA OT for 45 minutes per week, his claims fail for the same reasons. Applying the above statutes that define the role of the SELPA to the facts presented at hearing about the implementation of Student’s program, SELPA merely acted as the payor for services District was required to provide in order to offer its special education Students a FAPE. This relationship does not make SELPA into the public agency responsible to provide Student a FAPE.

210. In sum, the evidence at hearing failed to show that SELPA was the public agency responsible for providing Student with a FAPE, or that District’s membership in SELPA created any such duty. Thus, all of Student’s claims against SELPA have no merit. (Factual Findings 1-261; Legal Conclusions 202-209.)

Remedies

211. As established above, District denied Student a FAPE by performing an inappropriate FAA on or around May 21, 2010 (Student’s Issue 3); failing, at and after the January 5, 2011, manifestation IEP, to conduct a FAA and create a BIP (Student’s Issue 14); failing to provide appropriate aide support from March 21 through 25, 2011 (Student’s Issue 18(b)); failing to provide appropriate behavioral supports during and subsequent to an incident on or around April 6, 2011, resulting in a 12-day suspension and a denial of access to campus on April 12, 2011 (Student’s Issue 19); and failing to offer an appropriate placement in the LRE in the June 2, 2011 IEP (Student’s Issue 23(b); District’s Issue (1)). Student seeks numerous remedies for these denials of a FAPE including placement, services, assessments, and compensatory education.

212. Remedies under the IDEA are based on equitable considerations and the evidence established at hearing. (Burlington v. Department of Education (1985) 471 U.S. 359, 374 [105 S.Ct. 1996, 2005].) School districts may be ordered to provide compensatory education or additional services to a student who has been denied a FAPE. (Student W. v. Puyallup School District (9 ^th Cir. 1994) 31 F.3d 1489, 1496.) The conduct of both parties must be reviewed and considered to determine whether relief is appropriate. (Id. at p. 1496.) These are equitable remedies that courts may employ to craft “appropriate relief” for a party. An award need not provide a “day-for-day compensation.” (Id. at p. 1497.) An award to compensate for past violations must rely on an individualized assessment, just as an IEP focuses on the individual student’s needs. (Reid ex rel. Reid v. District of Columbia (D.D.C. Cir. 2005) 401 F.3d 516, 524.) The award must be “reasonably calculated to provide the educational benefits that likely would have accrued from special education services the school district should have supplied in the first place.” (Ibid.)

213. Based upon the equitable considerations and the Factual Findings of this decision, District will be required to place Student into a SDC four periods a day for core subjects based upon state standards. The remainder of the day shall be in a collaboration model general education setting, with a general education teacher and a special education teacher providing push-in RSP support, for two periods daily for a core subject and an elective. Student shall also be placed in general education for physical education. Student shall be mainstreamed 44% of his day. Based upon his October 23, 2009, IEP and the offer made the following year at the June 8, 2010, IEP, as well as the discussion at the June 2, 2011, IEP, this placement is reasonably calculated to provide Student with educational benefit in the LRE.

214. As Papez opined, Student had been making progress in his behavior and social skills, and should move on to high school. Therefore his placement for the 2011-2012 school year will be his home high school unless the parties agree otherwise.

215. Except for OT as discussed below, the related services that were offered in the June 2, 2011, IEP were appropriate and may be implemented: speech and language once a week for 30 minutes; counseling three times per month for 30 minutes; full-time 1:1 NPA aide services plus ten hours a month supervision, both from CIBA; and ESY with these related services, and transportation.

216. The modifications and accommodations that were discussed at the June 2, 2011, IEP were also appropriate and shall be implemented. Some of the items discussed were not clearly defined and cannot be implemented Therefore the remedy is specified as the following, which were clearly stated in the IEP: alpha smart software, a portable keyboard; a digilock for PE, extra time for assignments, tests and quizzes; use of graphic organizers; preferential seating; and prompting as necessary and consistent with goals.

217. With regard to PLOPS, goals, and related services other than OT, the offer made at the June 2, 2011, was appropriate and shall be implemented. The responsible persons listed on that IEP to accomplish some goals include “Excel” staff. Since Excel is a model that exists only at LMS, for those goals District may replace “Excel” staff with general education teachers, RSP teachers and Student’s NPA aide.

218. Since Student’s sensory needs were to be addressed at Perspectives, the offer of OT was not appropriate and must be modified to address Student’s Goals numbered 1-2, 5 and 16-17 in the area of OT. Previously, OT had been provided by and NPA 45 minutes per week, and this continues to appear appropriate.

219. For the time being, the most appropriate behavior plan that District can systematically implement is the UHS BSP. It shall serve as Student’s behavior plan pending a new FAA that must be conducted and a new BIP that must be developed and implemented.

220. Based on Student’s individualized needs, this is the appropriate equitable remedy, as it is reasonably calculated to provide the educational benefits Student would have likely accrued from the special education placement and services that District should have provided Student. (Factual Findings 1-269; Legal Conclusions 1-219.)

ORDER

1. Student’s placement for the 2011-2012 school year shall be his home high school unless the parties agree otherwise.

2. Student shall be mainstreamed 44% of his day.

3. For two periods daily for a core subject and an elective, District shall place Student in a collaboration model general education setting, with a general education teacher and a special education teacher providing push-in RSP support.

4. Student shall receive general education PE;

5. District shall place Student into a SDC four periods a day for core subjects based upon state standards.

6. Except with regard to OT, the related services that were offered in the June 2, 2011, IEP shall be implemented, as follows: speech and language once a week for 30 minutes; counseling three times per month for 30 minutes; full-time 1:1 NPA aide services plus ten hours a month supervision, both from CIBA; ESY with these related services, and transportation.

7. The following modifications and accommodations shall be implemented: alpha smart software, a portable keyboard; a digilock for PE, extra time for assignments, tests and quizzes; use of graphic organizers; preferential seating; and prompting as necessary and consistent with goals.

8. The goals stated in the June 2, 2011, IEP were appropriate and shall be implemented. For those goals stating “Excel,” District may replace “Excel” staff with general education teachers, RSP teachers and Student’s NPA aide.

9. OT shall be provided by an NPA 45 minutes per week and shall address Goals numbered 1-2, 5 and 16-17.

10. Within 45 days of the date of this decision, District shall conduct a new FAA to target the behaviors of: physical aggression (including assaults, knocking over tables, throwing books; fighting); threats; insults (including teasing or namecalling); tantrums, disobedience (including refusal, defiance, or noncompliance); running away/bolting; blurting out in class; repetitive talk; trading (including giving away contraband, selling or stealing ); lying; and inappropriate sexual conduct (including cursing, obscenities, profanity in oral or written form, and vulgarity or harassment toward females) which shall be completed and an IEP meeting convened within legally required timelines. At that IEP, the team will develop a BIP. Pending a new FAA and BIP, the UHS BSP shall be implemented.

11. If Mother does not consent to the FAA, the relief granted in this Decision shall be null and void.

12. For purposes of stay put, the above orders shall constitute Student’s current educational placement.

PREVAILING PARTY

Education Code section 56507, subdivision (d), requires that this Decision indicate the extent to which each party prevailed on each issue heard and decided in this due process matter. Student prevailed on the following issues: Student’s 3; 14; 18(b); 19; 23 (b); and District’s Issue (1). District prevailed on the following issues: Student’s 1(a)-1(b); 2(a)-2 (j); 4 (a)-4(f); 5; 6(a)-6(c); 7; 8; 9(a)-9(c); 10; 11; 12; 13; 15(a)-(b); 16; 17; 18(a); 18(c); 20; 21; 22; 23(a); 24; 25 and 26. SELPA prevailed on all issues against it, Student’s 27-55.

RIGHT TO APPEAL THIS DECISION

The parties to this case have the right to appeal this Decision to a court of competent jurisdiction. If an appeal is made, it must be made within 90 days of receipt of this Decision. (Ed. Code, § 56505, subd. (k).)

Dated: March 12, 2012

JUNE R. LEHRMAN
Administrative Law Judge
Office of Administrative Hearings

BEFORE THE
OFFICE OF ADMINISTRATIVE HEARINGS
STATE OF CALIFORNIA

In the Consolidated Matters of: PARENT ON BEHALF OF STUDENT,

v.

SANTA MONICA-MALIBU UNIFIED SCHOOL DISTRICT,

OAH CASE NO. 2011090122

—————————————-

SANTA MONICA-MALIBU UNIFIED SCHOOL DISTRICT,

v.
PARENT ON BEHALF OF STUDENT.

OAH CASE NO. 2011051000

DECISION

Administrative Law Judge Deborah Myers-Cregar, Office of Administrative Hearings(OAH), heard this matter on December 8, 12, 13, 14, 20, 2011, and January 9, 2012 in Santa Monica, California, and on December 15 and 19, 2011 in Van Nuys, California. The parties submitted closing briefs on January 27, 2012, at which time the matter was submitted.

Jane DuBovy, Attorney at Law, represented Student. Student’s father (Father) attended each day of hearing. Student’s mother (Mother) attended the hearing on December 19, 2011, and January 9, 2012. Carolina Watts assisted Ms. DuBovy all hearing days except December 15, 2011, when Mandy Favaloro assisted.

Sundee Johnson, Attorney at Law, represented District. Dr. Sara Woolverton appeared on behalf of District.

On May 25, 2011, District filed a Request for Due Process Hearing (complaint). On September 2, 2011, Student filed a complaint. On September 16, 2011, the parties jointly filed a Stipulation for Consolidation and a joint request for continuance, which was granted on September 20, 2011, for good cause.

ISSUES

District’s Issue

(1) Did District conduct appropriate assessments in the areas of:

1. Speech and Language;
2. Occupational Therapy; and
3. Psychoeducation ¹ so that it may deny Student’s request for Independent Educational Evaluations (IEEs) at public expense?

Student’s Procedural Violation Issues

(2) Did District deny Student a free and appropriate public education (FAPE) by failing to appropriately assess Student in all areas of suspected disability, including:

1. Speech and Language
2. Occupational Therapy:
3. Psychoeducation; and
4. Behavior, entitling Student to an IEE and compensatory education?

(3) Did District deny Student a FAPE at the November 8, 2010 Individualized Education Program (IEP) by:

1. Failing to have a general education teacher present;
2. Failing to consider a continuum of placement options; and
3. Predetermining Student’s placement?

(4) Did District deny Student a FAPE at the December 8, 2010 IEP by:

1. Failing to have a general education teacher present;
2. Failing to consider a continuum of placement options; and
3. Predetermining Student’s placement?

(5) Did District deny Student a FAPE at the March 16, 2011 IEP by:

1. Failing to have a general education teacher present;
2. Failing to consider a continuum of placement options;
3. Failing to include a statement of measureable annual goals; and
4. Failing to include a statement regarding Student’s participation in general education?

(6) Did District deny Student a FAPE at the April 7, 2011 IEP by:

1. Failing to have a general education teacher present;
2. Failing to consider a continuum of placement options;
3. Failing to include a statement of measureable annual goals;
4. Failing to include a statement regarding Student’s participation in general education; and
5. Predetermining its offer of placement?

7) Did District deny Student a FAPE at the July 26, 2011 IEP by:

1. Failing to have a general education teacher present;
2. Failing to include a statement of present levels of performance;
3. Failing to have measureable annual goals;
4. Failing to have a statement of proposed special education and related services;
5. Failing to include a statement regarding Student’s participation in general education;
6. Failing to consider Student’s IEE; and
7. Failing to provide parents with prior written notice of its refusal to initiate a change of placement to a general education class with a one to one behavioral aide, and to continue providing related services, after parent’s notice of unilateral placement.

Student’s Substantive Violation Issues

(8) Did District deny Student a FAPE at the November 8, 2010 IEP by:

1. Failing to offer an appropriate placement in the least restrictive environment (LRE); and
2. Failing to offer appropriate related services in the area of speech and language, occupational therapy, behavior and social skills?

(9) Did District deny Student a FAPE at the December 8, 2010 IEP by:

1. Failing to offer an appropriate placement in the least restrictive environment (LRE); and
2. Failing to offer appropriate related services in the area of speech and language, occupational therapy, behavior and social skills?

(10) Did District deny Student a FAPE at the March 16, 2011 IEP by:

1. Failing to offer an appropriate placement in the LRE; and
2. Failing to offer appropriate related services in the area of speech and language and behavior?

(11) Did District deny Student a FAPE at the April 7, 2011 IEP by:

1. Failing to offer an appropriate placement in the LRE; and
2. Failing to offer appropriate related services in the area of speech and language, occupational therapy and behavior?

(12) Did District deny Student a FAPE at the July 26, 2011 IEP by:

1. Failing to offer an appropriate placement in the LRE;
2. Failing to offer appropriate related services in the area of speech and language, occupational therapy, behavior, and extended school year services after unilateral placement; and
3. Failing to implement the related services of speech therapy, occupational therapy and adapted physical education (APE) after parent’s notice of unilateral placement?

(13) If District denied Student FAPE during the 2010-2011 school year and extended school year, is Student entitled to tuition and services reimbursement and compensatory education?

FACTUAL FINDINGS

1. Student is a four-year-old boy eligible for special education due to Autism. At all relevant times, he lived within the jurisdictional boundaries of the District. Student was first diagnosed with Autism at 18 months of age by Tri Counties Regional Center (TRC) and received Early Start services. Just before age three, Westside Regional Center (WRC) provided Student with Early Start transition services and Lanterman Act speech, occupational therapy and behavioral services. WRC referred Student to the District for special education eligibility.

2. On September 15, 2010, Student’s parents (Parents) requested a District special education assessment based upon his suspected disability of developmental delays and speech and language delays. Parents identified WRC, TRC, Smart Start, and Pathways Speech and Language as agencies with special knowledge about Student. District then provided a Notice of Parent’s Rights and Procedural Safeguards.

3. On September 20, 2010, Father signed District’s multidisciplinary assessment plan. The evaluation areas included academic achievement, health, intellectual development, language/speech communication development, motor development, processing skills, and social/emotional/adaptive behavior. No other alternative means of assessment were identified on the plan. On September 20, 2010, Father confirmed in writing that he would attend a November 8, 2010 IEP. District identified the anticipated IEP attendees as administrative designee Bekah Donnelly; special education teacher Susan Marshall; psychologist Jady von der Lieth; speech pathologist Jocelyn Langus; Nurse Lora Morn; an occupational therapist; and an adapted physical education therapist. District did not identify a general education teacher to be in attendance.

4. In October 2010, in preparation for Student’s initial IEP, District conducted initial speech, occupational therapy, psycho educational, health and adapted physical therapy assessments, and a teacher observation.

The Speech and Language Assessment

5. On October 15, 2010, speech pathologist Jocelyn Langus conducted an initial speech and language evaluation of Student. Ms. Langus was licensed as a speech and language pathologist in New York in 2005, and in California in 2006. She held a California clinical-rehabilitative services credential and an American speech-language-hearing association (ASHA) certificate of clinical competence. Ms. Langus earned a masters of science degree in communication disorders in 2004. She earned a bachelor of arts degree in English with a minor in linguistics in 2001. Ms. Langus has worked as a speech pathologist for several school districts since December 2004, and for District since April 2007. She later provided Student with direct services between May and June 2011.

6. Ms. Langus reviewed WRC’s September 17, 2010 psychoeducational assessment by Dr. Carol Kelly, which determined Student had Autism, severe and pervasive impairment in verbal and non-verbal communication skills, low average to average intelligence, and borderline daily living, socialization and motor skills. Ms. Langus reviewed TRC’s records, including Student’s initial speech and language evaluation, a summary of speech therapy he received from two speech pathologists, and a progress report from his current speech pathologist Angie Thudium. Ms. Langus spoke with Ms. Thudium about the scope of the therapy, which focused on increasing Student’s language comprehension, pragmatic language skills, play skills and gestural skills. Ms. Langus reviewed Student’s developmental history. She observed Student. Ms. Langus administered two standardized tests, the Goldman-Friscoe Test of Articulation, Second Edition and the Preschool Language Scale, Fourth Edition (PLS4), and she conducted the Language Sample/Observation-informal. Ms. Langus believed the tests, observations, interviews and scales used were selected for Student’s age, were valid for the purpose of assessing preschool children, were validly administered, and were a valid sampling of Student’s function.

7. Ms. Langus observed Student for one hour during her testing. Student’s father was present. Student briefly and intermittently participated in activities Ms. Langus directed. Student preferred to play by himself and engage in repetitive play, repeatedly spinning dials and lining up bingo-chips.

8. The Goldman-Friscoe Test of Articulation, Second Edition, tested Student’s ability to articulate speech sounds in words. This test was conducted late in the day, when Student showed a decreased ability to participate. While he completed items which were typically mastered within his chronological age, he did not complete some items which were sounds typically not mastered by Student’s chronological age. The testing demonstrated that at three years old, Student mastered age appropriate sounds for three and four year olds. Student’s vocal quality, volume and fluency were also age appropriate.

9. The Preschool Language Scale, Fourth Edition (PLS4) contained two subtests: Auditory Comprehension, which measured how much language Student understood, and Expressive Communication, which determined how well Student communicated with others. An average Standard Score fell between 85 and 115. Student obtained an 81 in Auditory Comprehension, and a 74 in Expressive Language, with a Total Language Score of 75. Student’s percentile rank was five. Ms. Langus interpreted Student’s scores, which placed him more than one and a half standard deviations below the mean, and within the significantly delayed range of functioning compared to peers his age. According to the PLS4 Examiner’s Manual, the difference in his two subtests scores were not statistically significant, as there was an overlap in confidence bands. The PLS4 demonstrated that Student’s receptive areas of strength included identifying the use of objects, understanding part/whole relationships, understanding simple descriptive concepts, following two-step related commands, and identifying colors. His receptive areas of weakness included understanding pronouns and understanding negatives in sentences. Student’s expressive areas of strength included naming objects in a photographs and pictures, using plurals, naming a variety of pictured objects, and using quantity concepts. Student’s expressive areas of weakness included using words for a variety of pragmatic functions, combining three to four words in spontaneous speech, answering ‘what’ and ‘where’ questions, using verbs with an ‘ing’ ending, and explaining how objects were used.

10. Ms. Langus collected an informal language sample by documenting Student’s spontaneous speech during her observations of the testing tasks and during play breaks. She observed Student had difficulty responding to ‘what’ and ‘where’ questions, used sentences two-words long, and made imitative or echolalic utterances. She also collected data from Student’s father. Student’s father agreed with her findings, based upon his observations of Student’s language use at home. He reported Student engaged in immediate and delayed echolalia. At home, most of Student’s spontaneous speech consisted of one-word utterances and requests. During the assessment, Student did not make verbal requests. Instead, he used gross motor actions and gestures to get a desired item. Student’s father reported that Student does not direct requests to a communicative partner. During the assessment, Student did not take turns verbally. Rather, he responded to comments and questions by repeating what he heard. Student’s father reported that Student was not yet using words to request help from his parents. During the assessment, Student brought an object to his father to request his help. Ms. Langus concluded that Student’s articulation skills were age appropriate and were not an area of need.

11. Ms. Langus concluded that because Student’s overall receptive and expressive language skills were so delayed, his delay in the area of communication negatively impacted his ability to access his education. She opined Student’s deficits interfered with his ability to communicate effectively within the classroom to make his needs and wants known and interfered with his ability to understand and orally present information. Ms. Langus determined that Student was eligible for special education due to his speech and language impairment and required speech-language therapy as a related service. She supported her conclusion by citing to Student’s score below the seventh percentile on a standardized test of overall language skills, and his display of inadequate use of expressive and receptive language skills during her language sampling. Ms. Langus recommended that his speechlanguage therapy focus on using words for a variety of pragmatic functions, and increasing spontaneous vocabulary and utterance length in response to ‘what’, ‘what doing’ and ‘where’ questions.

12. Ms. Langus prepared a written report, which she presented and discussed at a November 8, 2010 IEP meeting. At hearing, she testified in support of her report and findings. She also opined that the District’s offer of placement and related services was appropriate, based upon what she knew about Student.

The Occupational Therapy Assessment

13. On October 30, 2010, Erin Harper conducted an initial occupational therapy evaluation. Ms. Harper was licensed in California and was a nationally board certified occupational therapist. She earned a master’s degree in occupational therapy. Since 2009, Ms. Harper worked for the District conducting assessments and providing direct services. Since 2007, she has assessed and worked with children with Autism, developmental delays, and learning disabilities in a school and private clinic setting. She later provided Student with direct services at his SDC, and with clinic based services through June, 2011.

14. Ms. Harper’s occupational therapy evaluation consisted of a review of WRC’s speech and occupational therapy services, a parent interview, the review of the Infant/Toddler Sensory Profile Caregiver Questionnaire, and the Peabody Developmental Motor Scales, Second Edition (PDMS-2). The PDMS-2 had five subtests which examine fine and gross motor development, and Ms. Harper determined she only need to obtain information from two of those subtests to assess Student’s fine and visual motor functions. Ms. Harper used the Grasping and Visual-Motor integration subtests for his Fine Motor Quotient. Each of those scores fell within the average range. However, Ms. Harper noted he had difficulties completing pre-writing and cutting activities, which could adversely affect his ability to successfully participate in the classroom.

15. To assess Student for sensory processing deficits, Ms. Harper analyzed the data provided by parents on the Infant/Toddler Sensory Profile Caregiver Questionnaire. Sensory processing is the brain’s ability to receive sensory information from the environment, then process and organize the information to execute various motor planning tasks. Ms. Harper’s interpreted Student’s scores as a Definite Difference in Auditory Processing, Vestibular Processing, and Oral Sensory Processing, as well as in Low Registration, Sensory Avoiding, and Low Threshold. Student’s score showed a Probable Difference in Sensory Sensitivity.

16. Student displayed a Definite Difference in the way he processed sensory information compared to his peers. In the clinical setting, he required continuous cues to pay attention and complete a task before transitioning to the next task. Student became overly focused on a task, and would not transition to another task without prompting. Ms. Harper provided additional cues and verbal encouragement for him to attempt the numerous sensory motor tasks tested.

17. Student’s Tactile Discrimination demonstrated Typical Performance, based upon his father’s response to the Sensory Profile. However, Ms. Harper observed Student demonstrate distress with wet sticky textures, and asked to wash his hands immediately after contact.

18. Student’s Procioceptive Discrimination skills, one’s sense of body awareness, demonstrated an immature jumping pattern which typically compensated for decreased trunk stability. Student demonstrated a Definite Difference in Vestibular Discrimination, the way his body sensed its relationship to gravity and changes in movement, based on Father’s response. Ms. Harper noted that he resisted using suspended equipment in the clinical setting. Student demonstrated decreased hand and proximal joint strength, requiring physical assistance to maintain a grasp on the trapeze. Ms. Harper observed Student’s Postural and Upper Extremity Functioning to be within functional limits to allow his to access his educational environment and participate in classroom activities.

19. Student’s deficits in Organization of Behavior/Sensory Regulation required Ms. Harper to continually redirect him to attend to adult-led tasks during the evaluation. Student appeared disorganized in the clinic setting, moving continuously from one area and activity to the next one. He required adult prompts to attend to each assessment task until completion. Ms. Harper noted that in preschool, Student would be expected to engage in tabletop activities for seven to 10 minutes, and circle time activities with occasional movement, for 10 to 15 minutes.

20. Ms. Harper concluded that Student’s difficulties with pre-writing and cutting tasks, and his decreased organization of behavior and self regulation could negatively impact his ability to perform within his educational setting. Ms. Harper opined that Student would benefit from receiving occupational therapy as a related service, based on Student’s difficulties and current level of functioning.

21. Ms. Harper prepared a written report, which she presented and discussed at a November 8, 2010 IEP meeting. At hearing, Ms. Harper testified in support of her report and recommendations. She opined the District’s offer placement and related services was appropriate, based upon what she knew about Student.

The Psychoeducational Assessment and Multidisciplinary Report

22. On November 8, 2010, Jady von der Lieth, conducted a Psycho-Educational Evaluation. Ms. von der Lieth conducted assessments for District as a school and preschool psychologist for 17 years. She was also an assessor for WRC. Ms. von der Lieth earned a master’s degree in special education in 1977 and was a nationally certified school psychologist. In California, Ms. von der Lieth held a visually handicapped credential, a standard elementary teaching credential, a life-standard teaching credential, a resource specialist credential, a basic pupil personnel service credential, and an advanced pupil personnel service school psychology credential. Ms. von der Lieth earned a behavior intervention certificate when she was trained as a Behavior Intervention Case Manager (BICM) between 2005 and 2006. She was trained in play-based assessments. Ms. von der Lieth later provided direct services to Student in a social skills program, beginning spring 2011, through June 2011, one time per week for 25 minutes with four other Students.

23. The psychoeducational assessment consisted of a review of documents, parent’s preschool referral packet, observations, parent and teacher interview, and standardized tests. She compiled data from other District assessors. Ms. von der Lieth was assisted by a school psychology intern, Natalia Mondaca. Ms. von der Lieth reviewed assessments conducted by other providers, including the Childhood Autism Rating Scale, Second Edition provided by the speech therapist, a health evaluation, speech and language evaluation, the occupational therapy evaluation, and the adapted physical therapy evaluation. She included their findings in her multidisciplinary report. She also reviewed District’s health and development screening, and District special education teacher Susan Marshall’s observation. Ms. von der Lieth noted that Student was attending Branches Atelier toddler/parent program privately.

24. Ms. von der Lieth’s review of documents included Dr. Carol Kelly’s September 17, 2010 psychoeducational assessment for WRC, which determined Student had Autism, severe and pervasive impairment in verbal and non-verbal communication skills, low average to average intelligence, and borderline daily living, socialization and motor skills. She reviewed Smart Start’s occupational therapy discharge report, which noted Student had difficulty in sensory processing, transitions, fine and gross motor skills, and selfhelp skills. Ms. von der Lieth reviewed Pathways speech and language assessment, which determined he was significantly delayed in pragmatics, gesture, play, language comprehension and expression. She reviewed a physical therapy developmental evaluation of Student when he was 24 months old, which determined that cognitively he had the age equivalent of a 24 month old, and the receptive communication skills of a 17 month old. She also reviewed his speech therapist William Reagan’s records, as well as TRC’s initial speech language/developmental evaluation, which determined that at 18 months, his language and communication skills were in the range of a 12 month old.

25. Ms. von der Lieth observed Student for two hours during the assessment. He was three years old and very energetic. Student seemed unfocused at times during nonpreferred activities. Student required constant re-direction, as his attention span was approximately 10 to15 seconds long. Student was able to name all the numbers and letters on one subtest. Student had minimal eye contact during the assessment, but she believed his overall task performance was satisfactory. He was able to transition to tasks but required prompts. Student did not tantrum during the assessment. She conducted the assessment in English, Student’s native language. Ms. von der Lieth believed that the alternative assessments were appropriate, valid, and reliable for use with Student’s age. She believed the test results were a valid sampling of his abilities.

26. Ms. von der Lieth conducted standardized tests including the Weschler Preschool and Primary Scale of Intelligence-Third Edition (WPPSI-III), the Developmental Profile III (DP-3), the Bracken Basic Concept Scale revised (Bracken or BBCS-R)), and the Behavior Assessment Scale for Children, Second Edition-Parent/Pre-school (BASC-II).

27. Ms. von der Lieth conducted the WPPSI-III, a standardized test normed to assess intellectual function, for children between the ages of two years six months through seven years, three months. Student completed four subtests, but was unable to complete the Receptive Vocabulary subtest due to his lack of focus. When Father commented the test looked familiar, Ms. von der Lieth realized that Dr. Kelley used that assessment within six to eight weeks prior. As a result, Ms. von der Lieth discounted the results of that test but noted the results for ‘diagnostic purposes only.’ Student’s scored in the high average range of intelligence on Object Assembly and Picture Naming, and in the average range of intelligence on Block Design and Information.

28. The Bracken is a standardized test normed to assess a child’s basic concept development, including School Readiness for children two years, six months through seven years, 11 months. Student scored above his age level in three subtests: colors at 100 percent, letters at 100 percent, and shapes at 92 percent. Such mastery placed him above his age level for school readiness.

29. The DP-3 is a standardized rating scale which analyzes the answers to questionnaires provided by both parents to assess five key areas of development. Based upon parent report, Ms. von der Lieth determined Student scored in the average range for Cognitive, and Physical (gross motor), in the below average range for Adaptive Behavior, Communication and General Development; and in the delayed range for Social-Emotional.

30. The BASC-2 is a standardized rating scale which analyzes the answers to questionnaires provided to Father, Student’s private preschool’s assistant director Jane Bridget Kelly, and WRC’s speech therapist Ms. Thudium. Student scored in the ‘At Risk’ range for Hyperactivity, Internalizing Behaviors, Somatization, Behavioral Symptoms, and Attention Problems. He scored in the ‘Clinically Significant’ range for Anxiety, Atypicality and Withdrawal. Ms. von der Lieth determined that Student’s hyperactivity was an area of concern in all settings. He had trouble staying seated, had poor self control, and required a lot of supervision. Student’s anxiety was an area of concern in the preschool and speech therapy setting. Student was easily frustrated in all settings. She interpreted his elevated scores for Atypicality and Withdrawal to be consistent with behaviors associated with Autism spectrum disorders. In the preschool and speech therapy setting, he acted as though other children were not present. Ms. von der Lieth noted the elevated scores from the assistant director of his program, and questioned their internal validity.

31. The Childhood Autism Rating Scale, Second Edition (CARS-2) is a standardized rating scale which analyzes a child’s behavior patterns which are characteristic of Autism and other developmental disorders. Ms. von der Lieth interpreted Ms. Thudium’s responses and determined Student’s total score of 38.5 placed him in the severe symptoms range of Autism. She noted that Ms. Thudium described Student as initiating minimal contact with other children, appearing unaware of other children or adults in the room, moderately abnormal imitation skills, maximum prompting to imitate gross motor movement, a mildly abnormal and inappropriate emotional response, a moderately inappropriate interest in toys, a fixation on small elements of a toy, a mildly abnormal adaptation to change, a mildly abnormal visual response, a moderately abnormal listening response, a mildly abnormal use of and response to taste, touch and smell, a mildly abnormal fear or nervousness, and moderately abnormal verbal communication.

32. Based upon her review of previous and current assessments, Ms. von der Lieth concluded Student met the eligibility requirements for special education under the category of autistic-like behaviors which adversely affected his educational performance. Her assessment results determined he was in the delayed range for social-emotional-behavioral skills. The assessments identified deficits in sensory processing, receptive and expressive speech, adaptive skills, social/peer interaction, attention, pre-academic skills, gross-motor, visual motor, self-regulation, and organization of his behavior. She compared his prior cognitive assessments at two years, four months and two years, ten months, which both assessed him in the low average range. Those assessors cautioned that Student was at an age when IQ was not stable. Ms. von der Lieth’s assessment results determined Student had average to above average cognitive abilities, and above his age level for school readiness. Ms. von der Lieth opined she learned sufficient information on how Student problem solved.

33. Ms. von der Lieth prepared a written report of her findings, which she presented at a November 8, 2010 IEP meeting. At hearing, she testified in support of her assessment and her recommendations. She believed the District’s offer of placement and related services was appropriate.

34. On October 29, 2010, special education teacher Susan Marshall observed Student in his afternoon toddler/parent group at Branches Atelier Preschool. She determined he had areas of need in Daily Living Skills, Social Skills, School Readiness, and Task Attention. Student did not make eye contact with his father. He focused on the water table to the exclusion of other play activities, and did not engage with peers who joined him there. He had a toileting incident, but did not respond to his father when asked about it. Student had a difficult time transitioning to clean up when his dad asked. He refused to leave the water table, and told his father “no,” and dropped his body down to the ground. Student helped his teacher when asked for assistance as she put the cover on the water table. When he was done, he ran back to a playground structure.

The Initial November 8, 2010 IEP

35. On November 8, 2010, Student’s initial IEP was held. The IEP team members in attendance included District’s special education coordinator Bekah Dannelley, special education teacher Susan Marshall, speech pathologist Jocelyn Langus, adapted physical education teacher James van Cott, occupational therapist Erin Harper, school psychologist, Jady von der Lieth, school psychologist intern Natalia Mondaca, private agency speech therapist Angie Thudium, Branches Atelier director Patricia Hunter McGrath, Branches Atelier parent educator Karen Palfi, both parents, and WRC’s parent advocate Ron Lopez. There was no District general education teacher present.

36. Parents discussed how Student was enrolled in a private preschool for two weeks and was asked to leave due to his behavioral and attention difficulties. He did not have a one-to-one aide with him. Student was attending the Branches Atelier toddler and parent program several hours each Friday. The Branches director and a staff member attended the IEP to discuss Student’s areas of need, present levels of performance and goals.

37. Ms. von der Lieth discussed her multidisciplinary assessment report. Student had attended 10th Street preschool but was asked to leave after two weeks. Observations noted that Student had an attention span of 10 to 15 seconds. He was unfocused during nonpreferred activities. He had minimal eye-contact but satisfactory task performance overall. Ms. von der Lieth discussed her standardized testing results. Student met six of seven characteristics of autistic-like behavior. Ms. von der Lieth discussed the nurse’s report. Student’s vision and hearing were in the normal range. She reviewed his Autism diagnosis from WRC’s clinical psychologist.

38. Ms. Marshall discussed her observation. Student had little interaction with the other students. He focused on one preferred activity and had difficulty transitioning to another activity and cleaning up. When he was directed to another task, he said “no.” He had a toileting accident. Ms. Palfi from Branches Atelier emphasized Student’s lack of peer interaction, lack of language use, difficulties with transitions, and focus on the same preferred task.

39. Ms. Langus discussed her report. Student had received speech therapy two time per week though WRC. Student’s articulation of sounds was age appropriate. His receptive language skills were significantly delayed. Student had difficulty with spontaneous speech and turn taking. He engaged in immediate and delayed echolalia.

40. Ms. Harper discussed her report. Student had difficulty with pre-writing, cutting, and organizing and self-regulating his behavior, which would negatively impact his ability to perform in an educational setting. Student’s father discussed Student’s distress when eating food with certain textures.

41. Mr. van Cott discussed his report. Balance, stairs, and loco-motor activities were strengths for Student, but his gross motor skills scored thirty percent below his chronological age in the areas of Object Control-Kicking and Throwing. Student’s short attention span would also impact his involvement in the general education curriculum.

42. The IEP team found Student eligible for special education under the category of Autistic-like characteristics. The IEP team also found him eligible for speech therapy, occupational therapy, and adapted physical education. The IEP team identified Student’s areas of need as daily living skills, school readiness, task attention, social skills, fine and visual motor skills, organization of behavior, receptive and expressive language, and kicking and throwing.

43. The team discussed proposed goals for Student. Parents wanted time to review the goals before agreeing to them, and Branches director Ms. McGrath left the meeting. Ms. von der Lieth told Parents the District would make an offer of placement and services, and then the IEP team would discuss it.

44. The District offered Student placement in a small, language-based preschool special day class at Franklin Elementary four hours per day, five days per week, in accordance with the District’s preschool calendar. The District offered Student extended school year services, and transportation. District offered speech therapy three times per week for 25 minutes per session, with two sessions provided in a group and one session individually, for a total of 75 minutes. District offered occupational therapy once per week individually for 25 minutes at school and 50 minutes in a clinic, for a total of 75 minutes. It offered adapted physical education two times per week for 25 minutes in a group setting, for a total of 50 minutes per week. The program provided collaboration between the SDC teacher and the direct service providers. The program offered a home visit by the SDC teacher. During the extended school year, the preschool program would be three hours per day, and the related services would be reduced by 25 percent. At hearing, each of the District’s IEP team members testified that based upon what they understood about Student’s needs and the significant impact of his Autism, they believed this offer was appropriate. The District’s IEP team members opined Student needed a smaller class with structure and a trained special education teacher’s intervention and strategies. At hearing, the Branches director testified she though that placement would be worth a try to see how it worked for Student. At hearing, the Branches director also agreed with the District’s list of Student’s areas of need.

The December 8, 2010 IEP

45. On December 8, 2010, the IEP team reconvened to discuss the proposed goals and placement. The IEP team members in attendance included: District’s special education coordinator Bekah Dannelley, special education teacher Susan Marshall, speech pathologist Jocelyn Langus, occupational therapist Erin Harper, school psychologist, Jady von der Lieth, private agency speech therapist Angie Thudium, Branches Atelier director Patricia Hunter McGrath, and both parents. There was no general education teacher present

46. Parents presented a meeting agenda. The IEP team discussed Parents’ agenda, answered their questions, and modified and clarified the proposed goals clarified in the areas of Daily Living Skills, School Readiness, Task Attention, Social Skills, Social/Emotional, Receptive and Expressive Language, Expressive Language Use; Requesting Needs and Responding to Others, Kicking, Throwing, Organization of Behavior and Self Regulation, Fine and Visual Motor Skills. The team discussed toileting goals, classroom routines, physical prompts, classroom non-preferred tasks, tactile table top activities with sensory strategies, occupational therapy and classroom goals. Ms. Harper discussed how sensory input strategies would be provided in the classroom. She explained how the clinic-based goals would help him access his education. Parents agreed to the classroom and occupational therapy goals.

47. At Parent’s suggestion, the team discussed parallel play and mimicking play. The Branches teacher reported Student engaged in some parallel play with peers. Student became anxious when another child approached him. Ms. von der Lieth modified the goal to include ‘accepting the interaction of another child’ and engage in parallel play for five minutes with no more than two prompts.’ Parents discussed Student’s echolalia during spontaneous requests, using non-rote phrases and using three words. After some discussion, Parents asked to ‘table’ that goal.

48. Parents discussed the proposed program, which was structured to limit play time on a specific area or toy. The IEP team agreed to the goal regarding two choices of centers in which Student would choose a center and play appropriately with a toy for up to five minutes with 80 percent accuracy. The short term objective would be for two minutes.

49. After discussion, Parents accepted the new speech goal after modification. Student would stay engaged with a peer using spontaneous language for five minutes. The short term objective was modified to two turns.

50. Parents requested an observation of Student in the program. The District members of the IEP team explained the process. The IEP team agreed that the private providers would meet with the District providers within one month of Student starting District’s preschool program. The special day class teacher would visit the home once a month. Parents signed a release for her to discuss strategies with Student’s home behavior interventionist. Parents expressed concerns that few of the students in the proposed classroom were verbal. Ms. von der Lieth explained how Student required adult intervention to initiate his play and speech. The District members of the IEP team believed he still required considerable and constant teacher intervention to help him access his curriculum. Parents wanted to review the completed IEP before signing it. District arranged an observation of the proposed placement.

51. District’s offer of placement and related services remained the same as the November 8, 2010 offer. The final IEP document contained Parents’ concerns. It identified Student’s present levels of academic achievement and functional performance. It identified his areas of need. Goals were written in those areas of need. The goals were based on reports and observations made by Parent and private providers, Branches staff, and District and private assessors over two meetings. It included specialized academic instruction in a special day class with supplementary aids and services. Student would receive accommodations, modifications and supports in the form of visual schedules in the classroom, and pictures for communication in all environments.

52. On December 15, 2010, Father agreed to the IEP, with the exception of placing Student in group speech therapy with more than one other child. He acknowledged that District facilitated his involvement as a means of improving services and results for Student.

53. Parents delayed enrolling Student in District until the second week of January, 2011. After two weeks in the program, Student adjusted to the transition and began making progress in all his short term objectives.

The March 16, 2011 IEP

54. District gave notice of the March 16, 2011 IEP meeting. District identified the anticipated IEP attendees as: an administrative designee; a special education teacher; a speech pathologist; and an occupational therapist, and an adapted physical education therapist. District did not identify a general education teacher to be in attendance.

55. On March 15, 2011, Father gave notice to District that he disagreed with all four of District’s assessments. He requested independent evaluations at public expense. Student’s father disagreed with the assessments because they were not comprehensive enough to identify all of Student’s unique educational needs. He did not believe they assessed in all areas of suspected disability, but did not state the additional areas of concern. District later denied that request on March 30, 2011.

56. On March 16, 2011, the IEP team reconvened for an “addendum” IEP meeting to discuss Student’s progress. The IEP team members in attendance included District’s special education coordinator Bekah Dannelley, special education teacher Lisa Berezowsky, occupational therapist Erin Harper, adapted physical education specialist James van Cott, grandmother and both parents. There was no District general education teacher present.

57. Parents wanted Student to be fully included in a typical class. They asked about supports available for his inclusion. Ms. Berezowsky described the District’s preschool collaborative classrooms (PCC) as a mainstream placement option. Parents explained Student’s private preschool had 12 students, and Student required more support. Since the last IEP, Ms. Berezowsky made a home visit with Parents. Ms. Berezowsky discussed Student’s progress. Initially, Student threw temper tantrums and cried in her class, but he adjusted to her class structure after several weeks. District provided him with a facilitated social skills group of five students, for 25 to 30 minutes per week. They worked on sharing and turn taking. Ms. Berezowsky wrote Student’s present level of performance in social skills, a six month bench mark objective, and an annual goal. She proposed adding social skills as a service, once a week for 30 minutes, to his IEP.

58. Ms. Berezowsky reviewed Students goals and progress with Parents. She described his progress as great, and she expected him to meet his annual goals at the sixth month mark. Student continued to require teacher prompting to engage in non-preferred activities. Ms. Harper explained he still required prompting with some of the activities and needed facilitation when playing with other children. Ms. Harper worked on vestibular and procioceptive movement, as well as fine and visual/motor activities. Ms. Langus wrote a report that Student adjusted to his speech therapy environment. He participated in all the speech activities. Student was able to stay seated and follow simple directions. Student made progress in his APE program.

59. Parents requested more time with appropriate peers for Student to model. District advised that Student was exposed to two typical peers for an entire day during reverse mainstreaming, and to typical peers 30 to 90 minutes per day per day during outdoor play, library, circle time and snack. Ms. Berezowsky suggested waiting to move him in May. She believed he would need someone with him all the time to facilitate interactions in a regular preschool. She opined that such constant assistance would create dependence. Harper believed Student was making progress in that direction, but did not think he was ready. She preferred Student to acquire more skills. Ms. Harper opined that he benefitted from the structure, routine, and picture schedule in place. Mr. van Cott discussed Student’s difficulty with turn-taking.

60. The IEP team discussed alternative placements in the District. Ms. Berezowsky and Ms. Donnelly were concerned Student would be overwhelmed and would shut down in a larger preschool collaborative classroom. They discussed how preschool for three year olds was set up around play centers, with play-based direct teaching. Student did not want to participate in the games which required interaction. He was not comfortable pairing up with other children. Father suggested a private preschool. At the end of the meeting, District scheduled a tour of the Pine Street Elementary PCC program for Parents. The District gave Parents notice that the IEP team would reconvene on April 7, 2011.

The April 7, 2011 IEP

61. On April 7, 2011, the IEP team reconvened an “addendum” IEP meeting to discuss Parent’s tour and Student’s placement. The IEP team members in attendance included District’s special education coordinator Bekah Dannelley, special education teacher Lisa Berezowsky, District psychologist Diana DeCosta, adapted physical education specialist James van Cott, and both parents. There was no general education teacher present

62. The IEP team discussed placement options. Because Father wanted a typical class, Ms. Dannelly explained that the PCC was a mainstream placement and a lesser restrictive setting. Ms. Dannelley explained how the PCC had all the elements Student required. The PCC had approximately 18 preschoolers, a special education and general education teacher and two adult assistants. Up to half the children had IEPs, and the other half did not. The children were three year olds and ‘young’ four year olds. District offered Pine Street PCC as Student’s educational mainstream placement.

63. Parents were not satisfied with Pine Street PCC. Father discussed his tour of the collaborative preschool program, which lasted 30 minutes. He did not think the program was appropriate. He perceived that the other students did not play at a high level and to him would not serve as good role models. He wanted Student mainstreamed with support. He wanted a peer group that functioned at a higher level than Student did. Father discussed a private preschool program.

64. The IEP team discussed the Pine Street PCC in greater detail. The focus of that program was on play and socialization. Ms. Dannelly then discussed another PCC at Lincoln Child Development Center (LCDC), which was a slightly different program. LCDC had a larger class, up to 20 students, with more adult support, such as a general education teacher, a special education teacher and two adult assistants. The students were between three and five years old, an older age group than Pine Street PCC. At LCDC, there was a greater focus on pre-academics, which Ms. Dannelly thought Student would benefit from. Ms. Berezowsky preferred for Student to stay in her SDC. She and Ms. Dannelly strongly believed student needed a trained special education teacher to instruct him with skills he needed while with typical peers. The IEP team discussed how LCDC would provide Student with a pre-academic education with non-disabled peers, while still receiving the facilitation he needed. Ms. Dannelly also explained District’s State Pre-School program, which had different criteria and focused on child development for ‘at-risk’ children. At hearing, Dr. Woolverton explained that District had several general preschool programs, three PCCs, one Head Start program, and two state preschools. When children had more severe needs, then an SDC might be appropriate, and in more extreme cases, a non-public school (NPS) may be appropriate when a child required even higher structure, such as after a recent discharge from a hospital, or a hearing impairment.

65. At the end of the IEP meeting, District offered LCDC PCC with typical peers, three hours a day, five days a week, with related services and an extended school year. District believed that program would give Student the training, instruction and facilitation he needed, with at least two special education staff members present at all times. The age range of three to five year olds could give Student greater peer role modeling. The LCDC PCC included collaboration between the special education teacher, the general education teacher, the two aides, and the direct service providers on an almost daily basis. The program also offered a home visit by the special education teacher. Parents consented to all parts of the IEP for implementation purposes only.

66. On. April 14, 2011, Parents notified District it hired neuropsychologist Dr. Ann Simun to observe Student in his program and to conduct an independent educational evaluation (IEE). Parents gave District notice it was seeking reimbursement for an IEE, and District denied that request.

67. Student attended LCDC PCC for seven weeks, from May 2, 2011 to June 16, 2011. Ms. Karen Tomita was his special education teacher, and co-taught the language based PCC with a general education teacher and two special education aides. Ms. Tomita earned a master’s degree in special education, severely handicapped. She held a professional clear specialist credential in special education for severely handicapped, and a professional clear multiple subject teaching credential. Ms. Tomita had 27 years experience as a special education teacher.

68. Ms. Tomita explained that when Student began her class, she reviewed his IEP and determined she could work on all the goals in her class. Her PCC is language rich, and the adults work on language and social skills constantly. She consulted with his occupational therapist, speech therapist and school psychologist on an almost daily basis. She, the general education teacher and the two aides took daily data on Student’s progress on his short term objectives. Ms. Tomita constantly worked on his social skills, language, and initiating and sustaining play. She did not think Student required intensive support, and Student made steady progress. He learned their routines and adjusted to their structure after a reasonable time, two to three weeks. Student became “independently successful” in the majority of his six month benchmarks by the final week he attended the program in mid-June. Ms. Tomita made a home visit with Parents. Ms. Tomita did not prepare a written six month progress report on his goals written in November because Student just started her program, and had entered the District in mid-January. She did prepare an annual progress report at his November 8, 2011 IEP, which was not at issue in this hearing.

Notice of Unilateral Placement

69. On June 9, 2011, Parent sent District written notice they were withdrawing Student from the District program by June 20, 2011, and would be unilaterally placing Student in Branches Atelier, a private daycare and Reggio preschool, not certified by CDE and not a non-public school. Parents requested that District continue providing DIS services.

70. On June 17, 2011, District gave parents prior written notice that it would not change Student’s placement to a non-public school or private school, and that it would not reimburse parents for private tuition or private services. District stated that the appropriate placement in the least restrictive setting was the PCC. District also stated the psycho educational assessment was conducted appropriately, and based the placement decision on the results. District identified that at the November and December 2010 IEP meetings, the IEP team members discussed the assessments, present levels of performance, goals and objectives, and considered the placement options. It identified the March 16 and April 7, 2011 IEP meetings when District discussed and offered placement options. Finally, District identified Parents’ notice of unilateral placement and withdrawal of consent for special education services, as the additional reason for its action.

71. Beginning June 20, 2011, Student attended the Branches Atelier program with a private behavior intervention trained aide. He attended the program for two weeks before it transitioned into a summer camp with less structure. He continued to attend the program throughout the 2011-2012 school year. Parents also hired a private occupational and speech therapist by August because District had stopped providing related services.

72. The Branches Atelier Reggio program offered an emergent curriculum whereby teachers observed what interested the children, and facilitated their learning in a theme-based scaffold. None of the teachers had special education credentials, social skills training, or communication disorders training. According to Parents and his teachers, Student made progress with his aide after several weeks of transitioning. However, he did not meet all of his annual goals by his November 8, 2011 IEP.

The July 26, 2011 IEP

73. The IEP team convened again on July 26, 2011 to review the results of Dr. Anne Simun’s assessment dated May 27, 2011. District received the report just prior to the IEP team meeting. The IEP team members in attendance included District’s special education director Dr. Sara Woolverton, special education teacher Karen Tomita, general education teacher Valerie Proctor, school psychologist Jady von der Lieth, private behaviorist Rachel Orlich, private neuropsychological evaluator Dr. Anne Simun, and both parents. The occupational therapist and speech therapist were not available as it was summer break. Prior to the IEP, Parents agreed to waive their presence in order to review Dr. Simun’s assessment more promptly.

74. Dr. Simun, Student’s expert witness, was a licensed educational psychologist with a certificate in clinical neuropsychology. She was a member of the American Psychological Association, Division 40, Neuropsychology. Dr. Simun belonged to the National Academy of Neuropsychology, and the International Society. She earned a doctorate degree in clinical psychology in 1998, a masters degree in school psychology 1989, and a bachelor’s degree in Psychology in 1986. Dr. Simun worked as the chief for a Mental Health Clinic in the Air Force and in a mental health clinic. She was an adjunct university professor and had a private practice. Dr. Simun knew Student’s counsel professionally, had served on training panels together, and had been hired as an IEE evaluator and expert witness many times.

75. Dr. Simun presented her preliminary neuropsychological assessment, which was later revised to correct errors and to include a teacher report. Dr. Simun conducted standardized tests, interviewed parents and his teacher, observed Student alone and with his father for one hour, observed Student in two school settings (his SDC and PCC), and reviewed parent rating scales. Dr. Simun reviewed reports from other assessors, including UCLA’s Pediatric Communication Assessment; Ms. von der Lieth’s psychological assessment, Dr. Carol Kelly’s two psychological assessments from WRC, a physical therapy evaluation from WRC, and Ms. Thudium’s speech and language assessment.

School based Observations

76. On April 8, 2011, Dr. Simun observed Student in the Franklin SDC during outside play and APE. Student followed the verbal directions of the teacher. He followed the rules of a class game, smiled and made eye contact with other children, but required prompting to understand when the game ended. The aide prompted him to play appropriately with several play structures. His teachers prompted him to use complete sentences or make positive statements, but he generally ignored them. He appeared to perform better during the structured environments. Student transitioned well when his APE “coach” arrived. Four adults, the APE instructor, and five students were present during APE. The students ran an obstacle course. Student appropriately waited his turn, followed verbal directions, and performed the sequence of events that his peers modeled before him. Student initiated socially with a peer while he waited. The peer responded and they established joint attention on a toy. Student directed his facial expressions toward the peer and spoke to him. The interaction lasted less than one minute. Dr. Simun interviewed Ms. Berezowsky, who believed Student was fitting in well and adjusting. He learned all the class routines and most of the academic tasks, although he only started in January. She described him as a quick learner. Ms. Berezowsky noted his biggest deficits were in social development, and she had seen improvement over the last two weeks.

77. On May 16, 2011, Dr. Simun observed Student for one hour at the LCDC PCC. Student began that program two weeks earlier. The program had 20 students and three to four adults in the class. Ms. Tomita ran the class with aide support. Student transitioned into the start of class well, tracing his name. He spoke to an adult, who provided him with a tissue. Student sat appropriately in a circle with the class. Student stopped paying attention when Ms. Tomita spoke about the schedule for the day. He transitioned to snack time, but did not respond to several peers who spoke to him. During indoor play, he played repetitively with blocks and ignored the other students who spoke to him. An aide came over to him and verbally prompted him to play with a peer, which he ignored. She sat on the floor with him to play with a symbolic toy, but he ignored her. He also ignored the two peers who joined in with her. Student played alone. He ignored the verbal warnings for clean-up time, even after repeated verbal adult prompts. Student transitioned to circle time, and appeared off task during the large group activity. When Ms. Tomita talked about the letter ‘W’, Student lost interest within 30 seconds. Dr. Simun noted that Student could already identify his letters and sounds. Ms. Tomita asked questions of the students, asked for volunteers, and attempted to coach pragmatic skills when the children were talking to each other. Student was off task after two minutes of discussion. The aides did not try to redirect him. The children were discouraged from socially or verbally interacting during circle time. Ms. Tomita transitioned them to a table top activity to work on the letter ‘W.’ She gave complex instructions, and Student required four verbal prompts. He sat in a group of six children and one aide. Student was attentive with the task but needed help with his motor skills. The children were discouraged from socially or verbally interacting with each other.

Standardized Tests and Clinical Observations

78. Between April 21 and 27, 2011, Dr. Simun conducted eight hours of psychological testing. Dr. Simun observed Student in her office for three, two to three hour sessions. Student was compliant with the testing initially, and less compliant and focused when the testing lasted longer. Dr. Simun noted his language skills were impaired. In the area of receptive language, he could follow familiar one and two step directions. He appeared to understand most of what was asked of him. His expressive language appeared to be delayed. Although his articulation was clearly understood, he spoke in short utterances, with repetitive speech, and with immediate and delayed echolalia. Student’s social skills appeared significantly impaired. He preferred to play by himself, and he infrequently tried to engage Dr. Simun with joint attention. His attention span was affected by his interest in a task and the length of the task. His impulsivity affected his test performance. To regulate himself, Student used significant gross and fine motor movements. He exhibited sensory seeking behaviors. Student demonstrated cognitive rigidity and repetitive play. He had clear, restricted interests in numbers and letters. Student worked quickly at the expense of accuracy.

79. Dr. Simun believed Student’s performance on his standardized testing appeared valid, except as she noted. He appeared to give his best effort. Dr. Simun selected the testing instruments based on his demographic and behavioral characteristics. To assess his cognitive development, Dr. Simun administered the WPPSI-III, the Leiter-Revised, and the Southern California Ordinal Scales of Cognition. She opined that for children with Autism, language-based instruments produce artificially low intelligence scores when compared to non-verbal measures like the Leiter-R. Dr. Simun opined Student’s scores on the Leiter-R to be the most valid and stable estimate for his cognitive potential. On the Leiter-R-Student obtained a Full Scale IQ of 136, a score in the very superior range. Specific skills ranged between average to very superior. His superior skills were in visual form completion, visual matching and visual sequential order. His high average skills were in the areas of repeated patterns and classification. Dr. Simun attributed his average skills in representational drawings and visual figure ground, to his cognitive rigidity. She concluded that his cognitive development was greatly above his age level in many areas of reasoning. Dr. Simun concluded his cognition was in the very superior range.

80. Dr. Simun administered the WPPSI, although he had been administered that same test twice earlier in the prior seven months. Student obtained a Full Scale IQ score of 101. Dr. Simun compared his scores on the Leiter-R, opining that his results were highly inconsistent and more than two standard deviations apart.

81. Dr. Simun reviewed Student’s scores on the Southern California Scales of Development of Cognition (SCOS-C). She determined his overall function was at the preconceptual and intuitive level. He displayed a wide range of skills typically achieved by four to seven year olds. He was weak in symbolic play which was typical for children with Autism. Dr. Simun opined that his results were consistent with those on the Leiter-R and the WPPSI to the extent that language-based reasoning tasks appeared to be age appropriate; he showed relative weakness in his verbal reasoning and symbolic representation skills, and he showed nonverbal reasoning and concept formation skills above his age range.

82. Dr. Simun assessed Student’s language skills using formal testing, observation and parent report. Her observation noted his unusual tone and stereotyped speech, and his abnormal pragmatics and nonverbal communication skills. His scores on the WPPSI subtest demonstrated average skills for word definition and receptive vocabulary. His problem solving skills were at the pre-conceptual level, with emerging skills at the intuitive level. Student’s scores on the Comprehensive Assessment of Spoken Language (CASL) demonstrated average skills in core language, with significant areas of weakness on subtests. She opined his scores were consistent with his performance on the WPPSI and the SCOC-C, but that his scores were lower than she expected due to his higher cognitive abilities. His performance on the Developmental Neuropsychological Assessment (NEPSY-II) demonstrated very superior scores on phonological processing; superior scores on speed for rapid naming of shapes and colors; average scores on following complex verbal directions, repeating sentences, receptive skills, and copying short sounds; low average scores for naming words in a category, body parts; and impaired scores for retelling a short story.

83. The Autism Diagnostic Observations Schedule (ADOS) demonstrated significant problems with social language typically associated with Autism, with many of his scores achieving the maximum levels. He demonstrated stereotyped speech, limited skills in reporting events, echolalic speech, difficulty maintaining or initiation conversations, abnormal eye contact, and limited use of descriptive gestures. Most of his oral language was in response to a question or to meet an immediate need.

84. The Gilliam Autism Rating Scaled, Second Edition (GARS-2), which was based on parent responses, showed many elements of Autism in his functional communication skills. Student’s parents noted echolalia, failure to make eye contact, failing to initiate conversation, and difficulty using nonverbal methods to convey meaning, repeated words and phrases, and inappropriately answered questions about a short story read to him.

85. The Adaptive Behavior Scale Ratings, Second Edition (ABAS-2) placed him in the low average range for communication. Student did not have independent skills for eye contact, maintaining attention when others spoke, following verbal commands, using appropriate length of utterances, reporting events, maintaining attention to a topic, and asking questions.

86. Dr. Simun assessed Student’s attention, which demonstrated highly variable attention and impulse control. His parents reported he had trouble sitting still, difficulty waiting, trouble concentrating and staying with a task. Overall, she believed his skills were lower than expected due to his higher cognitive functioning.

87. Dr. Simun assessed Student’s visual motor and fine motor skills with the NEPSY, WPPSI and the Leiter –R. He scored in the above average and superior range for most visual processing skills which did not involve motor skills, and scored much lower in motor or visual motor integration skills. Student’s visual processing scores were in the superior range for visual closure, visual matching, visual patterning, visual construction and puzzle completion He scored in the low average range in visual motor precision, and in the borderline range in his ability to imitate hand positions.

88. Dr. Simun assessed Student’s visual and auditory memory with the NEPSY, WPPSI and the Leiter –R. His motivation was poor. He showed significant perseveration by the middle of the test and during complex instructions. Student’s long term memory was very strong for visual information. His auditory memory showed average skills in his ability to immediately process and repeat sentences. Student’s skills were in the impaired range in contextual verbal memory. His scores were in the borderline range in recognition. Student demonstrated better skills with shorter amounts of information, and the most problem processing paragraphs and longer utterances.

89. Dr. Simun assessed Student’s sensory processing skills using the Sensory Profile and parent interview. He scored in the average range in most areas. He scored in the definite difference range in emotional and social response, behavioral outcomes, and threshold issues. Student’s scores fell in the probable difference range in auditory processing and sensory seeking behaviors. Dr. Simun also observed him seek large motor input by climbing and jumping. Student also sought visual and auditory stimulation. He was uncomfortable wearing shoes and repeatedly removed them.

90. Dr. Simun did not conduct detailed auditory testing due to Student’s age. On the NEPSY, he scored in the very superior range in basic phonological processing. He had better skills with simple sounds and word processing, with more difficulty when processing complex language.

91. Dr. Simun assessed Student’s pre-academic skills with the CASL and the WPPSI-III. Overall, he performed above his age level. However, Parents rated him in the low average range.

92. Dr. Simun assessed Student’s adaptive behavior using the ABAS-2. Parents reported significant delays in the borderline impaired range for overall adaptive behavior and daily living. There was high variability in his scores, from average to mildly impaired, which Dr. Simun noted were severely discrepant due to his high cognition. Student’s parents rated him as average in conceptual skills, and high average in functional pre-academics. Parents rated him as low average in communication, as borderline impaired in his practical skills, and as mildly impaired in social skills.

93. Dr. Simun assessed Student’s social emotional function using the GARS-2, the ABAS-2, the Preschool Child Behavior Checklist (CBCL), and the TRF interviews and checklists. Student demonstrated significantly impaired social functioning, peer skills, symbolic play skills, and cooperative play skills. Student’s mother rated him as clinically significant in the areas of pervasive developmental problems and withdrawal. Dr. Simun opined these scores reflected Student’s challenges with Autism. He was resistant to new things, avoided eye contact, was non-responsive when spoken to, and had problems with speech. He also showed little interest in his peers.

94. Dr. Simun reviewed the Preschool Teacher/Caregiver Report Form (CRF) completed by Ms. Tomita and Student’s private preschool teacher, who saw him once a week. They both rated him as typical in most of the syndrome scales. They rated him average for his age and gender in the areas of emotional reactivity, anxiety/depression, somatic complaints, and aggression. Ms. Tomita believed him to be in the clinically significant range in the area of attention problems, difficulty concentrating, hyperactivity, following directions, short attention span and impulsive behaviors. She rated him in the borderline range for pervasive developmental delay, and rated him with significant ADHD symptoms. Dr. Simun criticized Ms. Tomita’s responses to the rating scale. Dr. Simun commented that Ms. Tomita rated Student typical for socialization yet concerned about his social skills, task attention and following directions. Dr. Simun opined that the overall findings were somewhat consistent with observations and ratings by Parents. Dr. Simun attributed that difference to Ms. Tomita’s exposure to special needs children. Dr. Simun noted that by contrast, Student’s private preschool teacher rated him in the clinically significant range in the area of pervasive developmental delays (consistent with Autism), withdrawn behavior, frequently showing a lack of affection, social withdrawal, poor eye contact, not responding to others, and avoiding participating in games. Dr. Simun opined those findings were consistent with Parents’ ratings.

95. The ADOS demonstrated Student had highly abnormal social skills. He had difficulty with joint attention, turn taking, symbolic play, cooperative play, social reciprocity, initiation and response to interactions. The GARS parent interview and the ABAS-2 demonstrated Student’s social skills at home and in the community were significantly abnormal. On the NEPSY, Student scored in the impaired range for comprehension of emotions, interpreting facial expressions, and understanding the perspective of another person.

96. Dr. Simun assessed Student for Autism, using the GARS-2, the ADOS, the Auchenbach Child Behavior Checklist and Caregiver Report, Preschool (ASEBA). She determined Student demonstrated significant symptoms of Autism, especially in communication and social skills. Student’s parents also rated him in the significant and highly probable range for Autism.

Dr. Simun’s Recommendations

97. Dr. Simun determined he met the criteria for eligibility for autistic-like behavior due to his significantly abnormal scores. She opined his cognition was in the very superior range. Dr. Simun opined that his IQ scores have increased with time, consistent with other children with Autism. The increase was due to issues of flexibility of his response, an ability to follow a standardized instrument, and an improved ability to imitate. She believed the previous lower scores were invalid due to behavioral and imitative limitations which impacted his test results. Dr. Simun believed that IQ scores at age three were not stable. She recommended he be reevaluated using comprehensive, nonverbal assessment methods. Dr. Simun discussed the University of Washington study from 20052008 in which the assessment scores of children with Autism were compared with nonverbal testing. There was no evidence that these cognitive assessments were not normed for a population that included Autism.

98. Dr. Simun highly recommended Student receive a small general education preschool program with less than 15 children. The program should have a small student to teacher ratio of less than 10 students to one teacher. The program should focus on his unique needs and foster consistent interactions with typical peers during the school day. While Student had excellent pre-academic skills, his program should have a non-academic focus. He required a program that promoted his social skills, reciprocal play, oral language development, with students acting as good models for social and linguistic development. She further recommended an adult assistant support him in the classroom. Dr. Simun described the Relationship Development Intervention (RDI) model, which he received at home from WRC.

99. Dr. Simun opined that an SDC placement would not be appropriate for Student as he would not have appropriate peers to model communication and social skills. She did not recommend a program which would focus on the development of academics at the expense of play, pragmatics and social skills.

100. Dr. Simun also opined that the LCDC PCC placement was not appropriate because it had an academic focus, and because some of the students had significant delays in social, linguistic and behavior functions. She believed there were minimal opportunities for collaborative learning and supported social interactions. Dr. Simun believed Student self isolated in the LCDC PCC placement. She opined there was minimal support by adults to increase his social interactions and language skills.

101. Dr. Simun opined that his program was not the least restrictive setting. She recommended he receive a general education setting with an individual aide. Dr. Simun recommended a private, developmental, humanistic, and experiential-based preschool program. No evidence was presented that the Reggio developmental preschool model was a scientifically based methodology for preschoolers with Autism.

102. Dr. Simun recommended Student have IEP goals in the areas of social emotional, peer play skills, behavioral organization, language pragmatics, expressive language, visual motor integration, sensory processing, organization of behavior, compliance, adaptive behavior and prevocational skills such as task completion and attention to task. The goals should be implemented in his various academic settings. His speech goals should include pragmatics, reduce echolalia, respond to questions, and develop complex receptive skills. The teacher and speech pathologist should collaborate to generalize his skills. Dr. Simun also opined Student should receive a social skills training program, appropriate stimulation for his high cognition, behavioral support and consultation, occupational therapy and speech and language services. She recommended a home program including RDI methodology programs for language, play skills and adaptive behavior.

103. Dr. Simun and Parents discussed errors in the report. Ms. Orlich, Student’s behaviorist, discussed Student’s progress after three weeks. Student could not initiate group activity, but could enjoy it. He watched children but did not join them. He was fascinated with spinning objects. Neither Ms. Tomita nor Ms. Proctor saw Student do so during their class, although he enjoyed the screws in the PCC. The IEP team did not have any questions for Dr. Simun.

104. District had received Dr. Simun’s report at the start of the IEP meeting. The IEP team discussed whether to make any changes to Student’s IEP. Ms. Tomita wanted to read the report before making any recommendations. District staff discussed the last offer, a PCC class with typical peers, a typical curriculum, and a high staff to student ratio. District staff discussed that their program which seemed consistent with Dr. Simun’s recommendations. District staff discussed that they thought they could implement Dr. Simun’s recommendations in their PCC program. The IEP team reiterated its offer of placement and services, and did not make any changes to IEP.

105. At hearing, Dr. Simun testified in support of her assessment and recommendations. She agreed Student’s impairment due to Autism was significant. She opined Student’s cognition should be retested within a year, as IQ is not stable at age three. Dr. Simun highly endorsed Student’s Branches program, a private day care with a Reggio developmental model preschool. Student required a one to one aide, which Parents paid for privately. Student was making very good progress in all his goals.

106. Although Dr. Simun had not seen Ms. Berezowsky’s observational report at the time of her assessment, she did not know if it would have changed her conclusions. Dr. Simun opined that the SDC class was not appropriate for Student. Based upon Dr. Simun’s half hour observation of that program, she noted that while he responded beautifully to the structure, there was not a large focus on the adults supporting play and interaction, and there was no opportunity for imaginative or symbolic play. Dr. Simun opined that the LCDC PCC was not appropriate for Student. He isolated himself during playtime. In her half hour observation at LCDC, she was impressed with the skills of his PCC special education teacher, Ms. Tomita. While she did not observe Ms. Tomita working on his receptive and expressive language goal, she did observe her working on other goals. Dr. Simun testified that she believed Student could work on his goals at LCDC PCC, but she thought one of his task attention goals would be hard for him to work on in a large classroom setting. She opined that generally, a large class would be difficult for him without support. Dr. Simun conceded that she did not know very much about the makeup of the other students in the LCDC PCC.

107. Dr. Simun criticized District’s assessment. Dr. Simun opined there was no coordination within the District assessors. She opined that the author of the multidisciplinary report was not clear to her. Dr. Simun criticized Ms. von der Lieth for using the WPPSI to assess Student’s cognition, even though she used it herself. She criticized language based assessment tools for students with Autism who were non-verbal. Student scored significantly higher on the C-TONI. Dr. Simun criticized Ms. von der Lieth for not conducting a classroom placement observation, even though Ms. Berezowsky had. Dr. Simun criticized Ms. Harper’s assessment because she used two out of six subtests on the Peabody. She also criticized Ms. Langus’s assessment because she used the PLS-4 and without specifics, Dr. Simun opined that there were other assessments Ms. Langus could have used. Dr. Simun agreed that District’s assessment generally identified his areas of need for speech and language impairment. Dr. Simun would have recommended speech therapy five times per week. Dr. Simun did not believe the delivery of speech and occupational therapy was clearly written regarding the frequency and location of services. Dr. Simun criticized Student’s teacher’s responses on a checklist, but conceded it was possible the teacher had not seen Student’s behavior. Dr. Simun similarly criticized the social skills assessment using the rating scales as opposed to detailed direct testing. Dr. Simun thought the assessment recommendations did not address placement. She opined that the assessors should make recommendations for the team based upon science. However, Dr. Simun did not testify that this would have resulted in a different recommendation for his present levels of performance, goals, or programming.

108. Dr. Simun did not disagree with the District’s determination of Student’s areas of need, present levels of performance, or his goals, although she would have added a social skills goal. Dr. Simun did not appear to be aware that District began providing social skills to Student beginning spring 2011, but Parents had not agreed to the proposed goal.

Appropriateness of District’s Offer

109. At hearing, the District’s IEP team members testified in support of their offer of placement and services. Ms. von der Lieth did not believe that Student required a different placement or services as a result of Dr. Simun’s report. She did not agree with Dr. Simun’s programming, as the methodology was less structured, less academic, and less dydadic. She did not believe Student could learn in a general education class with a one to one aide because he needed constant teacher interaction. She opined that the special skills of a special education teacher could help him more than an aide who prompted him. He needed the skills that a special education teacher possessed. Ms. von der Lieth believed that the initial offer of the Franklin SDC was appropriate at the time based upon her understanding of Student. She also believed that the District’s later offer of LCDC PCC was also appropriate, as the District had two such PCCs with a one-to-four ratio.

110. At hearing, Ms. Langus, Ms. Harper and Ms. Berezowsky, testified in support of District’s offer of placement in the least restrictive setting. While all of District’s preschools are language based and collaborative, they believed that Franklin SDC was initially appropriate because he needed more support with a higher teacher to student ratio. In that setting, from mid-January to late-April, 2011, Ms. Berezowsky believed she provided Student with the specially designed instruction he needed. She taught him based upon his goals, and collaborated with his direct providers three to four times a week. Her SDC was appropriate based upon his difficulties, her teacher ratio, her class structure, and the progress he made. In March 2011, all three were reluctant to recommend a change because they believed Student needed more time to develop his emerging skills. By May 2011, when Student was placed in the LCDC PCC, Ms. Harper and Ms. Langus consulted with his special and general education teachers on a daily basis. They did not express any concerns about his placement. Ms. Tomita believed he made very good progress, and believed he fit into her class. He did not require intensive support. By June 16, 2011, when he left her class, she believed he met all his short term objectives.

Student’s Branches Program

111. On June 20, 2011, Student enrolled in Branches Atelier and attended the program with his behavioral aide. Parents continued to request District provide related services, and the District refused. While initially Student was solitary, he adjusted after two weeks and began to respond to invitations from other children, just as the summer camp began. By approximately September 2011, the Branches morning preschool teacher, Rebecca Zlotoff, worked as his afternoon aide through a private agency. By August 2011, Parents paid for private speech and occupational therapy services. Student gradually made progress in the program. His class had 12 children, ages two and a half to age four. Ms. Zlotoff believed he needed an aide in their program to access the curriculum. Student had difficulty understanding and implementing verbal and non-verbal cues to transition and interact with other children. Ms. Zlotoff believed he fit in with the other Student’s developmentally, but he was not the most social student and was not the highest academically. By the hearing, Ms. Zlotoff believed he met all his annual goals except for social emotional, receptive expressive language, the more complex expressive language goal, and the organization goal.

112. Rachel Orlick worked for FACT, a behavior program funded by WRC. Ms. Orlich was studying to become a board certified behavior analyst (BCBA). She worked as Student’s private behavioral aide during his summer program at Branches. She never assessed Student, but worked under the supervisor who did. Ms. Orlick opined Student required an aide to support him in his classroom. Ms. Orlick never observed Student in either the SDC or PCC.

113. Ms. Elizabeth Fletcher, his private speech pathologist and a BCBA, believed that his current Branches placement was appropriate because she saw improved social skills within six weeks, and great improvement between September and December 2011. As a basis for her treatment plan, Ms. Fletcher reviewed Ms. Langus’ and UCLA’s assessment, and conducted her own observation. She opined Ms. Langus assessment was not adequate to address Student’s needs because Ms. Langus did not use a language sample test. Ms. Fletcher agreed that the PLS-4 was an appropriate assessment tool to use as a starting point, but she would have wanted to evaluate Student’s communication exchange during his play skills. Ms. Fletcher also would have administered the ADOS autism test to evaluate his sharing, eye contact and organized play, although she conceded she was not authorized to conduct that test. Ms. Fletcher would have also provided Parents with the Preschool Pragmatic Language Questionnaire, which is not a normed test. Finally, she would have observed Student in a series of activities. Ms. Fletcher did not conduct a school based speech assessment. Ms. Fletcher admitted she had not conducted any formal assessments with standardized test for language. Nor did she always conduct a full assessment for treatment purposes. Ms. Fletcher had not consulted with his prior speech pathologist, or spoken to his teachers. She opined she would have had enough information after a series of sessions with Student.

114. In preparation for the hearing, Brianna Harris, Student’s private occupational therapist, reviewed Ms. Harper’s assessment. She believed that Ms. Harper’s assessment delineated a good picture of Student. Ms. Harris was critical that it did not address his performance in multiple settings, such as on the playground, in a clinic, and in the classroom. As a private speech therapist, she would have addressed more goals and recommendations. Contrary to Dr. Simun’s testimony, she agreed that the Peabody subtests were normed to be used as a whole or individually. Ms. Harris would have assessed aspects included in Mr. van Cott’s APE assessment for locomotion and object manipulation. She would have assessed for task attention and sensory integration. Ms. Harris conceded that as a private occupational therapist, she had a different, holistic approach that included home and the community. Ms. Harris conceded that the purpose of a school based assessment was different than her assessment. When Ms. Harris initially assessed Student, she conducted only a brief assessment, observation and parent interview to develop her treatment goals. She did not review Ms. Harpers’ assessment before the hearing. She had never observed Student in a class setting, spoken to his teachers, or visited a District placement.

LEGAL CONCLUSIONS

1. As the petitioning parties, the District and Student each have the burden of proving the essential elements of their respective claims. (See Schaffer v. Weast (2005) 546 U.S. 49, 56-57 [163 L.Ed.2d 387].)

Issues 1 (A) -(C) (District’s Case) and Issues 2 (A) – (D) (Student’s Case)

2. In District’s case, District contends, for the 2010-2011 school year, it conducted appropriate initial assessments of Student in speech and language, occupational therapy, psychoeducation, identifying all areas of suspected disabilities, and may deny Student’s request for an IEE at public expense. (Issues 1 (A), (B), and (C)). Student disagrees, and contends that District failed to conduct appropriate assessments, with the addition of behavior, and therefore contends he is entitled to an IEE at public expense. (Issues 2 (A), (B), (C), and (D)). ²

Applicable Law

3. Pursuant to Education Code section 56321, subdivision (a), a proposed assessment plan given to parents must include an attachment outlining the parent’s rights, as well as a written explanation of all the procedural safeguards under the federal Individuals with Disabilities Education Act (IDEA). The proposed assessment plan must also meet the following requirements: (1) be in a language that is easily understood by the general public, (2) be provided in the primary language of the parent or other mode of communication used by the parent, unless unfeasible, (3) explain the types of assessments to be conducted, and (4) state that no individualized education program (IEP) will result from the assessment without the consent of the parent. (Ed. Code, § 56321, subd. (b).) In addition, the proposed assessment plan must provide written notice to the parents that an IEP team meeting will convene to discuss the assessment, the educational recommendations, and the reasons for these recommendations. (Ed. Code, § 56329, subd. (a).)

4. Education Code section 56320, subdivisions (a) through (e), provides that assessments must be conducted in accordance with the following pertinent requirements: that testing and assessment materials and procedures be selected and administered so as not to be racially, culturally, or sexually discriminatory; that the materials and procedures be provided and administered in the student’s primary language or other mode of communication, unless unfeasible to do so; that the assessment materials be validated for the purpose for which they are used; that the tests be administered by trained personnel in conformance with test instructions; that the tests and other assessment materials be tailored to assess specific areas of educational need, and not merely those that are designed to provide a single general intelligence quotient; that the tests be selected and administered to best ensure that, when administered to a student with impaired sensory, manual, or speaking skills, the test produces results that accurately reflect the student’s aptitude, achievement level, or any other factors the test purports to measure; and that no single measure be used as the sole criterion for determining eligibility or an appropriate educational program for the student. (See also 20 U.S.C. § 1414(b)(3)(C); 34 C.F.R. § 300.304(c)(3)(2006) ³ .) The assessments must be conducted “by persons competent to perform the assessment, as determined by the local educational agency.” (Ed. Code, § 56322.) An assessor must also be knowledgeable of the student’s suspected disability. (Ed. Code, § 56320, subd. (g).) An assessment must be administered by trained and knowledgeable personnel in accordance with any instructions provided by the producer of the assessments. (Ed. Code, § 56320, subd. (b)(3); 20 U.S.C. § 1414(b)(3)(A)(iv), (v).) Only a school psychologist may administer tests of intellectual or emotional functioning. (Ed. Code, § 56320, subd. (b)(3).)

5. The personnel who assess the student must prepare a written report of the results of each assessment, and provide a copy of the report to the parent. (Ed. Code §§ 56327 and 56329.) The report shall include, but not be limited to, the following: (1) whether the student may need special education and related services, (2) the basis for making the determination, (3) the relevant behavior noted during the observation of the student in an appropriate setting, (4) the relationship of that behavior to the student’s academic and social functioning, (5) the educationally relevant health and development, and medical findings, if any, (6) a determination concerning the effects of environmental, cultural, or economic disadvantage, where appropriate, and (6) the need for specialized services, materials, and equipment for students with low incidence disabilities. (Ed. Code § 56327.) The report must be provided to the parent at the IEP team meeting required after the assessment. (Ed. Code, § 56329, subd. (a)(3); 20 U.S.C. § 1414(b)(4)(B).)

6. When standardized tests are considered invalid for children between three and five years, alternative means, scales, instruments, observations and interviews shall be used as specified in the assessment plan. Staff shall be trained in developmentally appropriate practices, alternative assessment and placement options, and shall provide a research based review for developmentally appropriate eligibility criteria for young children. (Ed. Code, § 56441.11)

7. If a parent disagrees with an assessment obtained by the public agency, procedural safeguards guaranteed by the IDEA provide parents with an opportunity to obtain their own evaluation, or an IEE, of their child to counteract an evaluation conducted by the district, at public expense. ⁴ (34 C.F.R. §§ 300.502(a)(1), (b)(1) and (b)(2).) An IEE is an evaluation conducted by a qualified examiner who is not employed by the public agency responsible for the education of the child in question. (34 C.F.R. § 300.502(a)(3)(i).) In order to obtain an IEE at public expense, the parent who disagrees with the district’s assessment must request an IEE. (34 C.F.R. § 300.502(b)(1) and (b)(2).) A parent is entitled to only one IEE at public expense each time the public agency conducts an evaluation with which the parent disagrees. (34 C.F.R. § 300.502(b)(4).)

8. If a parent requests an IEE at public expense, the public agency must, without unnecessary delay, either:

1. File a due process complaint to request a hearing to show that its evaluation is appropriate; or
2. Ensure that an IEE is provided at public expense, unless the agency demonstrates in a hearing pursuant to 34 C.F.R. § 300.507 through § 300.5113 that the evaluation obtained by the parent did not meet agency criteria.

9. If the public agency files a due process complaint notice to request a hearing, and the final decision is that the agency’s evaluation was appropriate, the parent still has the right to an IEE, but not at public expense. (34 C.F.R. § 300.502(b)(3)(2006).)

Analysis of IEE Issues

10. Here, District demonstrated by a preponderance of evidence that it properly conducted the speech and language, occupational therapy, psychoeducation and behavior assessments. In contrast, Student did not meet his burden of showing the assessments had not been properly conducted. Parents were provided with an assessment plan in their native language that described the nature of the assessment including the proposed areas. The evaluation areas included: academic achievement, health, intellectual development, language/speech communication development, motor development, processing skills, and social/emotional/adaptive behavior. No other alternative means of assessment were identified or requested on the plan.

11. The occupational therapy assessment was conducted by Ms. Harper, a qualified licensed occupational therapist who was familiar with Autism. Student was assessed using a variety of assessment instruments, ranging from record review, interviews, standardized tests, and clinical observation. The assessment instruments were technically sound for assessing cognitive, behavioral, physical and academic factors as they related to occupational therapy. The assessment instruments were appropriate and valid to determine the level of Student’s need for special education services. The assessment was not racially or culturally biased, because it consisted primarily of interviews and observation, coupled with a review of records. The assessment and testing were based upon information known at the time. Ms. Harper’s assessment resulted in a comprehensive written report that included all observations, assessment results, consideration of Student’s behavioral function at school, and a reasoned recommendation that Student required special education and related occupational services to access his educational curriculum. Ms. Harper discussed her report at the November 8 and December 8, 2010 IEP meetings.

12. The speech and language assessment was conducted by Ms. Langus, a qualified speech pathologist familiar with Autism. She assessed Student using a variety of assessment instruments, ranging from record review, interviews, standardized tests, and clinical observation. The assessment instruments were technically sound for assessing cognitive, behavioral, physical and academic factors relating to speech and language. The assessment instruments were appropriate and valid to determine the level of Student’s need for special education services. The assessment was not racially or culturally biased, because it consisted primarily of interviews and observation, coupled with a review of records. The assessment and testing was based upon information known at the time. Ms. Langus’ assessment resulted in a comprehensive written report that included all observations, assessment results, consideration of Student’s behavioral function at school, and a reasoned recommendation that Student required special education and related speech and language services to access his educational curriculum. Ms. Langus discussed her report at the November 8 and December 8, 2010 IEP meeting.

13. The comprehensive multidisciplinary assessment was conducted and coordinated by Ms. von der Lieth, a qualified licensed psychologist who was familiar with cognition, Autism and behavior. She assessed Student using a variety of assessment instruments, ranging from record review, interviews, standardized tests, and clinical observation. She observed Student, and read the teacher observation report. The assessment instruments were technically sound for assessing cognitive, behavioral, physical and academic factors relating to Student’s cognition, school readiness, basic concept development, social-emotional development, adaptive behavior, communication, and physical development. The assessments included the WPPSI-III, the DP-3, the Bracken, and the BASC-II. She reviewed other assessments, such as the CARS-2. The assessment instruments were appropriate and valid to determine the level of Student’s need for special education services. The assessment was not racially or culturally biased, because it consisted primarily of interviews and observation, coupled with a review of records. The assessment and testing was based upon information known at the time.

14. Ms. von der Lieth’s assessment resulted in a comprehensive written report that included all observations, assessment results, consideration of Student’s academic, social and behavioral function at school, and a reasoned recommendation that Student required special education and related services to access his educational curriculum. Ms. von der Lieth discussed her report at the November 8 and December 8, 2010 IEP meetings.

15. Student did not present any credible evidence that Ms. Harper, Ms. Langus, and Ms. von der Lieth were not qualified to conduct the assessments. Student’s evidence and witness testimony that District’s assessments were improper was not persuasive. As to Ms. Harper’s occupational therapy assessment, while Ms. Harris was critical of the failure to assess in multiple settings such as the playground, clinic, and classroom, she agreed that Ms. Harper’s assessment delineated a good picture of Student. She agreed that Ms. Harper properly used two of six subtests of the Peabody, which was normed for individual subtests. Ms. Harris would have conducted tests which other District assessors performed instead of Ms. Harper. Ms. Harris conceded that as a private occupational therapist, she had a different, holistic approach that included home and the community. Ms. Harris conceded that the purpose of a school based assessment was different than her assessment. She had never observed Student in a class setting, spoken to his teachers, or visited a District placement. Therefore, her opinion was not as persuasive as that of Ms. Harper. As to Ms. Langus speech and language assessment, Ms. Fletcher opined Ms. Langus assessment was not adequate to address Student’s needs because Ms. Langus did not use a language sample test. However, Ms. Fletcher agreed that Ms. Langus used the PLS-4 as an appropriate initial assessment tool. While Ms. Fletcher believed the ADOS Autism test was useful to evaluate Student’s sharing, eye contact and organized play, neither she nor Ms. Langus were authorized to conduct that test. Ms. Fletcher would have also provided Parents with the Preschool Pragmatic Language Questionnaire, and would have observed Student in a series of activities. However, Ms. Fletcher did not conduct a school based speech assessment, and had never conducted any formal assessments with standardized tests for language. Therefore, her testimony was not as persuasive as that of Ms. Langus. Finally, regarding the multidisciplinary psychoeducational assessment, Dr. Simun made a number of generalized statements which were not probative of an invalid assessment. Her criticism that there was no coordination between the District assessors was not persuasive. Dr. Simun’s opinion that Ms. von der Lieth should not have used the WIPPSI was not credible, because Dr. Simun used the same test, even though hers was the third such test in a seven month period, invalidating the results due to the “practice effect.” Dr. Simun criticized Ms. von der Lieths’ use of a cognitive assessment which relied on verbal measures, compared to Dr. Simun’s preference for non-verbal measures for children with Autism. Dr. Simun did not establish those tests were not normed for the general population, or that the tests are invalid for children with Autism. Dr. Simun criticized Ms. Harper for using two of six subtests on the Peabody, even though she is not an occupational therapist, and Ms. Harris credibly testified that the test was normed for individual subtest use. Dr. Simun criticized Ms. Langus for not using ‘other available tests’, even though she was not a speech pathologist, and failed to identify which assessments were not used. Dr. Simun questioned the validity of Student’s teacher’s responses on a behavior checklist, but conceded that the teacher may not have observed that behavior. Dr. Simun criticized the social skills assessment for using a rating scale, but did not establish that it did not provide reliable data. Finally, Dr. Simun’s opinion that District’s assessments were inadequate because the reports should have recommended placement and services, was not convincing, because such recommendations were to be made at an IEP meeting after discussion with the team members. In all, none of Student’s witnesses established that the assessments did not identify Student’s area of unique need.

16. Based on the above factors as they relate to Issues 1 (A), (B), and (C), and 2 (A), (B), (C), and (D), District proved by the preponderance of the evidence that it appropriately assess Student in all areas of suspected disability, including speech and language, occupational therapy, psychoeducation and behavior, and, as such, is not required to provide Student with an IEE at public expense. (Factual Findings 1 through 34, 73 through 114; Legal Conclusions 1, 3 through 15.)

Issues 3 – 13 (Student’s Case)

17. In Student’s case, Student contends that, for the 2010-2011 school year and ESY, District denied Student a FAPE and committed procedural violations at five IEPs, namely the November 8 and December 8, 2010 IEPs, and the March 16, April 7, and July 26, 2011 IEPs. Specifically, Student contends that District failed to include a general education teacher at the IEP meetings (Issues 3(A), 4(A), 5(A), 6(A), and 7(A)); failed to consider a continuum of placement options (Issues 3(B), 4(B), 5(B), and 6(B)); predetermined Student’s placement offer (Issues 3(C), 4(C), and 6(E)); failed to include a statement of measureable goals (Issues 5(C) and 7(C); failed to include a statement of Student’s percentage of participation in the general education environment (Issues 5(D) and 7(E)); failed to include a statement of proposed special education and related services (Issue 7(D)); failed to consider Student’s IEE (Issue 7(F)); and failed to provide prior written notice (Issue 7(G)). ⁵

18. Student further contends that, for the 2010-2011 school year and ESY, District denied Student a FAPE and committed substantive violations in the IEPs by failing to offer an appropriate placement in the least restrictive environment (Issues 8(A), 9(A), 10(A), 11(A),and 12(A)); by failing to offer appropriate related services designed to meet Student’s unique needs in the areas of speech and language, occupational therapy, behavior and social skills (Issues 8(B), 9(B), 10(B), 11(B),and 12(B)), and by failing to provide related services after Parent’s notice of unilateral placement and withdrawal from the District (Issue 12(C)). Student further contends that he properly gave District notice of unilateral placement, and that the Branches Atelier private preschool and daycare was appropriate to meet Student’s unique needs. As such, Student argues he is entitled to tuition reimbursement, related services reimbursement and other compensatory education (Issue 13). District disagrees, contending that at all relevant time it offered Student a FAPE.

19. Under the IDEA and state law, children with disabilities have the right to a FAPE. (20 U.S.C. § 1400(a); 34 C.F.R. § 300.101 (2006); Ed. Code, § 56000.) A FAPE means special education and related services that are available to the special needs pupil at no charge to the parents, that meet state educational standards, and that conform to the child’s IEP. (20 U.S.C. § 1401(a)(9); 34 C.F.R. § 300.17 (2006); Cal. Code Regs., tit. 5, § 3001, subd. (p).) “Special education” is instruction specially designed to meet the unique needs of a child with a disability. (20 U.S.C. § 1401(a)(29); 34 C.F.R. § 300.39 (2006); Ed. Code, § 56031, subd. (a).) “Related services” are developmental, corrective and support services that are required to assist a special needs pupil to benefit from special education. (20 U.S.C. § 1401(a)(26); 34 C.F.R. § 300.34(a) (2006); Ed. Code, § 56363, subd. (a) [In California, related services are called designated instruction and services].) Specially designed instruction also includes accommodations that address a child’s unique needs and that ensure access to the general curriculum. (34 C.F.R. § 300.39(b)(3) (2006).)

20. In Board of Education of the Hendrick Hudson Central School District v Rowley, (1982) 458 U.S. 176, 200 [102 S.Ct. 3034} (“Rowley”), the United States Supreme Court addressed the level of instruction and services that must be provided to a pupil with a disability to satisfy the requirements of the IDEA. The Court determined that a student’s IEP must be reasonably calculated to provide the student with some educational benefit, but that the IDEA does not require school districts to provide the student with the best education available or to provide instruction or services that maximize a student’s abilities. (Id. at pp. 198-200.) The Court stated that school districts are required to provide a “basic floor of opportunity” that consists of access to specialized instructional and related services that are individually designed to provide educational benefit to the student. (Id. at p. 201; Mercer Island School District , supra at 1034,1037-1038 & fn. 10.)

21. In resolving the question of whether a school district has offered a FAPE, the focus is on the adequacy of the school district’s proposed program. (See Gregory K. v. Longview School District (9th Cir. 1987) 811 F.2d 1307, 1314.) (hereafter Gregory K.) A school district is not required to place a student in a program preferred by a parent, even if that program will result in greater educational benefit to the student. (Ibid.) Nor must an IEP conform to a parent’s wishes in order to be sufficient or appropriate. (Shaw v. Dist. of Columbia (D.D.C. 2002) 238 F.Supp.2d 127, 139.) For a school district’s offer of special education services to a disabled pupil to constitute a FAPE under the IDEA, a school district’s offer of educational services and placement must be designed to meet the student’s unique needs and be reasonably calculated to provide some educational benefit in the least restrictive environment. (Ibid.)

22. No one test exists for measuring the adequacy of educational benefits conferred under an IEP. (Rowley, supra, 458 U.S. at 202, 203 fn. 25.) A student may derive educational benefit under Rowley if some of his goals and objectives are not fully met, or if he makes no progress toward some of them, as long as he makes progress toward others. A student’s failure to perform at grade level is not necessarily indicative of a denial of a FAPE, as long as the student is making progress commensurate with his abilities. (Walczak v. Florida Union Free School District (2nd Cir. 1998) 142 F.3d 119, 130; E.S. v. Independent School Dist., No. 196 (8th Cir. 1998) 135 F.3d 566, 569; In re Conklin (4th Cir. 1991) 946 F.2d 306, 313; El Paso Indep. School Dist. v. Robert W. (W.D.Tex. 1995) 898 F.Supp.442, 449-450; Perusse v. Poway Unified School District (S.D. Calif. July 12, 2010, No. 09 CV 1627) 2010 WL 2735759.)

23. To determine whether a pupil was denied a FAPE, an IEP must be examined in light of the information available to the IEP team at the time it was developed. (Adams v. State of Oregon (9th Cir. 1999) 195 F.3d 1141, 1149; Roland M. v. Concord Sch. Comm. (1st Cir. 1990) 910 F.2d 983, 992 (Roland).) “An IEP is a snapshot, not a retrospective.” (Id. At p.1149, citing Fuhrman v. East Hanover Bd. of Education (3rd Cir. 1993) 93 F.2d 1031, 1041.) The offer of FAPE must be objectively reasonable at the time it was developed, not in hindsight. (Ibid.)

24. School districts must have available a continuum of program options to meet the needs of individuals with exceptional needs for special education and related services as required by the IDEA and related federal regulations. (Ed. Code, § 56360.) The continuum of program options includes, but is not limited to regular education programs; resource specialist programs; designated instruction and services, including, speech and language, adapted physical education and occupational therapy; special classes such as special day classes; nonpublic schools; and instruction in the home, hospitals or other institutions. (Ed. Code, § 56361.) There is no requirement that the IEP team discuss all possible choices on the continuum of program options at the IEP team meeting.

25. In determining the educational placement of a pupil with a disability a school district must ensure, among other things, that placement is determined annually, is based on the child’s IEP and is as close as possible to the child’s home; unless the IEP specifies otherwise, the child attends the school that he or she would attend if non-disabled. In selecting the LRE, consideration is given to any potential harmful effect on the child or the quality of services that he or she needs. A child with a disability is not removed from education in age-appropriate regular classrooms solely because of needed modifications in the general education curriculum. (34 C.F.R. § 300.116 (2006); see also Ed. Code, § 56341(b).)

26. The least restrictive environment means that school districts must educate special needs pupils with non-disabled peers “to the maximum extent appropriate;” and that special classes or special schooling occur only when the nature and severity of the pupil’s disabilities cannot be accommodated in the regular education environment with the use of supplementary aides and services. (20 U.S.C. § 1412(a)(5)(A); see also 34 C.F.R. 300.114 (2006); Ed. Code, § 56342, subd. (d).) A placement must foster maximum interaction between disabled pupils and their nondisabled peers “in a manner that is appropriate to the needs of both.” (Ed. Code, § 56031.)

27. The Ninth Circuit balances four factors in determining whether special education pupils could be educated in a general education environment: (1) the educational benefits of full inclusion in the regular education environment, (2) the non-academic benefits of full inclusion, (3) the effect the pupil has on the teacher and other pupils in regular education, and the (4) costs of mainstreaming the student. (Sacramento City Unified School District v. Rachel H. (9th Cir. 1994) 14 F.3d. 1398, 1401-1402 (hereafter Rachel H.) [adopting factors identified in Daniel R.R. v. State Board of Ed. (5th Cir. 1989) 874 F.2d 1036, 1048-1050 (hereafter Daniel RR)]; see also Clyde K. v. Puyallup School Dist. No. 3 (9th Cir. 1994) 35 F.3d 1396, 1401-1402.) If it is determined that a child cannot be educated in the general education environment, then the LRE analysis requires determination of whether the child has been mainstreamed to the maximum extent that is appropriate in light of the continuum of program options. (Daniel R.R., supra, 874 F.2d at p. 1050.)

28. A procedural violation in the development of the Student’s IEP results in a denial of FAPE only if it impedes the child’s right to a FAPE, significantly impedes the parents’ opportunity to participate in the decision-making process regarding the provision of a FAPE to the parents’ child, or causes a deprivation of educational benefits. (20 U.S.C. § 1415(f)(3)(E)(ii); Ed. Code, § 56505, subd. (f)(2); see, W.G. v. Board of Trustees of Target Range School Dist. No. 23 (9th Cir. 1992) 960 F.2d 1479, 1484 (Target Range).) In J.W. ex rel. J.E.W. v. Fresno Unified School Dist. (E.D. Calif. April 28, 2009 No. CV F 07-1625 LJO DLB.) 611 F.Supp.2d 1097, it was not a procedural error for the district to not include a general education teacher at an IEP.

29. To comply with the procedural requirements of the IDEA and state law in the development of the pupil’s IEP, school districts must include parents in the development of the IEP. (20 U.S.C. § 1414 (d)(1)(B)(i); 34 C.F.R. § 300.322 (2006); Ed. Code, §§ 56341, subd. (b)(1), 56342.5; Winkelman v. Parma City School Dist. (2007) 550 U.S. 516, 524-525 [127 S.Ct. 1994, 2000-2001; 167 L.Ed. 2d 904]; [parents must be part of any group that makes placement decisions].) Parents must be given advance notification of the meeting, including the purpose, time, location and who will be in attendance, early enough to ensure an opportunity to attend. (34 C.F.R. § 300.322 (2006); Ed. Code, § 56341.5.) Parents must be provided procedural safeguards. (Ed. Code, § 56500.1.) School district IEP teams are required to include Student’s representative or parent; a regular education teacher if a pupil is, or may be, participating in regular education; a special education teacher; a representative of the school district who is qualified to provide or supervise specially designed instruction, is knowledgeable about the general education curriculum and is knowledgeable about the available resources; a person who can interpret the instructional implication of assessment results; and other individuals, including the person with special needs, where appropriate. (34 C.F.R. §§ 300.321(a)(5),(6) (2006); Ed. Code, § 56341, subd. (b).)

30. The school district has a duty to conduct a meaningful IEP meeting with parents. (Target Range, supra, 960 F.3d. at p. 1485; Fuhrmann supra, 993 F.2d at p. 1036.) A parent has meaningfully participated in the development of an IEP when she is informed of her child’s problems, attends the IEP meeting, expresses her disagreement regarding the IEP team’s conclusions, and requests revisions in the IEP. (N.L. v. Knox County Schools. (6th Cir. 2003) 315 F.3d 688, 693; Fuhrmann, supra, 993 F.2d at p. 1036.) School districts cannot predetermine a pupil’s placement prior to the IEP team meeting and without parental involvement in developing the IEP. (Target Range, supra, 960 F.2d at p. 1481, 1484; Deal v. Hamilton County Bd. of Educ. (6th Cir. 2004) 392 F.3d 840, 857-859 (hereafter Deal); Bd. of Educ. of Township High School Dist. No. 211 v. Lindsey Ross (7th Cir. 2007) 486 F.3d 267, 274-275.) A school district may arrive at an IEP team meeting with a pre-written offer, but may not take a “take it or leave it” position. (J.G. v. Douglas County School Dist., (9 th Cir. 2008) 552 F.3d 786, 801, fn. 10, citing Ms. S v. Vashon Island School Dist.(9th Cir. 2003) 337 F.3d 1115, 1131.) School district staff may meet beforehand to prepare goals and objectives and can provide a written offer before parents have agreed to it. (Doyle v. Arlington County Sch. Bd. (E.D. Va. 1992) 806 F.Supp.1253, 1262.) School districts do not predetermine an IEP simply by meeting to discuss a child’s programming in advance of an IEP meeting. (Mercer Island, supra, 575 F.3d at p.1038 citing 34 C.F.R. § 300.501(b)(3) (2006), an IEP meeting “does not include preparatory activities that public agency personnel engage in to develop a proposal or response to a parent proposal that will be discussed a later meeting”.)

31. An IEP is an educational package that must target all of a pupil’s unique educational needs, whether academic or non-academic. (Lenn v. Portland School Committee (1st Cir. 1993) 998 F.2d 1083, 1089.) The term “unique educational needs” is to be broadly construed and includes the student’s academic, social, emotional, communicative, physical, and vocational needs. (Seattle Sch. Dist. No. 1 v. B.S., (9th Cir. 1996) 82 F.3d 1493, 1500 [citing J.R. Rep. No. 410, 1983 U.S.C.C.A.N. 2088, 2106].) The IEP is the “centerpiece of the [IDEA’s] education delivery system for disabled children” and consists of a detailed written statement that must be developed, reviewed, and revised for each child with a disability. (Honig v. Doe (1988) 484 U.S. 305, 311 [108 S.Ct. 592, 98 L.Ed.2d 686]; 20 U.S.C. §§ 1401 (14), 1414 (d)(1)(A); Ed. Code, §§ 56032, 56345.)

32. In developing the IEP, the IEP team shall consider the strengths of the child, the concerns of the parents for enhancing the education of their child, the results of the initial evaluation or most recent evaluation of the child, and the academic, functional and developmental needs of the child. (20 U.S.C. § 1414(d)(3)(A).) The IEP must include a statement of the present performance of the pupil, a statement of measurable annual goals designed to meet the pupil’s needs that result from the disability, a description of the manner in which progress of the pupil towards meeting the annual goals will be measured, the specific services to be provided, the extent to which the student can participate in regular educational programs, the projected initiation date and anticipated duration, and the procedures for determining whether the instructional objectives are achieved. (20 U.S.C. § 1414 (d)(1)(A)(i),(ii); 34 C.F.R. § 300.320(a)(2),(3) (2006); Ed. Code, § 56345, subds. (a)(2), (3).) The IEP also must include a statement of the program modifications or supports for school personnel that will be provided to the pupil to allow the pupil to advance appropriately toward attaining the annual goals; be involved and make progress in the general education curriculum and to participate in extracurricular activities and other nonacademic activities; and be educated and participate in activities with other children with disabilities and nondisabled children. (34 C.F.R. § 300.320(a)(4)(i), (ii), (iii) (2006); Ed. Code, § 56345, subds. (a)(4)(A), (B).) Only the information set forth in 20 United States Code section 1414(d)(1)(A)(i) must be included in the IEP and the required information need only be set forth once. The IEP team is not required to include information under one component of the IEP that is already contained in another component. (20 U.S.C. § 1414(d)(1)(A)(ii); 34 C.F.R. § 300.320(d) (2006); Ed. Code, § 56345, subds. (h) & (i).)

33. An IEP must include a statement of the special education and related services, based on peer-reviewed research, to the extent practicable, that will be provided to the student. (20 U.S.C. § 1414(d)(1)(A)(i)(IV); 34 C.F.R. § 300.320(a)(4); Ed. Code, § 56345, subd. (a)(4).) The IEP must include: a projected start date for services and modifications; and, the anticipated frequency, location and duration of services and modifications. (20 U.S.C. § 1414(d)(1)(A)(i)(VII); 34 C.F.R. § 300.320(a)(7) (2006); Ed. Code, § 56345, subd. (a)(7).) An IEP must contain a statement of measurable annual goals related to “meeting the child’s needs that result from the child’s disability to enable the child to be involved in and progress in the general curriculum” and “meeting each of the child’s other educational needs that result from the child’s disability.” (20 U.S.C. § 1414(d)(1)(A)(ii); Ed. Code, § 56345, subd. (a)(2).) The IEP must also contain a statement of how the child’s goals will be measured. (20 U.S.C. § 1414(d)(1)(A)(viii); Ed. Code, § 56345, subd. (a)(3).) The IEP must show a direct relationship between the present levels of performance, the goals, and the educational services to be provided. (Cal. Code Regs., tit. 5, § 3040, subd. (c).)

The special education preschool program-eligibility, placement and related services

34. Preschool children between the ages of three and five years old are eligible for special education services. (34 CFR §§ 300.101, 300.124, 300.800 (2006); Ed. Code, § 56440, et.seq.) A preschool student is eligible for special education if he is identified with qualifying disabilities identified by 34 CFR § 300.8, including ‘Autism’ and ‘speech or language impairment,’ or if he needs specially designed instruction. (Ed. Code, § 56441.11.) As the child approaches the age to enter an elementary environment, the child’s preparation shall be geared to a readiness for kindergarten and later school success. (Ed. Code, § 56441.1, subd. (b).)

35. The early education program for students requiring special education includes specially designed services to meet the unique needs of preschool children and their families. The program focus is on the young student and his family and shall include both individual and group services available in a variety of typical age appropriate environments for young children, including the home, and shall include opportunities for active parent involvement. (Ed. Code, §§ 56441.2, 56441.3)

36. Alternative instructional settings may include state preschool programs and the child’s home. (Ed. Code, § 56441.4)

37. Early education services may be provided individually or in a group for less than four hours. The services include observing and monitoring the child’s behavior and development in his environment, presenting activities which are developmentally appropriate for the student and specially designed to enhance the child’s development, interacting and consulting with family members, regular preschool teachers and other service providers, assisting parents to coordinate other services, providing opportunities for young students to participate in play and exploration activities, to develop self esteem, and to develop preacademic skills, providing access to various developmentally appropriate equipment and specialized materials, and providing related services. (Ed. Code, § 56441.3)

38. The special education preschool program may have appropriate settings in the regular public preschool program, the child development center or family day care home, the child’s home, a special site where preschool programs for both children with disabilities and children who are not disabled are located close to each other and have an opportunity to share resources and programming, a special education preschool program with children who are not disabled attending and participating for part or all of the program, or a public school setting which provides an age appropriate environment, materials and services. (Ed. Code, § 56441.4, subds. (a)-(f).)

39. Appropriate instructional adult to child ratios for group services shall be dependent on the needs of the child. The ratio shall not exceed an instructional adult to child ratio of one to five. (Ed. Code, § 56441.5)

40. The special education preschool program shall use a multidisciplinary team approach of professionals. The staff shall consult with regular preschool providers, other specialists, assessors and direct service providers. (Ed. Code, § 56441.6)

California State Pre-School Program.

41. The California State preschool programs are governed by Education Code section 8200, et. seq., and are not part of the IDEA. This ‘child care and development program’ is designed for children whose general safety and welfare is at risk. The child care and development program has components including child care, health services, and social services. The program has some focus on prekindergarten developmental guidelines. A student must be financially eligible. Children ages three and four may be eligible if their family is receiving public assistance, are income eligible, are homeless, or if the children are recipients of child protective services.

Analysis of Issues 3(A) through (C) – November 8, 2010 IEP

42. Here, Student failed to show that District committed a procedural violation at the November 8, 2010 IEP meeting by failing to have a general education teacher present. (Issue 3(A).) District did not procedurally deny Student a FAPE, significantly impede the parent’s opportunity to participate in the decision-making process regarding the provision of a FAPE, or cause a deprivation of educational benefits. Under the IDEA, the essential IEP team must include a regular education teacher if a pupil is, or may be, participating in regular education. Student did not establish a loss of educational benefit or a deprivation of meaningful parental participation at the IEP. Student was neither participating in the general education program, nor was likely to do so. Additionally, Student had two staff members from Branches, his typical toddler preschool, and they provided valuable information regarding his present levels of performance in the equivalent of a private general education environment. His WRC advocate also presented assessments from his Early Start program. The evidence showed ultimately that at the time of the IEP, given the severe impact of Student’s Autism, general education would not have been appropriate. Moreover, District offered Student a FAPE, as will be discussed at length below. Therefore, Student did not demonstrate that he was denied a FAPE because a general education teacher did not attend the IEP. (Factual Findings 35 through 44, Legal Conclusions 19 through 41.)

43. Student did not meet his burden of demonstrating that the District failed to consider a continuum of placement options at the IEP team meeting. (Issue 3(B)) District did not procedurally deny Student a FAPE, significantly impede the parent’s opportunity to participate in the decision-making process regarding the provision of a FAPE, or cause a deprivation of educational benefits. Here, the IEP team documented the placement options it considered and the reasons why they were rejected in the IEP notes. At the initial IEP, the notes demonstrated that District reviewed multiple assessments and determined Student met the eligibility requirements due to autistic-like behaviors which adversely affected his educational performance. The multi-disciplinary assessment results determined he was highly autistic, and was in the delayed range for social-emotional-behavioral skills. The assessments identified deficits in sensory processing, receptive and expressive speech, adaptive skills, social/peer interaction, attention, pre-academic skills, gross-motor, visual motor, self-regulation, and organization of his behavior. Assessment results determined Student had average to above average cognitive abilities and above his age level for school readiness. The evidence showed that while Parents discussed general inclusion and Student’s above average cognitive abilities, District initiated discussion about a small, language-based preschool SDC class with a highly trained teacher, given Student’s deficits identified in the assessment reports. The IEP notes also demonstrated that after this discussion, District arranged for Parents to tour the proposed placement. Based on these facts, the evidence at hearing showed that the District considered the continuum of placement options and Student’s unique needs when discussing placement. Further, as discussed below, District offered Student a FAPE. Even if District failed to discuss the continuum of placement options, there was no evidence that Student lost an educational benefit, or that his parents were denied meaningful participation at the IEP. Accordingly, Student has failed to show a violation of IDEA procedures that resulted in a denial of a FAPE. (Factual Findings 35 through 44, Legal Conclusions 19 through 41.)

44. In addition, contrary to Student’s contention, District did not predetermine the placement offer prior to the November 8, 2010 IEP team meeting. (Issue 3(C)) District did not procedurally deny Student a FAPE, significantly impede the parent’s opportunity to participate in the decision-making process regarding the provision of a FAPE, or cause a deprivation of educational benefits. District staff may meet beforehand to prepare goals and objectives, as well as prepare a draft written offer of placement and services. The evidence shows that District gathered assessment data for two months in advance of the initial IEP, and had a basis upon which to prepare draft goals and a proposed offer of placement and services. At the initial IEP meeting, the evidence shows that the IEP team discussed the proposed goals, discussed placement, and that Parents meaningfully participated in the development of the IEP. Parents were informed of Student’s problems, expressed their disagreement regarding the IEP team’s conclusions, and requested revisions in the IEP. Although Parents left without agreeing to those goals and placement, District agreed to reconvene in December, after parents reviewed the proposed goals and toured the proposed placement. These facts demonstrate that rather than a “take or leave it” attitude, District IEP team members prepared for the IEP team meeting and ensured full parental participation in the placement decision. Student was not denied a FAPE on this ground. (Factual Findings 35 through 44, Legal Conclusions 19 through 41.)

Analysis of Issues 4 (A) through (C) – December 8, 2010 IEP

45. Student failed to establish that District committed a procedural violation by not having a general education teacher present at the December 8, 2010 IEP meeting. (Issue 4(A).) District did not procedurally deny Student a FAPE, significantly impede the parent’s opportunity to participate in the decision-making process regarding the provision of a FAPE, or cause a deprivation of educational benefits. As established above, the general education teacher was not required to be present, because Student was not participating in regular education, and was not anticipated to participate in the general education classroom. Further, because this was a continuation IEP, and Student’s private preschool director and teacher had been present at the first IEP, the topics of Student’s needs, modifications and interventions were discussed extensively, which lessened the need for the perspective of a general education teacher there while developing Student’s IEP. Moreover, as will be discussed below, District offered Student a FAPE. Therefore, Student failed to demonstrate that not including a general education teacher at the IEP team meeting that in a denial of a FAPE. (Factual Findings 35 through 51, Legal Conclusions 19 through 41.)

46. Student failed to establish that District committed a procedural violation at the December 8, 2010 IEP meeting by failing to consider a continuum of placement options and by predetermining placement. (Issues 4(B) and (C).) District did not procedurally deny Student a FAPE, significantly impede the parent’s opportunity to participate in the decisionmaking process regarding the provision of a FAPE, or cause a deprivation of educational benefits. The evidence showed that the IEP team documented the placement options it considered and the reasons why they were rejected in the IEP notes. As set forth above, a school district may arrive at an IEP team meeting with a pre-written offer, however it may not take a “take it or leave it” position. In this case, as will be discussed below, District offered Student a FAPE, after reviewing District and private provider assessments, teacher observation, and discussing present levels of performance of goals. There was no credible evidence that District predetermined Student’s placement. (Factual Findings 35 through 51, Legal Conclusions 19 through 41.)

Analysis of Issues 5(A) through (D) – March 16, 2011 IEP

47. Student failed to establish that District committed a procedural violation by not having a general education teacher present at the March 16, 2011 IEP meeting. (Issue 5(A)) District did not procedurally deny Student a FAPE, significantly impede the parent’s opportunity to participate in the decision-making process regarding the provision of a FAPE, or cause a deprivation of educational benefits. The purpose of this IEP was to discuss Student’s progress and Parent concerns for more mainstreaming. The IEP team had input from Student’s special education teacher, who was most knowledgeable about Student and about the mainstream component of the District’s proposed PCC placements. Although the District staff was concerned about changing Student’s placement, they discussed Parent’s request for such a mainstream placement, and arranged for a tour of that proposed placement. Moreover, as will be discussed below, District offered Student a FAPE. Accordingly, Student failed to demonstrate that not having a general education teacher present interfered with Parents’ participation in the IEP process, resulted in a deprivation of educational benefits, or denied Student a FAPE. (Factual Findings 54 through 60, Legal Conclusions 19 through 41.)

48. Student failed to establish that District committed a procedural violation at the March 16, 2011 IEP meeting by failing to consider a continuum of placement options. (Issue 5 (B)) District did not procedurally deny Student a FAPE, significantly impede the parent’s opportunity to participate in the decision-making process regarding the provision of a FAPE, or cause a deprivation of educational benefits. The purpose of the March 16, 2011 IEP addendum meeting was to discuss Student’s progress. Student’s SDC teacher discussed his progress in her SDC and in the social skills group, and she proposed adding as a goal. Mother wanted more peer modeling, and Father wanted a small private preschool. The evidence shows that the IEP team discussed less restrictive settings than a private preschool. District discussed its mainstream placements, the PCCs, and arranged for Parents to tour the Pine Street PCC class, which was a larger class environment with 50 percent typical peers and which focused on pre-academics. The IEP team documented the placement options it considered and the reasons why they were considering a District placement that was less restrictive than the private preschool desired by parents. Moreover, as will be discussed below, District offered Student a FAPE, such that Student did not demonstrated that he was ultimately deprived of educational benefit even if a procedural violation had occurred. (Factual Findings 54 through 60, Legal Conclusions 19 through 41.)

49. Similarly, Student failed to establish that District committed a procedural violation by failing to include a statement of measureable annual goals in the March 16, 2011 IEP. (Issue 5 (C)) District did not procedurally deny Student a FAPE, significantly impede the parent’s opportunity to participate in the decision-making process regarding the provision of a FAPE, or cause a deprivation of educational benefits. At the initial IEP, the team identified Student’s areas of need as daily living skills, school readiness, task attention, social skills, fine and visual motor skills, organization of behavior, receptive and expressive language, and kicking and throwing. Student’s annual goals were first proposed by District at the November 8, 2010 IEP, and revised by the team on December 8, 2010. Student’s clarified goals were in the areas of Daily Living Skills, School Readiness, Task Attention, Social Skills, Social/Emotional, Receptive and Expressive Language, Expressive Language Use; Requesting Needs and Responding to Others, Kicking, Throwing, Organization of Behavior and Self Regulation, Fine and Visual Motor Skills. The team discussed toileting goals, classroom routines, physical prompts, classroom non-preferred tasks, tactile table top activities with sensory strategies, occupational therapy, and classroom goals. Thus, the evidence showed that this IEP contained measurable goals in Student’s areas of need, such that no procedural violation occurred. In addition, the fact that the goals were developed and reviewed over multiple IEP team meetings at which parents participated showed that there was no deprivation of parental participation in the decision-making process. Moreover, the evidence showed Student was ultimately offered a FAPE, such that Student did not demonstrate any deprivation of educational benefit to Student. (Factual Findings 35 through 60, Legal Conclusions 19 through 41.)

50. Student also failed to establish that District committed a procedural violation by failing to include a statement about Student’s participation in general curriculum in the March 16, 2011 IEP. (Issue 5(D)) District did not procedurally deny Student a FAPE, significantly impede the parent’s opportunity to participate in the decision-making process regarding the provision of a FAPE, or cause a deprivation of educational benefits. Education Code section 56354, subdivision (h), states that the IEP team is not required to include information under one component of the IEP which is already contained in another component. Specifically, the IEP notes demonstrate Student’s special education teacher discussed his exposure to typical peers in her SDC program. Moreover, the IEP notes contained a statement about Student’s potential placement in its mainstream program. The IEP notes demonstrate a discussion about its mainstream placement, the PCC, which had the greatest number of typical peers. The IEP notes also document that District arranged for Parents to tour one of those PCCs, Pine Street, as a possible placement. Parents were not deprived of meaningful participation, and Student did not suffer a loss of educational benefit. Moreover, as will be discussed below, District offered Student a FAPE. Student did not meet his burden on this claim. (Factual Findings 54 through 60, Legal Conclusions 19 through 41.)

Analysis of Issues 6 (A) through (E) – April 7, 2011 IEP

51. Student failed to establish that District committed a procedural violation by not having a general education teacher present at the April 7, 2011 IEP meeting. (Issue 6(A)) District did not procedurally deny Student a FAPE, significantly impede the parent’s opportunity to participate in the decision-making process regarding the provision of a FAPE, or cause a deprivation of educational benefits. At the IEP, the team met to discuss Parent’s tour of District’s mainstream placement, Pine Street PCC. District had input from Student’s SDC teacher and the school psychologist, who were knowledgeable about Student and the mainstream component of the proposed PCC. Ms. Dannelly was also familiar with the PCCs, and discussed one more PCC that could meet Student’s needs, LCDC PCC. The notes demonstrate District offered to allow Parents another tour, which parents declined, but ultimately agreed to place Student there for implementation purposes. There was no deprivation of meaningful parental participation or a loss of educational benefit to Student, as the IEP team understood Student’s needs, modifications and interventions, and the appropriate delivery of instruction to help him access his educational curriculum. Moreover, as will be discussed below, District offered Student a FAPE. Therefore, the failure to have a general education teacher present at the IEP did not deny Student a FAPE. (Factual Findings 61 through 68, Legal Conclusions 19 through 41)

52. Student failed to establish that District committed a procedural violation by failing to consider a continuum of placement options at the April 7, 2011 IEP team meeting. (Issue 6(B)) District did not procedurally deny Student a FAPE, significantly impede the parent’s opportunity to participate in the decision-making process regarding the provision of a FAPE, or cause a deprivation of educational benefits. Student failed to demonstrate that District did not consider a continuum of placement options, because the evidence demonstrated that District discussed two such mainstream placements, the PCCs that included typical peers. The purpose of the April 7, 2011 IEP was to discuss Parent’s observation of Pine Street PCC, one of District’s mainstream PCCs. The evidence shows that because Father was not impressed with the social play in that PCC, the District suggested another mainstream placement, LCDC PCC, with the greatest number of typical peers. At that meeting, although some District IEP team members, teachers and direct providers were reluctant to do so, District offered Student the equivalent of a mainstream placement. LCDC PCC, a less restrictive setting on the continuum of placement options. District did not commit a procedural violation merely because it did not offer Student a private preschool, pursuant to Father’s request. Moreover, as will be discussed, District offered Student a FAPE. (Factual Findings 61 through 68, Legal Conclusions 19 through 41.)

53. Similarly, Student failed to establish that District committed a procedural violation by failing to include a statement of measureable annual goals in the April 16, 2011 IEP. (Issue 6(C)) District did not procedurally deny Student a FAPE, significantly impede the parent’s opportunity to participate in the decision-making process regarding the provision of a FAPE, or cause a deprivation of educational benefits. The IEP team, including Student’s SDC teacher Ms. Berezowsky, determined that LCDC PCC would give him the training, instruction and facilitation he needed with the two special education staff members in the placement. Ms. Tomita, his special education teacher in LCDC, credibly testified that she reviewed Student’s goals, they were appropriate for Student’s new placement, and she could implement them in her PCC. Moreover, as will be discussed, District offered a FAPE. Therefore, Student failed to demonstrate that he was denied a FAPE because his goals were inappropriate as of this IEP team meeting. (Factual Findings 61 through 68, Legal Conclusions 19 through 41.)

54. Student failed to establish that District committed a procedural violation by failing to include a statement about Student’s participation in general curriculum in the April 7, 2011 IEP. (Issue 6(D)) District did not procedurally deny Student a FAPE, significantly impede the parent’s opportunity to participate in the decision-making process regarding the provision of a FAPE, or cause a deprivation of educational benefits. Education Code section 56345, subdivision (h), states that the IEP team is not required to include information under one component of the IEP that is already contained in another component. Here, the IEP notes and IEP offer demonstrate that District offered the equivalent of a general education mainstream placement through LCDC PCC. In other words, because of the LCDC PCC, the IEP team intended for Student to be mainstreamed, once Parents consented, which they did by May, 2011. Moreover, as discussed in detail below, the placement offered by District was a FAPE. Therefore, District’s failure to include a statement about Student’s participation in the general education curriculum, when they were offering full inclusion, did not deny Student a FAPE. (Factual Findings 61 through 68, Legal Conclusions 19 through 41.)

55. Student failed to establish that District committed a procedural violation by predetermining placement at the April 7, 2011 IEP. (Issue 6(E)) District did not procedurally deny Student a FAPE, significantly impede the parent’s opportunity to participate in the decision-making process regarding the provision of a FAPE, or cause a deprivation of educational benefits. The evidence shows that the IEP team documented the placement options it considered and the reasons why they were rejected in the IEP notes. Specifically, the IEP team considered what was essentially a mainstream placement, Pine Street PCC, and after discussing Parents’ concerns, they offered LCDC PCC, a different mainstream placement that was offered in response to Parents’ input as members of the IEP team. Therefore, its offer was not predetermined just because the IEP team did not agree to Father’s request for a private preschool. To the contrary, the evidence showed that District listened to Father and offered to change the placement based on Father’s concerns. Moreover, as will be discussed, District offered a FAPE. These facts do not support a finding that the IEP team predetermined Student’s placement and denied him a FAPE. (Factual Findings 61 through 68, Legal Conclusions 19 through 41.)

Analysis of Issues 7(A)-(H) – July 26, 2011 IEP

56. Student failed to establish that District did committed a procedural violation by not having a general education teacher present at the July 26, 2011 IEP meeting. (Issue 7(A)) District did not procedurally deny Student a FAPE, significantly impede the parent’s opportunity to participate in the decision-making process regarding the provision of a FAPE, or cause a deprivation of educational benefits. Student’s general education teacher from LCDC PCC was present at that meeting, as well as his special education teacher. The IEP team had input from both teachers who were knowledgeable about Student and the mainstream component of their PCC. Therefore, all essential IEP team members were present. Moreover, as will be discussed, district offered a FAPE, such that even if Student had shown a procedural violation, he did not meet his burden of proof because no deprivation of educational benefits resulted. (Factual Findings 73 through 110, Legal Conclusions 19 through 41.)

57. Student failed to establish that District committed a procedural violation by failing to include a statement of present levels of performance or new annual measurable goals in the July 26, 2011 IEP. (Issues 7(B) and (C)) District did not procedurally deny Student a FAPE, significantly impede the parent’s opportunity to participate in the decisionmaking process regarding the provision of a FAPE, or cause a deprivation of educational benefits. The purpose of the July 26, 2011 IEP meeting was to discuss Dr. Simun’s IEE after Student had withdrawn from District on June 17, 2011. There was no evidence presented from Dr. Simun’s report to indicate to the District that in the one month since the last IEP team meeting, Student’s present levels of performance had materially changed or that he had met his annual goals, thus requiring revision. The District members believed that based upon Dr. Simun’s report, he could continue to receive some educational benefit with the same goals in the LCDC. They did not revise their offer to include Parent’s preferred private preschool, and as of the date of the IEP, the evidence showed that Parent’s were unwilling to consent to District’s offer of placement and services. Moreover, as will be discussed, District offered a FAPE, such that Student could not show a deprivation of educational benefit. (Factual Findings 73 through 110, Legal Conclusions 19 through 41.)

58. Student failed to establish that District committed a procedural violation by failing to include a statement of special education and related services in the July 26, 2011 IEP. (Issue 7(D)) District did not procedurally deny Student a FAPE, significantly impede the parent’s opportunity to participate in the decision-making process regarding the provision of a FAPE, or cause a deprivation of educational benefits. The IEP notes demonstrated that at this IEP, District considered Dr. Simun’s report, and discussed its offer of FAPE, a PCC with typical peers and curriculum and high staff to student ratio. The team determined that program seemed to be consistent with Dr. Simun’s recommendations, and did not change the IEP offer. Therefore, the June 26, 2011 IEP contained a statement of special education and related services on its face, and also incorporated by reference the prior IEP offer with its detailed services and supports. Moreover, because the District’s offer of placement and services was appropriate, Student cannot demonstrate he was denied a FAPE or educational benefit. (Factual Findings 73 through 110, Legal Conclusions 26 through 31.)

59. Student failed to establish that District committed a procedural violation by failing to include a statement of Student’s participation in general education. (Issue 7(E)) District did not procedurally deny Student a FAPE, significantly impede the parent’s opportunity to participate in the decision-making process regarding the provision of a FAPE, or cause a deprivation of educational benefits. Between May and June 16, 2011, Student was participating in a mainstream, general education curriculum within LCDC. LCDC was the least restrictive environment on the continuum of placements, and was the equivalent of general education because it had typical Students as well as services and teachers for special education students. Thus, there was no failure to include a statement of Student’s participation in general education because of the unique nature of the LCDC program. Moreover, as will be discussed, District offered a FAPE, such that Student failed to demonstrated that even if a procedural violation occurred, that it resulted in a deprivation of educational benefit. (Factual Findings 73 through 110, Legal Conclusions 19 through 41.)

60. Student failed to establish that District committed a procedural violation by failing to consider Student’s privately-funded IEE from Dr. Simun. (Issue 7(F)) District did not procedurally deny Student a FAPE, significantly impede the parent’s opportunity to participate in the decision-making process regarding the provision of a FAPE, or cause a deprivation of educational benefits. The whole purpose of the July 26, 2011 IEP meeting was to discuss Dr. Simun’s observation and report. District members of the IEP team received her report at the start of the meeting. The IEP team listened while she explained her findings and recommendations. The IEP team discussed how they would like to read through Dr. Simun’s report more thoroughly. The District members of the IEP team showed that they considered Dr. Simun’s input by discussing how her recommendations could be implemented for Student in District’s programs. Overall, the evidence shows that the IEP team considered Dr. Simun’s recommendations and believed Student’s unique needs could still be met at LCDC PCC with related services. Accordingly, Student failed to demonstrate District violated Student’s procedural rights under the IDEA by failing to consider Student’s privately-funded IEE. Moreover, as will be discussed, District ultimately offered a FAPE, such that even if a procedural violation occurred, it did not result in a deprivation of educational benefit. (Factual Findings 73 through 110, Legal Conclusions 19 through 41.)

61. Similarly, Student failed to establish that District committed a procedural violation by failing to provide parents with prior written notice of its refusal to initiate a change of placement to a general education class with a one to one behavioral aide, and to continue providing related services, after parent’s notice of unilateral placement. (Issue 7(G).) District did not procedurally deny Student a FAPE, significantly impede the parent’s opportunity to participate in the decision-making process regarding the provision of a FAPE, or cause a deprivation of educational benefits. The evidence showed that District gave prior written notice on June 17, 2011, in response to Parent’s written notice of unilateral placement and request for reimbursement of June 2, 2011. In its letter, District properly gave Parents prior written notice of its refusal to change Student’s placement to his private preschool, a non-public and private school. It reiterated its offer as the most appropriate placement in the least restrictive setting. As discussed below, the evidence at hearing showed that District’s prior written notice letter was correct, because District had offered Student a FAPE. Under these circumstances, there was no procedural violation that resulted in a denial of a FAPE. (Factual Findings 73 through 110, Legal Conclusions 19 through 41.)

Analysis of Issues 8(A) through 9(B) – November 8 and December 8, 2010 IEPs

62. Student did not establish that District denied Student a FAPE at the initial November 8, 2010 IEP and its continuation IEP on December 8, 2010, by failing to offer an appropriate placement in the least restrictive environment, as set forth in Factual Findings 1 through 53, and 109 through 110, and Legal Conclusions 3 through 41. (Issues 8 (A) & 9 (A))

63. The appropriateness of the IEP and its offer of placement and services must be evaluated in terms of what was objectively known at the time the IEP was developed. (See Adams, supra, 195 F.3d at p. 1149; Fuhrman, supra, 93 F.2d at p. 1041.) The least restrictive environment means that school districts must educate special needs pupils with non-disabled peers to the maximum extent appropriate. Special classes should occur only when the nature and severity of the pupil’s disabilities cannot be accommodated in the regular education environment with the use of supplementary aides and services. Overall, a determination of whether a district has placed a pupil in the least restrictive setting (general education) involves four factors set forth in Rachel H.: (1) the educational benefits of full inclusion in the regular education environment, (2) the non-academic benefits of full inclusion, (3) the effect the pupil has on the teacher and other pupils in regular education, and the (4) costs of mainstreaming the student. If it is determined that a child cannot be educated in the general education environment, then the LRE analysis requires determination of whether the child has been mainstreamed to the maximum extent that is appropriate in light of the continuum of program options.

64. In analyzing the first factor, the educational benefits of full inclusion, the evidence established that at the time of the November and December, 2011 offer, Student’s needs were severe and significant enough that there would have been little educational benefit to full inclusion. During their observations of Student, Ms. Marshall and Ms. Palfi both emphasized his lack of peer interaction, lack of language use, difficulties with transitions, and focus on the same preferred task. Great weight is given to the testimony of Ms. von der Lieth, Ms. Harper and Ms. Langus, as they had extensive experience conducting evaluations and creating educational programs for students in the District. Each of them persuasively testified that, based upon their understanding of Student’s needs at the time, and the severe impact of his Autism, that Student required the structure of a special day class with a trained special education teacher. Their opinions of Student’s areas of need were persuasive because of their qualifications, training, assessments, and review of records, and were supplemented by detailed discussions with Parents, two staff from Branches, and Student’s WRC advocate.

65. Student contends he would have been able to benefit from the social and communication opportunities in a private preschool general education setting with a trained aide. During November and December, 2010, Student did not pay attention to peers, model or imitate them, or communicate with them. He played by himself with his favorite toy. Student’s lack of interest in his peer interaction demonstrated that developmentally, he required a more specialized placement. His severe symptoms of Autism required a collaborative team of special educational professionals and aides, which outweighed any benefit he might have received from being fully included with support.

66. In analyzing the second factor, the evidence established that at the during November and December 2010, Student’s severe Autism, communication, attention and behavioral needs far outweighed any non-educational benefit in social and communication skills he might have received in a fully included setting, with support. The evidence showed that around this time Student was unable to be included in a general education preschool due to the severe impact of his Autism, his attention issues, his lack of peer interest, his lack of spontaneous play socialization skills, and his receptive and expressive communication and language skills. Student required a special education teacher with behavioral training a collaborative team of direct providers. Student did not notice peers or interact with them in his toddler program, preferring to focus on a favorite toy. Student could not benefit from peer modeling without trained teachers and providers. In his SDC program, Student was exposed to typical peers 30 to 90 minutes per day during outdoor play, library, circle time and snack, and with one typical peer each day for a full day during reverse mainstreaming.

67. In analyzing the third factor, the effect the Student would have on the teacher and other pupils in regular education, his severe symptoms of Autism, communication, attention and behavioral needs would require a great deal of adult prompting, redirection, and facilitation to help him access his curriculum. Parents reported that Student had difficulties in his private preschool program, and had been asked to leave due to his attentional and behavioral challenges, a fact strongly demonstrating that general education was not appropriate at the time. Ms. von der Lieth estimated Student’s attention span to be 10 to 15 seconds, and determined he had difficulty staying on task. In the general education setting, Student would have required a great deal of his teacher’s attention to redirect him to stay on task for lessons and meet his goals. Student’s presence in a fully included program could have resulted in him taking away significant teacher attention from the other students in the class.

68. In analyzing the fourth factor, neither party introduced any evidence establishing the costs of mainstreaming Student in a general education setting compared to a special education setting. While Student provided tuition invoices from Branches, those invoices were indicative of the cost of unilaterally placing Student in a private day care preschool on June 20, 2011. Weighing the above factors, at the time of the IEP team meeting, Student’s only benefit in general education might have been social, and even that was unsure given his deficits. Therefore, at the time of the IEP team meeting, a general education placement would not have been appropriate.

69. If it is determined that a child cannot be educated in the general education environment, then the LRE analysis requires determination of whether the child has been mainstreamed to the maximum extent that is appropriate in light of the continuum of program options. The continuum of special education preschool program settings includes a wide variety of alternative instructional settings: the regular public preschool program, the child development center or family day care home, the child’s home, a special site where preschool programs for both children with disabilities and children who are not disabled are located close to each other and have an opportunity to share resources and programming, a special education preschool program with children who are not disabled attending and participating for part or all of the program, or a public school setting which provides an age appropriate environment, materials and services.

70. Here, the District had several placement options available: SDCs for children with disabilities, three mainstream PCCs with up to 50 percent typical peers, Head Start programs under Title I, and the State Preschool Child Care and Development programs with a large emphasis on child care, nutrition and health care for at risk children with financial eligibility requirements.

71. Here, the evidence demonstrated that at the time the IEP team developed Student’s IEP on November 8 and December 8, 2010, District offered an appropriate placement in the LRE, given the extent of Student’s disabilities. Specifically, District offered Franklin Elementary SDC, four hours per day, five days per week. Given the extent of Student’s severe symptoms of Autism, attention, communication and social skills deficits, the class was designed to meet his needs and reasonably calculated to provide some educational benefit by providing him with a small, language based class with a highly trained special education teacher and several aides, and accommodations such a picture schedules, and collaboration with his direct service providers. This small class has a higher teacher ratio than could have been provided elsewhere. The SDC provided Student with more opportunities for individualized attention to work on his goals. In his SDC class, Student was exposed to two typical peers for the entire day during reverse mainstreaming, and other typical peers for 30 to 90 minutes per day during outdoor play, library, circle time and snack. The evidence showed that Student was mainstreamed to the maximum extent that was appropriate in light of the continuum of program options and that the placement offered was reasonably calculated to meet his unique needs. (Factual Findings 1 through 53, 109 and 110, and Legal Conclusions 3 through 41.)

72. Student also failed to demonstrate by a preponderance of the evidence that he was denied a FAPE because District failed to offer appropriate related services in the area of speech and language, occupational therapy, behavior and social skills in the IEP developed on November 8, 2010 and December 8, 2010. (Issues 8 (B) and 9 (B)) Great weight is given to the testimony of Ms. von der Lieth, Ms. Harper and Ms. Langus, as they had extensive experience conducting evaluations and creating educational programs for students in the District. Each of them conducted appropriate assessments of Students, and their opinions could be relied upon, as set forth above. Ms. von der Lieth, Ms. Harper and Ms. Langus persuasively testified that based upon their understanding of Student at the time, based upon their observations, assessments, review of records, recommendations and input from Parents, Bridges staff, and Student’s WRC advocate, the District offered Student appropriate levels of related services. In combination with the language based SDC four hours per day, five days per week, extended school year services, and transportation, District also offered speech therapy for a total of 75 minutes, three times per week for 25 minutes per session, with two sessions provided in a group and one session individually; occupational therapy for a total of 75 minutes, once per week individually for 25 minutes at school and 50 minutes in a clinic; and extended school year services (the preschool program would be three hours per day, and the related services would be reduced by 25 percent). The evidence showed that all related services were offered in appropriate frequency and duration to support Student’s specialized instruction in the SDC, such that he was offered a FAPE. (Factual Findings 1 through 53, 109 and 110, and Legal Conclusions 3 through 41.)

Issues 10(A) and (B) – March 16, 2011 IEP

73. Student did not establish that District denied Student a FAPE at the March 16, 2011 IEP by failing to offer an appropriate placement in the least restrictive environment. (Issue 10(A)) At that IEP, Ms. Berezowsky, Ms. Langus and Ms. Harper discussed Student goals and progress. District did not change the offer of placement it made at the December 8, 2010, but at Parents’ request, after thoroughly discussing Student’s two-months of progress in the SDC, District discussed the possibility of a mainstream placement at one of its PCCs. Although Student’s SDC teacher believed Student was making progress in her class, she was reluctant to suggest a change to a lesser restrictive placement for another two months. She wanted Student to acquire more skills before she believed it would be appropriate for him. She was concerned the placement would not be appropriate because the class size was larger. The team discussed how Student benefited from structure and routines. Father suggested a private preschool. At the end of the meeting, District scheduled a tour of the Pine Street Elementary PCC program for Parents. The evidence established that District’s offer of placement and services, which remained the same, but allowed Parent to tour a mainstream PCC classroom, was appropriate at the time. It was reasonably calculated to provide Student with an educational benefit. Moreover, under a Rachel H. analysis, Student did not establish that his placement needs had changed in the two months since he began attending Franklin SDC in mid-January 2011. It was reasonable for District to discuss a less restrictive placement option, and wait three weeks to allow Parents to observe that program. Thus, Student failed to demonstrate that he was denied a FAPE because his placement was not changed at this IEP. (Factual Findings 1 through 60, 109 and 110, and Legal Conclusions 3 through 41.)

74. District did not deny Student a FAPE at the March 15, 2011 IEP by failing to offer appropriate related services in the area of speech and language and behavior. (Issue 10(B)) The credible testimony and reliable assessment of Ms. Langus, and Ms. Von der Lieth, established that District’s offer of a twenty hour per week language-based SDC with a highly qualified and behaviorally trained SDC teacher, in combination with 75 minutes per week of speech therapy, and 25 minutes per week of social skills, was appropriate to meet Student’s unique needs relating to speech and language and behavior, and help him access his educational curriculum. Significantly, District recommended a new goal of social skills with a related service, which Parents declined. Ms. Berezowsky, Ms. Harper, and Ms. Langus all credibly testified that Student was making progress in the language based SDC class with the level of related services and collaboration they offered. Their testimony was persuasive. District offered related services which were reasonably calculated to provide Student with an educational benefit, based upon what the IEP team knew at the time. (Factual Findings 1 through 60, 109 and 110, and Legal Conclusions 3 through 41.)

Issues 11(A) and (B) – April 7, 2011 IEP

75. District did not deny Student a FAPE at the April 7, 2011 IEP by failing to offer an appropriate placement in the least restrictive environment. (Issue 11(A)) At that IEP, District offered Student a mainstream PCC, its least restrictive setting. In the continuum of preschool settings, LCDC PCC was a mainstream general education preschool with a general education curriculum. LCDC also had general and special education support, as almost half of its students had IEPs. Education Code section 56361 demonstrates that the District’s PCC placements were essentially mainstream placements because it sets forth that the continuum of program options includes, a regular education program, a resource specialist program, designated instruction and services, special day classes, nonpublic schools, and home-hospital instruction, and other institutions. As discussed at length above, District’s PCC programs fall within the regular education settings on the continuum given that they included large populations of typical children with special education services for those children who required them. In other words, the District PCCs were just general education settings with supports. As of the time of this IEP, the District’s offer remained appropriate, and the District was not required to fund the private, unaccredited program preferred by Parents in order to offer a FAPE. In analyzing the appropriateness of this offer, the testimony of Ms. Berezowsky was persuasive. For three months, Student had been in the SDC, which focused on language, communication and social skills. The credible testimony of Ms. Berezowsky established that Student made progress in that program, and was close to meeting his short term objectives. Ms. Berezowsky anticipated he would meet his annual goals by June. At the April 7, 2011 IEP, over Ms. Berezowsky’s reluctance, District offered LCDC PCC to allow Student to benefit from an older peer group of three to five year olds and a stronger pre-academic curriculum. Student would have both a special education teacher and a general education teacher, and two aides. The credible testimony of Ms. Tomita established that this class had older peers, a more advanced pre-academic curriculum, and that it was appropriate for Student. The PCC mainstreamed Student to the maximum extent that was appropriate under the circumstances. Based upon Student’s steady progress in the SDC, the Parent’s wishes, and Ms. Dannelly’s and Dr. Woolverton’s persuasive description of the program as able to meet all of his needs, the mainstream placement at LCDC was appropriate and reasonably calculated to provide Student with an educational benefit. (Factual Findings 1 through 68, 109 and 110, and Legal Conclusions 3 through 41.)

76. District did not deny Student a FAPE at the April 7, 2011 IEP by failing to offer appropriate related services in the area of speech and language, occupational therapy and behavior. (Issue 11(B)) District’s offer of related services remained the same as the November 8 and December 8, 2010 IEP meetings, which, as established above, were appropriate for Student, based upon the assessments, observations, and credible testimony of Ms. Langus, Ms. Harper, Ms. Von der Lieth, and Ms. Berezowsky. When District agreed to offer the PCC program, the IEP team determined that the level of related services was still appropriate and could be implemented in that classroom. The team determined that LCDC PCC, an essentially mainstream class with collaboration between special education teachers, general education teachers, and direst service providers, would provide him with educational benefit. It would give him the training, instruction and facilitation he needed with the two special education staff members in the placement. In sum, the evidence showed that the related services offered supported the specialized instruction Student would receive in the LCDC, and thus offered him a FAPE. (Factual Findings 1 through 68, 109 and 110, and Legal Conclusions 3 through 41.)

Issues 12(A) through (C) – July 26, 2011 IEP

77. District did not deny Student a FAPE at the July 26, 2011 IEP by failing to offer an appropriate placement in the least restrictive environment. (Issue 12(A)) As discussed above, Dr. Simun discussed her report and made recommendations. The IEP team discussed those recommendations, and determined they could be implemented in the LCDC PCC. District reiterated its offer of a PCC, a language rich, mainstream placement with support, in which the teachers collaborated with each other and with the direct service providers, such that the goals could be implemented in all settings. Education Code section 56361 demonstrates that the District’s PCC placements were essentially mainstream placements because it sets forth that the continuum of program options includes, a regular education program, a resource specialist program, designated instruction and services, special day classes, nonpublic schools, and home-hospital instruction, and other institutions. As discussed at length above, District’s PCC programs fall within the regular education settings on the continuum given that they included large populations of typical children with special education services for those children who required them. In other words, the District PCCs were just general education settings with supports. As of the time of this IEP, the District’s offer remained appropriate, and the District was not required to fund the private, unaccredited program preferred by Parents in order to offer a FAPE. (Factual Findings 1 through 114, and Legal Conclusions 3 through 41.)

78. District did not deny Student a FAPE at the July 26, 2011 IEP by failing to offer appropriate related services in the area of speech and language, occupational therapy, behavior, and extended school year services after Student left for Parent’s unilateral placement. District offered an appropriate level of related services, which was based upon information that the IEP team had at the time. After Dr. Simun’s assessment and recommendations, the IEP team discussed their ability to implement those recommendations within the same program it had offered, which had a track record at that time of providing educational benefit to Student given his progress in all areas. It is not a denial of a FAPE merely because District did not offer what Parents and/or their hired expert preferred when all the evidence showed District had offered a program reasonably calculated to provide some educational benefit. District’s continued offer of related services was appropriate and constituted FAPE. (Factual Findings 1 through 114, and Legal Conclusions 3 through 41.)

79. District did not deny Student a FAPE at the July 26, 2011 IEP by failing to implement the related services of speech therapy, occupational therapy and adapted physical education after parent’s notice of unilateral placement. (Issue 12(C)) At each of the IEPs, including this one, District designed a program for Student which included placement and related services which were intended to support the placement. The definition of related services requires them to support the specialized instruction being offered. In other words, related services do not exist in a vacuum, and can only be considered appropriate to the extent they support the offered placement and instruction. The LCDC PCC was a specially designed, language rich program, with collaboration between teachers and direct providers, and was not a severable program. To implement the level of related services independently, Student would miss out on the language rich program, with its small teacher to staff ratio, the collaboration among its special education staff, and the focus on his goals across multiple settings. Without Student being enrolled in that placement, Student could not achieve the same benefit and receive the same level of supports from the implementation of independently provided services. Student points to no authority that would have required the District to provide related services on their own when Parents had refused a placement that provide that met the IDEA’s requirements in all respects. Put another way, the related services were part of a total package of a FAPE, and were not otherwise severable. This is particularly true where the related services, such as group speech therapy, could only be implemented in a District program. District did not deny Student a FAPE by not implementing related services after Parents unilaterally changed Student’s placement to their preferred private placement. (Factual Findings 1 through 114, and Legal Conclusions 3 through 41.)

Issue 13

80. Although labeled as an “issue,” Issue 13 is really Student’s request for a remedy. Based upon all the Legal Conclusions cited above, Student did not establish that District denied Student a FAPE during the 2010-2011 school year and ESY. Accordingly, Student is not entitled to compensatory education or reimbursement of any kind.

ORDER

1. District’s assessments were appropriate, such that it need not provide Student with IEEs at public expense.

2. All of Student’s requests for relief are denied. Student was not denied a FAPE, either procedurally, or substantively, in the development of the five IEPs at issue.

PREVAILING PARTY

Pursuant to Education Code section 56507, subdivision (d), the hearing decision must indicate the extent to which each party has prevailed on each issue heard and decided. Here, District was the prevailing party on all issues presented.

RIGHT TO APPEAL THIS DECISION

The parties to this case have the right to appeal this Decision to a court of competent jurisdiction. If an appeal is made, it must be made within ninety days of receipt of this decision. (Ed. Code, § 56505, subd. (k).)

DATED: March 6, 2012

DEBORAH MYERS-CREGAR
Administrative Law Judge
Office of Administrative Hearings

BEFORE THE
OFFICE OF ADMINISTRATIVE HEARINGS
STATE OF CALIFORNIA

In the Matter of:
PARENTS ON BEHALF OF STUDENT,

v.

OCEANSIDE UNIFIED SCHOOL DISTRICT.

OAH CASE NO. 2011120626

DECISION

The due process hearing in this matter is based upon Student’s due process complaint, which he filed on December 20, 2011. The hearing convened on February 14, 2012, at the offices of the Oceanside Unified School District in Oceanside, California, before Administrative Law Judge (ALJ) Darrell L. Lepkowsky from the Office of Administrative Hearings (OAH), State of California.

Eric B. Freedus, Esq., represented Student and his parents. Student’s mother was present during the hearing. Student did not attend the hearing.

Jonathan P. Read, Esq., accompanied by law clerk Kristin Johnson, represented the Oceanside Unified School District (District). Randi Gibson, the District’s Special Education Director, and Diana-Marie Casato, the District’s Coordinator for Special Education, were both present during the hearing.

Student called his mother as his only witness. The District called Ms. Casato and the District’s Director of Transportation, Glen Perry, as witnesses.

At the close of the hearing on February 14, 2012, the District requested that the case be continued to allow it to file a written closing brief in lieu of an oral closing argument. Student objected, wishing to present an oral closing argument and to maintain the original timeline for decision in this matter. The ALJ granted the District’s request for written closing argument. However, in light of Student’s objection and since Student is the petitioning party in this matter, the ALJ determined that she would not continue the matter in order to receive the briefs. The record remained open until February 21, 2012, when it was submitted after the parties timely filed their written closing briefs.

ISSUE

Does the District’s manner of providing transportation to Student pursuant to the October 17, 2011 settlement agreement between the parties deny Student a free appropriate public education?

CONTENTIONS OF THE PARTIES

Student contends that the District has violated the terms of a settlement agreement reached between the parties on October 17, 2011, at a resolution session in a previous due process proceeding. Student contends that the transportation the District agreed to provide has resulted in a bus trip for Student that takes over an hour and a half in the morning and two hours in the afternoon, and that Student also has to wait an additional 40 minutes for class to begin in the morning after the bus delivers him to school. He contends that the cumulative transport and waiting time is patently unreasonable. Student contends that the District is denying him a free appropriate public education (FAPE) because the length of the Student’s school day results in undue fatigue for him. He requests that the District be ordered to provide some other method of transportation that would shorten his commute time, and that the District compensate Student’s mother for the cost of her providing him with transportation for those days on which she has driven Student to school rather than putting him on the bus.

The District contends that Student has failed to demonstrate that he has been denied a FAPE due to the length of his commute. It also asserts that the settlement agreement between the parties bars Student from obtaining any relief in this case and that Student is not, in any case, entitled to a FAPE because he is a parentally placed private school child pursuant to the language of the settlement agreement.

Based upon the following factual findings and legal conclusions, this Decision finds that Student has failed to demonstrate by a preponderance of the evidence that the length of time he spends on the bus commuting to and from his private school placement has denied him a FAPE.

FACTUAL FINDINGS

Procedural Background

1. Student is a 12-year-old boy who is eligible for special education and related services under the primary eligibility category of autism. He lives with his parents on a military base in the northern part of the city of Oceanside, within the District’s boundaries. Student’s eligibility as a special needs child is not at issue in this case.

2. At the beginning of the 2011-2012 school year, Student’s parents informed the District that they were privately placing him at the Winston Academy (Winston), a nonpublic school located in the city of Del Mar, approximately 25 miles south of Student’s home and outside the District’s boundaries.

3. On or about October 3, 2011, after his parents had placed him at Winston, Student filed a due process hearing request in OAH Case No. 2011100099, alleging violations of his right to a FAPE during the 2010-2011 and 2011-2012 school years. Among his proposed remedies, Student requested reimbursement to his parents for their costs to date of his placement at Winston, including their cost to transport Student to school. Student also requested prospective placement at Winston along with District-provided transportation to the school.

4. The parties met in a resolution session on October 17, 2011, in order to try to resolve the issues raised by Student in Case No. 2011100099. Student and the District were represented by legal counsel. The parties reached a Final Settlement and Release Agreement (Agreement) during this resolution session. The Agreement was drafted by counsel for the District.

5. The Agreement states that its purpose is to avoid the time and expense of litigating the issues raised by Student in Case No. 2011100099. In the Agreement, the District agreed, inter alia, to fund Student’s tuition at Winston for the 2011-2012 school year, including tuition, one session a week of group speech and language therapy, and one session a week of individual occupational therapy.

6. The District also agreed to provide transportation to and from Winston for every day that Student attended school. The type of transportation is not described or defined in the Agreement. There is no mention of how long the trip to and from school would take for Student.

7. In exchange for the District’s agreements, Student, inter alia, agreed to relinquish his past, present, and future known and unknown claims against the District through the date of the execution of the Agreement and through the 2011-2012 regular school year.

8. Student also agreed that for the 2011-2012 school year, he would be considered a private school child with a disability as described in title 34, Code of Federal Regulations, part 300.130. Student acknowledged that as a privately placed student, he had no individual entitlement to special education and related services for the 2011-2012 school year.

9. Additionally, Student waived the application of Civil Code, section 1542 as to all claims. He also agreed to dismiss Case No. 2011100099.

10. The District began providing Student with transportation soon after the parties executed the settlement agreement. As discussed below, Student is on the bus for over an hour and a half in the morning and for almost two hours in the afternoon. Student’s parents did not realize how long the bus ride would be. Because they felt that the time it takes to transport Student to and from school is unreasonable and therefore denies him a FAPE, Student’s parents initially filed a compliance complaint with the California Department of Education. Finding that it had no jurisdiction to resolve FAPE issues, the California Department of Education rejected the compliance complaint and referred the issue to due process. Parents thereafter filed the instant case on behalf of Student on December 20, 2011, alleging that the District is denying Student a FAPE because the length of time of the bus trips is too long.

11. On January 10, 2012, the District filed a motion to dismiss Student’s complaint in the instant case. OAH denied the District’s motion on January 19, 2012, finding that Student’s complaint does not allege that the District has breached the Agreement and that he therefore is seeking an order from OAH enforcing the settlement’s terms. Rather, OAH found that Student’s complaint alleges a denial of FAPE as a result of a violation of the Agreement between the parties. Therefore, OAH found that it had jurisdiction over the issue raised in Student’s complaint. OAH did find, however, that the District could raise the scope of the settlement agreement as a defense to Student’s complaint. The matter then proceeded to hearing.

Provision of Bus Transportation

12. The District provides transportation for Student to Winston on one of its yellow school buses. Student is one of three District pupils for whom the District provides bus transportation to Winston, although one of the other pupils only avails himself of the transportation in the afternoon. The bus also transports two or three other pupils to a high school in Del Mar that is approximately 10 minutes away from Winston.

13. Student is the first pupil picked up in the morning and the last child dropped off in the afternoon because of his home’s location in the northern part of Oceanside. Student is picked up between 6:10 a.m. and 6:15 a.m. every morning. The bus then follows a route picking up the other pupils who attend Winston and the pupils who attend the high school. Classes at the high school begin at 8:00 a.m. The bus goes there first, arriving at about 7:45 a.m. The bus arrives at Winston about 10 minutes later, just before 8:00 a.m. Student’s teacher does not open her classroom until 8:00 a.m. Student has to wait outside for a few minutes before being permitted into the classroom. School does not begin until 8:25 a.m.

14. Student is therefore on the school bus in the morning for over an hour and a half. He then has to wait over another half hour before class begins. Student did not present any evidence that he has physical, emotional, or behavioral deficits or needs that prevent him from waiting a few minutes for his teacher to open his classroom.

15. Classes at Winston end at 2:30 p.m. Student is picked up from school at that time. The bus then picks up the high school pupils in Del Mar before making its rounds delivering the pupils to their homes. Student, as the last pupil dropped off, arrives at home at about 4:30 p.m. His afternoon bus ride is therefore two hours long.

17. Because of the length of the bus rides, Student’s mother has taken him to school and/or picked him up a number of times since the Agreement took effect. When she drives Student in the morning, the trip takes about 40 to 45 minutes. When she picks Student up from school, the trip home is even shorter, perhaps around 30 minutes, because it is before the afternoon rush hour starts.

16. Most afternoons, Student attends in-home applied behavioral analysis (ABA) therapy sessions that last two hours, starting at 4:30 p.m. The 4:30 p.m. start time is the latest time at which the ABA provider will begin the sessions. The therapy is not provided to Student as part of an individualized educational program. It is not provided by the terms of the Agreement between the parties. There is no evidence that the ABA sessions are provided by a Regional Center to address Student’s autism. Rather, Student’s mother explained that she is funding the ABA sessions herself because she believes, as the mother of three autistic children, that the sessions are necessary for Student’s progress. The sessions are therefore akin to other types of afterschool enrichment courses provided to students by their parents in an effort to maximize their strengths and address their weaknesses. Student provided no evidence that he requires the ABA sessions in order to access his education or to receive a FAPE.

17. Student’s mother, who was his only witness at hearing, testified that Student is fatigued by the length of his bus trips. She stated that the ABA therapists have told her that Student does not participate as fully in his sessions when he takes the bus home as compared when Mother is able to pick him up. Mother does not provide the therapy and none of Student’s ABA therapists testified at hearing.

18. Student’s mother also testified that Student’s teacher has informed her that Student is often fatigued at school because of the long bus trip in the morning. Student’s mother further stated that Student’s grades have fallen since he began taking the school bus to Winston. However, neither Student’s teacher nor any other Winston staff members testified at hearing and Student did not offer his grades into evidence. Student’s mother is not an educator. She provided no evidence, other than her personal opinion, of a nexus between the bus ride and Student’s grades.

19. . When asked what Student does on the bus, Student’s mother acknowledged that he sometimes sleeps and often plays games on his portable video game player. In response to a question regarding what Student does at home before starting his ABA therapy at 4:30 p.m. when she picks him up from school, Student’s mother acknowledged that Student sometimes plays video games, sometimes rests, sometimes watches television, or has a snack. In other words, there is not much difference from what Student can do on the bus and what he does when he has time at home before his ABA therapy.

20. Student provided no evidence that he has any special, physical, or mental health needs that would impact his ability to tolerate a long commute. He provided no evidence that he has behavioral issues that arise because of the commute or any toileting issues that cannot be addressed on his commute. Student provided no evidence that the other pupils on the bus have issues that somehow impact Student, thereby preventing him from accessing his education.

21. Student provided no evidence that the length of his commute to and from school prevents him from accessing his education or prevents him from making progress at school. He has therefore failed to prove by a preponderance of the evidence, that the District’s method of providing transportation to him has denied him a FAPE.

LEGAL CONCLUSIONS

Burden of Proof

1. In a special education administrative due process proceeding, the party seeking relief has the burden of proving the essential elements of his claim. (Schaffer v. Weast (2005) 546 U.S. 49 [126 S.Ct. 528, 163 L.Ed.2d 387].) In this matter, Student has the burden of proof.

OAH Jurisdiction

2. Generally, OAH does not have jurisdiction over cases that solely allege a breach of a settlement agreement. Under the Individuals with Disabilities Education Act (IDEA), parties may resolve their disputes either through the mediation process or through the resolution process. In either situation, the parties must execute a legally binding agreement that sets forth what the parties have resolved that is enforceable “in any State court of competent jurisdiction or in a district court of the United States.” (20 U.S.C. §§ 1415(e)(2)(f) and (f)(1)(B)(iii).) California statutes mirror their federal counterparts. (see, Ed. Code, §§ 56500.3, subd. (f); 56501.5, subd. (f)(2).) Therefore, the courts, rather than OAH, have jurisdiction to enforce a settlement agreement. The Ninth Circuit Court of Appeals has found that OAH does not have jurisdiction to enforce its own orders. (Wyner v. Manhattan Beach Unified School District (9th Cir. 2000) 223 F.3d 1026, 1028-1029.)

3. Student’s complaint specifically does not allege non-compliance with or breach of the Agreement with the District. Rather, he alleges that the District’s means of transporting him to school, pursuant to the Agreement, denies him a FAPE. Where a student alleges that a school district denied him a FAPE because of a failure to comply with or implement a settlement agreement, courts have found that OAH should take jurisdiction in order to resolve the FAPE allegations (see, e.g., Pedraza v. Alameda Unified Sch. Dist. (N.D. Cal. Mar. 27, 2007) 2007 WL 949603*5 [47 IDELR 302].) Therefore, as stated in the Order dated January 19, 2012, OAH has jurisdiction to determine whether the District’s method of providing transportation under the settlement agreement denied Student a FAPE.

Transportation

4. A disabled child’s special education program may require “related services” which include transportation and such developmental, corrective and other supportive services that are required to assist the child to benefit from special education. (20 U.S.C. § 1401(26)(A); 34 C.F.R. § 300.34(a)(2006).) In California, “related services” are called “designated instruction and services.” (Ed. Code, § 56363, subd. (a).)

5. As a related service, “transportation” means (1) travel to and from school and between schools, (2) travel in and around school buildings, and (3) specialized equipment (such as special or adapted buses, lifts, and ramps), if required to provide transportation for a child with a disability. (34 C.F.R. § 300.34(c)(16)(i)-(iii)(2006).)

6. Generally, the Individualized Education Program (IEP) team makes the decision about whether a disabled child requires transportation as a related service. (Ed. Code, § 56342, subd. (a); 71 Fed.Reg. 46576 (Aug. 14, 2006).) The decision is based upon the unique needs of the disabled child. (McNair v. Oak Hills Local School District (8th Cir. 1989) 872 F.2d 153, 156.) In this case, the parties agreed that transportation would be provided to Student as part of their settlement agreement.

FAPE Standard

7. Under the Individuals with Disability Education Act (IDEA) and companion state law, children with disabilities have the right to a FAPE. (20 U.S.C. § 1400(a); 34 C.F.R. § 300.101 (2006); Ed. Code, § 56000.) A FAPE means special education and related services that are available to the special needs pupil at no charge to the parents, that meet state educational standards, and that conform to the child’s IEP. (20 U.S.C. § 1401(9); 34 C.F.R. § 300.17 (2006); Cal. Code Regs., tit. 5, § 3001, subd. (p).) “Special education” is instruction specially designed to meet the unique needs of a child with a disability. (20 U.S.C. § 1401(29); 34 C.F.R. § 300.39 (2006); Ed. Code, § 56031, subd. (a).)

8. In Board of Education of the Hendrick Hudson Central School District v. Rowley (1982) 458 U.S. 176 [102 S.Ct. 3034] (hereafter Rowley), the United States Supreme Court addressed the level of instruction and services that must be provided to a student with a disability to satisfy the requirements of the IDEA. The Court determined that a student’s IEP must be reasonably calculated to provide the student with some educational benefit, but that the IDEA does not require school districts to provide the student with the best education available or to provide instruction or services that maximize a student’s abilities. (Id. at pp. 198-200.) The Court stated that school districts are required to provide a “basic floor of opportunity” that consists of access to specialized instructional and related services that are individually designed to provide educational benefit to the student. ( Id. at p. 201.) The Ninth Circuit has referred to the “some educational benefit” standard of Rowley simply as “educational benefit.” (See, e.g., M.L. v. Fed. Way School Dist. (2004) 394 F.3d 634.) It has also referred to the educational benefit standard as “meaningful educational benefit.” (N.B. v. Hellgate Elementary School Dist. (9th Cir. 2007) 541 F.3d 1202, 1212-1213; Adams v. State of Oregon (9th Cir. 1999) 195 F.3d 1141, 1149 (hereafter Adams).) Other circuits have interpreted the standard to mean more than trivial or “de minimis” benefit, or “at least meaningful” benefit. (See, e.g., Houston Indep. Sch. Dist. v. Bobby R. (5th Cir. 2000) 200 F.3d 341; L.E. v. Ramsey Bd. of Educ. (3d Cir. 2006) 435 F.3d 384.) A child’s academic progress must be viewed in light of the limitations imposed by his or her disability and must be gauged in relation to the child’s potential. (Mrs. B. v. Milford Board of Education (2d Cir. 1997) 103 F.3d 1114, 1121.)

9. The Ninth Circuit reaffirmed the validity of the Rowley standard in analyzing FAPE in the context of the 1997 version of the IDEA. In J.L. v. Mercer Island School District (9th Cir. 2010) 592 F.3d 938 (hereafter Mercer Island), the Ninth Circuit overturned the district court’s finding that Rowley’s educational benefit standard had been superseded by Congress when it revised the IDEA in 1997. The court found that for all intents and purposes, Congress had retained the same definition of a free appropriate public education when it reenacted the IDEA in 1997 and that it had not indicated any disapproval of Rowley. The court further found that Congress did not express any clear intent to change the Rowley FAPE standard. The court thus found that the proper standard to determine whether a disabled child has received a FAPE is the “educational benefit” standard set forth by the Supreme Court in Rowley.(Id. at pp. 951-953.) A review of the 2004 reauthorization of the IDEA does not indicate any substantive changes in the definition of FAPE or anything in the legislative history that would support a finding that Congress intended to change or modify the educational benefit standard enunciated in Rowley when it reauthorized the IDEA in 2004. The Ninth Circuit’s discussion regarding the lack of congressional intent to modify the Rowley standard is therefore equally applicable to IDEA 2004.

Does the District’s manner of providing transportation to Student pursuant to the October 17, 2011 settlement agreement between the parties deny Student a free appropriate public education?

10. Student argues that he has been denied a FAPE because of the length of his commutes to and from school. His primary argument is that he is fatigued at the end of the day which impedes his ability to participate in his after school ABA program.

11. Student’s argument is unpersuasive for two core reasons. First, Student failed to present any direct evidence that he was fatigued after the bus ride and that, even if he was, this fatigue interfered with his ability to access his ABA therapy sessions. The only witness to testify at hearing on Student’s behalf was his mother. She gave hearsay testimony regarding comments made to her by Student’s ABA provider. Student failed, however, to provide any direct evidence of an impact on his ABA therapy. No one who provided that therapy testified at hearing. Mother did not testify that she observed the therapy and therefore observed Student’s fatigue and difficulty in participating in the program. There is, in fact, evidence that contradicts the specter of Student arriving at home too tired to participate in the ABA program. Mother testified that Student generally sleeps on the bus or plays video games. This is similar to what Student does at home when he is picked up from school by his mother and has time before starting his therapy sessions. (Factual Findings 1221.)

12. Even assuming there was direct evidence that Student was more tired after the long bus ride than he is when driven home by his mother, there is absolutely no evidence that the fatigue prevented Student from making meaningful progress with his ABA therapy. As pointed out in Rowley and its progeny, a school district is not obligated to ensure that a child’s progress is optimal or maximized, just that it is more than minimal. No witness, including Student’s mother, testified regarding Student’s progress, or lack thereof, in his ABA program. The mere fact that Student may have been fatigued does not of itself support a finding that he was denied meaningful access to the ABA program. (Factual Findings 1221.)

13. Finally, even a finding that Student’s progress in the ABA therapy was impeded by the length of his commute would not support Student’s allegation that the District denied him a FAPE. Student’s ABA program is extra-curricular. It is not provided as part of an IEP and it was not provided through the settlement agreement. There is no evidence even that the therapy is being provided by a Regional Center to address Student’s autism in the home environment. Rather, Student’s mother testified that she is funding the program herself because she believes Student needs it. Her belief, however, does not create an obligation on the District’s part to ensure that Student may access a program that is provided solely by parental choice. (Factual Findings 12-21.)

14. Student also argues that the length of his bus commute is unreasonable on its face. He then argues that since the trip is unreasonable, it ipso facto denies him a FAPE.

15. Student cites to no California statute that defines the maximum amount of permissible travel time on a school bus to and from school. The IDEA does not contain any provision addressing the appropriate length of bus rides for special needs students. The lack of statutory guidance is understandable in the context of determining whether a district has denied FAPE to a child: the determination must be made on an individualized analysis of the needs and circumstances of the specific child. What is inappropriate for a child of three may not be inappropriate for a child of 12. What is inappropriate for a child with physical limitations may not be inappropriate for a child with no such limitations.

16. The individualized analysis has been the guiding principal behind the majority of decisions involving the transportation of children with special needs. In Covington Community School Corp. (SEA Ind. 1991) 18 IDELR 180, cited by Student in his closing brief, a bus trip of an hour was considered too long for the student because of her individualized needs, not because it was inappropriate for all students. In Covington, some students lived 75 miles from their school and thus even a 140 minute bus ride was not deemed inappropriate. Student cited a number of cases in his closing brief from the Office of Civil Rights. However, in the cases he cited, as well as in other cases (see, e.g. Santa Rosa County School Dist. (OCR 1991) 18 IDELR 153 (hereafter Santa Rosa); Palm Beach County School Dist. (OCR 1998) 31 IDELR 57 (hereafter Palm Beach)) the length of the bus rides were determined to be too long because there was a finding of something extrinsic to the individualized needs of the students on the bus. In Santa Rosa, the District transportation for some special needs students was found inappropriate and discriminatory because the bus schedule caused the special needs students to arrive late to class and forced them to leave early and because general education students had a shorter bus ride. In Palm Beach, the district bus transportation was found to discriminate against special needs students because their ride was one and a half hours long as compared to the half hour bus ride for the general education students. None of these circumstances is apposite to Student’s case.

17. Finally, the case of District of Columbia Public Schools (SEA D.C. 2004) 108 LRP 7451 is instructive as to the focus of the analysis where there is an allegation that a district provided bus ride impedes the provision of FAPE to a student. There, a student with a primary eligibility of visually impaired was placed through his IEP at a specialized nonpublic school. The bus ride to the school took two hours each way. The hearing officer found the bus ride inappropriate because the student, in addition to his visual impairment, was confined to a wheelchair and could not tolerate being in the chair for two hours at a time on the bus. The hearing officer did not find that the bus ride was too long; rather, he found that the placement was inappropriate because it was too far away from home for this particular student due to the student’s physical disability.

18. In contrast, Student in the instant case has not demonstrated any physical, mental, emotional, or behavioral reasons why he cannot tolerate a commute of approximately two hours each way to and from school. (Factual Findings 12-21.) He has not alleged that his school day has been cut short by the commute, and he has not demonstrated that his ability to make even meaningful progress in his education has been impeded. Nor has he produced any evidence that the decrease in his grades as noted by Student’s mother is related to the length of his bus ride. (Factual Findings 12-21.)

19. Student also argues in his closing brief that the ALJ should analyze this case under the statutes governing contract law, interpret the Agreement, and find that it is ambiguous as to the mode and method of transportation. Student then argues that the ambiguity should be interpreted against the District since it was the District that drafted the Agreement.

20. The initial problem with Student’s argument is that he has failed to demonstrate why the Agreement is “unreasonable” as to him. As Student acknowledges in his brief, there is no bright line that determines the reasonableness of bus travel time. Therefore, Student was obligated to present persuasive evidence that the bus ride travel time is unreasonable as to him. This he has failed to do. (Factual Findings 12-21.)

21. Finally, it bears pointing out that OAH accepted jurisdiction over this matter in its January 19, 2012 Order solely for the purpose of determining if the transportation implemented by the District pursuant to the Agreement denied Student a FAPE. OAH specifically stated that it was not accepting jurisdiction to determine if the District had breached the contract. Therefore, it is inappropriate to analyze and interpret the Agreement with the objective of determining whether the District breached it because it did not provide “reasonable” transportation.

22. In sum, Student has failed to meet his burden of proof though the presentation of persuasive evidence that the bus transportation provided by the District prevented him from making meaningful progress at school, or otherwise impeded his right to a FAPE.¹ (Factual Findings 1-21; Legal Conclusions 1-22.)

ORDER

1. The District’s manner of providing transportation to Student pursuant to the parties’ October 17, 2011 settlement agreement did not deny Student a FAPE. Therefore, Student’s claims for relief are denied.

PREVAILING PARTY

The decision in a special education administrative due process proceeding must indicate the extent to which each party prevailed on the issues heard and decided. (Ed. Code, § 56507, subd. (d).) Here, the District prevailed on sole issue presented for hearing.

RIGHT TO APPEAL

The parties have the right to appeal this Decision by bringing a civil action in a court of competent jurisdiction. (20 U.S.C. § 1415(i)(2)(A); 34 C.F.R. § 300.516(a)(2006); Ed. Code, § 56505, subd. (k).) An appeal or civil action must be brought within 90 days of the receipt of the Decision. (20 U.S.C. § 1415(i)(2)(B); 34 C.F.R. § 300.516(b)(2006); Ed. Code, § 56505, subd. (k).)

DATED: March 5, 2012

DARRELL L. LEPKOWSKY
Administrative Law Judge
Office of Administrative Hearings

In the Matter of:
PARENT ON BEHALF OF STUDENT,

v.

TEMECULA VALLEY UNIFIED SCHOOL DISTRICT AND THE RIVERSIDE COUNTY DEPARTMENT OF MENTAL HEALTH

OAH CASE NO. 2011060230

DECISION

This matter was heard before Eileen M. Cohn, Administrative Law Judge (ALJ), Office of Administrative Hearings (OAH), State of California, on January 23, 24, 25 and 26, 2012 in Temecula, California. Closing arguments were heard telephonically, on January 30, 2012.

Eric B. Freedus, Attorney at Law, represented Student. Student’s Mother (Mother) was also present at the hearing. Student was not present.

Lauri A. LaFoe, Attorney at Law, represented the Temecula Unified School District (District). Kimberly Velez, District’s special education director, was also present.

Dana M. Smith, Attorney at Law and Deputy County Counsel for the County of Riverside, represented the Riverside County Department of Mental Health (CMH). She was accompanied by Dianne Radican, CMH’s mental health services supervisor.

Student filed the Request for Due Process Hearing (complaint) on June 3, 2011. A continuance was granted for good cause on July 11, 2011. The matter was submitted and the record was closed on January 30, 2012.

ISSUES¹

1. Whether District denied Student a free and appropriate public education (FAPE) during the 2009-2010 and 2010-2011 school years by failing to:

1. reassess Student and conduct an Individualized Education Program (IEP) meeting at the outset of the 2009-2010 school year; and
2. implement the February 12, 2010, IEP by not timely referring Student to CMH.

2. Whether District and CMH denied Student a FAPE during the 20092010 and 2010-2011 school years by failing to:

1. complete Student’s mental health assessment in a timely manner; and
2. offer appropriate mental health services and placement at the May 17, 2010, and June 24, 2010, IEP team meetings.

FACTUAL FINDINGS

1. At all relevant times, Student resided within the boundaries of District with his Mother and older sister.

2. At the time of hearing, Student was a 15-year-old boy eligible for special education under the category of emotional disturbance (ED). Student does not have a relationship with his biological father, who has been absent since his birth. Student witnessed several years of domestic violence between Mother and Mother’s husband (Stepfather). In 2004, Student witnessed Stepfather violently assault Mother for which Stepfather was arrested. Mother suffered blunt force head trauma. Following the incident, Student was diagnosed with Post Traumatic Stress Disorder (PTSD) and participated in counseling through the Victim’s Crime Program. In January 2006, Student was diagnosed with attention deficit hyperactivity disorder (ADHD) (inattentive Type), conduct disorder, PTSD, and developmental coordination disorder. In addition to Student’s psychological diagnoses, Student suffered from chronic allergies and asthma which resulted in respiratory illnesses, including frequent colds.

3. In spring 2007, when Student was in fourth grade in another school district, he was referred for an initial psychoeducational assessment. Student had a history of absenteeism and tardiness. During the 2006-2007 school year, Student was absent 27 times and tardy 11 times. When at school, Student had difficulties with task completion and peer relations. Student exhibited poor attention and focus, engaged in excessive talking, and demonstrated problems with following directions, working independently, and completing school tasks.

4. Student tested in the average and low average range on cognitive assessments. In addition, his social-emotional testing demonstrated that he had long-term and pervasive problems with relationships, inappropriate behavior and depression. The results of his social-emotional testing showed that Student qualified for special education under the category of ED. The results of his psychoeducational assessment also showed that Student’s ADHD adversely impacted his education, and qualified him under the category of other health impaired (OHI). Student also demonstrated speech and language deficits.

5. On May 11, 2007, Student’s initial IEP team determined Student was eligible for special education under the category of ED, as well as speech and language impairment (SLI). The team also developed goals for attendance and classroom participation.

6. The May 11, 2007, IEP team also referred Student to that county’s department of mental health for an assessment. However, the referral did not progress because Student moved to District.

2007-2008 School Year

7. Student enrolled in District as a fifth grader in fall 2007. Student was placed in general education with resource specialist program (RSP) support and speech and language (LAS) services.

8. During the 2007-2008 school year, CMH supplied District’s pupils with mental health services. Upon Student’s enrollment in District, the elementary school psychologist contacted CMH to discuss his former school district’s referral to its responsible county mental health agency. CMH informed the school psychologist that District would have to make a new referral to CMH, because Student’s case was closed prior to his receipt of services from his former county mental health agency.

9. Student’s pattern of high absenteeism and tardiness continued during the 2007-2008 school year. From the inception of the 2007-2008 school year until an IEP team meeting on February 20, 2008, Student had been absent 15 times, and tardy 24 times. The IEP team also noted Student’s absences from his fourth grade year at his previous school district to the date of the IEP. From November 2006 through the date of the IEP, Student had been absent a total of 42 times, and tardy 35 times.

February 20, 2008 IEP

10. A February 2008 progress report stated that Student’s attendance had improved and that he was making satisfactory progress toward his academic and task completion goals.

11. Student’s elementary school IEP team met on February 20, 2008 to discuss the steps required to initiate a new referral to CMH and obtain mental health services for Student. The IEP team acknowledged that Student’s absences were a consequence of his reaction to stress, his desire to escape situations, his need for adult attention, and his way of protesting a grievance. The IEP team also acknowledged that Student’s allergies contributed to his absences. District offered 12 sessions of designated instructional service (DIS) school counseling, and a new mental health referral. Student’s eligibility for ED became his sole eligibility as the IEP team withdrew Student’s SLI eligibility.

12. Until CMH accepted District’s referral for mental health services, and as an interim measure, the school psychologist provided Mother with the contact information for her to secure counseling for Student under Medi-Cal. Mother committed to contacting CMH’s psychologist, Dr. Brooks, to make an appointment for counseling using Student’s Medi-Cal benefits pending receipt of IDEA-related services from CMH. There is no evidence that Mother accessed these other CMH services for Student.

13. The IEP team developed a goal to reduce Student’s absenteeism by 50 percent, as well as a behavior support plan (BSP). The team determined that the special education teacher, general education teacher, and Parent would be responsible for this goal.

14. The IEP team offered Student placement in general education eighty percent of the time, with 60 minute sessions of pull-out RSP in the areas of reading, writing and math, four times a week.

15. Mother attended the February 20, 2008, IEP meeting telephonically. She notified District that she was in the process of moving and asked that the IEP be sent to her P.O. Box, not her home address, for her review and signature. Mother executed her consent to the IEP on March 6, 2008.

16. In or around April 24, 2008, District initiated a referral to CMH. Mother signed her consent for District to refer Student to CMH and release information to CMH. Mother’s authorization remained effective for one year, or until April 24, 2009. CMH contacted Mother on September 30, 2008, at her post office box, to schedule an assessment.

17. There is no evidence that Student accessed any of the 12 sessions of school-based counseling services during the 2007-2008 school year.

2008-2009 School Year

18. Student’s pattern of absenteeism continued after he matriculated to Temecula Middle School (TMS) as a sixth grade pupil in fall 2008. Mother requested an IEP team meeting to encourage Student’s attendance by adjusting his schedule.

December 15, 2008 IEP

19. The IEP team met for Student’s annual review on December 15, 2008, and in response to Mother’s request. The team reported that Student missed school often due to his ED, and that his absenteeism caused him to fall behind academically. The IEP team agreed to a social-emotional goal which addressed his absenteeism by increasing his positive attitude about school. The IEP team also prepared goals to address Student’s reluctance to complete assignments, turn them in, and stay on task. As a result of Student’s absenteeism and failure to complete assignments, the IEP team kept the BSP in place that it had developed in the February 2008 IEP.

20. The IEP team agreed to adjust Student’s class placement. At the beginning of the school year, District had placed Student in RSP advisement, RSP language arts, RSP social skills, and general education math, science and physical education (PE). Student’s schedule was adjusted to add RSP math and study skills. At TMS, RSP-designated classes were often imbedded in the general education classroom with special education academic instructional assistance provided to Student individually or in a small group. Although the IEP stated that the RSP-designated classes were not part of the regular education environment, witnesses referred to these classes as “supported classes.” Student would continue to participate in general education science and PE without support. In addition, Student would be transferred from one teacher that Student found too challenging, to one that would be easier for Student to understand.

21. Student was not physically or verbally aggressive to other pupils at school. The IEP team reported that Student had made friends and had become more social, but required a social skills class to help him develop appropriate behavior in social situations. There is no evidence that Student ever eloped from school, or from any class. Student’s disability was manifest primarily in his task avoidance and failure to complete assignments.

22. Student’s Mother consented to the December 15, 2008, IEP. This IEP was the last agreed-upon IEP for Student.

23. The December 15, 2008 IEP listed both Mother’s residential street address, and her P.O. Box as her address. These addresses were repeated in each subsequent IEP.

24. On February 25, 2009, Student began the individual counseling originally set forth in his 2008 IEP with a District special education counselor. The counseling was scheduled to occur weekly for 30 minutes.

25. Despite the best efforts of Mother and the IEP team to adjust Student’s schedule during the 2008-2009 school year, Student was absent almost one-third of the school year. Student was absent 53 days out of a total of 180 days of school. Forty-seven of the absences were excused, meaning Mother advised the school of Student’s absences, and six were not. The attendance records demonstrated that Student continued to have absences and tardies after the IEP team modified his schedule. Student had approximately 16 full or partial day excused absences between the beginning of school and the December IEP team meeting. The remaining excused absences due to illness occurred after the December IEP team meeting. Between January 5, 2009, when pupils returned to school after winter break to the end of the school year on June 12, 2009, Student was absent due to illness approximately 21 times. Student was injured in spring 2009. During May and June, Student was absent 14 days due to illness.

26. As a result of Student’s poor attendance and incomplete school work during the 2008-2009 school year, Student achieved a class rank of 456, out of a total of 458 pupils, and a grade point average of one out of a maximum of four.

27. Student’s poor attendance also contributed to his failure to complete the twelve (12) sessions of counseling with the school counselor offered in the February 2008 IEP. Between February 25, 2009, and the end of the school year, Student completed six counseling sessions. The counselor had attempted to meet with Student on 10 other occasions, without success, due to Student’s absences from school.

28. At hearing, Mother testified that Student had problems with attendance during sixth grade, especially before his schedule was adjusted by the IEP team. The classes were too hard for him. When she first spoke with the counseling office when he arrived at TMS, they did not seem to know that he had an IEP. She requested an IEP team meeting so that he could obtain an easier schedule. According to Mother, when Student switched from more difficult teachers to classes with specialized academic support, Student engaged in less absenteeism and tardiness.

29. Mother was familiar with the IEP process. In addition to attending Student’s IEPs since 2007, she attended IEP meetings on behalf of his older sister, a high school pupil.

30. Mother admitted to cognitive impairment which impacted her memory, as a result of blunt force head trauma from her assault in 2004. She admitted to short term memory challenges, occasional long-term memory deficits, and generally challenges coping with her daily responsibilities. Her testimony regarding general events and circumstances was given great weight based on her demeanor, apparent candor, and consistency with documentary evidence or other witness testimony. Her testimony was given less weight when it conflicted with documents or other testimony, given her admitted impairment.

2009-2010 School Year

31. Student’s seventh grade, 2009-2010, school year commenced on August 17, 2009. Student returned to TMS at the beginning of the school year.

32. Student’s daily schedule began with an advisement period, which was a short homeroom period where announcements were made. Lance Yelton, who was a special education teacher and Student’s case manager, conducted Student’s advisement period. Student was then required to complete an eight period school day. He was scheduled for first period physical education (PE), second period elective, referred to as an exploratory, third period social science, fourth period general advisement, which was a reading period for all pupils, fifth period pre-algebra, sixth period lunch, seventh period language arts, and eighth period science. Mr. Yelton was not assigned to any of his other classes. One of Student’s assigned teachers was the same one Student found too challenging in the previous year.

33. Student was defiant and did not respect Mother’s authority. His defiance was not limited to school matters, but increasingly dominated their relationship in other matters. Student was also aggressive towards Mother by shouting within close range of her. Mother’s inability to command authority was compounded by Student’s size. At 13 years of age, Student was over six feet in height and weighed over 200 pounds.

34. Mother worked full-time as an assistant in a hospital from 2 p.m. through midnight, and was available each morning to prepare Student for, and drive him to, school. However, Mother could not always command Student to attend school. At the beginning of the 2009-2010 school year, Student attended the first week of school. However, in the second week of school, he attended four of five school days the second week, with tardies in early morning advisement the first two school days, and a tardy during first period the second school day. Student obtained an excused absence the fourth school day. Student attended the four available school days the third week of school, except for an excused absence one day for two periods of school, for advisement and first period. Mother kept in regular contact with school staff about Student’s attendance status. As evidenced by TMS’s attendance report for Student, Mother contacted the school most days to report Student’s absences.

35. Student continued to resist Mother’s attempts to get him to school. On one occasion, Mother succeeded in driving Student to school, but upon their arrival at the school, Student refused to leave the car. Mother left Student in the car and went into TMS’s administrative office so that the staff could assist with getting Student out of the car and into class. The staff refused to assist, and Mother took Student home. The staff did not contact Mr. Yelton.

36. During the fourth week of school, Student was excused for illness on the Tuesday immediately following a Monday school holiday, and on Friday, was cited for truancy for missing advisement, and received a tardy for first period.

37. Student’s absenteeism accelerated after the fourth week of school, beginning September 14, 2009. Student was excused for illness three of five school days that week. Student was tardy the first day of the following week, September 21, 2009.

38. Mother did not request an IEP team meeting, but by September 21, 2009, she had contacted Student’s counselor, and met with her in her office. Mother requested that the counselor adjust Student’s schedule so that it would be similar to the schedule that that he had the previous year after the IEP team met in December 2008. Mother wanted Student to participate in a class supported by a special education instructional assistant first period to help him navigate his academics. Mother wanted Student to be transferred from the classroom teacher that had been too difficult for him to follow during fall 2008.

39. On September 21, 2009, the school counselor confirmed in an email that District did not offer first period academic classes with special education aide coverage during first period. The school counselor copied the e-mail to Mr. Yelton.

40. Mr. Yelton, who testified at hearing, did not communicate with Mother during fall 2009. Mr. Yelton, who was newly assigned as Student’s special education case manager during the 2009-2010 school year, was an experienced special education teacher, with 21 years experience. At hearing, he spoke with candor and honestly stated whether he recollected or did not recollect events. He explained that Student’s counselor never asked him to respond to Mother’s request to adjust Student’s schedule. He did not recall the email from Student’s counselor.

41. Student stopped attending school the fifth week of school, on September 22, 2009.

42. Between September 22, 2009 and October 13, 2009, Student was excused for illness. Student’s absences were recorded as unverified from October 14, 2009 through October 16, 2009.

43. In an attempt to find a solution to Student’s refusal to attend school, Mother enrolled Student in a charter school on October 16, 2009, and on October 19, 2009, withdrew Student from District. Mother provided the charter school with Student’s IEP. There is no evidence that the charter school was within the District.

44. Mother selected the charter school because it did not require Student’s attendance every day and utilized a strong home school component. Class texts were downloaded on Student’s computer and assignments could be accessed and completed online. Student was required to attend the school site three times per week. Consistent with his pattern of defiance to his Mother, Student only attended two days of class the first week, and Mother could not convince him to attend again. Consistent with his pattern of task avoidance, Student also failed to complete the assigned class work. Student spent most of his day at home, except when he left the house during the day, in defiance of his Mother’s instructions.

45. District’s winter holiday schedule included one week for Thanksgiving, November 23 through 27, 2009, and approximately two weeks for winter break, December 18, 2009 through January 1, 2010.

46. Student’s enrollment in the charter school ended on or about December 9, 2009.

47. In early December, 2009, Mother retained an advocate, Fred Marasco, to assist her with Student’s educational options. Due to Mother’s cognitive impairment, she relied extensively on the advice of her family, particularly her brother, Student’s uncle (Uncle), to advise her on educational decisions for Student. Uncle worked with Mr. Marasco to advise Mother about Student’s educational options. Mr. Marasco, who provided expert testimony at hearing, interviewed Mother, and reviewed Student’s educational records, and previous evaluations, including the initial psychoeducational evaluation of 2007. Mr. Marasco has a bachelor of arts in psychology, and a masters of arts in psychological counseling. For 33 years, he was the school psychologist for the Sweetwater Union High School District in Chula Vista, California. In that capacity, he assessed students, managed special education programs and the teachers involved in those programs, provided direct counseling to pupils, referred pupils to the local county mental health agency for assessments and services, and participated in IEP’s. Based upon his experience, he was qualified to render an opinion on District’s obligations to offer Student a FAPE, or make referrals to CMH. Mr. Marasco also testified as a percipient witness. As a percipient witness, he demonstrated a better recollection of events than TMS staff, and his testimony, when compared to their testimony, was given more weight to the extent it was consistent with the supporting documentation. Where Mr. Marasco’s testimony regarding the IEP team meetings conflicted with the supporting documentation, or other percipient witnesses at IEP team meetings, it was given less weight, since Mr. Marasco was provided an opportunity to review the IEP team minutes before they were finalized.

48. On January 8, 2010, TMS’s assistant principal, Mr. Yelton, Mother, Student and Mr. Marasco met for the purpose of discussing Student’s attendance. Mr. Marasco’s goal was to encourage Student to attend school by making him comfortable in the school environment. From his discussions with Student, Mr. Marasco shared that Student’s academic challenges and resulting low confidence contributed to his feeling of being overwhelmed. At that meeting, Mr. Marasco and Mother spoke of building a relationship between Student and one adult, preferably his special education case manager, Mr. Yelton. They also initiated discussion about reducing the number of classes Student was required to attend, assigning him classes with supportive teachers that understood his needs, like Mr. Yelton, and increasing the number of classes with special educational instructional support. Student came prepared with proposed schedule modifications. The assistant principal advised that any modifications to Student’s program in the form of more restrictive classes would have to be made by the IEP team. Student then agreed to return to TMS, and Mother re-enrolled Student in District and TMS on January 11, 2010. Mr. Marasco collected all the necessary textbooks for Student.

49. Despite his commitment to attend school, Student never attended TMS after January 11, 2010.

50. On January 25, 2010, Mr. Marasco wrote a letter to the assistant principal requesting an IEP team meeting to discuss Student’s educational placement. He acknowledged that it would be difficult to assess Student’s needs due to his absence from school, but referred the school psychologist to his previous assessment. By that time, Mr. Marasco had concluded that it would be difficult for District to identify an appropriate placement for Student and stated his doubts about an appropriate public school placement in his letter. Mr. Marasco sent a copy of his communication to Mr. Yelton, and District’s school psychologist, John Kroncke.

February 12, 2010 IEP

51. On February 12, 2010, District convened Student’s IEP team meeting as part of its annual review and to respond to Mother’s concerns. All necessary IEP team members were present including: Mother, Student’s aunt, Mr. Marasco, Mr. Kroncke, Mr. Yelton, the assistant principal, and Student’s seventh grade general education language arts teacher. Student’s seventh grade general education teacher confirmed that in the short time Student attended school, he did not engage in class and did not complete assignments despite instructional aide assistance. Student’s behaviors at school were reviewed. District’s team members confirmed that Student was not aggressive or disruptive in class and did not exhibit any behavior problems during the school day.

52. Mr. Marasco reported on Student’s emotional and behavioral status based upon his review of records, his discussions with Mother, and his one-on-one interaction with Student. Student was not receiving any form of therapy, and he was not taking any medication. Mr. Marasco informed the IEP team that Student exhibited aggressive behaviors at home, and characterized Student’s behaviors as “troublesome” and “dangerous.” Mr. Marasco did not provide any further explanation of Student’s behaviors at home.

53. The IEP team discussed the need to reassess Student. Student’s triennial psychoeducational assessment was due in May 2010. Student had not been reassessed since his initial psychoeducational assessment in May 2007. Mr. Kroncke advised the IEP team that a new psychoeducational assessment was required in order to establish Student’s current present levels of performance, and to develop appropriate goals and services, so that District could make an offer of FAPE. The IEP team agreed to advance the triennial assessment of Student and to prepare an assessment plan for Mother’s signature that day. Mr. Kroncke explained the assessment process and timeline to Mother.

54. Mr. Marasco requested a mental health referral to CMH. The IEP team agreed that based upon Student’s participation in school-based counseling, that District could refer Student to CMH. District also agreed to initiate the CMH referral “concurrent” with its triennial psychoeducational assessment of Student.

55. The IEP team discussed the mechanics of conducting the triennial psychoeducational assessment given the challenges in getting Student to school. The team decided that the assessment would be scheduled at District, but it could take place, if needed, at District’s office, or at Student’s home.

56. The IEP team discussed Student’s schedule to encourage Student to come to school. Mr. Yelton proposed a daily schedule that provided Student more support and contact with Mr. Yelton. Mr. Yelton would continue as the advisement instructor, and after physical education period, Student would return to Mr. Yelton’s second period social studies class. Mr. Yelton would be available for Student again for the daily study period and his math concepts class. Student would still attend his language arts class, but would end his day with reading concepts or an elective. Student would no longer be required to attend prealgebra, or science. Student’s proposed daily schedule was not made part of the IEP.

57. The IEP team discussed Student’s placement. Other than the proposed daily schedule, Student’s placement remained unchanged from the previous IEP. Mr. Marasco stated that Student required a “treatment program,” and told District of Mother’s intent to withdraw Student from District, unilaterally place Student in an “appropriate” facility, and seek reimbursement, if necessary. Mr. Marasco did not further elaborate on his desired placement for Student. Mr. Kroncke understood a treatment program to encompass services outside of the school day, or services at a school site. Based upon Mr. Marasco’s notification that Mother was considering a unilateral placement, Mr. Kroncke believed that Mr. Marasco was looking for a placement other than a public school placement.

58. The February 12, 2010, IEP contained a goal to address Student’s absences due to his ED. The goal required Student to demonstrate through using positive reinforcement, a positive attitude about school, and to work on task. The goal was to be measured by Student’s work product, and teachers’ records, and was to be administered by Student’s special and general education teachers, Student, and Mother. The IEP did not include a BSP.

59. At hearing, Mr. Kroncke explained that a BSP was not prepared because the purpose of the February 12, 2010, IEP team meeting was to discuss Student’s triennial reassessment and refer Student to CMH. Consistent with his statement that a FAPE offer could not be made at the February 12, 2012 IEP team meeting, Mr. Kroncke maintained that a BSP would not have been appropriate until he reassessed Student and CMH made its recommendations. Mr. Kroncke stated that the necessity for a BSP would depend on Student’s placement.

60. The February 12, 2010, IEP, like the December 2008 annual IEP, included two addresses for Mother, her street address, and a P.O. Box.

61. Mother did not consent to the February 12, 2010, IEP.

62. On February 12, 2010, Mother signed the necessary consent form to refer Student to CMH, as well as to release Student’s information required to initiate the referral. The consent form listed Mother’s P.O. Box as her address.

63. Mr. Kroncke prepared the referral packet following the checklist of required documentation provided by CMH. Mr. Kroncke provided the parent consent and release form, forms setting forth Student’s profile, District’s required pre-referral interventions, the February 2008 IEP containing the IEP team’s statement of referral, social/emotional goals relevant to the referral, and attendance records from 2008 through 2009. When outlining District’s pre-referral interventions, Mr. Kroncke reported that Student’s absences prevented him from completing counseling sessions despite District’s repeated efforts to provide the services, and that Student needed more intensive intervention. Mr. Kroncke also reported to CMH Student’s ED eligibility, his personal traumatic and school attendance history, his isolation from peers and adults at school since October 2009, his Mother’s inability to get Student to attend school, and Student’s failure to complete the assigned work when Mother unilaterally enrolled Student in the charter and home school program. Mr. Kroncke also reported that Student could not complete tasks or work independently as evidenced by his failure to attend school or complete assignments at home. Also, Mr. Kroncke reported that Student’s behavior at school was generally appropriate when he attended in fall 2009, that he was generally cooperative with the adults at school, and that he had friends when he attended school.

64. In the CMH referral packet, Mr. Kroncke provided CMH with information about Student’s placement in general education classes with resource support for math and language arts, and his accommodations. He also advised CMH that District was in the process of preparing an updated psychoeducational assessment, and reported that the IEP team agreed that the referral to CMH would be made concurrently with District’s updated assessment, due to the “critical” nature of the referral.

65. Mr. Kroncke was required to provide CMH with Student’s most recent assessments as part of the CMH referral packet. Although Mr. Kroncke committed to making a concurrent referral, based on his experience with CMH, he wanted to complete the triennial assessment so that CMH would have the most recent referral information. In his experience, CMH had rejected referrals if the information was incomplete, or if a more recent assessment was pending. Because Student’s assessment data was almost three years old, Mr. Kroncke wanted to provide CMH with the latest assessment data.

66. Mr. Kroncke made several attempts to schedule Student’s psychoeducational assessment at TMS. He contacted Mother during the week of February 15, 2010 and offered Mother several appointment options at TMS. Mother agreed to bring Student on February 26, 2010 at 9:00 a.m. To convince Student that he should cooperate with the assessment, Mother threatened him that he would be removed from public school and placed in a nonpublic school (NPS). Student still would not cooperate with Mother and did not attend the assessment at TMS.

67. During the time period that Mother attempted to convince Student to cooperate with Mr. Kroncke’s assessment appointment, Mother and Mr. Kroncke cooperated to arrange times and dates that did not conflict with her Mother’s other obligations. Mr. Kroncke did not question Mother’s efforts to obtain Student’s cooperation.

68. Around this time, Mother had become impatient with CMH’s process, as she had expected to receive paperwork from CMH. On February 26, 2010, Mother asked Mr. Marasco whether he had received any paperwork from CMH. He had not.

69. Mother and Mr. Kroncke agreed to reschedule the appointment for March 1, 2010. Student did not appear for his assessment.

70. On March 5, 2010, Mr. Marasco requested in writing that Mr. Kroncke assess Student at home, as he committed to do if Mother could not get him to school. Mr. Marasco reminded Mr. Kroncke that Student had not returned to school and advised that Student showed evidence of “deterioration,” in the form of depression and oppositional behavior at home. Mr. Marasco reiterated Mother’s intent to withdraw Student from District, and seek reimbursement from District for her unilaterally placing him in an “appropriate” setting. He also expressed concern that further delay would also result in a delay in CMH’s assessment. As an experienced school psychologist involved in mental health referrals, he was aware that it was preferable, although not required, to provide the most current information through the date of the referring IEP team meeting.

71. In response to Mr. Marasco’s March 5, 2010 letter, District immediately scheduled and notified Mother of an IEP team meeting for March 15, 2010. Mother advised District that she could not attend that day.

72. Mr. Kroncke and Mother succeeded in arranging new assessment appointments at Student’s home.

73. Mr. Kroncke began, but did not complete, his assessment of Student at home on March 10, 2010.

74. On March 11, 2010, Mr. Kroncke delivered the referral package to District’s offices for delivery to CMH. All CMH referrals were submitted through District’s central administrative offices, and not through TMS.

75. Mr. Kroncke arranged with Mother to complete his assessment of Student at home on March 15, 2010. He also scheduled Mr. Yelton to administer Student’s academic assessment at his home that day as part of Student’s triennial psychoeducational assessment. Mother notified Mr. Kroncke by email at two o’clock in the morning that she had to cancel the appointments because she was required to work that morning.

76. On March 16, 2010, District’s administrative office approved the CMH referral packet prepared by Mr. Kroncke. The administrative office listed Mother’s residential street address on the cover sheet. The consent form signed by Mother listed her P.O. Box as her address.

77. Student’s at-home assessments with Mr. Kroncke and Mr. Yelton were completed on March 18, 2010. Mr. Kroncke and Mr. Yelton were able to develop a rapport with Student during their assessment of him. Mr. Kroncke engaged in spontaneous conversation with Student, and Student willingly responded to his questions. Student was cooperative throughout their testing, was attentive and made a good effort to complete the tasks.

78. On March 21, 2010, CMH received the referral packet from District. The referral packet included the February 12, 2010, IEP, but did not include Mr. Kroncke’s psychoeducational assessment report.

Psychoeducational Assessment Report

79. Mr. Kroncke’s 18 page psychoeducational assessment report was completed sometime on or after March 21, 2010. The report was not dated and Mr. Kroncke did not recall the exact date he completed the report. Mr. Kroncke’s report was comprehensive. In his report, he meticulously summarized Student’s medical, family, educational, discipline and assessment history. As part of Student’s educational history, Mr. Kroncke accurately reported Student’s history of absenteeism leading to Mother’s withdrawal of Student from District and her unsuccessful attempt to engage Student in the charter school home school program. He reported that Student’s teachers during the first month of school noted Student was generally disengaged from class and did not complete assignments. He reported that the primary concern was attendance, class participation, and task completion.

80. Mr. Kroncke administered a full range of academic and cognitive assessments. He administered the Wechsler Intelligence Scale for Children – IV to assess Student’s overall cognitive ability, and found that Student’s overall cognitive ability was in the low average range for reading and written expression and within the borderline range for math. Mr. Kroncke administered the Bender Gestalt II to assess Student’s visual perceptual and visual memory skills, and found that Student scored in the average range for visual perceptual and visual memory skills, and in the low average range for fine motor coordination. He used the Test for Auditory Processing Skills 3 (TAPS 3) to measure Student’s auditory perceptual processing skills, and found that Student scored overall in the average range with relative strengths in comprehension and reasoning, and a relative weakness in short term auditory memory. Mr. Kroncke administered the Test of Visual-Perceptual Skills 3 (TVPS 3) to measure Student’s visual perceptual processing skills, and found that Student measured average on most subtests. Based upon his scores, Mr. Kroncke concluded that Student performed better with visual learning, and nonverbal analytical tasks, and did not perform as well on tasks requiring verbal or expressive language skills or auditory memory skills.

81. Mr. Kroncke referenced Mr. Yelton’s academic assessment. Mr. Yelton administered the Wechlser Individual Achievement Test II (WIAT-II), including the reading composite, math composite and written language composite. Student tested within the low average range on broad measures of reading and written language. He tested in the borderline range for math; math computation was a particular weakness.

82. Mr. Kroncke assessed Student’s social emotional behavior with several assessments. He used the Piers-Harris Children’s Self Concept Scale 2, where Student reported his self-image. In the areas of behavior, physical appearance, anxiety, and popularity, Student reported average feelings, and reported high average feelings in the areas of general happiness and satisfaction. Student reported below average feelings regarding his intellect and school status. Student denied excessive stress or anxiety about school, but he did not see himself as a successful pupil, and lacked confidence in his intellectual and academic abilities. Student measured in the average range on the Reynolds Adolescent Depression Scale 2, which included six critical items considered most significant for indications of depression.

83. Mr. Kroncke administered the Connors Rating Scale to Student and Mother to measure the behavior characteristic of ADHD which impacted learning, including executive function, aggression, peer relationships, and family relationships. Mother’s scores and Student’s scores were opposite in areas of physical aggression and interpersonal relationships. Student did not see himself as aggressive, and saw his relations with his family as typical. Student and Mother agreed that Student had significant difficulty with attention, hyperactivity/impulsivity and learning. The Connors Rating Scale generally include teacher ratings, but Mr. Kroncke did not secure any, because Student had not been observed at school since September 2009.

84. Mr. Kroncke administered the Behavior Assessment System for Children 2, (BASC2) to measure externalized behavior, internal emotions, and social adaptive skills. Mother and Student provided ratings that opposed each other. Mother’s ratings profiled Student’s behaviors, adaptive skills, and social skills as clinically significant. To Mother, Student was sad, lonely, aggressive, and without social skills. Mother reported that Student sometimes said, “I want to kill myself,” and often said, “I want to die, or wish I were dead.” To Student, his behaviors and skills were typical of his peers, with the exception of his atrisk scores for somatization and test anxiety.

85. Mr. Kroncke, who interviewed Mother, included Mother’s perceptions of Student in his report. Mother advised, among other things, that Student made suicidal statements, was unreasonable, challenged authority, was argumentative, disrespectful to her, and blamed her for his behavior. She also stated that he violated curfew, bullied her and his sister, set fires, and destroyed property.

86. Mr. Kroncke also interviewed Student and reported Student’s reasons for his absenteeism. Student stated that he stopped attending school because he did not like some of his classes and thought there was too much work. He stated that he was ready to go back to school and he wanted to go back to TMS. He was willing to work with his school counselor to change some of his classes and teachers, and review his scheduling options.

87. Mr. Kroncke concluded that Student’s educational performance was adversely impacted by his long history of behavioral and emotional factors, primarily as a result of Student’s feelings of inadequacy, low confidence in his scholastic abilities, and excessive anxiety when facing stressful demands. Mr. Kroncke reasoned that Student withdrew and avoided situations where he felt inadequate, such as when faced with the demands of homework and tests. Student was cooperative in class, but passively resisted, by failing to complete assignments or participate in classroom discussions. Student’s absenteeism and passive resistance to assignments were poor coping mechanisms developed over time to avoid stress from school. When he perceived that school was too demanding, he avoided it by refusing to attend.

88. Mr. Kroncke also concluded that the family dynamic at home had evolved over time and resulted in behaviors that were different than behaviors at school. At home, Student did not respond to his Mother’s authority, and chose to be defiant and aggressive with Mother to avoid situations he did not want to face.

89. Based upon his interview with Student and Mother and their respective responses to the Connors and BASC-2 rating scales, Mr. Kroncke reasoned that despite Student’s denial, he evidenced depression from his social withdrawal, agitation at home, aggressive outbursts to Mother, and statements that he wanted to die.

90. Mr. Kroncke concluded that Student was socially isolated at the time and wanted to return to school, but did not know how to take the first step on his own. He emphasized that mental health services were required for Student to pursue his education and experience success at school.

91. Mr. Kroncke made several proposals for the IEP team’s consideration to advance Student’s access to his education. He recommended continued specialized academic support in the areas of language arts and math to support noted weaknesses in his skills in spelling, writing, and math calculation. He recommended a small group instructional environment to ease his transition back to school and to keep distractions to a minimum so he could sustain attention. He recommended mental health intervention to assist him in developing more effective coping skills, based on guidance from CMH’s assessment as to appropriate mental health services. He advised the IEP team that CMH services would also be needed to address Student’s depression, particularly in view of Mother’s report of his suicidal threats. He recommended that the IEP team develop short and long term educational goals with Student to provide him with greater meaning and purpose in his academic pursuits. He recommended visual instructional strategies to support his strength as a visual learner. Finally, he recommended a very supportive learning environment where Student could receive positive reinforcement and opportunities for academic success, which would facilitate his attendance.

92. At hearing, Mr. Kroncke elaborated on what he learned from his psychoeducational assessment of Student. Prior to his psychoeducational assessment, he merely understood that Student did not like to come to school. After his psychoeducational assessment, he fully appreciated that Student’s avoidance of school was part of a maladaptive response pattern of avoiding and withdrawing from situations which caused him stress. He clearly understood that Student’s maladaptive response to school was related to his ED.

93. Mr. Kroncke has 30 years experience as a school psychologist. He was a credible witness, doing his best to answer questions directly, and without obfuscation, based upon his recollection. It was clear that he was interested in serving Student and obtaining necessary CMH services for him. He demonstrated that he understood the range of placements available to Student. However, contrary to his demonstrated expertise, there was a marked omission of any discussion at the IEP team meetings of how to get Student to attend school, or how to provide him an education until he was willing to attend.

94. On March 23, 2010, Linda Brooks, psychologist and CMH clinical therapist, prepared a letter for Mother notifying her of CMH’s receipt of District’s referral, and requested Mother to call to arrange an appointment for Student’s mental health assessments. In her letter, she stated that Mother must contact CMH no later than April 23, 2010, or the case would be closed. Ms. Brooks also prepared a parental consent form which Mother was required to sign and return to CMH to initiate the assessment.

95. Ms. Brooks’ communication did not reference Mother’s address. CMH maintained a copy of Ms. Brooks’ March 23, 2010 letter, and the parental consent form in its records, but it did not maintain a copy of the mailing envelope, or any other mailing record.

96. On March 25, 2010, District notified Mother of a School Attendance Review Board (SARB) hearing to consider whether Student and Mother were in violation of juvenile or criminal laws requiring school attendance. The SARB letter was directed to Mother’s street, but had the wrong house number. Despite this, Mother received the letter.

97. Mother expected to receive all her communications, including communications from CMH at her P.O. box. Although she had a mail box at her residence, which was located approximately one hundred feet from her front door, she had a standing instruction with the United States Postal Service mail station that routed her mail, to forward all mail sent to her street address to her P.O. box. She never checked the mailbox.

98. District scheduled IEP meetings in April to review Mr. Kroncke’s assessment. District rescheduled an IEP team meeting originally set for April 20, 2010, to April 27, 2010. However, Mr. Kroncke canceled the April 27, 2010, IEP team meeting so that one IEP team meeting could be held when CMH completed its assessment.

99. In or around April 2010, Student’s older sibling began attending an out-ofstate residential treatment facility (RTC), the Provo Canyon School (Provo). Provo was a “lock-down” facility, meaning pupils’ movements were restricted and their mobility was strictly limited to assigned areas of the facility. Provo provided education and mental health therapy.

100. On April 29, 2010, Ms. Brooks sent a letter to Mother and District notifying them that Mother had not responded to her March 23, 2010 letter, and, therefore, CMH was unable to complete the assessment. The letter was addressed to District, but Mother separately received this letter.

101. In response to Ms. Brook’s letter, Mr. Marasco contacted Mr. Kroncke that same day and requested an “emergency” IEP team meeting.

102. When Mr. Kroncke learned from Mr. Marasco that Mother had not signed the necessary consent forms from CMH, Mr. Kroncke personally delivered the consent forms to Mother.

103. On May 2, 2010, Uncle expressed his concern to Mr. Marasco about the ability of District and CMH to develop a program before the end of the school year to address Student’s needs and absenteeism. He directed Mr. Marasco to contact CMH and District to find out what was going on and to advise the family of their options.

104. Mother signed the consent forms on May 3, 2010.

105. Upon receipt of Mother’s consent, Ms. Brooks worked with Mother to schedule the CMH assessment. CMH generally conducted its assessments at its offices. Mother agreed to bring Student to CMH on May 13, 2010, but despite her efforts, Student refused to leave home to attend.

May 17, 2010 IEP

106. In response to Mr. Marasco’s request, an IEP team meeting was held on May 17, 2010 to discuss the results of Student’s triennial assessment. All necessary team members were present including Mother, Uncle, Mr. Marasco, Mr. Kroncke, Mr. Yelton, a District administrator, and Student’s assigned general education teacher. Mother had an opportunity to ask questions about Mr. Kroncke’s assessment. Mr. Marasco asked about the status of CMH’s assessment and was told that the assessment would proceed within the week, and that upon completion, another IEP meeting would be held.

107. The IEP team discussed the need to get Student back to school. Mr. Kroncke reported Student’s interest in returning to TMS. Consequently, District IEP team members offered Student more support in special education classrooms. Specifically, District offered specialized academic instruction in language arts, math, science and social studies, in separate classrooms. Student would remain in general education for PE and an elective. District did not offer extended school year services (ESY).

108. The IEP team could not assess Student’s progress on his goals as he had not attended school since fall 2009. However, the team did develop a range of academic goals consistent with his December 2008 IEPs in areas of academic weakness that persisted according to Mr. Kroncke’s assessment. In addition, the team developed an attendance goal, styled as a vocational goal, to address his baseline absence from school since September 2009. The vocational goal required Student to improve his attendance by missing no more than one day of school per month as measured by attendance records. Only Student and Mother were responsible for this goal. The IEP did not include a BSP. District offered twelve school-based 30 minute counseling sessions, to be held monthly.

109. Mother did not consent to District’s May 2010 IEP offer.

110. Mother rescheduled the assessment with Ms. Brooks for May 19, 2010. However, Mother could not get Student out of bed to attend his assessment with Ms. Brooks. Ms. Brooks left messages for Mother to arrange a meeting to complete Mother’s portion of the assessment on May 24, 2010 or May 25, 2010. Ms. Brooks offered to complete Student’s portion of the assessment at TMS, and in advance of the assessment, to speak with Student on the telephone to reduce his anxiety about the assessment.

111. On May 19, 2010, Ms. Brooks sent a letter to Mother summarizing her efforts to secure Student’s assessment. The letter was addressed to Mother’s residential address, not her P.O. box. There is no evidence that Mother did not receive the letter. That same day, Mother contacted Mr. Kroncke and requested his assistance in getting Student assessed by CMH. Mr. Kroncke assured Mother that he would contact CMH to discuss ways to complete Student’s assessment.

112. Ms. Brooks interviewed Mother on May 24 and 25, 2010.

113. Beginning on May 25, 2010, Ms. Brooks prepared a CMH form document which summarized her findings, and the information she relied upon to make her findings, including Student’s diagnosis, his educational and medical history, and her interviews.

114. Ms. Brooks listed Mother’s correct residential street address in the space provided for the client address. The CMH document specifically prohibited the assessor from listing a P.O. box.

115. On May 26, 2010, CMH notified District to set an IEP team meeting to review its assessment.

116. Ms. Brooks arranged to assess Student at TMS on May 27, 2010. Student agreed to be transported to the CMH assessment by Mr. Kroncke. Mr. Kroncke went to Student’s home and drove him to TMS. Kroncke drove alone in the car with Student. Mother followed Mr. Kroncke and Student to the appointment in her car.

117. The 2009-2010 school year ended on June 11, 2010. There were approximately 180 school days in the 2009-2010 school year. Of those days, Student was enrolled a total of 84 days. Student was present 20 days, or 24 percent of enrolled days. Student was absent 64 days, or 76 percent of enrolled days.

CMH Assessment Report

118. On June 15, 2010, Ms. Brooks prepared Student’s mental health assessment report. Her report of interviews with Mother and Student was generally consistent with their statements made to Mr. Kroncke and memorialized in his pscychoeducational assessment report. Mother reported that Student made suicidal statements, but added that the statements were not recent. Mother did not report that Student ran away from home, or was otherwise a flight risk. Mother did not provide any information to Ms. Brooks that suggested that Student was a danger to himself or others. Mother’s report of Student’s health history was also similar to her report made to Mr. Kroncke.

119. The CMH report noted that as of the February 2010 IEP meeting, Mother stated an intention to residentially place Student. Ms. Brooks spoke to Mother about her statement and Mother confirmed that she intended to place Student residentially in order to help him receive an education.

120. During Student’s mental health assessment with Ms. Brooks, he admitted to depression. Student used to enjoy sports and excelled earning “most valuable player,” but lost interest in sports. He reported that his depression began after an accident during spring vacation in 2009, when a metal peg lodged in his knee after falling from a dirt bike. He required emergency room medical treatment and walked with difficulty for several weeks. Ms. Brooks concluded that he had symptoms of anhedonia, the loss of interest or pleasure in daily activities.

121. Ms. Brooks found Student to present as anxious and shy, but alert, cooperative and thoughtful. He was cautious at first, but after spending time with her, his anxiety decreased, they developed a rapport, and he was more forthcoming about his feelings of depression. Ms. Brooks was careful not to pursue Student’s early family history to avoid Student becoming anxious.

122. Ms. Brooks did not observe any suicidal ideation, plan or intent. She did not observe a thought disorder. She considered his judgment and insight to be fair to poor.

123. Ms. Brook’s report did not specifically reference Mr. Kroncke’s most recent psychoeducational assessment, and there is no evidence from her report or testimony that she considered any document prepared after the February 12, 2010, IEP. From her report it was clear that Ms. Brooks reviewed the following documents from District: the CMH referral form Mr. Kroncke prepared, Student’s sixth and seventh grade attendance records, and the February 12, 2010 IEP.

124. Ms. Brooks obtained records from Student’s medical doctor and one mental health care counselor who provided services to him in 2005. The mental health care counselor’s records established that Student received some treatment in 2005, but Student’s treatment was not completed because he frequently missed appointments. Mother’s participation was reported as minimal.

125. Ms. Brooks obtained the names of several additional individuals that had been named as Student’s past mental health providers, but did not have their records at the time of her assessment. On May 25, 2010, she requested records from four health providers, and requested that Mother extend the timeline for her report so that she could consider these records. Mother refused to agree to a further delay of the CMH assessment report.

126. Ms. Brooks recommended a treatment plan that focused on: communication skills to promote respect and compromise in the home environment; school attendance on a daily basis; work completion and the maintenance of a “C” grade within six months; behavior interventions to reduce symptoms of depression by decreasing negative self-talk and core beliefs; calming techniques to manage realistic demands and empower Student in unfamiliar situations by decreasing anxiety, and fearful thinking; a regime of daily medication prescribed by a psychiatrist to reduce symptoms of anxiety and depression; and increasing client’s physical activity to increase self-esteem.

127. Ms. Brooks, who provided testimony at hearing, is an experienced clinical therapist with a doctorate in clinical psychology with an emphasis on family psychology. She is also a licensed marriage and family therapist. Ms. Brooks has been employed with CMH since 1994. During 2010, she was assigned by CMH to its Temecula mental health clinic where as part of her responsibilities she conducted school-referred mental health assessments. Ms. Brooks testimony, together with her assessment and written documentation, demonstrated that she thoroughly reviewed and understood Student’s profile, approached Mother and Student with compassion, developed a rapport with them, and prepared a report that considered Student’s needs, but was consistent with CMH’s obligations. As such, Ms. Brook’s testimony was given great weight in considering whether CMH fulfilled its obligations under the IDEA.

128. Ms. Brooks consulted with her supervisor before finalizing her report. Her supervisor reviewed the initial referral information and met with Ms. Brooks to review her report. Ms. Brooks’ supervisor approved and signed Ms. Brooks’ report.

129. Ms. Brooks advised her supervisor of Mother’s interest in a residential placement. Following CMH protocols, as an assessor assigned to CMH’s local mental health clinic, Ms. Brooks was authorized only to recommend outpatient services. Authorization to recommend residential placement could only be made by CMH’s children’s case management division where clinicians have specialized knowledge of residential placement options. Ms. Brooks’ supervisor approved her recommendation for outpatient services. If Mother rejected CMH’s offer of outpatient services at the IEP to discuss the assessment, Ms. Brooks was directed by her supervisor to refer Student’s case to CCM to review it for residential placement.

130. CMH’s Temecula mental health clinic provided school-based mental health services, but also provided other services to the same pupils and their families that were not funded as IDEA services. Student and his family qualified for these other, non-IDEA services under Medi-Cal. Following CMH protocols, it was Ms. Brooks’ practice to review the scope of CMH’s Temecula health clinic services with families during the assessment process, and she did so with Mother. Ms. Brooks took particular note of Mother’s statement that she intended to place Student residentially. Ms. Brooks briefly reviewed with Mother the in-home services available to the family that could assist in keeping Student in his home environment. CMH offered services for the family that could be delivered in the home. For example, Ms. Brooks informed Mother that she could take advantage of therapeutic behavioral services (TBS) which were provided by a team which included a behavioral coach. The TBS team could visit with the family once a week and actively work with them to improve their relationships. As part of TBS, a behaviorist would model for Mother appropriate interactions with Student. Ms. Brooks described a variety of other services provided to parents and their families in their home which focused on supporting the family relationship, including wrap-around services and multi-dimensional family therapy, which were designed around the families’ needs, and included a range of family and individual therapy services. Ms. Brooks provided Mother with a CMH handbook which described service options.

June 24, 2010 IEP

131. On June 24, 2010, the IEP team convened to discuss the CMH assessment report. IEP team members included Mother, Mr. Marasco, Uncle, Mr. Yelton, Mr. Kroncke, Ms. Brooks, and a District administrator. Ms. Brooks was also accompanied by a CMH staff member that was assigned to advise Mother about CMH services. At Mr. Marasco’s request, Ms. Brooks’ supervisor and co-signer of her assessment report joined the IEP team meeting telephonically. Ms. Brooks’ supervisor explained that the recommendation in the assessment report was based on the information provided to Ms. Brooks, and that if CMH received additional information; it would consider conducting another assessment. Ms. Brooks’ supervisor also explained CMH’s protocol for reviewing individuals for a higher level of care such as residential treatment, and that CMH would initiate a review after CMH’s case management department received a referral for residential treatment assessment.

132. District IEP members adopted CMH’s recommendation, and included it in the IEP offer. CMH offered 45 minute sessions of individual or group therapy three times a month, and medication service one time bi-monthly for thirty minutes at CMH offices. District offered 12 school-based counseling sessions for the year.

133. District’s IEP team members also offered the same placement as in the May 17, 2010, IEP. Specifically, District offered placement at TMS with specialized academic instruction in a separate classroom for all academic subjects, four times daily, for forty minutes. General education involvement was limited to PE and his elective. As in the May 17, 2010, IEP, District provided a vocational attendance goal that was solely Student’s and Mother’s responsibility. A BSP was not included.

134. Mother objected to CMH’s and District’s offer. Mother expressed Student’s need for a program where services were available to him, and questioned how Student would access the placement and services given his history of absences and his known resistance to leaving home for the assessments.

135. Mother notified the IEP team that Student left home without her permission and had been staying with a friend for five days. She had been able to meet with him briefly.

136. Based upon Mother’s decision to decline CMH’s outpatient services, Ms. Brooks offered Mother a referral to the CMH children’s case management division for a higher level of care, and the IEP team agreed to refer Student to CMH again.

137. Mother notified the IEP team that she intended to withdraw Student from District, unilaterally place him, and request reimbursement for the placement. Mother’s notification was memorialized in the IEP notes, which were read and approved by all IEP team members, and made part of the IEP.

138. Per the notes, Ms. Brooks briefly referenced the availability of a range of mental health services offered by CMH and available to Mother. At hearing, Ms. Brooks testified that she followed CMH’s practice of advising family members of the range of options available to them from a variety of funding sources during the assessment and again at the IEP. Ms. Brooks, however, could not recall whether she had an opportunity to fully brief Mother at the IEP because she felt “rushed” by Mr. Marasco. As was CMH’s practice, Ms. Brooks was confident that she supplied Mother with a CMH handbook either at her assessment or at the IEP. At the IEP, she was also accompanied by a CMH parent advocate, who was there to guide Parent on accessing CMH services.

139. At hearing, Ms. Brooks’s clarified CMH’s role in ensuring that a pupil like Student would access its services given his year-long resistance to Mother’s efforts to transport him to school and to his assessments. Ms. Brooks was confident that Student would quickly develop a rapport with his health care counselor because during his assessments with school staff and her, Student quickly became comfortable. However, according to the memorandum of understanding between District and CMH, CMH was not responsible for transportation and CMH services were to be delivered at CMH’s clinic or a school site.

140. Ms. Brooks’ testimony about her assessment practices and the scope of her recommendations to Student’s IEP team, and her advice to Mother about other CMH services, was supported by the expert testimony of Dianne Radican, CMH’s mental health services supervisor, who testified as to the practices of CMH. Ms. Radican has been a licensed clinical social worker since 1983 and has a wealth of experience in addressing the needs of children and their families, for individual and group counseling and assessing children. During her tenure as a licensed clinical social worker, she worked with wards and court dependent youths, assessed them for residential levels of care, and made recommendations to IEP teams. Ms. Radican is an expert on IDEA mental health eligibility, assessments, and placement. She has trained mental health professionals and special education local plan area (SELPA) directors on eligibility, assessment and placement issues. Ms. Radican demonstrated a depth and clarity of understanding of CMH practices and protocols with regard to the assessment process and the factors considered in determining the level of mental health services. Her insight about CMH’s assessment practices was given weight in considering the timeliness of District’s mental health referral. Ms. Radican confirmed that Mr. Kronke’s referral would not have been rejected if it did not include the 2010 triennial reassessment. The relevance of her insight about CMH’s practices in offering services that were not solely related to special education was limited to clarifying CMH’s June 24, 2010, IEP offer, its practices in determining the appropriateness of residential treatment, and in weighing the equities as a component of compensatory relief. Her interpretation of the law was not relevant.

141. Ms. Radican was also a percipient witness in that she reviewed for CMH the propriety of its rejection of the IEP team’s request for residential treatment, directed Ms. Brooks’ response to the IEP team, actively participated in CMH’s reconsideration of residential treatment placement and IEP team meetings with Provo. Her direct interest in CMH’s decision limits the weight given her testimony as an expert regarding the appropriateness of Provo.

142. Ms. Radican confirmed that the range of counseling services CMH provided to families were not exclusively for special education. Ms. Radican confirmed that these other home-based services could enhance and support the IEP services, but were voluntary, and were not part of the IEP offer. In fact, CMH generally instructed its staff not to offer noneducational services as part of a pupil’s IEP. Despite the absence of other CMH services from the IEP, particularly the home-based services, Ms. Radican insisted at hearing that these services were necessary, and available to support Student, and that challenges based upon his unwillingness to leave his home to access services would be addressed. Ms. Radican maintained if a trial of therapy appointments were scheduled and missed at CMH’s clinic, CMH would work with the family to make other arrangements to access services. Student’s and Mother’s use of these other therapies, while not included in the IEP, were considered by CMH to determine whether all options had been exhausted prior to a residential placement.

143. On May 29, 2010, at the direction of her immediate supervisor, and Ms. Radican, Ms. Brooks sent a letter to Mother at her home residence, setting forth the range of above-mentioned CMH services available to Student to help him remain in his home environment. These services, referenced in paragraph 130, above, were not included in the IEP. She requested that Mother contact her to review with her the range of possible assistance programs. Mother received the letter, but did not contact CMH.

144. On July 12, 2010, Ms. Brooks forwarded Student’s referral for residential placement to the children’s case management division of CMH.

145. On July 13, 2010, in a letter directed to Ms. Brooks, Claire Priester, a licensed marriage and family therapist with the children’s case management division of CMH responsible for determining residential placement, rejected the referral as premature and inappropriate. Ms. Priester rejected the referral for two principal reasons. First, she found little evidence that either Student or Mother participated in mental health interventions. Other than six sessions of school based counseling, Student had only attended counseling in 2005, sporadically, and Mother’s participation was minimal. In addition, Ms. Priester found Mother’s refusal to participate in therapeutic interventions available through Medi-Cal, and outside special education, to be significant. She considered these other in-home services as viable therapeutic options that addressed Student’s reluctance to attend therapy at a clinic. In home therapy, the therapist would establish rapport and gradually reduce resistance to attendance at school or clinic-based therapy. She also found that the full range of least restrictive educational options had not been tried. Although Student was provided with RSP support at school, a few sessions of school-based counseling and home schooling through a charter school, more restrictive settings were not tried. Ms. Priester referred to a range of options that were less restrictive than residential placement, including in-home instruction, and more restrictive placements which may be less anxiety-producing, such as a special day class for ED or an NPS.

146. On July 16, 2010, Mother withdrew Student from the District and unilaterally placed him at Provo. Student was admitted to Provo and was provided with a small class educational program administered by a special education teacher. Provo administered the Woodcock Johnson III to establish a baseline for Student’s academic performance in reading, writing and math. Provo utilized District’s goals from the May and June 2010 IEPs. On intake, Student stated a goal of bringing up his grades during his placement at Provo. Student was also provided a range of therapeutic services, including, individual, group, family, and recreational therapy. Provo provided individual, family, and recreational therapy, once a week, and group therapy twice weekly.

147. On August 4, 2010, Ms. Brooks notified Mother by letter to her residential street address that CMH rejected the referral for residential treatment because least restrictive options had not been tried at home or in the school environments, and invited her again, to accept psychotherapy and medication services.

October 7, 2010 IEP

148. On October 7, 2010, the IEP team convened to review CMH’s response to the IEP team’s referral for residential placement, and Student’s progress at Provo. All required team members were present, including Mother, Mr. Marasco, Uncle, Ms. Brooks, another CMH representative, a District administrator and two representatives from Provo, including Ms. Jenkins, Student’s case manager at Provo. Student began the fall semester in August 2010 and received instruction in Earth Science, seventh grade math, American history and grammar and writing. Student’s initial behaviors in class were similar to behaviors reported by TMS, such as noncompliance with instructions, short attention span, socializing at inappropriate times, and creating distractions. Student attended class with younger pupils. At Provo, Student exhibited more aggression towards younger pupils. He verbally bullied and intimidated younger pupils into completing his assignments. Student was never physically aggressive at Provo.

149. At the IEP team meeting, CMH recommended that the IEP team resubmit its request to CMH for an assessment for residential treatment based upon current present levels of performance and progress at Provo.

150. Carlos Moreno, a licensed clinical social worker, and clinical therapist at CMH, reassessed Student and prepared a written report on February 2, 2011. Mr. Moreno was an experienced assessor and qualified to perform the mental health assessment.

151. As part of his assessment, Mr. Moreno interviewed Student. At the time of Mr. Moreno’s assessment, Student had been receiving A’s and B’s for coursework, except in math where he receive a C-. Student reported that his placement gave him the opportunity to catch up with his school work. Student admitted to refusing to attend TMS despite his Mother’s efforts because he felt he was falling behind the other pupils and could not keep up. He believed he would never catch up so he did not think it would be worth attending. He stated that he would have gone if his classes were different. He denied that there were other reasons for his failure to attend school. He committed to improving his academic performance when he returned home by requesting placement in a small classroom setting, and completing his assignments.

152. Despite Student’s apparent academic progress, Mr. Moreno did not recommend residential placement. Mr. Moreno was particularly concerned with the family’s failure to access mental health interventions. He reported in detail on the family’s poor counseling attendance from 2005, Mother’s lack of involvement in counseling, and the absence of any sustained counseling for five years.

153. Like Ms. Priester, Mr. Moreno found that District did not attempt less restrictive educational interventions and placement. He noted that District failed to provide interventions that might have reduced Student’s anxiety to school such as having someone like Mr. Kroncke develop a thereapeutic alliance with Student. He noted that LRE alternatives were not tried by District including home hospital instruction, an ED-SDC class, and placement in a NPS. Mr. Moreno affirmed the original recommendations from CMH and Ms. Brooks for outpatient mental health treatment.

154. At hearing, Ms. Radican reinforced the findings of Ms. Priester and Mr. Moreno. Ms. Radican has made 200 residential placements. She maintained that placement in a residential treatment program, like Provo, is justified in narrow circumstances, where the child is a severe danger to others and to self, where the child suffers serious thought or mood disorders, is physically aggressive such that he is a danger to himself and others, demonstrates risk taking behaviors, such as prostitution or drug abuse, has maladaptive behaviors that give rise to criminal conduct, and has behaviors that are severe in many arenas.

155. At hearing, Student’s advocate, Mr. Marasco, provided an expert opinion from his years of experience as a school district psychologist as to the options available to school district before and at the IEP team meeting to encourage Student’s attendance. Mr. Marasco shared some recommendations with District at the January 8, 2010 meeting reference in paragraph 48, above. Although Mr. Marasco doubted that District had an appropriate program for an ED pupil like Student, Mr. Marasco offered that District could have assigned staff to go to the home and encourage him to attend school, provide in-home instruction, and then assigned a mentor to be available to him on campus when he returned. There is no record in his extensive communications or the IEP team notes that he reviewed and approved, that he recommended alternatives to residential placement at the IEP team meetings. Mr. Marasco’s testimony that his input was not reflected in the IEP team notes because the notes were written by District team members was not credible given his experience and vigilance as the advocate for Mother and Student. Inconsistent with his opinion, Mr. Marasco did not offer any evidence that he discussed less restrictive options than residential placement with Mother. Nevertheless, his opinion about less restrictive options was considered because it was consistent with CMH’s concern about offering less restrictive options than residential treatment.

April 8, 2011 IEP

156. On April 8, 2011, the expanded IEP team met. Team participants included District, CMH, and counsel for the parties. The IEP team meeting also included representatives from Provo who joined telephonically. The team reviewed Mr. Moreno’s assessment and received information provided from Provo staff who insisted that Student could only progress in a forced structure, like Provo. Although Provo staff maintained that Student was at risk for elopement, the only incidence of elopement occurred during his off campus visits with Mother where he would walk away from her without permission for a period of time.

157. District’s IEP offer of services and placement remained unchanged from the June 24, 2010, IEP, as did CMH’s offer.

158. Student’s educational performance improved over the course of his stay at Provo. By April 2011, Student was receiving an A in Literature and Writing, a B in Integrated Science, and a C in American history (after three weeks of A’s). Student still struggled with math. At Provo, Student still demonstrated task avoidance and his overt defiance persisted toward his Mother despite weekly family therapy.

159. District’s 2010-2011 school year ended no later than the third week of June 2011.

160. Student left Provo in August 2011. By the time he returned home, Student had completed his seventh and eighth grade curricula. After Student returned home, Mother enrolled him in private school instead of District. Student has been engaged in his school environment and looks forward to his school day. He is involved in sports. Student takes particular pride in his attendance record. He had no absences during the 2011-2012 school year, until the hearing the time when he was out sick with a cold and high fever.

161. Mother borrowed from her family to pay for Provo. The parties stipulated to the accuracy of the documentation of her expenditures, which was inclusive of tuition (i.e., education, mental health services, room and board) and expenses (travel, and supplies). Mother expended a total of $132, 974 dollars for tuition, and $8,203 dollars for expenses.

LEGAL CONCLUSIONS

1. In a special education administrative due process hearing, the party seeking relief has the burden of proving the essential elements of its claim. (Schaffer v. Weast (2005) 546 U.S. 49, 56-62 [126 S.Ct. 528, 163 L.Ed.2d 387].) Here, Student has the burden of proof.

Issue One (A) – Failure to Reassess or Hold an IEP Team Meeting Near the Beginning of 2009-2010 School Year

2. In Issue One (A), Student claims that District failed to provide Student a FAPE by not conducting his psychoeducational reassessment near the start of the 2009-2010 school year, or convening an IEP team meeting. District disagrees, and contends that it was not obligated to reassess Student until May 2010, when his triennial assessment was due, or convene an IEP meeting at near the beginning of the 2009-2010 school year.²

3. Under the Individuals with Disabilities Education Act (IDEA) and companion state law, students with disabilities have the right to a free and appropriate public education (FAPE). (20 U.S.C. § 1400; Ed. Code, § 56000.) FAPE means special education and related services, under public supervision and direction that are available to the student at no cost to the parents, that meet the state educational standards, and that conform to the student’s IEP. (20 U.S.C. § 1401(9); Cal. Code Regs., tit. 5, § 3001, subd. (o).)

4. California law defines special education as instruction designed to meet the unique needs of individuals with exceptional needs coupled with related services as needed to enable the student to benefit fully from instruction. (Ed. Code, § 56031.) The term “related services” includes transportation and such developmental, corrective, and other supportive services as may be required to assist a child to benefit from special education. (20 U.S.C. § 1401(26).) In California, “related services” are referred to as DIS services. (Ed. Code, § 56363, subd. (a).) DIS services may include counseling and guidance services; psychological services other than assessment and development of the individualized education program; parent counseling and training; and social worker services. (Ed. Code, § 563563, subds. (b)(9), (b)(10), (b)(11), & (b)(13).)

5. In Board of Educ. of the Hendrick Hudson Central Sch. Dist. v. Rowley (1982), 458 U.S. 176 [102 S. Ct. 3034] (Rowley), the United States Supreme Court addressed the level of instruction and services that must be provided to a student with disabilities to satisfy the substantive requirements of the IDEA. The Court determined that a student’s IEP must be reasonably calculated to provide the student with some educational benefit, but that the IDEA does not require school districts to provide special education students with the best education available or to provide instruction or services that maximize a student’s abilities. (Id. at pp. 198-200.) The Court stated that school districts are required to provide only a “basic floor of opportunity” that consists of access to specialized instructional and related services which are individually designed to provide educational benefit to the student. (Id. at p. 201.)

6. In resolving the question of whether a school district has offered a FAPE, the focus is on the adequacy of the school district’s proposed program. (See Gregory K. v. Longview School District (9th Cir. 1987) 811 F.2d 1307, 1314.) A school district is not required to place a student in a program preferred by a parent, even if that program will result in greater educational benefit to the student. (Ibid.) For a school district’s offer of special education services to a disabled pupil to constitute a FAPE under the IDEA, a school district’s offer of educational services and/or placement must be designed to meet the student’s unique needs, comport with the student’s IEP, and be reasonably calculated to provide the pupil with some educational benefit in the least restrictive environment. (Rowley, supra, at 200, 202-204.)

7. In matters alleging procedural violations, a denial of FAPE may only be shown if the procedural violations impeded the child’s right to FAPE, significantly impeded the parents’ opportunity to participate in the decision-making process regarding the provision of FAPE, or caused a deprivation of educational benefits. (Ed. Code, § 56505, subd. (f)(2); see also W.G. v. Board of Trustees of Target Range School District No. 23 (Target Range) (9th Cir. 1992) 960 F.2d 1479, 1484.) The definition of a FAPE requires that special education and related services be provided in conformance with a child’s IEP. (See 20 U.S.C. § 1401(9).) However, to amount to a denial of FAPE, the failure to implement the IEP must be “material,” i.e., the services actually provided to the child must fall “significantly short of the services required by the IEP.” (Van Duyn v. Baker School District 5J (9th Cir. 2007) 502 F.3d 811, 822.) Minor discrepancies between the IEP and the special education and related services actually provided do not give rise to a denial of FAPE. (Ibid.)

8. An assessment of a pupil receiving special education and related services must occur at least once every three years unless waived by parents and school districts. (20 U.S.C. § 1414(a)(2); Ed. Code, § 56381, subd. (a)(2).) A reassessment shall be conducted when the school district determines that the educational or DIS service needs, warrant a reassessment, or if the pupil’s parents or teachers request a reassessment. (Ed. Code, § 58381, subd. (a)(1). Within 15 days of the request for assessment, the school district must provide an assessment plan. (Ed. Code § 56321 (a).)

9. Psychoeducational reassessments, like all IDEA required school assessments, must be selected and administered to best ensure that the test results accurately reflect the pupil’s aptitude, achievement level, or any other factors the test purports to measure and not the pupil’s impaired sensory, manual, or speaking skills unless those skills are the factors the test purports to measure. (Ed. Code, § 56320, subd. (d); 34 C.F.R. § 300.304(c)(3) (2006).) The assessor must prepare a written report that includes: (1) whether the student may need special education and related services; (2) the basis for making that determination; (3) the relevant behavior noted during observation of the student in an appropriate setting; (4) the relationship of that behavior to the student’s academic and social functioning; (5) the educationally relevant health, development and medical findings, if any; (6) if appropriate, a determination of the effects of environmental, cultural, or economic disadvantage; and (7) the need for specialized services, materials, and equipment. (Ed. Code, § 56327.) The report must be provided to the parent at the IEP team meeting required after the assessment. (20 U.S.C. § 1414(b)(4)(B); Ed. Code, § 56329, subd. (a)(3).)

10. An IEP must be reviewed annually, but must also be reviewed periodically, where there is a lack of expected progress toward annual goals and in the general education, to review the assessment, or to consider positive interventions and supports, or other strategies, to address behavior. (Ed. Code, § 56380, subd. (a).) Revisions to the IEP can be made without a meeting and the changes to the IEP could be made in a written document signed by the school district representative and the Parent. (Ed. Code, § 56380.)

11. An IEP meeting to review the results of the assessment must be held within 60 days from the receipt of the parent’s written consent to the assessment, with certain exceptions for vacation days and other circumstances. Parent may agree, in writing, to an extension of the 60-day period. (Ed. Code, §§ 56043, subd. (f)(1); 56344, subd. (a).)

12. Student met his burden of proof that District committed a procedural violation by not submitting an assessment plan to Mother and conducting the psychoeducational assessment near the beginning of the 2009-2010 school year, however, Student failed to show that the failure to assess resulted in a denial of a FAPE. School districts are not required to reassess students more than once every three years, unless District determines a reassessment is warranted to address educational or services needs, or unless Student’s parents or teachers request a reassessment. The evidence shows that District did not determine that a reassessment was warranted at the beginning of the school year because neither Mother nor any of Student’s teachers requested a reassessment. However, as with District’s obligation to conduct an IEP team meeting, as discussed below, there was overwhelming evidence that Student was chronically absent, inattentive, and was not progressing academically. Once Student’s status was brought to the attention of District’s psychologist at the February 2010 IEP team meeting, Mr. Kroncke requested an early triennial assessment. The circumstances that were present at the February 2010 IEP team meeting that resulted in the denial of FAPE were also present during fall 2009. (Legal Conclusion 8-9; Factual Findings 1-42.)

13. However, Student did not meet his burden of proof that District’s failure to deliver an assessment plan or conduct the psychoeducational reassessment resulted in the denial of FAPE as there was no evidence that the assessment would have been completed prior to Mother’s unilateral withdrawal of Student from District in mid-October 2009. As set forth below, District was on notice by September that revisions to the IEP were required. However, given the statutory timelines to complete the assessment, there is no evidence that the assessment would have been completed prior to Mother’s unilateral withdrawal of Student from District.

14. Accordingly, Student did not demonstrate that District’s procedural violation of its duty to reassess in fall 2009 significantly impeded the parents’ opportunity to participate in the decision-making process regarding the provision of FAPE, or caused a deprivation of educational benefits. (Legal Conclusions 1, 3-11; Factual Findings 1-46,148.)

15. Student met his burden of proof that District committed a procedural violation, by not initiating an IEP meeting at the beginning of the 2009-2010 school year to review Student’s behaviors, adjust his schedule, modify his placement, or find other ways to encourage him to attend school. The evidence showed that within a few weeks of the 20092010 school year, Student was actively repeating his pattern of high absenteeism and disengagement from school tasks. Mother had successfully worked with the IEP team the previous year to reduce his coursework by changing teachers, and providing him with more support. Even then, Student completed his previous school year at the bottom of his class. Seeking a similar schedule adjustment in fall 2009, Mother consulted with the school counselor in the third week of school. Although Mother did not request an IEP meeting at that time, District had a duty to call an IEP team meeting after Mother contacted the school counselor. Notably, Mr. Yelton, who was Student’s new case manager, was also his advisement teacher. As such, Mr. Yelton was the first teacher Student met each day, and was charged with knowledge of his absences. Yet Mr. Yelton did not take any steps to investigate Student’s absences, initiate contact with Mother, talk to his teachers, or request an IEP team meeting. Although Mr. Yelton did not recall receiving an email from Student’s counselor on September 21, 2010, he should have already been in contact with Mother and convened an IEP team meeting to address Student’s behaviors which impeded his access to his education. District’s duty to hold an IEP team meeting is distinct from its obligation to reassess Student. An IEP must be reviewed periodically where there is a lack of expected progress toward annual goals and in the general education, or to consider positive interventions and supports, or other strategies, to address behavior. As such, District’s failure to convene an IEP meeting constituted a procedural violation.

16. Student met his burden of showing that District’s failure to convene an IEP team meeting resulted in a deprivation of educational benefits. Student had not been accessing his education during fall 2009. The evidence showed that Mother attempted to get help from TMS and only withdrew Student from the District after she could not obtain help from TMS staff when Student would not get out of the car or modification of his schedule so that he had special education assistance first period. An IEP team meeting could have been held, or scheduling or placement modifications incorporated into a revised IEP, without an IEP team meeting. Based on Student’s past performance when his schedule was adjusted, it was likely Student would have been able to access more of his education had changes been made earlier in the school year.

17. In sum, Student met his burden of showing that he was denied a FAPE by District’s failure to hold an IEP team meeting in the fall of 2009. (Legal Conclusions 1, 3-7, 10; Factual Findings 1-46.) The remedy for this violation will be discussed separately below.

Issues One (B) and Two (A) – Failure to Timely Refer for and Complete the CMH Assessment

18. In Issue One (B) Student contends that District failed to implement the February 12, 2010 IEP by failing to timely refer Student to CMH, which resulted in a loss of educational opportunity. District denies that District’s failure to timely refer Student resulted in a substantive violation of District’s obligations to offer a FAPE, because Mother rejected District’s and CMH’s appropriate offer of outpatient services, and special day classes.

19. In Issue Two (A) Student contends that both District and CMH committed procedural violations by failing to respect mandated timelines to complete Student’s mental health assessment, which resulted in a denial of FAPE. Specifically, as to District, Student contends that Mr. Kroncke failed to timely provide the referral package, which has been addressed in Issue One (b), and failed to ensure that CMH utilized the correct contact information for Mother, so that she would receive CMH’s assessment plan. District maintains that it was not responsible for CMH’s delivery of the assessment plan to Mother, and further contends that Mother contributed to the delay by failing to check her residential mail box. As to CMH, Student contends that CMH’s sloppy postal practices resulted in a delay of Student’s mental health assessment. In his complaint, Student alleges that CMH mailed the complaint to Mother’s residential address knowing that her P.O. Box was the only appropriate address. At hearing, Student argued that there was no evidence that CMH mailed the assessment plan to Mother at all. CMH denies that it failed to timely send its assessment plan to Mother, and joins District in claiming that Mother’s failure to check her residential mail box contributed to the delay.

20. Student’s complaint concerns offers made prior to October 8, 2010. Prior to October 8, 2010, California law provided that the provision of mental health services that were necessary to provide a FAPE were the responsibility of county offices of mental health under the supervision of the State Department of Mental Health. (See former Gov. Code §7570, et seq., [commonly known by its Assembly Bill name, AB 3632 (Chapter 26.5)].) However, this mandate was rendered inoperative, and responsibility for the provision of services reverted completely to the local education agencies by the Governor’s veto of funding for this program on October 8, 2010. (California School Boards Ass’n, v. Brown (2011) 192 Cal.App.4th at pp. 1519-1520.) Subsequently, by operation of AB 114, Chapter 43, Statutes of 2011, Government Code section 7576, which mandated that IDEA mental health services be provided by the state Department of Mental Health, became inoperative effective July 1, 2011, and repealed effective January 1, 2012.

21. Prior to the repeal of the mandate on October 8, 2010, a student who was determined to be an individual with exceptional needs and was suspected of needing mental health services to benefit from his or her education, could, after the school district obtained parent’s consent, be referred for assessment to a community mental health service, such as CMH. (Former Gov. Code, § 7576, subd. (b).) Although under this system a county mental health department was responsible for providing the assessment and any required services, the duty to obtain written parental consent for the referral remained exclusively with the local educational agency. (See former Gov. Code, § 7576, subds. (b)(2) and (c)(2).)

22. After the local educational agency obtained parental consent for the referral, the assessment would only go forward if the district, in accordance with specific requirements, prepared a referral package demonstrating that the student met the criteria for referral. (Ed. Code, § 56331, subd. (a); Cal. Code Regs., tit. 2, § 60040, subd. (a); former Gov. Code § 7576.) A school district must initiate a referral for a mental health assessment within five working days of its receipt of parental consent to a referral. (Cal. Code Regs., tit. 2, § 60040, subd. (a).) The community mental health agency shall develop a mental health assessment plan and provide it to a parent within 15 days of receipt of the school district’s referral. (Cal. Code Regs., tit. 2, § 60045, subd. (b).)

23. “Mental health assessment” means “a service designed to provide formal, documented evaluation or analysis of the nature of the pupil’s emotional or behavioral disorder” that is conducted by qualified mental health professionals in conformity with Education Code sections 56320 through 56329 [detailing the numerous procedural safeguards associated with assessments]. (Cal. Code of Regs., tit. 2, § 60020, subd. (g).) Prior to October 8, 2010, a local educational agency, an IEP team, or a parent, could initiate a referral for special education pupils to a community mental health agency, if they were suspected of needing mental health services. (Gov. Code, § 7576, subd. (b); Ed. Code, § 56320; Cal. Code of Regs., tit. 2, § 60040, subd. (a); see also Cal. Code of Regs., tit. 2, § 60030 [describing interagency agreements between local educational agencies and local mental health director for provision of mental health assessments].) The following conditions must be met in order to make a referral for a mental health assessment:

1. The pupil has been assessed by school personnel in accordance with [Education Code section 56320, et seq.]. Local educational agencies and community mental health services shall work collaboratively to ensure that assessments performed prior to referral are as useful as possible to the community mental health service in determining the need for mental health services and the level of services needed.
2. The local educational agency has obtained written parental consent for the referral of the pupil to the community mental health service, for the release and exchange of all relevant information between the local educational agency and the community mental health service, and for the observation of the pupil by mental health professionals in an educational setting.
3. The pupil has emotional or behavioral characteristics that are all of the following:
1. Are observed by qualified educational staff in educational and other settings, as appropriate.
2. Impede the pupil from benefiting from educational services.
3. Are significant as indicated by their rate of occurrence and intensity.
4. Are associated with a condition that cannot be described solely as a social maladjustment or a temporary adjustment problem, and cannot be resolved with short-term counseling.
4. As determined using educational assessments, the pupil’s functioning, including cognitive functioning, is at a level sufficient to enable the pupil to benefit from mental health services.
5. The local educational agency . . . has provided appropriate counseling and guidance services, psychological services, parent counseling and training, or social work services to the pupil pursuant to Section 56363 of the Education Code, …, as specified in the individualized education program and the individualized education program team has determined that the services do not meet the educational needs of the pupil, or, in cases where these services are clearly inadequate or inappropriate to meet the educational needs of the pupil, the individualized education program team has documented which of these services were considered and why they were determined to be inadequate or inappropriate.

(Former Gov. Code, § 7576, subd. (a); see also Cal. Code Regs., tit. 2, § 60040, subd. (a).)

24. If mental health services are recommended following a mental health assessment, then an IEP team meeting must be convened at which time the provision of services must be added to the IEP. (Former Gov. Code, § 7572, subd. (d).) The IEP team meeting must be scheduled within 50 days from the mental health agency’s receipt of the parent’s written consent to the mental health assessment (Cal. Code Regs., tit. 2, § 60045, subd. (d).) The 50-day time period for convening an IEP meeting does not include school vacations in excess of five school days. (Ed. Code, § 56344, subd. (a).) If the parent disagrees with the assessor’s recommendation, the assessor is required to attend an IEP team meeting if requested by the parent. (Cal. Code Regs., tit. 2, § 60045, subd. (f).)

25. If a special education assessment determines that a child is eligible as ED, and an IEP team member recommends residential placement based on relevant assessment information, the IEP shall be expanded to include a representative of the county mental health department. (Former Gov. Code, § 7572.5, subd. (a).) If a mental health assessment determines that a student is eligible for mental health services, the assessor may recommend residential placement if the pupil eligibility is ED, as defined by the California Code of Regulations and the Code of Federal Regulations. (Cal. Code Regs., tit. 2, § 60100, subd. (a) and (b), referring to Cal. Code of Regs., tit. 5, § 3030 and 34 C.F.R. § 300.8 (c)(4)(i) (2006).)

26. In case of a dispute concerning the delivery of mental health services, a parent, student or agency may request a due process hearing, and OAH has jurisdiction to decide the matter under the procedures applicable to special education due process hearings. (Gov. Code, § 7586, subd. (a).)

Analysis of Issue One (B)

27. Here, as to Issue One (B), Student did not meet his burden of showing that he was denied a FAPE, despite demonstrating that District did not timely process the CMH assessment referral. There was an abundance of evidence about Mr. Kroncke’s failure to make a “concurrent” referral to mental health. Mother signed the referral package on February 12, 2010, the same day of the IEP meeting, and assumed it had been delivered to CMH. However, Mr. Kroncke did not deliver the referral package to District’s administrative headquarters until March 11, 2010, and District’s administrator did not deliver it to CMH for another week. As a result of District’s actions, CMH did not receive the referral until March 21, 2010, over a month after Mother’s consent to the referral.

28. However, Student did not meet his burden of proof that District’s procedural violation impeded Mother’s opportunity to participate in the IEP process, or resulted in a loss of educational benefits. As discussed above, in order to obtain relief for the procedural violation of the District’s failure to timely send a referral packet to CMH, Student must demonstrate that the procedural violation impeded Student’s right to a FAPE, impeded Mother’s opportunity to participate in the IEP process, or caused a deprivation of educational benefits. From the testimony of Mr. Marasco and Mother, it was clear that Mother was anxious to learn of Student’s educational options, so that he could access his education. However, aside from Mother’s justifiable impatience, there is no evidence that she was deprived of her right to participate in the IEP process, as she did so, accompanied by an advocate and family members, at the February, May and June IEP team meetings. Further, although District did not make a concurrent assessment referral to CMH, as promised, causing over one month delay in the referral, there is insufficient evidence that Student was deprived of educational benefits due to District’s delay in submitting the referral package to CMH.

29. As further discussed below in Issue Two (B), Student did meet his burden by a preponderance of the evidence that District’s IEP offers were not substantively appropriate and the remedy for the substantive violation will be discussed separately below. However, District’s procedural violation in delaying the CMH referral did not deprive Student of a FAPE. (Legal Conclusions 1, 7, 20-22, 71; Factual Findings 49, 51, 54, 62, 68, 71,74, 76, 78, 106, 131.)

Analysis of Issue Two (A)

30. In Issue Two (A), as to District, Student failed to make a threshold showing that it violated Student’s procedural rights. The evidence showed that although the referral was delayed as discussed above, once District sent the referral to CMH, it had done everything it was supposed to do. Specifically, District provided CMH with the correct contact information for Mother. Documents District delivered to CMH, including the referral package and February 12, 2010, IEP, included Mother’s correct residential and P.O. Box address. As set forth in Legal Conclusions 20-21, prior to October, 2010, CMH was solely responsible for securing Mother’s consent for the assessment plan. In addition, for the same reasons discussed in paragraph 28, above, Student failed to show that the delay interfered with Mother’s right to participate in the decision-making process regarding the provision of FAPE, or caused a deprivation of educational benefits. In sum, District had no responsibility for CMH’s delivery of the assessment plan to Mother. Mr. Kroncke’s assistance in delivering the assessment plan to Mother did not create a separate procedural duty for District and was not a procedural violation by District that resulted in a denial of a FAPE. (Legal Conclusions 22-23; and Factual Findings 60, 76, 102.)

31. In Issue Two (A), as to CMH, Student also failed to demonstrate that the delay in assessment was a procedural violation of the IDEA that resulted in a denial of a FAPE. In his complaint, Student claims that CMH mailed the assessment plan to Mother’s residential address. At hearing, Student modified his claim to allege that CMH never mailed the assessment plan. Student cites California Evidence Code section 640 which states that a letter correctly addressed and properly mailed is presumed to have been received in the ordinary course of business. In her written communication of March 23, 2010, Ms. Brooks provided a parental consent form, as well as a request that Mother call to arrange an appointment for Student’s mental health assessments by no later than April 23, 2010. Ms. Brooks’s letter did not reference any address and CMH did not produce confirmation that the letter was mailed. Nevertheless, in this action Student does not benefit from the presumption of California Evidence Code section 640. Even if the California Evidence Code governed IDEA adjudications, which it does not, the presumption does not automatically favor Student. Ms. Brooks’ assessment and her testimony demonstrated that she was a careful and precise person, not prone to sloppy record-keeping. Consistent with Student’s pleadings, Ms. Brooks most likely forwarded the communications to Mother’s street address as CMH’s internal form, which Ms. Brooks’ completed, required that she list Mother’s residential street address, not her P.O. Box address. In contrast to Ms. Brooks, Mother admitted to being overwhelmed and disorganized. More remarkable was Mother’s admission that she never checked her residential mail box. Because Mother maintained two addresses, and exclusively relied upon the US Postal Service to divert all her mail from her street address to her P.O. Box, Mother cannot attribute a procedural denial to CMH as a result of her reliance on the P.O. Box and her failure to check her residential mail box.

32. In addition, for the same reasons discussed in paragraph 28, above, Student failed to show that the delay interfered with Mother’s right to participate in the decisionmaking process regarding the provision of FAPE, or caused a deprivation of educational benefits. As such, Student failed to meet his burden of proof on Issue Two (A) that CMH deprived him of a FAPE by delaying its assessment by approximately one month. (Legal Conclusions 21-24; Factual Findings 15, 23, 6, 8, 94-97, 100, 104-105,114-116, 118-130131.) Although Student failed to demonstrate that he was denied a FAPE based on procedural delays in completing the assessment, as discussed in the analysis of Issue Two (B) below, Student met his burden of demonstrating that he was ultimately not offered a FAPE.

Issue Two (B) – Failure to Offer Appropriate Mental Health Services and Placement

33. Student claims that District and CMH failed to offer appropriate mental health services and placement at the May 17, 2010, and June 24, 2010, IEP team meetings. Student claims that District’s offer at the May 17, 2010 meeting was not materially different than the offers from previous IEPs, and did not address Student’s refusal to attend school. Similarly, the IEP offer of June 24, 2010 did not provide any means for Student to access his education or health services, and unduly relied upon services from mental health that were not made part of the IEP. District and CMH claim that their offers were appropriate because they met the obligation to provide Student an educational program and services in the least restrictive environment.

34. Legal Conclusions 1, 3, through 6, and 18 through 24 are incorporated by reference.

35. The IEP is a written document for each child who needs special education and related services. The IEP must include a statement of the special education and related services to be provided to the child. (20 USC § 1414(d)(1)(A); 34 C.F.R. § 300.320 (2006).) When developing an IEP, the IEP team must consider the child’s strengths, the parent’s concerns, the results of recent assessments, and the academic, developmental and functional needs of the child. (Ed. Code, § 56341.1, subd. (a).)

36. When a child’s behavior impedes his or her learning or that of others, the IEP team must consider, when appropriate, “strategies, including positive behavioral interventions, strategies, and supports to address that behavior.” (20 U.S.C. § 1414(d)(3)(B)(i); 34 C.F.R. § 300.324 (2006); Ed. Code, § 56341.1, subd. (b)(1).) California law defines behavioral interventions as the “systematic implementation of procedures that result in lasting positive changes in the individual’s behavior,” including the “design, implementation, and evaluation of individual or group instructional and environmental modifications . . . designed to provide the individual with greater access to a variety of community settings, social contacts and public events; and ensure the individual’s right to placement in the least restrictive environment as outlined in the individual’s IEP.” (Cal. Code Regs., tit. 5, § 3001, subd. (d).) An IEP that does not appropriately address behavior that impedes a child’s learning denies a student a FAPE. (Park v. Anaheim Union High School Dist. (9th Cir. 2006) 464 F.3d 1025, 1033 (Park); Neosho R-V School Dist. v. Clark (8th Cir. 2003) 315 F.3d 1022, 1028-1029.)

37. Before a residential placement can be determined as necessary for the pupil to receive special education and mental health services, the expanded IEP team must consider less restrictive alternatives. (Cal. Code Regs., tit. 2, § 60100, subd. (c).) These alternatives include providing a behavioral specialist and full-time behavioral aide in the classroom, home and other community environments, and/or parent training in the home and community environments. (Ibid.) The IEP team is required to document the alternatives to residential placement that were considered and the reasons why they were rejected. (Ibid.)

38. ESY services should be included in the IEP where the IEP team determines that the services are necessary for the provision of FAPE. (Ed. Code, § 56345, subd. (b)(3).) ESY is generally appropriate for, but not exclusive to, those pupils that have handicaps which are likely to continue indefinitely or for a prolonged period, and interruption of their educational programming may cause regression, when coupled with limited recoupment capacity, rendering it impossible or unlikely that the pupil will attain the level of selfsufficiency and independence that would otherwise be expected in view of his or her handicapping condition. (Cal. Code Regs., tit. 2, § 3043.) ESY is the period of time between the close of one academic year and the beginning of the succeeding academic year and for students who need it, a program shall be provided for a maximum of 30 instructional days for pupils other than those in special classes or centers for the severely handicapped. (Cal. Code Regs., tit. 2, § 3043(c)(d).)

39. School districts are required to provide each special education student with a program in the LRE, with removal from the regular education environment occurring only when the nature or severity of the student’s disabilities is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily. (20 U.S.C. § 1412 (a)(5)(A); Ed. Code, § 56031.) A placement must foster maximum interaction between disabled students and their nondisabled peers “in a manner that is appropriate to the needs of both.” (Ed. Code, § 56000, subd. (b).) Mainstreaming is not required in every case. (Heather S. v. State of Wisconsin (7th Cir. 1997) 125 F.3d 1045, 1056.) However, to the maximum extent appropriate, special education students should have opportunities to interact with general education peers. (Ed. Code, § 56040.1.)

40. To determine whether a special education student could be satisfactorily educated in a regular education environment, the Ninth Circuit Court of Appeals has balanced the following factors: (1) “the educational benefits of placement full-time in a regular class,” (2) “the non-academic benefits of such placement,” (3) “the effect [the student] had on the teacher and children in the regular class,” and (4) “the costs of mainstreaming [the student].” (Sacramento City Unified School Dist. v. Rachel H. (9th Cir. 1994) 14 F.3d 1398, 1404 (Rachel H.) [adopting factors identified in Daniel R.R. v. State Board of Ed. (5th Cir. 1989) 874 F.2d 1036, 1948-1050]; see also Clyde K. v. Puyallup School Dist. No. 3 (9th Cir. 1994) 35 F.3d 1396, 1401-1402 [applying Rachel H. factors to determine that self-contained placement outside of a general education environment was the least restrictive environment for an aggressive and disruptive student with attention deficit hyperactivity disorder and Tourette’s Syndrome.].) If it is determined that a child cannot be educated in a general education environment, then the least restrictive environment analysis requires determining whether the child has been mainstreamed to the maximum extent that is appropriate in light of the continuum of program options. (Daniel R.R. v. State Board of Ed., supra., 874 F.2d at p. 1050.)

41. Each special education local plan area (SELPA) shall ensure that a continuum of program options is available for special education students. The continuum of program options shall include all, or any combination, of the following, in descending order of restrictiveness: (a) regular education programs; (b) a resource specialist program (RSP); (c) DIS services; (d) special day classes; (e) nonpublic, nonsectarian school services; (f) state special schools; (g) instruction in non-classroom settings; (h) itinerant instruction; (i) instruction using telecommunication, and instruction in the home, in hospitals, and in other institutions. (34 C.F.R. § 300.115 (2006); Ed. Code §§ 56360, 56361.). The IEP team may recommend home instruction for a limited period of time where assessment information includes a medical report from the attending physician or the report of the psychologist certifying that the severity of the condition prevents pupil from attending school. (Cal. Code Regs., tit. 5, § 3051.4) Instruction in the home may be delivered individually or in small groups by a resource teacher. (Ibid.)

42. The Ninth Circuit Court of Appeals has endorsed the "snapshot" rule, explaining that the actions of a school district cannot "be judged exclusively in hindsight” but instead, “an IEP must take into account what was, and what was not, objectively reasonable . . . at the time the IEP was drafted.” (Adams v. State of Oregon (9th Cir. 1999) 195 F.3d 1141, 1149, citing Fuhrman v. East Hanover Bd. Of Education (3d Cir. 1993) 993 F.2d 1031, 1041.)

43. The IDEA requires a school district to make a formal, written offer of placement. (Union School Dist. v. Smith (9th Cir. 1994) 15 F.3d 1519, 1526 (Union).) In Union, the school district failed to formally offer a placement that it deemed appropriate because the parents had expressed an unwillingness to accept the placement. The court held that the school district committed a procedural violation by failing to make a written offer. The court reasoned that a formal written offer provides a clear record of what was offered, and assists the parents in presenting complaints. (Ibid.)

44. Here, Student has met his burden of proof by a preponderance of the evidence that District failed to offer Student an appropriate placement and services in the least restrictive environment at the May 17, 2010, IEP. By the time of the May 17, 2010, IEP team meeting, Student had been absent from school most of the year, and had not been educated. Before Mother unilaterally placed Student in a home study charter for eight school weeks in the fall of 2009, Student had not been accessing his education. During his short time in school during fall 2009, his general education teacher reported that he could not attend even with special education aide support. By the time of the February 12, 2010 IEP, District was on notice that Student could not return to school without behavioral and psychological supports. Yet District did not offer any interim educational options so Student could access his education until Mr. Kronke completed his assessment, and CMH became involved. By the time of the May 17, 2010, IEP team meeting, District knew from Mr. Kronke’s comprehensive assessment that Student’s cognitive abilities and academic profile remained relatively unchanged from his initial assessment in 2007, but that his challenges arising from his ED with regard to school performance were more profound. Simply put, Student was not accessing his education at all due to his avoidance behaviors. Mr. Kroncke expressly advised the IEP team that Student wanted to come to school, but he needed help to reconnect. Notably, Mr. Kroncke and Mr. Yelton had to administer their assessments at Student’s home where they were able to develop a rapport with Student. Despite the above information, District offered specialized academic instruction, in language arts, math, science and social studies, in separate special education classrooms. If Student had not demonstrated severe antipathy to coming to the school campus unassisted, these more restricted classes on a general education campus might have been appropriate as the least restrictive placement option. Assuming Student did not have a history of absenteeism, the more restrictive special education classes would be the logical next step to address Student’s lack of success in general education with resource support where Student’s inattentive behaviors and challenges with task completion interfered with his access to education.

45. However, by May 17, 2010, District’s offer of a more restrictive placement on a general education campus, without any specific offer of in-home instruction or behavior services to address Student’s avoidance behaviors, was not FAPE in the LRE. District members of the IEP team never addressed Student’s absenteeism, such that the SDC classes offered were appropriate only in the abstract, and presumed that Student would come to campus, a circumstance not based in history, or supported by intensive home-based services. In District’s offer, Student’s unique psychological needs went unmet.

46. Whereas some program modifications might have been worthwhile in fall 2009, by May 17, 2010, a few weeks before the end of the school year, Student required more concentrated behavioral services and a more restrictive placement, even on an interim or transitional basis, before he could access his education. By this time, Student’s promises to return to campus without support were broken. District remained passive in its responsibility to offer Student a FAPE, instead relying exclusively on CMH to resolve Student’s resistance to attending school. District’s passivity was underscored by its development of an attendance goal that was the sole the responsibility of Mother and Student, and its decision not to add a BSP. At no time did the District members of the IEP team even discuss the appropriateness of in-home academic support to address Student’s attendance and completion of school work. Based upon the persuasive analysis of CMH, and the reasonable opinion testimony of Mr. Marcuso, District failed to offer services that would have assisted Student in accessing his education at TMS. Based upon Mr. Kroncke’s opinion that Student needed help to reconnect to the campus, District should have considered more restrictive placement options, at least on an interim basis, including home instruction where a special education teacher would connect with Student at his home. Further, given Student’s attendance history and grades, ESY of some type should have been offered given Student’s absence from school for eighty percent of the academic year. ESY is generally reserved for situations where the pupil needs more continuous schooling to prevent regression. Student had been absent most of the school year, and there was overwhelming evidence that he would not leave his home to access his education or therapy. The evidenced showed that Student required less restrictive measures than residential placement, but home-based support, as an interim measure, to provide him academic instruction and ready him emotionally for school in the fall.

47. In sum, District’s offer in the May 17, 2010, IEP failed to offer Student a FAPE because it did not meet his unique need for services and supports to address his school attendance and work avoidance problems, and did not offer ESY. (Legal Conclusions 3-6, 910, 34-42; Factual Findings 1-109, 153-155.) Student’s remedy for this denial of a FAPE is discussed separately below.

48. Student did not meet his burden of proof that CMH failed to offer Student appropriate services at the May 17, 2010, IEP team meeting. As discussed above, although the CMH assessment had been delayed, the delay was not attributable to CMH. Because CMH’s assessment was still in progress, it cannot be said CMH failed to make an appropriate offer as of the May 17, 2010 IEP team meeting. (Legal Conclusions 21-24; Factual Findings 104-105, 110-113, 115-116, 118-129.)

49. Student also met his burden of proof by a preponderance of the evidence that District failed to offer Student appropriate placement and services at the June 24, 2010, IEP. District’s placement offer remained materially unchanged from the May 17, 2010, IEP team meeting in all other respects, and, as such, suffered from similar deficiencies, as set forth above. By this meeting, the 2009-2010 school year had ended, and Student still did not have an educational program that he could access. As set forth above, the strongest criticism of District’s offer came from CMH’s later analysis. Specifically, CMH was barred from offering residential placement until other less restrictive options were attempted by District, and yet at no time had District even considered other placement options for Student beyond SDC classes. District’s offer of an attendance goal for which Student and Mother are solely responsible underscores its refusal to offer a program which addressed Student’s absenteeism.

50. District relies upon its offer of school-based counseling to satisfy Student’s need for on campus psychological counseling. However, District’s offer of school-based counseling was not sufficient to support Student’s educational placement. District offered a total of twelve sessions of school-based counseling annually, and relied upon CMH to provide intensive mental health services. Again, the overwhelming evidence demonstrated that Student would not access TMS without assistance addressed to getting Student to leave his house, and therefore, as in the past, the IEP offer was deficient for not addressing how Student would access his school-based counseling services.

51. Likewise, District’s omission of appropriate ESY services, like in-home education, to prepare Student for the next school year was inappropriate. Student required in home education and behavioral or mental health support, at least on an interim basis, before he could access his education at TMS or mental health services at CMH.

52. District also failed in its obligation to assist Student with accessing CMH services. At a minimum, as demonstrated by Student’s willingness to go with Mr. Kroncke to his CMH assessment, Student needed to be transported to CMH by someone other than his Mother. CMH was not responsible for transporting Student to his outpatient clinic services, and given Student’s recorded refusal to travel with his Mother, District was responsible. District’s continued failure to offer any service, including transportation that might assist in getting Student to CMH therapy also amounted to a denial of a FAPE.

53. In sum, District’s offer in the June 24, 2010, IEP of specialized academic instruction in separate classrooms without related services addressed to Student’s unique needs regarding school attendance and schoolwork completion was not a FAPE. (Legal Conclusions 1, 3-6, 34-42; Factual Findings 1-155.) Student’s remedy is discussed below.

54. Student met his burden of proof by a preponderance of the evidence that CMH failed to offer Student appropriate services to access his education at the June 24, 2010, IEP team meeting. Consistent with its review of the file, CMH offered outpatient services. The outpatient services were to commence immediately and would continue through the next school year. Prior to October 8, 2010, it shared with District a joint responsibility for providing special education mental health services for Student. Its assessment was comprehensive, but its offer was not consistent with its own observations of Student and Student’s history of absenteeism and defiance. CMH was undoubtedly correct in its conclusion that less restrictive alternatives had not been exhausted, but it failed to make a recommendation that would provide a way to implement the District’s offer of placement because the CMH offer did not address the need to get Student out of his house to participate in therapy and instruction. In communications with Mother, and at hearing, CMH personnel emphasized its in-home services which, as described, provided the type of intensive support Student needed to convince him to leave his home and access his education or therapy. Significantly, the in-home services CMH described at hearing and considered essential were not made part of the IEP offer. In fact, CMH staff was directed not to include these services in the IEP. CMH’s emphasis on its in-home services was an admission that its base offer of clinic-based services was inadequate without in-home behavioral supports specified in Student’s IEP. As such, CMH failed to offer Student a FAPE for the period of June 24, 2010 through and including October 8, 2010. (Legal Conclusions 1, 3-6, 20-21, 23, 34, 36-37, 4143; Factual Findings 118-142.) Student’s remedy as to CMH is discussed below.

Remedies

55. Student prevailed on Issue One (A), that District denied him a FAPE by not holding an IEP team meeting in the fall of 2009. Student also prevailed as to District on Issue Two (B), that District failed to offer a FAPE at IEP team meetings on May 17, 2010 and June 24, 2010. As to CMH, Student only prevailed on part of Issue Two (B), the failure to offer appropriate services at the June 24, 2010 IEP. As to all allegations, Student contends that he is entitled to compensatory education in the form of tuition reimbursement for Provo (inclusive of room and board, and mental health services) from July 16, 2010 through August 9, 2011, in the amount of $132,974, and related travel and school expenses, in the amount of $8,203, totaling $141,177.³

56. District contests Student’s request for reimbursement. District maintains that Student did not meet his burden of proving that Provo was an appropriate placement for Student. In addition, District maintains that Mother’s conduct must be considered and weighed against reimbursement. District maintains that Mother possessed a single-minded interest in placing Student residentially, and out of her home, due to global and intensive family dynamics. Alternatively, District contends that CMH shared in its responsibility to offer FAPE, and that it should share in any ordered reimbursement for compensatory education beyond October 8, 2010. According to District, although CMH was not independently responsible for providing compensatory education as of October 8, 2010, the statutory amendments do not bar reimbursement for CMH’s pre-October 8, 2010 IEP offers, including the time period governed by the IEP even if it post-dates October 8, 2010.

57. CMH contends that the responsibility, if any, for ensuring that Student accessed CMH’s clinic for services, rested with District. CMH faults District for not exhausting least restrictive alternatives before the IEP team referred Student to CMH for residential treatment, including home hospital and NPS, and noted that District, not CMH, was responsible for transportation. CMH, like District, claims that Mother’s refusal to access mental health services, contributed to her choice to unilaterally place Student in Provo, an inappropriate placement.

58. Federal law provides that a court that hears a civil action taken from a special education administrative due process hearing “shall grant such relief as the court deems appropriate.” (20 U.S.C. § 1415(i)(2)(C)(iii); 34 C.F.R. § 300.516(c)(3)(2006).) The United States Supreme Court has held that this authority “confers broad discretion on the court” to grant relief that is appropriate in light of the purpose of the IDEA. (School Committee of Burlington v. Department of Education (1985) 471 U.S. 359, 369 [105 S.Ct. 1996, 85 L.Ed.2d 385].) The broad authority to grant relief extends to the administrative law judges and hearing officers who preside at administrative special education due process proceedings. (Forest Grove School District v. T.A. (2009) 557 U.S. 230 [129 S.Ct. 2484, 2494, fn. 11; 174 L.Ed.2d 168].)

59. To obtain reimbursement for a unilateral placement, parents must provide written notice at least ten days prior to the unilateral placement of their concerns, their intention to reject the school district’s placement and their intention to enroll the pupil in a private school at public expense. (20 U.S.C. § 1412(a)(10)(C)(iii)(I)(bb); 34 C.F.R. § 300.148(d)(1).

60. A parent may be entitled to reimbursement for placing a pupil in a private school without the agreement of the school district if the parents prove at a due process hearing that: 1) the school district had not made a FAPE available to the student prior to the placement; and 2) that the private school placement is appropriate. (20 U.S.C. § 1412(a)(10)( C)(ii); 34 C.F.R. § 300.148(c); see also School Committee of Burlington v. Department of Ed., supra, 471 U.S. at p. 369 (reimbursement for unilateral placement may be awarded under the IDEA where the school district’s proposed placement does not provide a FAPE) and Florence County School Dist. v. Carter (1993) 510 U.S. 7, 16 [114 S.Ct. 361, 126 L.Ed.2d 284] (Carter) [for purposes of awarding reimbursement as equitable relief, parent’s unilateral placement must be generally appropriate, but need not meet all standards of a FAPE].)

61. The private school placement need not meet the state standards that apply to public agencies in order to be appropriate. (34 C.F.R. § 300.148(c); Carter, supra, 510 U.S. at p. 14 [despite lacking state-credentialed instructors and not holding IEP team meetings, unilateral placement was found to be reimbursable where the unilateral placement had substantially complied with the IDEA by conducting quarterly evaluations of pupil, had a plan that permitted the pupil to progress from grade to grade, and where expert testimony showed that the pupil had made progress].)

62. School districts and responsible parties may be ordered to provide compensatory education or additional services to a student who has been denied a FAPE. (Student W. v. Puyallup School District (9th Cir. 1994) 31 F.3d 1489, 1496 (Student W).) The fashioning of equitable relief in IDEA cases requires a “fact-specific” analysis. (Id. at 1497.) The conduct of all parties must be reviewed and considered to determine whether relief is appropriate. (Id. at p. 1496.) These are equitable remedies that courts may employ to craft “appropriate relief.” An award of compensatory education need not provide a “dayfor-day compensation.” (Id. at p. 1497.) An award to compensate for past violations must rely on an individualized assessment, just as an IEP focuses on the individual student’s needs. (Reid ex rel. Reid v. District of Columbia (D.D.C. Cir. 2005) 401 F.3d 516, 524 (Reid).) The award must be “reasonably calculated to provide the educational benefits that likely would have accrued from special education services the school district should have supplied in the first place.” (Ibid.)

63. Here, as established above, Student met his burden of proof that District committed a procedural violation that resulted in the denial of FAPE in the fall of 2009, and failed to offer a FAPE at the May 17, 2010, and June 24, 2010, IEP team meetings. Student also met his burden of proof that CMH failed to offer a FAPE at the June 24, 2010 IEP. Consequently, Student met his burden of proof that he is entitled to compensatory relief from District and CMH. Specifically, as established above, there was overwhelming evidence by the May 17, 2010, and June 24, 2010, IEP team meetings, that Student required intensive intervention to get him back to school and to attend to his school work.

64. As an initial matter, Student complied with the 10 day written notice requirement to District prior to Mother enrolling Student at Provo. Specifically, the June 24, 2010 IEP document itself reflects this intent, and at hearing District did not contest that this was sufficient notice. (Legal Conclusion 59; Factual Finding 137.)

65. District maintains that Mother’s reimbursement claims should be rejected because Provo was an inappropriate placement, Mother failed to consider or access less restrictive options, and had a demonstrated preference for residential placement, particularly, Provo, especially after Student’s sibling went there earlier. Although the evidence at hearing showed that Provo, or a facility like it, would not have been an appropriate placement for the District to offer, this does not mean that Student is barred from being reimbursed for it. The evidence showed that Student was not a flight risk, did not exhibit severe behaviors in school, and was not a danger to himself or to others. However, although District would not have been required to offer Student a facility like Provo, the evidence showed that District did not offer any other less restrictive options for him to access his education. By the time of the IEP team meetings, Student’s educational situation was dire. Although Mother may have already concluded that Student required residential treatment, it was District’s obligation to offer an appropriate placement and services. Although Mother’s lack of involvement in therapy is troubling, it does not relieve District of its obligation to provide Student a FAPE under the IDEA.

66. CMH also failed to offer appropriate mental health services as demonstrated by its reliance at hearing on its contention that it was offering Student a range of intensive home-based services that were never memorialized or expressly offered at the June 24, 2010, IEP team meeting. As a policy, CMH did not offer these services as part of the IEP. As such, CMH could not rely upon these services to establish that its offer constituted FAPE and CMH’s service offer outside of the IEP cannot be considered as mitigation for failure to offer a FAPE. CMH’s efforts to work with Mother is laudable; however, it can not be credited with offering a FAPE when it excluded what it admitted to be necessary and appropriate home-based services from its offer.

67. Student showed by a preponderance of the evidence that Provo was appropriate within the meaning of Carter and related authority. Student was taught in a highly structured environment by a special education teacher. He succeeded in accessing both his seventh grade and eighth grade curriculum during his time at Provo. He also participated in therapy which he could not avoid. Upon his return, he did not resist attending school. In fact he embraced school, and participated in sports. Accordingly, the evidence supports that the intervention at Provo, although not necessary to be an offer of a FAPE, was appropriate for purposes of reimbursement following District and CMH’s denial of a FAPE. (Factual Findings, 146, 148, 151, 158-161.)

68. Based upon the above analysis, District and CMH will be jointly responsible for the denial of a FAPE from June 24, 2010, through October 8, 2010. Prior to October 8, 2010, the duty to provide a FAPE was shared by District and CMH because California law designated CMH as the provider of IDEA mental health services. After October 8, 2010, by operation of the Governor’s veto and subsequent legislative action, the duty to provide Student a FAPE became the sole responsibility of District, the local educational agency for purposes of serving Student under the IDEA. (See Legal Conclusion 20.) As such, District and CMH will be jointly responsible for Student’s tuition during July, August, and September, 2010, in the amount of $26,187 dollars. District and CMH will also be jointly responsible for the October 1through October 8, 2010 tuition, in the amount of $2,725.40 (which equals 340.70 per day). In recognition that the hearing did not, and could not, include the issue of District and CMH’s obligations to each other (see Gov. Code, §7586, subd. (d) [prohibiting public agencies from using IDEA due process hearings against each other]), and the findings of this Decision that the main deprivations of a FAPE involved District’s failure to address Student’s school-avoidance behaviors, District will be ordered to reimburse Mother. However, it is contemplated that outside this proceeding, CMH shall reimburse District for the portion of tuition incurred up to October 8, 2010 that was attributable to mental health services. It is expected that if District and CMH cannot settle their respective liabilities between themselves, that they will resort to the procedure in Government Code section 7585 to obtain relief by operation of California Code of Regulations, title 2, section 60600, subdivisions (a) & (b) (providing a separate administrative procedure for disputes between agencies about the financial obligations to provide related services ordered by a due process hearing decision).

69. District shall be responsible for October 8, 2010 through the end of October 2010 in the amount of $7,835.60, November 2010 in the amount of $10,200, December, 2010 in the amount of $10,563, January 2011 in the amount of $10,565, February 2011 in the amount of $9,553, March 2011 in the amount of $10,571, and April 2011in the amount of $10,228.

70. Mother’s conduct must also be weighed and she was not blameless. Mother removed Student from District and placed him in a charter school that was essentially independent study. Given Student’s history of attendance problems and avoidance, this was not a reasonable choice. By December 9, 2009, his charter school program ended and she knew he was not accessing his education. Instead of returning to District and requesting an IEP, she kept him out of school until January 11, 2010. Thus, District is not responsible for Student’s loss of education from October 16, 2009, through January 11, 2010. During that time, Student lost eight weeks of school, or two months. Thus, the remedy for Issue One (A), is limited to the time period before October 16, 2009 and after January 11, 2010. Because Student did not present specific evidence of a remedy for failure to convene an IEP team meeting, the remedy for Issue One (A) will be combined with that for Issue Two (B), and will consist solely of partial tuition reimbursement for Provo.

71. To the extent Student contends he is entitled to reimbursement that includes ESY 2011, this remedy is also rejected. While the evidence supported a finding that Student required ESY in summer 2010 to provide him with missed seventh grade curriculum and to prepare him for eighth grade, there was no evidence that Student required ESY during summer 2011. Provo’s reports by April 2011 showed that Student had substantially progressed academically. Given Provo’s representations that Student ultimately caught up academically, reimbursement for ESY 2011 is not warranted.

72. Factoring Mother’s conduct of keeping Student out of school, and the lack of evidence supporting ESY 2011 attendance at Provo, Mother will not be reimbursed for the following Provo tuition: May 2011, in the amount of $10,618, June 2011in the amount of $10,251, July 2011 in the amount of $10,617, and August 2011 in the amount of $3,060.

73. District shall be reimburse Mother for all transportation and expenses in the amount of $ 8,203.

ORDER

1. Within 45 days of the date of this Order, District shall reimburse Mother Student’s tuition at Provo for July, August, and September, 2010, in the amount of $26,187 dollars and for October 1 through 8, 2010 in the amount of $2,725.40 (which equals 340.70 per day.) CMH shall reimburse District for the portion of the above tuition that is related to mental health services according to CMH’s statutory responsibilities prior to October 8, 2010. District’s obligation to reimburse Mother in the amount described above is not dependent on its receipt from CMH of the amount CMH owes it, and should CMH and District dispute their obligations to each other, they shall use the inter-agency dispute procedure established in California Code of Regulations, title 2, section 60600 without involving Student.

2. Within 45 days of the date of this Order, District shall reimburse Mother for Student’s Provo tuition for October 9, 2010 through the end of October 2010 in the amount of $7,835.60, November 2010 in the amount of $10,200, December, 2010 in the amount of $10,563, January 2011 in the amount of $10,565, February 2011 in the amount of $9,553, March 2011 in the amount of $10,571, and April 2011in the amount of $10,228.

3. Within 45 days of the date of this Order, District shall reimburse Mother for $8,203 for transportation and expenses related to the Provo placement.

PREVAILING PARTY

The decision in a special education administrative due process hearing must indicate the extent to which each party prevailed on the issues heard and decided at the hearing. (Ed. Code, § 56507, subd. (d).) Student partially prevailed against District on Issue One (A); and prevailed against District on Issue Two (B). District partially prevailed against Student on Issue One (A) and prevailed against Student on Issues One (B) and Two (A). Student partially prevailed against CMH on Issue Two (B). CMH prevailed on Issue Two (A) and partially prevailed on Issue Two (B).

RIGHT TO APPEAL THIS DECISION

The parties to this case have the right to appeal this decision to a court of competent jurisdiction. If an appeal is made, it must be made within 90 days of receipt of this decision. (Ed. Code, § 56505, subd. (k).)

Dated: March 2, 2012

EILEEN M. COHN
Administrative Law Judge
Office of Administrative Hearings

In the Matter of:
PARENTS ON BEHALF OF STUDENT,

v.
CENTER UNIFIED SCHOOL DISTRICT,

OAH NO. 2011120597

EXPEDITED DECISION

Administrative Law Judge (ALJ) Deidre L. Johnson, State of California Office of Administrative Hearings (OAH), heard this expedited disciplinary matter on January 31, February 1, 2, and 9, 2012, in Antelope, California.¹

Mother represented Student at the hearing. Student and her Father did not appear during the hearing or testify. Mother and Father are referred to collectively as Parents.

Attorney Heather Edwards represented Center Unified School District (District). Cynthia Wachob, a program specialist, was present as the District’s designated representative for most of the hearing, and District’s Superintendent Scott Loehr appeared as the representative on the last day of hearing.

Student filed a request for a due process hearing (complaint) on December 19, 2011, that listed several problems, some of which involved an appeal of a school disciplinary manifestation determination, and others which alleged a denial of a free appropriate public education (FAPE). On January 23, 2012, this ALJ issued a prehearing conference (PHC) order which bifurcated Student’s FAPE problems from her disciplinary problems, and ordered the disciplinary problems to proceed in this separate, expedited hearing.

At the expedited hearing, sworn testimony and documentary evidence were admitted. At the parties’ request, the ALJ continued the case to allow the parties to submit written closing argument by February 17, 2012. On February 13, 2012, District filed a request to move District’s Exhibit D3 into evidence on the ground that District had inadvertently withdrawn the exhibit from its exhibit binder on the last day of the hearing. Parent did not file a reply. On February 21, 2012, the ALJ issued an order granting the motion, and reopened the record. Exhibit D3, an individualized education program (IEP) dated August 10, 2010, was marked for identification and admitted into evidence. On February 17, 2012, District filed a written closing argument, Parent did not submit any argument, the record was closed and the expedited matter was submitted for decision.

On February 23, 2011, Parent submitted a written closing argument dated February 21, 2012, to OAH. It was deemed to be a motion to reopen the record to permit her to belatedly file Student’s closing argument. However, Parent did not provide any indication that she served the attorney for the District with her argument, rendering the letter an ex parte contact with the ALJ. On March 1, 2012, the ALJ issued a Notice of Ex Parte Communication and Order Denying Request to Reopen the Record, in which Student’s motion to reopen the record to permit a belated filing was denied.

EXPEDITED ISSUES²

Was District’s determination that Student’s conduct on school grounds on October 11, 2011, was not a manifestation of her disability in compliance with the law, as follows:

1. Was Student’s conduct on October 11, 2011, a manifestation of her disability because the conduct was caused by, or had a direct and substantial relationship to her disability?

2. Was Student’s conduct on October 11, 2011, a manifestation of her disability because the conduct was the direct result of the District’s failure to implement Student’s IEP?

3. In connection with the manifestation determination review team meeting on October 24, 2011, did the District commit a procedural violation by predetermining that Student’s conduct on October 11, 2011, was not a manifestation of her disability?

REQUESTED REMEDIES

Student requests that OAH issue an order for the District to reverse its manifestation determination decision and subsequent expulsion, and find that her conduct in smoking marijuana in the school restroom with several other girls was a manifestation of her special education disability, Other Health Impairment (OHI), based on an underlying medical disability of Attention Deficit Hyperactivity Disorder (ADHD).

CONTENTIONS OF THE PARTIES

Student contends that the District had already predetermined that Student’s conduct was not a manifestation of her disability when it held a manifestation determination review meeting on October 24, 2012. She claims that her conduct on October 11, 2012, was impulsive, unplanned, and caused by, or directly and substantially related to her ADHD and her failure to timely take her ADHD medication that morning. In addition, Student argues that the District failed to fully implement Student’s IEP, which also contributed to her conduct at school on the day in question.

District contends that Student’s conduct was not impulsive but planned, and started the previous day, and therefore was not a manifestation of her disability. In addition, District asserts that it implemented Student’s operative IEP in the fall of 2011, and it did not predetermine the outcome of the manifestation determination review meeting.

FACTUAL FINDINGS

Jurisdiction and Background

1. Student resides with Parents in Antelope, within the jurisdictional boundaries of the District. Student is a 15-year-old girl, and was in the 10th grade at Center High School (CHS) in the District until she was expelled in November 2011, based on the incident that is the subject of this expedited decision. Student was home schooled until sixth grade. The evidence is undisputed that Student is eligible for special education and related services under the category of OHI, primarily based on a medical diagnosis of ADHD. Student has also been diagnosed with asthma and allergies.³ She was first made eligible for special education in August 2010 in connection with her matriculation to high school.

School Conduct Charges

2. While pupils with disabilities are subject to disciplinary measures such as suspension or expulsion by a school district, federal law prohibits expelling a special education pupil whose conduct was a manifestation of his or her disability. If the school district decides to change the educational placement of a pupil with a disability, by either an expulsion or a suspension in excess of 10 days, because of a violation of law or code of conduct, the parents and relevant school district members of the pupil’s IEP team must meet and review all relevant information in the pupil’s file. The review team must determine: (a) if the conduct in question was caused by, or had a direct and substantial relationship to, the pupil’s disability; and/or (b) if the conduct in question was the direct result of the LEA’s failure to implement the IEP.

3. On Tuesday, October 11, 2011, Student engaged in conduct that violated the law and school rules at CHS, when she smoked marijuana in a school restroom with two other girls. Student was initially suspended from school for five school days, and the suspension was extended. District determined that Student would be recommended for expulsion and provided written notice to Parents of a pre-expulsion manifestation determination review meeting and IEP meeting on October 24, 2011.

4. In connection with the incident, District charged Student with violation of the following three sections of the Education Code:

1. Section 48900, subdivision (c)(1): “Unlawfully possessed, used, sold or otherwise furnished, or been under the influence of any controlled substance, and alcoholic beverage, or and [sic] intoxicant of any kind.”⁴
2. Section 48900, subdivision (k)(1): “Refusal and/or repeated failure to follow school rules and regulations and/or severe disruption of school activities.”
3. Section 48915, subdivision (a)(3): “Unlawful possession of any controlled substance listed in Chapter 2 Division 10 of the Health and Safety Code.”

5. At the manifestation determination review meeting, the District members of the review team determined that the behavioral incident on October 11, 2011, was not a manifestation of Student’s disability.

6. On November 9, 2011, the District held an expulsion hearing. On December 13, 2011, the District’s governing board issued the hearing panel’s Findings of Fact and Recommendations for Student’s expulsion through the second semester of the 2011-2012 school year (May 24, 2012), with a rehabilitation plan.

Student’s High School IEPs

Initial August 2010 IEP

7. Student’s prior IEPs at CHS, from her entry into high school in 2010 through the behavioral incident in the fall of 2011, are relevant to evaluate whether District was implementing Student’s IEP during the period in question, and whether any failure to implement her IEP directly resulted in Student’s conduct on October 11, 2011.

8. In April 2010, when Student was in eighth grade at Wilson C. Riles Middle School in the District, she was assessed and the District members of an IEP team found her ineligible for special education. District developed a “504 Plan” for Student.⁵ Parents disagreed with those actions, and the District conducted further assessments.

9. On August 10, 2010, when Student was 13 years old, and entered ninth grade at CHS, the District held an IEP team meeting to review all of the assessments. District school psychologist Tracie Daubenmire informed the IEP team, including Mother, that Student had academic difficulties as her reading fluency and comprehension, and writing skills were “slightly below basic,” and her mathematic “struggles were noted.” The IEP documents showed that Ms. Daubenmire reported to the IEP team that Student’s overall social-emotional and behavioral levels of performance were in the average range, but that she received some “at risk” scores related to poor attention and a tendency toward hyperactivity, and one teacher’s “significant concern” (“clinically significant” scores) about somatization and internalizing problems. Student’s strengths included her athletic abilities, and she was viewed as polite, cooperative and honest.

10. Based on all the information presented to the IEP team, District offered Student eligibility for special education under the OHI category, and offered her special education and related services, including numerous accommodations, modifications and supports. The supports included differential grading; use of reference books and materials; daily use of a planner and calendar with the assistance of each of her teachers; checks for understanding and consistent, positive instruction; use of the lavatory when in need; and encouragement to drink water (due to her medications). In addition, the IEP offered Student participation in specialized instruction in a study skills class once a day to support her work in her general education classes, and to build her organizational skills. The placement resulted in 84 percent of Student’s time in general education, and the remaining 16 percent of her time in special education. The IEP also provided for testing accommodations: “small group, directions read and explained, frequent breaks.”

11. The August 2010 IEP provided three annual academic goals to meet Student’s unique needs related to her disability in the areas of math (Algebra), writing skills, and “school success.” The school success goal was for Student to independently maintain a calendar to prioritize tasks and seek help as needed to turn in completed assignments by designated due dates 85 percent of the time by August 10, 2011, because Student had organizational struggles related to her disability and often misplaced class work and homework. Finally, the IEP also included a transition plan with career and college awareness services because Student wanted to go to college.

12. Mother provided written consent to the IEP on September 17, 2010.⁶

Behavioral Incident in October 2010

13. On October 21, 2010, Student got into a fight at school with another female pupil, Pupil A, who had been taunting or bullying Student to fight with her. Many pupils urged Student and Pupil A to fight so they could record it. Mother established that Student was experienced in karate, a martial art that includes ethical training in avoiding a fight. Mother was persuasive that Student had previously tried to avoid the fight using those avoidance skills. However, while Student was doing makeup work in a classroom after school on that day, Pupil A and many other pupils stood outside waiting for her, and a fight ensued. District staff who investigated the incident determined that the altercation constituted “mutual combat” and both Student and Pupil A received five-day suspensions. Parents asserted that the fight was not Student’s fault and that she was unfairly punished.

December 2010 IEP

14. Thereafter, Student became ill with strep throat. She missed at least 10 school days due to illness in addition to the five days of suspension, did not make up a lot of the missed assignments, turned in some assignments late, and fell behind academically. Mother became concerned and requested an emergency IEP team meeting to review Student’s then present levels of performance and address Parents’ concerns. District convened an IEP team meeting on December 16, 2010, attended by Mother, Student, and 12 District personnel, including the school psychologist Dr. Joseph Whalen.

15. Mother informed the IEP team that Student took her ADHD-related stimulant medication (Adderall) at about 6:00 a.m. daily and school started at 7:40 a.m. Student’s medication wore off after about four hours, and she had an appointment with her physician to adjust the medication. The IEP team verified that Student was using her “Cougar Planner” to write down her class assignments, and the planner was checked during the Study Skills class. However, Student had difficulties sustaining her attention and keeping organized. Mother was persuasive that Student often forgot her homework, misplaced her homework in her school backpack, or would redo homework she had already done. In addition, Student appeared not know how to turn her in homework. The evidence established that these were areas of school-related conduct that were impacted by Student’s disability. After a discussion regarding Student’s confusion about to whom she should turn in her homework, and how late her homework could be before it would not be accepted by particular teachers, the District members of the IEP team offered to modify Student’s accommodations in her August 2010 IEP.

16. The December 2010 IEP supplemented the accommodations provided in Student’s August 2010 IEP, as set forth in Factual Findings 10 above, by adding an accommodations and modifications page to her IEP that offered reduced or shortened assignments; books on tape; use of manipulatives for math and science; cues, prompts, and reminders of rules; use of sensory strategies (discreetly chew gum in most classes, and use an iPod at the teacher’s discretion); and extended time to complete assignments, provided that “work will be turned in within the week of the due date.” In addition, organizational supports were added for both Mother, at home, and staff in the Study Skills class to check, and initial, Student’s completed work in her planner; and for Student’s backpack to be checked every Friday in the Study Skills class for missing assignments, so that any assignments found would be turned in to the appropriate teacher’s box.

17. Mother signed her consent to the December 2010 IEP on February 14, 2011. The evidence established that Student’s August 2010 IEP, as modified by the December 2010 IEP, was her last agreed-upon IEP. Aside from a food fight in the school cafeteria, for which Student received a detention that did not affect her disciplinary record, Student had no further behavioral episodes at school until October 2011.

August 2011 IEP

18. On August 23, 2011, District convened Student’s annual IEP team meeting for her 10th grade school year. This meeting was attended by Mother, Student, and various District staff. Student had B grades in most of her general education academic classes, an A in the Study Skills class, and a D in Health, reportedly due to “poor test performance, short attention span, easily distracted, talkative….” District offered revised annual goals for school success, reading comprehension, postsecondary transition, and writing skills, with the same accommodations, modifications, and supports as those contained in the December 2010 IEP. However, the IEP provided that the goals and the supports would be further reviewed by District support services manager Susan Radi and Mother.

19. The evidence established that Parents did not consent to the August 2011 IEP offer. Therefore, it is not relevant to the inquiry as to whether District was implementing Student’s IEP in October 2011, when the disciplinary incident occurred.

Student’s Disability

20. The eligibility criteria for the special education disability category of OHI include that a pupil has limited strength, vitality or alertness, due to a chronic or acute health problem. Attention Deficit Disorder (ADD) and ADHD are not among the statutory examples for this category of disability. ADD and ADHD are not statutory categories of disability in either federal or California special education law. They are often included within the disability category of OHI under the rationale of “limited alertness,” involving inattention and/or hyperactivity-impulsivity.

21. Dr. Whalen testified and established that Student’s OHI eligibility was based on ADHD. He has been a school psychologist with the District for four years. Dr. Whalen holds a Ph.D. in psychology and became licensed as a clinical psychologist by the State in 1990, and has a State waiver to act as a school psychologist. He established that there are three primary categories of ADHD. ADHD involves behaviors of: (1) impulsiveness and hyperactivity; (2) inattention or poor sustained attention and lack of focus; and (3) a combination of both of the above types. Children with ADHD exhibit a range of symptoms and levels of severity. Medication is often used to control behaviors associated with ADHD, along with various strategies and supports. Dr. Whalen did not discuss ADD as a separate category. He established that Adderall is used to help with all four main symptoms of ADHD: lack of sustained attention, distractibility, impulsiveness, and hyperactivity,⁷

22. Based on Dr. Whalen’s review of Student’s school records, including District’s 2010 assessments, he was persuasive that Student’s OHI was based primarily on her manifestation of ADHD symptoms of poor sustained attention and poor organization skills in the school setting. In March and May 2010, District school psychologist Tracie Daubenmire assessed Student using many assessment tools, including: the Behavior Assessment System for Children, 2nd Ed. (BASC-2) to assess Student’s social-emotional and behavioral skills, and the Connors’ Rating Scales 3.

23. However, Dr. Whalen was not persuasive that impulsivity or hyperactivity were not known behaviors in the school environment. First, Dr. Whalen testified that Parents had rated Student ”highly” for impulsivity or hyperactivity on the Connors 3 assessment test in March 2010. The evidence established that the Connors 3 is “a standardized survey which has been used for decades to assess behaviors associated with attention disorders.” Both Mother and Father rated Student on the Connors 3 as clinically significant for hyperactivity and impulsivity with T-scores of 90, equal to the scores they gave for Student’s inattention. Dr. Whalen testified that he had no information from school staff that Student exhibited such behaviors at school. However, Ms. Daubenmire did not administer the Connors 3 to any of Student’s teachers. Second, in contrast, the BASC-2 was administered to both Parents and teachers. On the BASC-2, all teachers and Mother had rated Student as at risk for inattention, involving “day dreaming or being easily distracted and unable to concentrate more than momentarily.” In addition to Mother’s at risk rating for hyperactivity, one teacher rated Student as at risk for hyperactivity on the BASC-2, meaning that some hyperactive behaviors were observed in the school environment, at least in middle school. In addition, as noted above, in late August 2011, at CHS, Student was getting a D in Health, a sixth period class at the end of the school day, where she was distracted, talkative, and her medications were wearing off.

24. Student’s private physician, Dr. Heshani Abeysekera testified that it was her understanding that Student was diagnosed by a prior doctor with ADD. Dr. Abeysekera has been licensed since 2007, and has been Student’s pediatrician for almost two years. Dr. Abeysekera is not a psychiatrist or psychologist, and conceded that she had no training or experience in working with youth with either ADD or ADHD, aside from medication management. In general, however, Dr. Abeysekera was persuasive that Student’s historical symptoms, reported to the physician, involved the ADD or inattentive type of ADHD, including academic difficulties and poor attention and focus in class, daydreaming and forgetting things in her backpack. Those symptoms caused Dr. Abeysekera to refer Student to a neurologist, Dr. Nadine Yasser, to rule out a seizure disorder. Dr. Yasser reportedly advised Parents and Dr. Abeysekera of the possibility that Student could be depressed. Dr. Abeysekera had no record of any complaints from Parents or Student about symptoms of hyperactivity, impulsivity or social acting out. In July 2010, Dr. Abeysekera recommended that Student could seek mental health services related to the possibility of depression. Thereafter, neither Parents nor Student reported any symptoms of depression to Dr. Abeysekera, such as flat affect, unexplained sadness, or extreme negativity.

25. As to medication management, Dr. Abeysekera established that Student had difficulties with the Adderall as the stimulant drug both wore off too quickly in school and contributed to insomnia at night. Dr. Abeysekera adjusted the dosage by adding a second, smaller dose in the middle of the day, and adding a nonstimulant drug, Strattera, to take in the evening to help Student sleep. The modified dosages and drugs were in place and effective prior to the October 2011 disciplinary incident. Dr. Abeysekera testified that if Student’s medications were not taken or were not working, Student would be less likely to be able to focus in class, take notes, or complete assignments, but would not become more prone to act out behaviorally because behavioral impulsivity or hyperactivity was not a known symptom for Student. However, Dr. Abeysekera’s opinion on this point was not persuasive because of her admitted lack of training and experience in neuropsychiatry in general, and ADHD in particular, and her lack of knowledge of Student’s school-based assessments and educational levels of performance and functioning.

Behavioral Incident of October 11, 2011

26. According to Student’s statement taken by the District on October 11, 2011, during its investigation of the incident, Student had been talking with friends before school on Monday, October 10, 2011, about the fact that her birthday was on October 12. Pupil A offered her marijuana (“some weed”) as a present and Student accepted it “because I never tried it.” The marijuana was a small, usable amount in a small black film canister. The group also included Pupil B and Pupil C. The next morning, on October 11, 2012, Student and Pupil B met at the beginning of first period in the girls’ restroom and used binder paper to roll the marijuana and smoke it. However, in addition to not having cigarette paper, they also did not have a lighter or matches, so Student sent a text to Pupil C, who was in a class, to bring a lighter to the restroom. Pupil C complied and the three girls smoked or attempted to smoke the controlled substance. Student wrote: “I realize that what I did was wrong and I acted impulsively.”

27. Peter Graham, a teacher at CHS since 1986, was teaching an advanced placement Government class for seniors during first period on October 11, 2011. He established that one of his female pupils asked to use the restroom, then came back in upset, and informed him that someone was smoking marijuana in the restroom. Mr. Graham stepped out into the hall, saw Student and Pupil B step out of the restroom heading toward the attendance office for passes and directed them to the campus monitor, who escorted them to the school office.

28. CHS Vice Principal Steve Jackson immediately conducted an investigation. Mr. Jackson has worked in the District since 1989, as a vice principal at several schools, and as a teacher. He holds a master’s degree in educational administration. Mr. Jackson placed the girls in separate rooms for questioning. Mr. Jackson credibly testified that Student admitted smoking marijuana with the other two girls in the restroom and explained to him that she had received it as a gift the day before, but denied knowing where the remaining marijuana was.⁸ He then called Pupil C into his office, who informed him that Student still had the substance and had tucked it in her bra. Mr. Jackson called Officer Emily Kelly of the Twin Rivers Police Department and she immediately responded and investigated the incident. Mr. Jackson established that Officer Kelly interviewed Student. After initially denying she had it, Student produced the canister. Officer Kelly inspected the contents and based on her experience and training, confirmed to Mr. Jackson that it was marijuana. Mr. Jackson notified all three families. Based on his investigation, Mr. Jackson prepared a written site incident report. District did not refer Student to law enforcement for criminal prosecution but dealt with the incident as a school discipline problem.

29. Mother testified that Student told her the person who offered the marijuana to Student was Pupil A, the pupil who had bullied and fought with Student in October 2010, and that Student had informed Mother that she only accepted the marijuana because she did not know what Pupil A would do to her if she refused it. Mother was not present when the incidents occurred. Student did not testify at the hearing and the reason for her absence was not explained. Student was sworn in at an expulsion proceeding on November 9, 2011, and provided some testimony supplemental to that of her Mother and did not contradict Mother’s explanation. As found above, Student’s statements are exceptions to hearsay.

30. Mother was persuasive that she did not check Student’s backpack during the evening of October 10, 2011, because her mother, Student’s grandmother, was dying and Mother was with her. Mother returned home late that night. Normally, Mother gave Student her medication at about 5:30 to 5:45 a.m. Both Mother and Dr. Abeysekera established that it took about 40 to 60 minutes for the medication to take effect. However, on the morning of October 11, 2012, Mother overslept and did not wake Student or administer the medication to her until about 7:15 a.m. Mother then drove Student hurriedly to school, during which they had an argument. They arrived at school and Student got out of the car just as the first period bell was ringing. Therefore, Student did not plan to come to school late on that day, but was late by the time she entered the campus. Mother did not see where Student went and assumed she went to her first period class. Student’s medication had not yet taken effect.

31. Student informed Mother and the District expulsion panel that when Student was walking to her first period class, she saw Pupil B heading to the restroom, and followed her into the restroom instead of going to her first period class. Mother argues that this was impulsive and just a coincidence and did not constitute a plan made the day before. However, Pupil B wrote in her statement to the school authorities that “[y]esterday[Student] received weed from [Pupil A]. We made a plan to smoke it today. Ditch 1st period. So then, we met up in the bathroom and she showed me the weed.” While Pupil B’s statement is hearsay, it is admissible to explain and supplement other evidence.⁹ Here, the evidence established that Pupil B’s conduct in meeting Student at the beginning of school was consistent with Pupil B’s written statement.

District’s Manifestation Determination

32. When a special education pupil is suspended for disciplinary reasons for more than ten days, federal law requires that the appropriate members of the IEP team meet to determine whether his conduct was a manifestation of his disability.

33. On October 24, 2011, District held a combination IEP team meeting and manifestation determination review meeting. The following people attended the meeting: Mother, Father, Student, CHS principal Mike Jordan, program specialist Cynthia Wachob, school counselor Elizabeth McCloskey, general education teacher Peter Graham, special education case carrier Susan Radi, Dr. Whalen, and vice principal Jackson.

34. Dr. Whalen facilitated the team meeting, including providing all parties with the standards to be used to evaluate whether Student’s conduct was a manifestation of her disability. The meeting was almost two hours long, during which Parents and Student presented information in an effort to exculpate Student. For example, they explained that Student was afraid to refuse to accept the marijuana from a “bully;” and that the substance was probably not marijuana but an herb. They argued that Ms. Radi should have checked Student’s backpack for missing homework on Monday, October 10, 2011, although the IEP in effect called for the homework check to be done on Fridays. In addition, they contended that the school’s failure to stop drug activity on campus and infrequent reminders of the consequences lowered Student’s “awareness of the inappropriateness of the behavior and its potential consequences.¹⁰ Further, Parents informed the team that Student’s ADHD medication was not in full effect at the time the smoking incident occurred on October 11, because the medication had been taken much later than normal.

35. Mr. Graham liked Student and taught her in his fourth period social studies class in the fall of 2011. He was aware that Student was a special education pupil with an IEP, and persuasively established that he was aware of, and implemented her IEP accommodations and modification in his class.¹¹ Mr. Graham described Student as a quiet pupil who never had a discipline issue, was never tardy, usually worked “below the radar,” and was then receiving an A minus in his class. He found that Student tended to be passive, became overly preoccupied, took longer than other pupils to complete assignments, and was often be disorganized. He did not recall any impulsive, erratic or hyperactive behaviors in his class. Mr. Graham was saddened and disappointed by Student’s conduct and his responsibility to turn her in.

36. Until the review meeting, Mr. Graham was unaware that Student had been medicated in his class. His class started at 11:30 a.m. The evidence established that Student’s morning medication often wore off by about 11:00 a.m., and Dr. Abeysekera had prescribed another, smaller dose that Student was supposed to self-administer during her lunch between 11:00 and 11:30 a.m. The evidence also established that Student often did not take that second dosage. However, Mr. Graham did not recall any times when Student had acted differently on days when her medication was not taken or had worn off.

37. The meeting notes reflect that the manifestation determination review team discussed Student’s IEP, teacher observations, grades, prior school records, including disciplinary records, and relevant information provided by Parents. The team also discussed the facts and events relating to the drug incident. The review team considered Student’s unique needs, and whether her IEP had been implemented. The team also discussed Student’s ability to understand the impact and consequences of her conduct regarding the incident. After listening to Parents and Student, all members of the review team voted out loud and all District members of the IEP team did not find anything in the information and explanations provided by all present, including Parents and Student, to persuade them that Student’s conduct was caused by or had a direct and substantial relationship to her disability. In addition, the District members of the review team did not find that any school personnel had failed to implement Student’s IEP. The evidence supported their findings.

38. Student presented the testimony of Vera Karabinus Marez on the issue whether Student’s conduct in accepting and smoking marijuana at school was a manifestation of her disability. Ms. Marez has a master’s degree in marriage and family therapy (MFT), is licensed as an MFT, and works for Peace for Families, where she primarily works with victims of domestic violence and sexual assault. She worked for three years at a special education nonpublic school and has experience with disabilities and IEP’s. In addition, Mrs. Marez’ daughter has severe ADHD, with hyperactivity and impulsivity. Mrs. Marez has met Student but has not treated her and is not familiar with her academic functioning. Mrs. Marez declined to give Student an opinion about how a pupil with ADHD might act without prescribed ADHD medication because she testified that it would be very subjective. Overall, her testimony was not given much weight.

39. Mother testified as to her opinions that Student’s conduct was a manifestation of her ADHD and reflected her ADHD symptoms of impulsivity and poor judgment. Mother has a master’s degree in psychology with an emphasis on MFT, and also worked as a therapist at a nonpublic school. Mother described her experience that Student’s symptoms of ADHD included impulsivity. However, even though Parents observed Student to act excessively impulsive in the home, and Student exhibited some impulsiveness at school, the evidence did not show that impulsivity was a significant problem that affected Student’s educational experience. Mother has given much thought to what happened, loves her daughter very much, and thinks that Mother’s role in waking up late on the morning of October 11, 2011, failing to give Student her medication timely, and getting into an argument with her while driving to school all contributed to trigger Student’s impulsiveness that morning. Mother is upset that the District expelled Student; however, since the District’s manifestation determination was not in error, OAH has no further jurisdiction over District’s expulsion actions.

40. Student did not sustain her burden to present evidence to prove that her conduct was caused by her disability based on ADHD. The evidence established that District’s decisions at the manifestation determination review meeting were supported by the evidence and complied with the law. Student’s conduct may have involved some impulsivity and poor judgment, similar to that of other teenagers who do not always act carefully and thoughtfully. The evidence established that the primary manifestations of Student’s symptoms at school were a lack of sustained attention and focus, and disorganization. While Student sometimes acted impulsively at school, it was primarily shown to be talking inappropriately in class.

41. Student did not sustain her burden to establish that the conduct in question was directly and substantially related to her disability for the same reasons. Overall, Student’s special education program addressed her academic deficits related to her disability, in the areas of math, writing skills, reading, focus, attention, distractibility, and organization. The evidence did not establish that Student suffered sustained impulsivity, hyperactivity, social skill or behavioral problems related to her ADHD. Impulsiveness generally involves “acting on the spur of the moment.”

42. Dr. Whalen was persuasive that, even if Student displayed more impulsive behaviors than he was aware of, it would not change his opinion that Student’s behaviors on October 10 and 11, 2012, were not caused by, or had a direct and substantial relationship to Student’s OHI based on ADD/ADHD. Dr. Whalen was also persuasive that Student was capable of knowing what behaviors were acceptable at school.

Predetermination

43. The principles of due process require fairness and an opportunity to be heard. Under the Individuals with Disabilities Education Act (IDEA), parents of a child with a disability must be afforded an opportunity to participate in IEP team meetings with respect to the provision of a FAPE to their child, and the school district must fairly and honestly consider parents’ concerns. School officials may discuss the issues and concerns in advance of the IEP team meeting, but they may not arrive at an IEP team meeting with a “take it or leave it” attitude. While the manifestation review meeting in this case was combined with an IEP team meeting, the manifestation review itself is not by law an IEP meeting. Although the law is not clear, if the same principles are applied here as for IEP team meetings, Student did not establish that District predetermined the outcome.

44. Parents experienced the manifestation determination review team meeting on October 24, 2011 as a predetermined meeting where the District members in attendance had already made up their minds. However, Mother testified that she could not point out anything specific about any particular person, just a feeling that the decision was a “done deal.” No objective evidence was presented to support her assertion.

45. Mr. Graham, Mr. Jackson, and Dr. Whalen testified during the hearing. Their testimony was credible and consistent with the IEP and review team meeting notes and with each other. Mr. Jackson credibly conceded that he came to the meeting prepared, and with the knowledge gleaned from his personal investigation of the incident on the date that it occurred, including his discussions with Officer Kelly and the four girls involved. However, he, and the other District members of the team, came with an open mind to hear what Parents and Student had to say, including any explanations, insights or information that they could bring to the table.

46. Mr. Graham was also persuasive that he did not want to have to make the decision he did regarding the lack of manifestation of Student’s disability in the circumstances involved. Dr. Whalen was persuasive that the information about Student’s tardy medication on the morning of the incident was not relevant to him because the incident began the day before, and Student had multiple opportunities to stop and reconsider after her medication became fully effective.

47. Each District member voted verbally and was able to express his or her opinion. Based on the foregoing, there was no evidence that District personnel predetermined the result of the manifestation determination review team meeting.

LEGAL CONCLUSIONS

1. Student, as the party requesting relief, has the burden of proof in this proceeding. (Schaffer v. Weast (2005) 546 U.S. 49 [126 S.Ct. 528].) The issues in a due process hearing are limited to those identified in the written due process complaint. (20 U.S.C. § 1415(f)(3)(B); Ed. Code, § 56502, subd. (i).) In this case, the issues were bifurcated as noted above, and this Decision is limited to the expedited disciplinary issues only.

2. The IDEA provides states with federal funds to help educate children with disabilities if the state provides every qualified child with a FAPE that meets the federal statutory requirements. Congress enacted the IDEA “to assure that all children with disabilities have available to them . . . a free appropriate public education which emphasizes special education and related services designed to meet their unique needs. . . .” (20 U.S.C. §§ 1400(c), 1412(a)(1)(A); Ed. Code, §§ 56000, 56026.) A FAPE is defined as special education and related services that are available to the pupil at no cost to the parent or guardian, that meet the State educational standards, and that conform to the pupil’s IEP. (20 U.S.C. § 1401(9); Ed. Code, § 56031; Cal. Code Regs., tit. 5 § 3001, subd. (o).) “Special education” is instruction specially designed to meet the unique needs of a child with a disability. (20 U.S.C. § 1401(a)(29).) A special education placement is adequate if it is reasonably calculated to provide educational benefit to the pupil at the time the offer is made. (Gregory K. v. Longview School Dist. (9th Cir. 1987) 811 F.2d 1307, 1314.)

3. Pupils receiving special education are subject to disciplinary measures such as suspension or expulsion by a school district for violation of the law or its rules of conduct. (20 U.S.C. §1412(a)(1)(A).) However, the IDEA prohibits the expulsion of a pupil with a disability for misbehavior that is a manifestation of the disability. (20 U.S.C. § 1415(k); 34 Code of Fed. Regs. § 300.530, et seq.; Doe v. Maher (9th Cir. 1986) 793 f.2d 1470.) The federal law governs when and how schools may change the educational placement of a child with a disability because of his or her offence.

4. A “change of placement” is a fundamental change in, or elimination of, a basic element of a pupil’s educational program. A change of placement is defined as (a) a removal for more than 10 consecutive school days, or (b) a series of removals that cumulate to more than 10 consecutive school days and constitute a pattern based on listed factors. (34 C.F.R. § 300.536(a).) Thus, depending on its form and duration, suspension of a pupil receiving special education and related services due to a disability may constitute a change in his or her educational placement. School personnel may remove a child with a disability to an interim alternative educational setting, another setting, or to suspension for not more than 10 school days without triggering the “change of placement” protections of the law. Expulsion or suspension for more than ten days is a change of placement. (Honig v. Doe (1988) 484 U.S. 305.)

Manifestation Determination

5. Within 10 school days of any decision to change the educational placement of a pupil with a disability because of a violation of law or code of conduct, the local educational agency (LEA), the parent, and relevant members of the pupil’s IEP team shall review all relevant information in the pupil’s file, “including the child’s IEP, any teacher observations, and any relevant information provided by the parents.” (20 U.S.C. § 1415(k)(1)(E)(i); 34 C.F.R. § 300.530(e)(1) and (h).) If the review team determines that either of the following is applicable, the pupil’s conduct “shall be determined to be a manifestation of the child’s disability.”

1. If the conduct in question was caused by, or had a direct and substantial relationship to, the pupil’s disability; or
2. If the conduct in question was the direct result of the LEA’s failure to implement the IEP.

6. If school personnel seek to order a change of placement that would exceed 10 school days, and if it is determined that the behavior that gave rise to the conduct violation was not a manifestation of the pupil’s disability, then the following apply:

1. The school may apply the same disciplinary procedures that are applicable to children without disabilities “in the same manner and for the same duration in which the procedures would be applied to children without disabilities. (20 U.S.C. § 1415(k)(1)(C).”
2. The pupil must still receive a FAPE, although it may be provided in an interim alternative educational setting. (20 U.S.C. § 1415(k)(1)(D)(i).¹²
3. In addition, the pupil shall receive, as appropriate, a functional behavioral assessment (FBA) and behavioral intervention services and modifications “that are designed to address the behavior violation so that it does not recur.” (20 U.S.C. § 1415(k)(1)(D)(ii).)

7. If the review team makes a determination that the pupil’s conduct was a manifestation of the pupil’s disability, then the pupil’s IEP team is required to take action, as follows (20 U.S.C. § 1415(k)(1)(F):

1. The IEP team must conduct a FBA and implement a behavioral intervention plan for the child, if the LEA had not already conducted one prior to the behavior at issue.
2. Where a behavioral intervention plan was already developed, the IEP team must review it, and modify it, as necessary, to address the problematic behavior.
3. The IEP team must return the pupil to the special educational placement from which the pupil had been removed, unless the parent and the LEA agree to a change of placement “as part of the modification of the behavioral intervention plan.”

8. The parent of a pupil with a disability who disagrees with either a school’s decision to change the pupil’s educational placement as a disciplinary measure, or the manifestation determination may appeal by requesting a due process hearing. (20 U.S.C. § 1415(k)(3)(a).¹³ An expedited hearing shall be held within 20 school days of the date the hearing is requested. A decision or “determination” shall be made by the hearing officer within 10 school days after the hearing. (20 U.S.C. § 1415(k)(4)(B).)

9. With some exceptions, when an appeal has been requested, the pupil shall remain in the then-current educational placement. (20 U.S.C. § 1415(j). This is commonly referred to as “stay put.” One exception to the general stay put rule is in a disciplinary matter involving a weapon, drugs, or “serious bodily injury,” where an alternative educational placement is made, the child shall remain in the interim alternative educational setting pending the decision of the hearing officer. (20 U.S.C. § 1415(k)(4)(A). In those circumstances, 20 U.S.C. section 1415(k)(1)(G) permits school personnel to remove a pupil to an interim alternative educational setting for not more than 45 school days without regard to whether the behavior is determined to be a manifestation of the child’s disability. In this case Student did not file an appeal before her expulsion.

10. The IDEA states that, when dealing with pupils with disabilities who have violated a code of conduct, school personnel are expressly permitted to consider “any unique circumstances on a case-by-case basis” in determining whether a change of placement order would be appropriate. (20 U.S.C. § 1415(k)(1)(A).)

11. California law is in accord with federal law. California law refers to a “child with a disability” as an “individual with exceptional needs” who is identified as disabled by an IEP team and requires special education and services. Under California Education Code section 48915.5, an individual with exceptional needs may be suspended or expelled from school in accordance with subsection (k) of Section 1415 of title 20 of the United States Code, including the discipline provisions in federal regulations and other provisions of California law that do not conflict with the federal law and regulations.

12. Education Code section 48900 provides that a pupil may not be suspended from school or recommended for expulsion unless the superintendent or school principal determines that the pupil has committed an act “related to school activity or school attendance occurring within a school” as defined in subsections (a) through (q).¹⁴

13. The court in Doe v. Maher, supra, (9th Cir. 1986) 793 F.2d 1470, 1480, discussed the meaning of various phrases describing “conduct that is a manifestation of the child’s handicap.” The court explained: “As we use them, these phrases are terms intended to mean the same thing. They refer to conduct that is caused by, or has a direct and substantial relationship to, the child’s handicap. Put another way, a handicapped child’s conduct is covered by this definition only if the handicap significantly impairs the child’s behavioral controls. … it does not embrace conduct that bears only an attenuated relationship to the child’s handicap.” The court went on to say: “If the child’s misbehavior is properly determined not to be a manifestation of his handicap, the handicapped child can be expelled. [cites] …When a child’s misbehavior does not result from his handicapping condition, there is simply no justification for exempting him [or her] from the rules, including those regarding expulsion, applicable to other children. …To do otherwise would amount to asserting that all acts of a handicapped child, both good and bad, are fairly attributable to his handicap. We know that that is not so.” (Emphasis original.) (Doe v. Maher, supra, at 1482.)

14. Education Code section 56339 provides that a pupil whose educational performance is adversely affected by a diagnosis of ADHD may be entitled to special education and related services if he or she demonstrates a need for special education and related services by meeting the eligibility criteria specified in subdivision (f), (i), or (j) of section 3030 of title 5 of the California Code of Regulations, for the disability categories of other health impairments, serious emotional disturbance, or specific learning disabilities.

15. The eligibility criteria for OHI under subdivision (f) of title 5 of the California Code of Regulations, section 3030 are: “A pupil has limited strength, vitality or alertness, due to chronic or acute health problems, including but not limited to a heart condition, cancer, leukemia, rheumatic fever, chronic kidney disease, cystic fibrosis, severe asthma, epilepsy, lead poisoning, diabetes, tuberculosis and other communicable infectious diseases, and hematological disorders such as sickle cell anemia and hemophilia which adversely affects a pupil’s educational performance. In accordance with Section 56026(e) of the Education Code, such physical disabilities shall not be temporary in nature as defined by Section 3001(v).”

Issue 1: Was Student’s conduct on October 11, 2011, a manifestation of her disability because the conduct was caused by, or had a direct and substantial relationship to her disability?

16. As set forth in Factual Findings 1 through 42, and Legal Conclusions 1 through 15, the evidence established that Student’s OHI disability, based on ADHD, resulted in special education accommodations, modifications, and supports in her operative IEP that addressed her academic struggles related to her lack of sustained attention and focus, distractibility, and lack of organization skills. Student’s IEP thus focused on helping her make academic progress and be able to remember, to be organized, and to complete, and turn in her class work and home work assignments. While hyperactivity-impulsivity was an area of some concern in the 2010 psychoeducational assessment, there was no evidence that Student engaged in such behaviors in the school setting to any significant degree and she behaved well in class. District did not have an IEP goal to address hyperactivity-impulsivity as an area of unique need that adversely impacted Student’s education. There was no competent evidence to support a finding that Student’s OHI played any significant role in the incident of October 11, 2011. At best, Student’s initial decision to accept the marijuana may have been impulsive and that impulsiveness may have had an attenuated relationship to her disability.

17. The marijuana smoking incident on the next day was not precipitated by Student’s sudden, unpremeditated impulsiveness. Student did not spontaneously accept a marijuana cigarette from someone and smoke it. Rather, Student accepted the marijuana one day before the incident. In this case, Student’s birthday was on October 12, 2011, and she wanted to try it for her birthday. If Student did not know how to say “no” to Pupil A, Student would have had further instances of trouble with Pupil A during the year from the October 2010 fight episode to the October 2011 drug incident. There is no record of any such problems. Student, Pupil B and Pupil C agreed to meet and smoke the marijuana at some point. This may have been the extent of the plan and it involved poor judgment. The fact that further plans were not made does not negate the existence of the general plan. Student’s participation in the plan involved decision-making, and an opportunity overnight to reflect and change her mind. There was also an opportunity to make further plans, such as getting cigarette rolling paper. Mother’s argument that Student often forgot that she put her homework in her backpack does not lead to the conclusion that Student forgot that she placed the canister in her backpack. Even if Student did forget about it overnight, she remembered when she and Pupil B were in the restroom the next day. Pupil B met Student at the beginning of first period to follow through with the general plan. Student knew who had a lighter, Pupil C, and invited her to join them. There was no evidence that Pupil A was present in the restroom or was otherwise part of the plan to smoke the illegal substance such that Student was bullied to do so. Therefore, based on a preponderance of the evidence, Student did not establish that her conduct on October 11, 2011, was caused by, or directly and substantially related to her disability.

Issue 2: Was Student’s conduct on October 11, 2011, a manifestation of her disability because the conduct was the direct result of the District’s failure to implement Student’s IEP?

18. As set forth in Factual Findings 1 through 19, and 32 through 37, and Legal Conclusions 1 through 17, Student did not sustain her burden to present evidence establishing that the District failed to implement her IEP in any significant way. Absent other evidence, District, as a public agency, is presumed to have performed its duties required by Student’s IEP.¹⁵ Student did not present sufficient evidence to overcome that presumption. The evidence showed that her teachers were aware of her IEP and the accommodations, modifications, and supports to enable her to obtain educational benefit. District did not fail to implement Student’s IEP because Ms. Radi did not check Student’s backpack on the afternoon of October 10, 2011, a Monday. The operative IEP provided that the backpack would be checked on Friday afternoons to help her stay organized. The marijuana remained in Student’s backpack overnight consistent with the understanding that the girls would meet somewhere, sometime, for Student’s birthday and smoke it. Accordingly, Student did not establish that District failed to implement her IEP, or that such a failure directly resulted in her conduct on October 11, 2011.¹⁶

Predetermination

19. For IEP team meetings, predetermination occurs when an educational agency has decided on its offer prior to the IEP team meeting, including when it presents one placement option at the meeting and is unwilling to consider other alternatives. (Deal v. Hamilton County Bd. of Educ. (6th Cir. 2004) 392 F.3d 840, 858.) A district may not arrive at an IEP team meeting with a “take it or leave it” offer. (JG v. Douglas County School Dist., (9th Cir. 2008), 552 F.3d 786, 801, fn. 10.) However, school officials do not predetermine an IEP simply by meeting to discuss a child’s programming in advance of an IEP team meeting. (N.L. v. Knox County Schs. (6th Cir. 2003) 315 F.3d 688 at p. 693, fn. 3.) As noted in Footnote 12, federal commentators distinguish the review team from the IEP team. Some courts have applied the same principles to manifestation determination review meetings, although the law is not clear. (See Fitzgerald v. Fairfax County Sch. Bd. (2008) 556 F.Supp. 2d 543, at p. 559-561 [principles of fundamental fairness and predetermination applied to review team meeting]; Student v. San Diego Unified School District, (2009) Cal.Ofc. Admin.Hrngs. Case No. 2009060881, p. 9-10 [review team did not predetermine outcome].)

Issue 3: In connection with the manifestation determination review team meeting on October 24, 2011, did the District commit a procedural violation by predetermining that Student’s conduct on October 11, 2011, was not a manifestation of her disability?

20. As set forth in Factual Findings 32 through 37, and 43 through 47, and Legal Conclusion 19, the evidence did not support Student’s claim that the District members of the manifestation determination review team predetermined their votes or the outcome of that meeting. Most of the District staff who attended the meeting on October 24, 2011 were aware of the incident, as Mr. Graham had turned Student in, and Mr. Jackson had investigated the incident. However, the fact that District staff would know of the details of a school-based disciplinary incident is to be expected. Certain officials, such as Mr. Jackson, had a duty to investigate, and their knowledge and participation did not disqualify them from being on the review team. Other District personnel on the team had no direct involvement in the incident. All of them listened to Parents and Student and carefully discussed the issues and Parents’ concerns for about two hours. District team members disagreed that Parents’ concerns should persuade them to vote that Student’s conduct directly and significantly involved her disability or that District failed to implement her IEP. That disagreement did not prove that District predetermined the outcome of the meeting. Therefore, Student did not meet her burden to establish that the District members of the review team predetermined the outcome of the meeting.

ORDER

Student’s request for relief from District’s manifestation determination is denied.

PREVAILING PARTY

District prevailed on all issues for hearing in this case. (Ed. Code § 56507, subd. (d).)

NOTICE OF APPEAL RIGHTS

This is a final administrative decision, and all parties are bound by this Decision. The parties are advised that they have the right to appeal this decision to a state court of competent jurisdiction. Appeals must be made within 90 days of receipt of this decision. A party may also bring a civil action in the United States District Court. (Ed. Code, § 56505 subd. (k).)

DATED: March 2, 2012

DEIDRE L. JOHNSON
Administrative Law Judge
Office of Administrative Hearings

In the Matter of:
PARENTS ON BEHALF OF STUDENT,

v.
WESTMINSTER SCHOOL DISTRICT.

OAH CASE NO. 2011090307

DECISION

Administrative Law Judge (ALJ) Robert Helfand, Office of Administrative Hearings, State of California, heard this matter in Huntington Beach, California, on January 17, 18, and 19, 2012.

Vanessa Jarvis, Attorney at Law represented Student’s Parents and Student (Student). Student’s mother (Mother) was present on the first and third days of the hearing and for the morning of the second day. Student’s father (Father) was present on January 18 and 19, 2012. Minh-Hanh Nguyen, a Vietnamese interpretator, was present on January 17 and 19, 2012; while Minh Q. Nguyen was the interpretator on January 18, 2012.

Jennifer C. Brown, Attorney at Law, represented the Westminster Unified School District (District). Leisa Winston, Administrator of Student Services for the District, and Robyn Moses, Program Director of the West Orange County Consortium for Special Education (WOCCSE), were present throughout the hearing.

Student filed his due process request (complaint) on September 12, 2011. On September 22, 2011, the District filed a notice of insufficiency as to Student’s complaint. On September 22, 2011, the Office of Administrative Hearings (OAH) issued an order finding that Issues one, three and five were sufficient and issues two and four were not sufficient. Student was permitted 14 days to file an amended complaint if he chose to. Student failed to file an amended complaint. On October 21, 2011, the parties filed a joint request to continue. On October 24, 2011, OAH granted the request for continuance and scheduled the due process hearing for January 17-19, 2012.

At the hearing, the ALJ received oral and documentary evidence. The following witnesses testified at the hearing: Mai Vi Nguyen; Stephanie Penticuff; Leisa Winston; Father; Marjorie May Schubert; Linda Allen, Robyn Moses; Patricia Larkin; and Ashley Kinsling.

At the request of the parties, the record remained open for the submission of written closing and rebuttal arguments. The parties filed their closing briefs on February 6, 2012, and rebuttal closing briefs on February 16, 2012. The matter was submitted on February 16, 2012.

ISSUES

The following issues, as listed in the Prehearing Conference Order, were to be determined in this matter:

1. Did the District deny Student a free appropriate public education (FAPE) by refusing to implement the February 4, 2011 Individual Education Program (IEP) by placing Student in the SUCSESS program¹ at Johnson Middle School?
2. Did the District deny Student a FAPE by failing to implement the goals and transportation services called for in the May 13, 2011 IEP?
3. Did the District deny Student a FAPE at the May 13, 2011 IEP meeting by failing to (a) make a formal FAPE offer; (b) provide for speech and language services; and (c) list Student’s present levels of performance?

District’s Motion to Dismiss Issues One and Two

On September 15, 2011, Student filed with OAH a motion for stay put seeking to have Student placed at Warner Middle School, his neighborhood school. On September 21, 2011, the District filed its opposition. OAH, by ALJ Adeniyi Ayoade, issued an order on September 26, 2011, denying Student’s motion on grounds that the proper stay put placement was in the SUCSESS class at Johnson Middle School (Johnson) as Student had advanced a grade and the only such program was on the Johnson campus.

On January 12, 2012, the District filed a motion to dismiss issues one and two on the basis that the issues were moot as a result of the September 26, 2011 order. Student filed an opposition to the motion on January 13, 2012. Oral arguments were held at the first day of hearing on January 17, 2012.

The ALJ ruled on the record that the District’s motion was granted as to issue one and denied as to issue two. As to issue one, Student’s parents consented to the IEP of February 4, 2011, which related only to the remainder of school year 2010-2011, which placed Student in the SUCSESS class. As to school year 2011-2012, the IEP team’s offer at the May 13, 2011 IEP was not consented to by Parents. The District placed Student at Johnson pursuant to the District’s “stay put” obligation as reflected in the OAH September 26, 2011 order. Thus, issue one was moot and District’s motion was granted as to issue one. Since issue two dealt with the implementation of the portions of the May 13, 2011 IEP, which were consented to goals and transportation services, it was not moot as the September 26, 2011 OAH order did not apply to that issue. Thus, the hearing proceeded on issues two and three only.

FACTUAL FINDINGS

1. Student is a 12-year-old boy who resides with his family within the District. Student has been in special education since the age of three under the eligibility category of autistic-like behaviors. Student has unique needs in the areas of vocational math skills, adaptive living skills, receptive language, expressive language, reading comprehension, writing, and social/emotional skills. Student is also an English learner as his native language is Vietnamese. He has been in a SUCSESS class since preschool.

2. SUCSESS is a program developed by the Orange County Department of Education (OCDOE) in 2002. It involves a special day class (SDC) for children in the moderate to severe range incorporating a variety of methodologies that have proven to be effective for children with autism.² SUCSESS utilizes a functional alternative curriculum. The class has a two-to-one ratio of pupils to staff. The teacher possesses a moderate-severe special education credential. Teachers attend an extensive training at the SUCSESS Academy run by OCDOE as well as periodic training by OCDOE as to researched best practices.

3. During school year 2010-2011, Student attended the SUCSESS class at Sequoia Elementary School (Sequoia). Student’s parents (Parents) believed that Student was not progressing as he should in SUCSESS as the classroom environment was too noisy and other pupils engaged in negative behaviors which distracted Student.

February 4, 2011 IEP Meeting

4. On February 4, 2011, the IEP team convened its annual meeting. The team was also meeting to plan Student’s transition to middle school for the next school year. Attending on behalf of the District were Stephanie Penticuff, a school psychologist and behavior case manager for preschool through sixth grade who acted as the administrative designee;³ Julie Park, Student’s special education teacher; an unidentified general education teacher; Joanne Kudo, an occupational therapist; Linda Allen, speech and language pathologist (SLP); and Michelle Garcia, a District autism specialist. A Vietnamese interpreter also attended.

5. The team reviewed a written progress report dated February 4, 2011, prepared by Park. The report indicated that Student had met his annual goals in reading, writing, social/emotional, adaptive/daily living, and fine motor. Student failed to meet annual goals, although he did demonstrate progress, in receptive language, expressive language, math, and vocational (coin counting). In the areas where he failed to meet the annual goals, his performance was inconsistent or he required prompting. Father discussed Student’s progress with the SLP and Park in particular.

6. The team also discussed Student’s present levels of performance. In the area of reading, Student was able to read short paragraphs that included short vowels and familiar sight words. He was able to identify 50 sight words of which he was able to write 20 or more. In math, Student could solve touch point addition/subtraction problems up to three digits with carrying/borrowing, and was becoming more efficient using a calculator to solve word problems when assisted. Student could copy/write personal information on modified paper in a single format. He was able to focus on non-preferred tasks for two minutes without losing attention and making vocal sounds. Student also could count a combination of two to three coin values up to the amount of one dollar. Additionally, the team discussed eight goals in the areas of receptive language, expressive language, writing, reading comprehension, mathematics, adaptive/daily living, social/emotional, and vocational. For each of these goals, the team listed goal baselines which are the equivalent of Student’s level of performance as of February 4, 2011.

7. The team also adopted eight goals and objectives. The IEP team offered to continue Student in the SUCSESS class at Sequoia for the remainder of school year 2010-2011, with individual speech and language twice per week for 15 minutes per session and group speech and language once per week for 30 minutes. For the extended school year (ESY) 2011 (June 29, 2011 through July 25, 2011), the IEP team offered Student to continue in SUCSESS five days per week for a total of 1095 minutes with group speech and language once per week for 30 minutes.

8. For the school year commencing on September 7, 2011, the team recommended that Student be placed “in a SUCCESS-type (sic) structured classroom program in the middle school setting” which included “intensive instruction and support in social, emotional, functional, and academic learning to enhance academic and overall growth.” The IEP document omits any reference to speech and language services following the 2011 ESY. Allen had orally recommended at the meeting that speech and language services should continue at the same rate through February 2012. Allen also had drawn up proposed goals and objectives, which were accepted by the team, to run through February 2012. Allen assumed that the speech and language sections reflected her recommendation for speech and language services was listed as being from February 4, 2011 through February 4, 2012. Father testified that he was not aware of the omission but that he anticipated that speech and language services would continue based on Allen’s oral recommendation at the meeting.

9. Father indicated that he did not want Student to continue in the SUCSESS program as he felt his son’s needs would not be met by staying in the program. Father cited to the negative behaviors of class members he had observed in the classroom. Father preferred an SDC with a quieter environment. The team discussed the other available programs, but that they were of the opinion that the Johnson Middle School SUCSESS class, the District’s only SUCSESS class at the middle school level, was the most appropriate program to meet Student’s unique needs. Father requested an opportunity to visit programs at the three District middle schools. The meeting was then adjourned with no decision made as to placement for the next school year to give Parents an opportunity to visit and observe other District programs at its three middle school campuses. The IEP states that “Parent has requested that visits to three middle schools take place before determination of placement for next year.” The IEP notes also state that the “[s]chool psychologist will contact Diane Hall to set up visits to the middle schools.”⁴

10. Father signed the IEP. Thus, Father consented to the IEP offer for the remainder of the 2010-2011 school year plus ESY.

School Observations by Parents

11. Following the February 4, 2011 IEP meeting, Parents observed the special education programs at the District’s three middle schools. Father felt that the SUCSESS class at Johnson was identical to the one at Sequoia, and Student would be distracted by the negative behaviors by the pupils and the high noise level in the classroom. Father also believed that the academic level of the SUCSESS class was below his son’s ability. Additionally, the Johnson class had 10 pupils with a teacher and four aides, whom he believed were one-to-one aides for four of the pupils. Father felt that the SDC at the Stacey Middle School (Stacey) would be an appropriate placement for Student, because he did not observe problem behaviors by the pupils and the noise level appeared to be quieter. Father also felt that the academic level of the Stacey class was a good fit for his son. The Stacey class comprised eight to nine pupils with a teacher and two aides. Father felt that the SDC at Warner Middle School (Warner) was not appropriate for his son. The Warner and Stacey SDC’s use a general education curriculum as opposed to the Johnson SUCSESS class which uses a functional alternative curriculum.

May 13, 2011 IEP Meeting

12. The IEP team reconvened on May 13, 2011, in a continuation of the February 4, 2011 IEP meeting, to resolve placement for school year 2011-2012. Attendees were Father; a Vietnamese interpreter; Penticuff, as school psychologist; Allen; Park; and Loretta Szebert, as administrative designee.⁵ The team discussed Student’s progress since the prior IEP meeting. The District team members explained that they felt that the Johnson SUCSESS class was the most appropriate placement to meet Student’s needs and that Student had been making steady progress in the program. Father informed the team that the Parents preferred that Student be placed at the Stacey SDC as they felt that the academic level was more appropriate for Student and there would be fewer distractions because the noise level was much lower than SUCSESS and the pupils were better behaved. Following Father’s presentation, the team discussed Father’s concerns and examined why the SUCSESS class would best meet Student’s unique needs as the classes at Warner and Stacey were not similar. The team then recommended that Student be placed at the Johnson SUCSESS class. The recommendation was unanimous except for Father.

13. The IEP document restated the present levels of performance and the goals and objectives which were in the IEP document for the February 4, 2011 meeting. Under classroom and curricular accommodations and modifications, the IEP reads: “[Student] will participate in curriculum that is based on a subset of the California Content Standards for students with significant disabilities. He is in a SUCCESS (sic) program which includes highly structured instruction and support in social skills, functional, academic, and planning skills to support his overall learning and growth.” It also states that Student will receive the modified curriculum in English-language arts, mathematics, science, and history/social science.

14. In the Instructional Settings/Services section, the IEP repeats the same program for the remainder of the 2010-2011 school year and ESY as was contained in the February 4, 2011 IEP. For the next school year (2011-2012), it states that Student will receive from September 7, 2011 through February 4, 2012, group instruction in a “separate classroom in a public integrated facility” five days per week for 280 minutes per session for a total of 1400 minutes. There is no mention of speech and language services for the 2011-2012 school year. Father testified that he expected that speech and language services would continue at the same rate as in the 20102011 school year based upon discussions at the two IEP meetings.

15. The IEP handwritten notes state:

• Parents prefer placement at Stacey Middle School for [Student’s] 6th grade placement.
• The IEP team has recommended continued placement into a SUCSESS program as provided at Johnson Middle School. [Student] has been in a mod/severe (moderate/severe) program and Stacey and his home school of Warner both do not have similar programs.
• The Special Education Administrator will respond to the parents’ request in a reasonable time.

16. Father did not consent to the IEP and refused to sign the IEP because he did not agree with the IEP team recommendation that Student be placed at Johnson.

17. The evidence demonstrates that the IEP team made a definitive offer of placement at the May 13, 2011 IEP meeting even though Father testified that he felt no decision had been made as to placement at the May 13, 2011 IEP since he was informed that a final decision as to Parents’ request for placement at Stacey must be made by the “boss,” the special education department head. This assertion was contradicted by Penticuff and Allen who testified that a definitive offer of placement at Johnson was made at the May 13, 2011 IEP meeting. This is also corroborated by the IEP document itself. Penticuff testified that since Father asked for a different placement than the team offered, the District offer can be considered a denial of a parental request. The District practice was to refer the matter to Leisa Winston, the District’s administrator of student services,⁶ to formally respond in writing. The reference in the notes to the Special Education Administrator responding refers to this procedure.

Summer 2011

18. On June 10, 2011, Winston forwarded a letter to Parents regarding the denial by the IEP team of father’s request for his son to be placed at Stacey in lieu of Johnson.⁷ The letter states that it is being made under the provisions of the Individuals with Disabilities Education Act of 2004 (IDEA) section 1414(b) and (c) as a prior written notice. Winston lays out the information considered by the District, which included parental input, professional observations by staff, input from credentialed teachers, past IEP meetings, and progress reports. She also lists the basis of the options considered-the severity of Student’s disability and the staff ratios at both the SUCSESS and Stacey programs; the reasons why the District offered continued placement in the SUCSESS program; and the curriculum and modifications required to meet Student’s needs. Additionally, Winston explained that the District is required to implement the last agreed upon IEP at the middle school level which meant that Student would be in the SUCSESS program at Johnson. Enclosed with the letter was a copy of parental procedural safeguards.

19. On June 28, 2011, Father responded to Winston’s June 10, 2011 letter in writing. Father stated that parents disagreed with Student attending Johnson and requested placement at Stacey as Student would succeed in being more independent and improve his social skills. He requested another IEP to discuss placing Student at Stacey.

20. The District responded to the June 28, 2011 by its letter dated July 8, 2011. The District agreed to schedule a new IEP meeting no later than October 7, 2011, as the District was in summer recess until September 7, 2011. For the 20112012 school year, Winston wrote:

The District understands that you disagree regarding [Student’s] middle school placement. The District responded to your request in a letter dated June 9, 2011 and included a copy of your parent’s rights. [Student] will be enrolled at Johnson Middle School beginning September, 2011, as the District is required to implement the last agreed upon and implemented program during the pendency of the dispute.

21. On August 16, 2011, Parents retained the Special Education Law Firm (SELF) to represent them with respect to special education matters concerning Student. On August 17, 2011, Jennifer Guze Campbell of the SELF sent a letter to Tammy Steel, principal of Sequoia, to notify the District that SELF was now representing Parents. Campbell also forwarded a second letter to Steel on August 17, 2011. In that letter, Campbell informed the District that Father consented to all annual goals and short term objectives, transportation, and to individual and group speech and language services contained in the May 13, 2011 IEP. Campbell also stated that Father did not consent to portions of the May 13, 2011 IEP relating to speech and language services, specialized academic instruction, the provisions for ESY, and Student being placed “at a location other than [Student’s] school of residence.” The letter contained no mention of the present levels of performance in either the February or May IEP’s. Campbell’s letter also stated that the District should observe “stay put” as follows:

1. Provide speech and language individual sessions twice per week for a total of 30 minutes;
2. Provide group speech and language services once per week for 30 minutes;
3. Provide special academic instruction, group, for five days per week for 1400 minutes;⁸
4. Intensive individual instruction supervision once per month for 90 minutes;
5. Goals associated with Discrete Trial Training/ Applied Behavior Analysis; and
6. Placement at Student’s school of residence, Warner.

22. On September 1, 2011, Winston responded to Campbell’s August 17, 2011 letters on behalf of the District. Winston denied Student’s request for stay put placement at Warner. Winston cited that the proper placement for stay put is based on the last IEP which was consented to by Parents and implemented by the District, which was the February 4, 2011 IEP, which places Student in the SUCSESS class which is only available at Johnson.

23. On September 2, 2011, Campbell forwarded a letter to Winston claiming that the February 4, 2011 IEP failed to determine Student’s placement for sixth grade which was “to be determined” and that Student would be in a “SUCCESS-type program.” Campbell then states that Father “expects the Westminster School District to permit enrollment of [Student] at Warner Middle School in a timely manner.” On September 6, 2011, Winston responded by letter to Campbell disagreeing with “your interpretation of the ‘stay put’ provision in regards to [Student].” She ended her letter by stating that the Johnson staff looks forward to beginning the school year on September 7, 2011, with Student. Winston sent an email to the Johnson principal alerting him that Father may attempt to enroll Student at Warner and to not enroll him.

Commencement of the 2011-2012 School Year

24. On September 7, 2011, Father attempted to enroll Student at Warner. Mai Vi Nguyen, Warner’s registrar, refused to enroll Student at Warner and referred Father to the District’s main office as Student had an IEP, which was standard procedure for special education students attending a SDC. Nguyen also was aware of Winston’s email. Father responded to Nguyen’s denial by telling her that her action was “illegal.” He then called a person he referred to as his attorney and had Nguyen speak to him. Nguyen spoke to James Campbell, an educational advocate with the SELF, who stated that the state education law required Student to be enrolled at his home school. Nguyen refused to enroll Student and again referred him to the main office.

25. On September 12, 2011, Student filed his Request for Due Process Hearing (complaint).

26. Parents decided to not have Student enroll or attend any District school. Student finally enrolled at Johnson on or about September 27, 2011, following the OAH September 25, 2011 order ruling that the Johnson SUCSESS program was the proper stay put placement.

27. On September 19, 2011, Robyn Moses, Program Administrator at the West Orange County Consortium for Special Education (WOCCSE) responded by letter to Student’s complaint on behalf of the District. On September 20, 2011, Moses forwarded a second letter to Campbell noting that “the District erroneously recorded incorrect dates on the May 13, 2011 IEP document in regards to the period when the IEP team determined that [Student] should receive speech and language services,” which were to continue until February 4, 2012. She included a proposed amendment to the IEP for signature by Parents correcting this error. Moses did not receive a response to her letter.

October 12, 2011 IEP Meeting

28. On October 12, 2011, the IEP team met as a result of Father’s June 28, 2011 request.⁹ Attending on behalf of the District were Winston, administrative designee; Allen; Ellen Fitzsimmons, program specialist; Shane Vinagupta, the Johnson principal; and Marjorie May Schubert, SUCSESS teacher. Father attended along with Jim Campbell and Wiley Campbell, advocates from the SELF. Student’s advocates presented their concerns about Student’s placement at Johnson and the IEP team discussed services then being implemented. There was a discussion over Student’s speech services, and the advocate requested that the District increase speech services. The District representatives commented that they thought the services were appropriate and that the SUCSESS class includes language concepts and pragmatics in its curriculum. The District representatives also noted that Student was then being assessed in a number of areas, including speech and language, so that the issue could be revisited in the future. The IEP document was prepared as an amendment which reiterated the placement offered at the May 13, 2011 IEP and added that speech and language services from February 4, 2011 to February 4, 2012 would be two 15 minute individual speech and language sessions weekly and one 30 minute group speech and language session per week. Father refused to consent to the IEP but signed as being present.

Speech and Language Services Provided by District

29. Schubert is currently Student’s teacher in the SUCSESS class. She has implemented the IEP goals since Student’s arrival in her class in late September 2011. Patricia Larkin was the SLP for Johnson from September 7, 2011 through December 5, 2011, when the regularly assigned SLP, Ashley Kinsling, returned from pregnancy leave. Larkin implemented the speech and language goals from the May 13, 2011 IEP. Larkin was informed by Allen and Kinsling that Student was to receive the same level of speech and language services as shown in the IEP for the remainder of the 2010-2011 school year. She also gave Student extra sessions to make up for those sessions he missed while Parents kept him out of school. Upon Kinsling’s return, she also gave Student extra sessions in January. Kinsling testified that Student has received the same number of speech and language sessions that he would have received had he been enrolled since the commencement of the school year. Student presented no contrary evidence. Both Larkin and Kinsling noted that Student was making progress on timely meeting his speech and language goals.

Implementation of Goals and Provision of Transportation Services

30. Student contends that the District failed to implement the goals contained in the May 13, 2011 IEP and failed to provide Student transportation services during the two week Parents refused to have Student attend Johnson. The failure of the District to implement his goals was not the fault of the District, which was willing to implement the May 13, 2011 IEP had Student been in attendance. (See Factual Finding 28.)

31. Student in his closing brief bases this claim on the fact that the District refused to transport Student to Warner where he attempted to register. (Student’s Closing Brief dated February 6, 2012, at p. 2.) The District provided testimony that its buses going to Johnson passed by Student’s home during the time period. This was corroborated by Father. Since Student’s proper placement as stay put during this time period was Johnson and Student was not enrolled, the District did not fail to provide transportation services as provided in the IEP.

LEGAL CONCLUSIONS

Jurisdiction

1. Under special education law, the parent of a disabled child has the right to present an administrative complaint with respect to any matter relating to the identification, evaluation, or educational placement of the child, or the provision of a FAPE. (20 U.S.C. § 1415(b)(6)(A); 34 C.F.R. § 300.507(a)(2006); Ed. Code, § 56501, subd. (a)(1)-(4).) Within those parameters, OAH has the authority to hear and decide this matter.

Burden of Proof

2. In a special education administrative due process proceeding, the party seeking relief has the burden of proving the essential elements of his claim. (Schaffer v. Weast (2005) 546 U.S. 49 [126 S.Ct. 528, 163 L.Ed.2d 387].) In this case, Student has the burden of proof.

Definition of a FAPE

3. A child with a disability has the right to a FAPE under the IDEA and California law. (20 U.S.C. §1412(a)(1)(A); Ed. Code, § 56000.) A FAPE is defined as special education and related services that are provided at public expense and under public supervision and direction that meet the state’s educational standards and that conform to the student’s IEP. (20 U.S.C. §1401(9); Cal. Code Regs., tit. 5, § 3001, subd. (p).) Special education is defined as specially designed instruction and services (DIS), provided at no cost to parents, that meets the unique needs of a child with a disability and permits him or her to benefit from instruction. (20 U.S.C. § 1401(29); Ed. Code, § 56031.) Special education related services include transportation, and developmental, corrective, and supportive services, such as mental health counseling services, that may be required to assist the child with a disability to benefit from special education. (20 U.S.C. § 1401(26); Ed. Code, § 56363.)

4. “Language and speech development and remediation” are considered to be a DIS. (Ed. Code, § 56363, subd. (b)(1); Cal. Code of Regs., tit. 5, § 3051.1.)

The IEP

5. The IEP is the “centerpiece of the [IDEA’s] education delivery system for disabled children” and consists of a detailed written statement that must be developed, reviewed, and revised for each child with a disability. (Honig v. Doe (1988) 484 U.S. 305, 311 [108 S.Ct. 592, 98 L.Ed.2d 686]; 20 U.S.C. §§ 1401 (14), 1414 (d)(1)(A); Ed. Code, §§ 56032, 56345.) Each school district is required to initiate and conduct meetings for the purpose of developing, reviewing, and revising the IEP of each individual with exceptional needs. (Ed. Code, § 56340.)

6. An annual IEP must materially meet the content requisites of IDEA and the California corollary to IDEA, both of which require the IEP to be in writing and contain: a statement of the student’s present levels of academic achievement; a statement of measurable annual goals; a description of the manner in which progress toward the goals will be made; a statement of the special education and related services, and supplementary aids to be provided to the student; an explanation of the extent, if any, to which the pupil will not participate with non-disabled pupils in regular classes and activities; a statement of individual appropriate accommodations necessary to measure a student’s academic achievement and functional performance on state and district assessments; projected services start dates, duration, frequency, location of services and modifications; and, if 16 years or older, measurable post secondary goals and appropriate transition services to help the student achieve those goals. (20 USC § 1414(d); Ed. Code, § 56345(a).) After the annual IEP meeting for the school year has resulted in an IEP, amendments to the existing IEP can be made without convening the whole IEP team, and without redrafting the entire document. An amendment created in this manner requires only that the amendment be reduced to written form and signed by the parent. The IEP and its amendment are viewed together as one document. (20 USC § 1414(d)(3)(D) & (F); 34 C.F.R. § 300.324(4) &(6)(2006); Ed. Code, § 56380.1.)

7. The development of an IEP is a collaborative activity accomplished by an IEP team convened by the school district. A parent is an integral and required member of the IEP team. (20 U.S.C. § 1414 (d)(1)(B)(i); 34 C.F.R. § 300.321(a)(1)(2006); Ed. Code, § 56341, subd. (b)(1).) The IEP team must consider the concerns of the parent for enhancing his or her child’s education. (20 U.S.C. § 1414(d)(3)(A)(ii); Ed. Code, § 56341.l, subd. (a)(2).) “Among the most important procedural safeguards are those that protect the parents’ right to be involved in the development of their child’s educational plan [the IEP].” (Amanda J. v. Clark County School Dist. (9th Cir. 2001) 267 F.3d 877, 882; editorial added.)

Procedural Violations

8. There are two principal considerations in claims brought pursuant to the IDEA; substantive denial of FAPE and procedural denial of FAPE. Unlike substantive failures, procedural flaws do not automatically require a finding of a denial of a FAPE. A procedural violation constitutes a denial of FAPE only if it impeded the child’s right to a FAPE, significantly impeded the parent’s opportunity to participate in the decision-making process regarding the provision of a FAPE to the child, or caused a deprivation of educational benefits. (20 U.S.C. § 1415(f)(3)(E); Ed. Code, § 56505, subd. (f); see also, W.G. v. Board of Trustees of Target Range Sch. Dist. No. 23 (9th Cir. 1992) 960 F.2d 1479, 1483-1484; (Bd. of Educ. of the Hendrick Hudson Sch. Dist. v. Rowley, (1982) 458 U.S. 176, 200 [102 S.Ct. 3034] (Rowley).)

9. Procedural errors during the IEP process are subject to a harmless error analysis. In M.L., et al., v. Federal Way School District (9th Cir. 2004) 394 F.3d 634, fn. 9, the Ninth Circuit decided that failure to include a regular education teacher at the IEP team meeting was a procedural violation of the IDEA. Utilizing the harmless error analysis, the court determined that the defective IEP team was negatively impacted in its ability to develop a program that was reasonably calculated to enable M.L. to receive educational benefits. (Ibid.) In separate opinions, concurring in part and dissenting in part, Judges Gould and Clifton agreed that the procedural error was subject to a harmless error test, and considered whether the error resulted in a loss of educational opportunity to M.L., but disagreed in their conclusions. (Id. at pp. 652, 658.)

Issue Two: Did the District deny Student a FAPE by failing to implement the goals and transportation services called for in the May 13, 2011 IEP?

10. Student contends that the District failed to implement the goals and transportation services called for in the May 13, 2011 IEP because the District did not permit Student to attend his home school, Warner.

11. The District contends that it was obligated, and did make available, under stay put, the placement called for in the last agreed and implemented IEP, which is the February 4, 2011 IEP. This placement was the SUCSESS program which for sixth grade was at Johnson.

12. California Code of Regulations, title 5, section 3042, defines “educational placement” as “that unique combination of facilities, personnel, location or equipment necessary to provide instructional services to an individual with exceptional needs,” as specified in the IEP.

13. Student mistakenly cites Title 34, Code of Federal Regulations Section 300.116(c)(2006), as controlling legal authority. That section provides that in determining placement, a school district should place a child with a disability in the school that he or she would attend if nondisabled, unless the child’s IEP requires some other arrangement. (34 C.F.R. § 300.116(c)(2006).) Because the February 4, 2011 IEP found that Student’s unique needs require that he attend a specific special day class, Section 300.116(c) does not apply. (Factual Findings 4 through 10.)

14. Under federal and California special education law, a special education student is entitled to remain in his or her current educational placement pending the completion of due process hearing procedures, unless the parties agree otherwise. (20 U.S.C. § 1415(j); 34 C.F.R. § 300.518(a)(2006); Ed. Code, §§ 48915.5, 56505, subd. (d).) The purpose of stay put is to maintain the status quo of the student’s educational program pending resolution of the due process hearing. (Stacey G. v. Pasadena Independent School Dist. (5th Cir. 1983) 695 F.2d 949, 953; Zvi D. v. Ambach (2d Cir. 1982) 694 F.2d 904, 906.) For purposes of stay put, the current educational placement is typically the placement called for in the student’s last IEP that has been agreed upon and implemented prior to the dispute arising. (Thomas v. Cincinnati Bd. of Educ. (6th Cir. 1990) 918 F.2d 618, 625.)

15. Under stay put, “it is not intended that a child with disabilities remain in a specific grade or class pending appeal if he or she would be eligible to proceed to the next grade and the corresponding classroom within that grade.” (Fed.Reg., Vol. 64, No. 48, p. 12616, Comment on § 300.514.) In most instances, progression to the next grade adheres to the status quo for purposes of stay put. (See Beth B. v. Van Clay (N.D. Ill. 2000) 126 F. Supp.2d 532, 534.) Notably, in Van Scoy v. San Luis Coastal Unified Sch. Dist. (C.D. Cal. 2005) 353 F.Supp.2d 1083 (Van Scoy), the Court explained as follows:

Courts have recognized, however, that because of changing circumstances the status quo cannot always be exactly replicated for the purposes of stay put. Ms. S. ex rel. G. v. Vashon Island School District, 337 F.3d 1115, 1133-35 (9th Cir. 2003). In the present case, the circumstances have changed because [the student] has moved from kindergarten into first grade, which includes additional time in the classroom. Certainly the purpose of the stay-put provision is not that students will be kept in the same grade during the pendency of the dispute. The stay-put provision entitles the student to receive a placement that, as closely as possible, replicates the placement that existed at the time the dispute arose, taking into account the changed circumstances.

(Van Scoy, supra, 353 F.Supp.2d at p. 1086.)

16. Thus, progression to the next grade, or as in this instant case matriculation from an elementary school to a middle school, maintains the status quo for purposes of stay put. (See also Beth B. v. Van Clay (N.D. Ill. 2000) 126 F. Supp.2d 532, 534; Fed.Reg., Vol. 64, No. 48, p. 12616, Comment on § 300.514 [discussing grade advancement for a child with a disability].)

17. Here Student’s IEP of February 4, 2011, which Father consented to and the District implemented, clearly indicates that Student was placed in a SUCSESS class.¹⁰ Because Student was promoted to the sixth grade and the SUCSESS class for sixth graders was only offered at Johnson, the proper placement under stay put was the Johnson SUCSESS class. The District was willing to implement the February 4, 2011 IEP as well as the goals and services which Parents consented to in the May 13, 2011 IEP. The reason that Student did not receive transportation nor have the goals implemented was solely Parents’ unilateral action to not have Student attend Johnson until the OAH order of September 26, 2011, denying Student’s motion for stay put placement at Warner. (Factual Findings 1 through 4, 7 through 10, 17 through 26, 30, and 31.)

Issue Three (a): Did the District deny Student a FAPE at the May 13, 2011 IEP meeting by failing to (a) make a formal FAPE offer?

18. Student contends that the May 13, 2011 IEP fails to contain a “clear, coherent” offer of placement by the District which would permit Parents to reasonably evaluate in deciding whether to accept it. Student’s argument is that there was no recording in the notes or on tape of the discussions which occurred at the meeting, there is no mention of Johnson except in the notes section, and the notes section uses the word “recommends” when laying out the offer of placement. Student offers no legal authority for this position.

19. The District contends that the IEP document as a whole clearly lays out the District’s FAPE offer, and the offer was reiterated by Winston’s June 10, 2011 correspondence which reviews the discussions at the IEP meetings, information considered by the team, the offer itself and the reasons for the team making the specific offer.

20. There is no requirement that the entirety of the FAPE offer be in a specific portion of the IEP as long as the offer is sufficiently clear so that the parents can understand it and make intelligent decisions regarding the offer. (Union School District v. Smith (9th Cir. 1994) 15 F.3d 1519, 1526 (Union).) In Parent v. Downey Unified School District (2011) Cal. Offc. Admin. Hrg. Case Number 2011050579, a valid FAPE offer was contained in several areas of the IEP document (See also, Parents v. Cabrillo Unified School District (2009) Offc. Admin. Hrg. Case Number 2009010191). A failure to make a formal written FAPE offer has been held to be harmless error where parents were aware of the District’s offer as they fully participated in the IEP process. (J.W. v. Fresno Unified School District (9th Cir. 2010) 626 F.3d 431, 460-461 (Fresno).)

21. A District is required to make a “formal, specific offer” of placement and services in writing, even if the District believes that a child’s parents have no intention of accepting that offer. (Union, supra, 15 F.3d at 1519; see also Glendale Unified School District v. Almasi (C.D. Cal. 2000) 122 F.Supp.2d 1093, 1107-1108). In Union, the court described the reasons for requiring a formal, specific offer in writing: The requirement of a formal, written offer creates a clear record that will do much to eliminate troublesome factual disputes many years later about when placements were offered, what placements were offered, and what additional educational assistance was offered to supplement a placement, if any. Furthermore, a formal, specific offer from a school district will greatly assist parents in ‘presenting complaints with respect to any matter relating to the…educational placement of the child.’” (Union, supra, at p. 1526.)

22. The May 13, 2011 IEP provided a clear and coherent offer which Parents understood in making their decision whether to accept the offer.¹¹ The District IEP members clearly informed Father at the February 4, 2011 IEP meeting that they believed, based on Student’s performance levels, progress and his unique needs, the appropriate placement was the SUCSESS class which for sixth grade would be located at Johnson. When Father objected, the team deferred the placement decision to allow Parents to observe the District’s special day class programs at its three middle schools. The meeting then was continued to May 13, 2011, to discuss Parents’ concerns. After a full discussion, the District IEP team members made the offer of placement in the SUCSESS program which was only offered at Johnson. This was reiterated in clear terms in Winston’s June 10, 2011 letter. Father’s June 28, 2011 letter clearly demonstrated that Parents understood what the District offer consisted of when Father stated, “[R]ight now both of us are not agreed (sic) with your decision [to] transfer [Student] go to Johnson.” (Factual Findings 4 through 19.)

Issue Three (b): Did the District deny Student a FAPE at the May 13, 2011 IEP by failing to provide for speech and language service?

23. Student contends that the District failed to provide speech and language services, which the IEP team determined he needed, because the IEP document omits mention of speech and language services for Student from September 7, 2011 through February 4, 2012. The District counters that the omission was harmless error and that Student received speech and language services as recommended by the IEP team.

24. Procedural flaws do not automatically result in a denial of FAPE, and they are subject to a harmless error analysis. (Legal Conclusions 8 and 9.) “It would exalt form over substance to hold an IEP as inappropriate simply because a recommendation was omitted from an IEP because of clerical error.” (M.H. v. New York City Office of Education (S.D. N.Y. 2011) 2011 WL 609880, at 10; see also, Student v. Berkeley Unified School District (2007) Offc. Admin. Hrg. Case Number 2006110033.) The Sixth Circuit has held as harmless error when an IEP document omitted a pupil’s “present educational performance” and “objective criteria” to determine whether annual goals were met where the parents and administrators had all “required information.” (Doe v. Defendant I (6th Cir. 1990) 898 F.2d 1186, 1190 (Doe).)

25. The District did not deny Student a FAPE as Student suffered no educational deprivation nor were Parents deprived of meaningful participation in the IEP decision-making process by the clerical omission of the level of speech and language services in the IEP documents. Allen, Student’s SLP at Sequoia, orally recommended that Student continue to receive the same level of speech and language services until his next annual IEP meeting scheduled for February 2012. Allen also recommended new receptive and expressive speech goals which were to run until the February 2012 annual IEP meeting. Father testified that he understood that Student was to receive the speech and language services during the 2011-2012 school year at the same level as Student received during 2010-2011. Once Student began attending Johnson, Larkin, the SLP, and then Kinsling provided services at the levels that Allen had recommended plus added extra sessions to make up for the time that Student did not attend Johnson. (Factual Findings 4 through 9, 12 through 17, 21, 27, and 29.)

Issue Three (c): Did the District deny Student a FAPE at the May 13, 2011 IEP by failing to list Student’s present levels of performance?

26. In his complaint, Student alleges that the District failed to provide his present levels of performance at the May 13, 2011 IEP meeting. He argues in his closing brief that the District repeated the present levels of performance from the February 4, 2011 IEP and did not update the levels at the May 13, 2011 meeting which would have been “helpful to the IEP team.” Student offers no legal authority to support his argument that the District was required to set present levels of performance at every IEP meeting.

27. Federal and state law specify in detail what is required to be included in an IEP itself. (20 U.S.C. § 1414(d)(1); 34 C.F.R. § 300.320 (2006); Ed. Code, § 56345.) These requirements are necessary in making an annual program designed to meet the unique needs of disabled children. For instance, the purpose of developing present levels of performance assists in determining a child’s academic and functional levels and how the child’s disability affects his/her ability to participate in school activities as well as setting benchmarks to assist in setting annual goals and measuring progress made by the child in reaching the goals. (20 U.S.C. § 1414(d)(1)(A)(I); Ed. Code, § 56345, subd. (a)(1)(A)-(C).) There is no requirement that an IEP team must set new present levels of performance at every IEP meeting.

28. The District did not deny Student a FAPE as he suffered no educational deprivation nor was Parents deprived of participating in the IEP process. The May 13, 2011 IEP meeting was a continuation of the annual meeting of February 4, 2011 which was not completed to permit Parents, at Father’s request, to observe placements other than the one recommended. The purpose of the meeting was solely to complete the annual IEP. There was a discussion of Student’s progress since the earlier meeting. Penticuff testified that the information discussed did not change the performance levels which were already agreed to at the February 4, 2011 meeting. Allen corroborated that Student’s levels had not changed since the prior meeting. Father actively participated in all IEP discussions. Interestingly, Campbell on behalf of Parents, in her August 17, 2011 letter, consented to “all annual goals and shortterm objectives” on the May 13, 2011 IEP, which were based on the February 4, 2011 IEP levels of performance. Also, Campbell does list the areas of the IEP that the parents were not consenting to and there is no mention of the present levels of performance. (Factual Findings 4 through 17, and 21.)

ORDER

Student’s request for relief is denied.

PREVAILING PARTY

Pursuant to Education Code section 56507, subdivision (d), the hearing decision must indicate the extent to which each party has prevailed on each issue heard and decided. In accordance with that section the following finding is made: the District prevailed on the issues heard and decided in this case.

RIGHT TO APPEAL THIS DECISION

This is a final administrative decision, and all parties are bound by it. Pursuant to Education Code section 56506, subdivision (k), any party may appeal this Decision to a court of competent jurisdiction within 90 days of receipt.

Dated: February 28, 2012.

ROBERT HELFAND
Administrative Law Judge
Office of Administrative Hearings

In the Matter of: PARENT ON BEHALF OF STUDENT,

v.

TEMECULA VALLEY UNIFIED SCHOOL DISTRICT.

OAH CASE NO. 2011110416

DECISION

Susan Ruff, Administrative Law Judge (ALJ), Office of Administrative Hearings (OAH), heard this matter on January 23, 2012, in Temecula, California.

Student’s mother represented Student. Student was present throughout the hearing and assisted her mother with the presentation of the case. Ignacio Carrillo provided Spanish interpretation services.

Sarah Sutherland, Esq., represented the Temecula Valley Unified School District (District). Melanie Hertig, Assistant Director of Special Education, also appeared on behalf of the District.

Student’s request for due process hearing was filed on November 9, 2011. On December 16, 2011, OAH granted the parties’ request to continue the hearing date. The case was taken under submission at the conclusion of the hearing on January 23, 2012.

ISSUES

1. Is the District required to provide Student with curb-to-curb transportation at her current school of attendance in order to provide Student with a free appropriate public education (FAPE)?

2. Is the District required to provide Student with a one-to-one aide at her current school of attendance in order to provide Student with a FAPE?

FACTUAL FINDINGS

1. Student is a 17-year-old who currently attends Great Oak High School (Great Oak) within the District. Student has Morquio Syndrome as well as a history of asthma and scoliosis. She is eligible for special education services as a pupil with an orthopedic impairment. Student is short for her age and has difficulty with physical tasks such as walking and lifting.¹ As will be discussed in more detail below, her individualized education program (IEP) for the current school year places her in general education classes for 100 percent of her school day, and provides for services and supports to assist with things such as note taking and transitioning between classes.

2. Student is a charming young woman who is aware of her scholastic and orthopedic needs. During the hearing, she testified on her own behalf and assisted her mother with the presentation of her case. She is currently a senior in high school and is scheduled to graduate with a high school diploma at the end of the 2011-2012 school year. She has already passed the California High School Exit Exam (CAHSEE). She intends to go to college after she graduates, and plans to study business communication, among other things.

3. The current IEP for Student was developed in September 2011. The IEP contains a transition plan and goals in the areas of literary criticism, transition to college, and writing strategies. The supplemental aids and services called for in the IEP include: 1) preferential seating; 2) note taking services; 3) extra time on tests/quizzes/assignments; 4) access to assistive technology (keyboard); 5) foot stool for use in restroom; 6) test breaks for note review; 7) use of a voice recognition program; and a voice recorder. On the IEP document, the box for “transportation” services is checked “yes.”

4. Rachel Medwid, a special education teacher at Great Oak, has been Student’s case manager since Student’s sophomore year. During the hearing, Medwid described the supplemental aids and services in Student’s IEP. She explained that the note taking called for in the IEP can consist of copies of notes from a peer as well as printed notes from the teacher’s PowerPoint presentation. The keyboard is an assistive technology device designed to assist Student with typing. At the moment she has an “iPad,” but the technology can also refer to devices such as a laptop or a “Neo 2.” There is a foot stool in one or two of the bathrooms that Student can use when she needs to reach the sink. With respect to testing, Student is given time-and-a-half to complete her tests, and she is permitted to take breaks during tests to review her notes.

5. Student is permitted to meet with Medwid or another special education teacher if she needs assistance. There is also a room called the “support den” that Student can go to if she is taking a test and wants a smaller testing environment.

6. Because of Student’s disability, she has difficulty with writing and tires easily while typing. The computer in the support den is equipped with voice recognition software, which Student can use to dictate writing assignments for class. Her IEP also provides her with a recording device so she can record the teachers’ lectures.

7. The IEP provides for specialized academic instruction for Student totaling 45 minutes a week to address needs regarding “assistance transitioning from class to class and at the beginning/end of class to collect her things.” Student uses a motorized cart (sometimes referred to as a scooter) to travel between her classes at school. She needs help bringing things such as her binder from the cart to her desk at the beginning of class and placing things back in her cart at the end of class.

The Request for Curb-to-Curb Transportation

8. When Student was in the 10th grade, her family moved from San Bernardino into the District. At that time, Student’s family lived within the attendance area of Great Oak, so Student began attending that high school. Student was provided with transportation to and from school as part of her IEP related services.

9. Around the summer of 2011, between Student’s junior and senior year in high school, her family moved to a different part of the District. Because of the move, Student came within the attendance area of a different high school, Temecula Valley High School (TVHS). Because of the move, TVHS would normally have been her school of attendance for her senior year and would be considered her “home school.”

10. The District has policies regarding intra-district transfers of high school pupils between one high school and another. If a general education pupil’s family moves from one part of the District to another, the District’s policy permits the parents of a high school senior to request an intra-district transfer to permit the senior to attend and graduate from the high school that the pupil attended during his or her junior year. However, if such an intra-district transfer is approved, the pupil’s parents must agree to transport the pupil to and from school. Parents are required to sign a form agreeing to provide transportation as part of the request for the transfer.

11. When Student’s family moved, her mother requested an intra-district transfer of Student to permit her to attend Great Oak for her senior year. Student’s mother signed the intra-district transfer request form on June 30, 2011. On the form was a statement in bold lettering: “Parent/Guardian agrees to furnish transportation to and from school.”

12. Student’s mother does not speak English. The intra-district transfer form that she signed was written in English. However, the evidence at hearing showed that Student’s mother understood the transportation situation. Both Student’s mother and Breck Smith, a District program specialist, testified that the District telephoned Student’s mother to explain that she would be responsible for transportation of Student to and from Great Oak if the intra-district transfer was granted. Student’s mother also indicated that Student told her mother about the transportation statement on the form at the time Student’s mother signed it.

13. It is approximately four to five miles from Student’s current home to Great Oak. It is approximately one to two miles from Student’s home to TVHS.

14. During the IEP team meetings held in September 2011, Student’s mother requested curb-to-curb transportation for Student provided by the District to and from her home and Great Oak. The District ultimately denied that request for curb-to-curb transportation on the basis that Student’s mother had agreed to provide transportation at the time of making the intra-district transfer request. The notes to the September 28, 2011 IEP stated this regarding transportation:

Transportation: Parent wants transportation, but [Student’s] home school is TVHS. She would get sped transportation to TV but not to GOHS; when the parent agreed to the inter district transfer she agreed to transport [Student] to GOHS. Program specialist is going to check if the regular bus can accommodate picking [Student] up closer to home and coordinate the bus stops.

The District offered transportation through a general education bus which stopped near Student’s home, but that transportation was not curb-to-curb, and it was not clear from the evidence whether that bus had a ramp or other means for Student to climb into the bus.

15. Student’s mother wants Student to continue attending Great Oak for Student’s senior year of high school. During her testimony, she explained that, because of Student’s disability, it is not always easy for Student to adapt to new surroundings. Student’s mother was concerned that a new school might have a negative effect on Student because she would find it difficult to adjust.

16. Student’s mother currently transports Student to and from school each day. Student’s sister goes to school in the District at a different school. Student’s mother waits for her other daughter’s school bus in the morning, and then after it is gone, takes Student to school. At the end of the school day, Student’s mother picks up Student from school. At the request of Student’s mother, the driver of the school bus waits for the end of the bus route to drop off Student’s sister. That gives Student’s mother enough time to pick up Student from school and still be present when her other daughter arrives home. At times, the drive is difficult because of traffic. If the sister’s school bus is late in the morning, then Student’s mother is delayed in leaving, and Student may arrive late at school.

17. Aside from her own testimony, Student’s mother did not present evidence at hearing to show that Student’s unique needs required her to remain at Great Oak for her senior year. There was no expert testimony or report to show that Student’s disability prevented her from transferring successfully to a different school. There was no psychological testimony or evidence to show that her disability would prevent her from making friends and being socially active in a new school location.

18. There was also no evidence to show that the District would be unable to provide Student with a FAPE at TVHS. Student had transitioned successfully when she moved into the District in her 10th grade year. While it might be easier for Student to navigate a familiar school location, there was no evidence to show that the District could not provide her with the necessary supports to assist the transition to her home school after her family moved. Student’s IEP and the testimony of the District witnesses indicated that the District was ready, able and willing to provide Student with curb-to-curb transportation if she attended TVHS.

19. Absent evidence of an educational need for Student to remain at Great Oak, Student’s situation is no different than that of any other high school senior whose parent prefers a different school and requests an intra-district transfer. As will be discussed in the Legal Conclusions below, under these circumstances the District was not obligated to provide curb-to-curb transportation in order to provide a FAPE to Student.

The Request for a One-to-One Aide

20. Some classes at Great Oak have classroom aides assigned to assist the pupils in that class. Other classes are collaborative classes in which a general education teacher and a special education teacher work together in teaching the class. Some classes have only one general education teacher with no aide support.

21. Student’s IEP team has never assigned a one-to-one aide to Student during the time she attended high school in the District. When she first started in the District during her 10th grade year, in order to assist with her transition to the new high school, the District staff chose classes for her that had classroom aides. At that time, most or all of Student’s classes had classroom aides. One or more of the classroom aides may have assisted Student by walking with her between classes. Student ended up eating lunch with one of the aides and the aide’s daughter.

22. During Student’s junior year, only two of her classes had classroom aides. Student passed all her classes in her junior year with grades of C or better.

23. In the current school year (Student’s senior year), none of her classes have classroom aides. However, three of her current classes are co-taught, with a general education teacher and special education teacher jointly teaching the class.

24. Student’s mother believes that it is important for Student to have a one-to-one aide assigned to assist her with activities such as opening doors, carrying her backpack, taking notes and helping with her lunch tray. Student’s mother testified that during the first year Student was at Great Oak, the District provided full-time assistance for her. The next year, aide assistance was given only for certain subjects. At the IEP meeting at the beginning of this school year, the District staff commented that it would be better to remove the aide support so Student could be more independent. Student’s mother initially agreed to try that. She signed her consent to the District’s IEP offer.

25. However, since that time, Student’s mother has grown concerned about the lack of aide support. Student has complained to her mother about pain in her arms and her back. Student’s mother has observed that Student is more tired than before and requires pain medication.²

26. Student agrees with her mother’s request for a one-to-one aide. Student testified that it is difficult for her to pick up her backpack when she arrives at class. She is having a lot of back pain now from carrying her own class supplies. She also explained that she needs help after she uses the restroom with buttoning her pants and opening the classroom door.

27. The testimony of Student’s mother was sincere and heartfelt. It is clear that she cares deeply about her daughter and wants to see her succeed. Student’s testimony was also very sincere and credible. She genuinely believes that an aide will assist her at school.

28. Unfortunately, Student’s mother did not bring in any expert testimony or reports to support her position. According to Student’s mother, one of Student’s physicians wrote a note to the school in November 2011 indicating that Student needed assistance. Student’s mother testified that she gave the doctor’s note to the school staff. She did not have a copy of the note to enter into evidence at the hearing. During a break in the hearing, she attempted to obtain a copy of the note from the doctor’s office, but was told that the doctor’s office was unable to fax a copy of the document because it had been archived. Without the actual note in evidence, it was not clear precisely what type of assistance the doctor recommended in the note. No physician testified at the hearing, and there was no doctor’s report or other expert opinion regarding the need for a one-to-one aide. There was also no physician testimony or other expert evidence to verify that the pain Student was experiencing was due to lifting her binder and/or backpack at school.

29. Breck Smith, a program specialist for the District who testified at the hearing, did not believe that Student required a one-to-one aide. Smith holds a master’s degree in special education as well as administrative and special education credentials. She has taught special education classes and has attended dozens of IEP meetings. She conducted the intake for Student when Student’s family moved into the District and has participated in some of Student’s IEP meetings.

30. Smith explained that Student has been making academic progress during her time in the District and is on track to graduate. The District members of the IEP team did not recommend a one-to-one aide for Student, because they wanted her to be as independent as possible since she will be going on to college. In Smith’s opinion, the accommodations listed in Student’s IEP were sufficient to meet Student’s needs without the addition of a oneto-one aide. Smith testified that Student’s case carrier collaborates with the teachers to ensure that doors are open for Student to arrive and leave her classes. Student is permitted to leave a few minutes before the end of class. A peer or teacher can help her lift her things to and from her scooter before and after class. Smith said that school personnel have asked Student if she needs help with lifting, and she has told them that she does not need help.

31. Medwid also opined that Student did not need a one-to-one aide. She pointed out that Student was successful in classes without aides in the past. She testified that Student can receive assistance from a peer or teacher with lifting her binder from her backpack to her desk. If a large binder is too heavy for Student, she can use smaller binders for each class instead of the one heavy binder.

32. With respect to Student’s needs regarding the restroom, Medwid testified that, on those occasions when Student needs help buttoning her pants, there are several ways she can seek assistance. In her collaborative classes, the special education teacher can assist her. In other classes, she can seek assistance from an adult in the nurse’s office or in the Bridge Program room. The Bridge Program is a special education adult program housed on campus. There is also at least one aide or teacher available in the support den.

33. Student’s mother is also very concerned because Student failed two of her classes during the first semester of her senior year (English 12 and trigonometry). Student’s mother explained that Student had never failed a class before, and she is concerned that the additional burdens being placed on Student might have contributed to that problem. Student’s mother reported that classmates or teachers will sometimes help Student carry her binder from the scooter to her desk, but it is not their responsibility to look after her. Instead, she needs aide support.

34. Student’s current classes for her second semester consist of economics, English 12, health, computer essentials, English 9, and geometry. Student had previously taken English 9 during her freshman year in San Bernardino prior to moving to the District. She received a D in the class during her freshman year. She is retaking that class in her senior year, because the District permits pupils to retake classes for higher grades to assist them with college entrance requirements. Student is retaking the geometry class for the same reason.

35. According to Smith, Student’s grade in English 12 suffered during the first semester because she was not turning in all her homework. Medwid also testified that the failing grade in English was due, at least in part, to incomplete assignments.

36. With respect to trigonometry, Smith testified Student’s failure was due to low test scores. Pupils tend to take geometry before trigonometry. Medwid felt trigonometry might have been too high academically for Student. In contrast to her failing grade in trigonometry, Student received a B-in geometry during that same semester.

37. A review of Student’s IEP’s, her 2010 triennial assessment, and her school transcript, supports the District’s position that Student has been gaining educational benefit from her classes. With the exception of English 12 and trigonometry, she has been passing her classes and meeting or making progress on her academic IEP goals. She is accessing the general education curriculum and has nearly completed the requirements for graduation.

38. The testimony of Student’s mother and Student regarding the one-to-one aide was sincere and credible. However, once again there was no expert evidence to support the contention that the lack of a one-to-one aide contributed to Student’s failure in trigonometry and English 12. Student passed all her classes in her junior year even though there were only classroom aides in two of the classes. Under these circumstances, there was not sufficient evidence to show a denial of FAPE by the District. The District is not required to provide Student with a one-to-one aide.

LEGAL CONCLUSIONS

General Legal Provisions

1. The party filing a due process case has the burden of proof in the proceeding. (Schaffer v. Weast (2005) 546 U.S. 49 [126 S.Ct. 528].) In this case, Student, as the petitioning party, has the burden of proof.

2. Under the Individuals with Disabilities Education Act (IDEA) and corresponding state law, students with disabilities have the right to a FAPE. (20 U.S.C. § 1400 et seq.; Ed. Code, § 56000 et seq.) FAPE means special education and related services that are available to the student at no cost to the parents, that meet the state educational standards, and that conform to the student’s IEP. (20 U.S.C. § 1401(9); Cal. Code Regs., tit. 5, § 3001, subd. (p).)

3. The congressional mandate to provide a FAPE to a child includes both a procedural and a substantive component. In Board of Education of the Hendrick Hudson Central School District v. Rowley (1982) 458 U.S. 176 [102 S.Ct. 3034] (Rowley), the United States Supreme Court utilized a two-prong test to determine if a school district had complied with the IDEA. First, the district is required to comply with statutory procedures. Second, a court will examine the child’s IEP to determine if it was reasonably calculated to enable the student to receive educational benefit. (Id. at pp. 206 -207.)

4. In Rowley, the Supreme Court held that “the ‘basic floor of opportunity’ provided by the [IDEA] consists of access to specialized instruction and related services which are individually designed to provide educational benefit to” a child with special needs. (Rowley, supra, 458 U.S. at p. 201.) Rowley expressly rejected an interpretation of the IDEA that would require a school district to “maximize the potential” of each special needs child “commensurate with the opportunity provided” to typically developing peers. (Id. at p. 200.) Instead, Rowley interpreted the FAPE requirement of the IDEA as being met when a child receives access to an education that is “sufficient to confer some educational benefit” upon the child. (Ibid.)

5. In resolving the question of whether a school district has offered a FAPE, the focus is on the adequacy of the school district’s proposed program. (Gregory K. v. Longview School District (9th Cir. 1987) 811 F.2d 1307, 1314.) A school district is not required to place a student in a program preferred by a parent, even if that program will result in greater educational benefit to the student. (Ibid.) An IEP is evaluated in light of information available at the time it was developed, and is not to be evaluated in hindsight. (Adams v. State of Oregon (9th Cir. 1999) 195 F.3d 1141, 1149.) The Ninth Circuit has endorsed the “snapshot rule,” explaining that an IEP “is a snapshot, not a retrospective.” The IEP must be evaluated in terms of what was objectively reasonable when it was developed. (Ibid.)

6. Both federal and state laws require a special education child to be educated in the least restrictive environment appropriate to meet the child’s needs. (20 U.S.C. § 1412(a)(5); 34 C.F.R. § 300.114(a) (2006); Ed. Code, § 56040.1.) This means that a school district must educate a special needs pupil with non-disabled peers “to the maximum extent appropriate.” (20 U.S.C. § 1412(a)(5)(A); 34 C.F.R. § 300.114 (2006); Ed. Code, § 56040.1.) The least restrictive environment doctrine requires a school district, in making placement decisions, to offer a placement “as close as possible to the child’s home.” (34 C.F.R. § 300.116(b)(3) (2006); see 71 Fed.Reg. 46588 (Aug. 14, 2006) [“The Department has consistently maintained that a child with a disability should be educated in a school as close to the child’s home as possible, unless the services identified in the child’s IEP require a different location.”].)

The District is Not Required to Provide Curb-to-Curb Transportation to Student

7. A disabled child’s special education program may require “related services” which include transportation and such developmental, corrective and other supportive services that are required to assist the child to benefit from special education. (20 U.S.C. § 1401(26)(A); 34 C.F.R. § 300.34(a)(2006).) In California, “related services” are called “designated instruction and services.” (Ed. Code, § 56363, subd. (a).)

8. As a related service, “transportation” means (1) travel to and from school and between schools, (2) travel in and around school buildings, and (3) specialized equipment (such as special or adapted buses, lifts, and ramps), if required to provide transportation for a child with a disability. (34 C.F.R. § 300.34(c)(16)(i)-(iii)(2006).)

9. The IEP team makes the decision about whether a disabled child requires transportation as a related service. (Ed. Code, § 56342, subd. (a); 71 Fed.Reg. 46576 (Aug. 14, 2006).) The decision is based upon the unique needs of the disabled child. (McNair v. Oak Hills Local School District (6th Cir. 1989) 872 F.2d 153, 156.) The decision is not based upon the geographic boundaries of the school district. (Alamo Heights Independent School District v. State Board of Education (5th Cir. 1986) 790 F.2d 1153, 1160.)

10. The issue in this case is not whether the District is required to provide Student with transportation as a related service under her IEP. There is no question that Student’s IEP calls for her to receive transportation. The question is whether the District is required to provide transportation when Student’s mother specifically agreed to provide transportation as part of her request to have Student attend a school different from Student’s home school.

11. A similar issue arose in the Eighth Circuit in the case of Timothy H. v. Cedar Rapids Community School District (8th Cir. 1999) 178 F.3d 968 (Timothy H.). In that case, the pupil had disabling conditions of cerebral palsy, spastic quadriplegia, and multiple orthopedic problems. The pupil’s parents applied for an intra-district transfer to a school other than the pupil’s home school, and the school district granted the application. The school district’s intra-district transfer policy provided that the parents would be responsible for the transportation of pupils not attending their resident area school. The United States District Court determined that the school district had violated section 504 of the Rehabilitation Act of 1973 by failing to provide transportation for the pupil. (Id. at p. 971.) Upon appeal, the Eighth Circuit Court of Appeals reversed the federal district court, finding that the school district’s intra-district transfer program was facially neutral and did not discriminate against the pupil based upon a disability. (Id. at p. 972.) Although the Timothy H. case involved a claim under section 504 of the Rehabilitation Act, the Eighth Circuit later affirmed that its rationale also applies to cases arising under the IDEA. (Fick v. Sioux Falls School District (8th Cir. 2003) 337 F.3d 968, 970.)

12. OAH has also followed the Timothy H. holding that a school district does not deny a FAPE by failing to provide transportation when a parent agrees to provide transportation as part of an intra-district transfer. (See, e.g., Parents On Behalf Of Student v. Garden Grove Unified School District (2009) OAH case number 2009081095.)

13. As set forth in Factual Findings 1 – 19 above, Student’s position is analogous to that of the Timothy H. case. Student’s mother requested an intra-district transfer for Student and agreed to provide transportation. If she does not wish to provide transportation, then her remedy is to request that Student return to her home school (TVHS). There was no evidence at hearing to show that Student’s unique needs required her to attend Great Oak instead of TVHS. Student’s mother has the burden of proof on this issue and failed to meet that burden. There was no denial of FAPE by the District.

The District Is Not Required to Provide a One-to-One Aide to Student

14. In addition to transportation, related services (designated instruction and services) can include:

“such developmental, corrective, and other supportive services (including . . . orientation, and mobility services . . .) as may be required to assist an individual with exceptional needs to benefit from special education . . . .”

(Ed. Code, § 56363, subd. (a).)

15. One-to-one aide assistance can be included in IEP services if required to assist an individual with exceptional needs to benefit from special education. In this particular case, both Student and her mother believe that Student will benefit from the assistance of a one-to-one aide.

16. However, as set forth in Factual Findings 20 – 38 above, Student’s mother has not made a sufficient showing that Student requires a one-to-one aide to benefit from special education. Student has numerous accommodations in her IEP to assist her with her orthopedic needs, including peers and teachers to help her with lifting items in the classroom if Student needs help. On those occasions in which she needs assistance with buttoning after using the restroom, there are multiple places she can go on campus when her classroom does not have a special education teacher.

17. Student has been accessing her special education and gaining educational benefit without the need for a one-to-one aide. She passed her classes in her junior year, even though only two of those classes had classroom aides. There was no showing that her failure in trigonometry or English 12 in the first semester of her senior year was due to the lack of a one-to-one aide.

18. Because Student’s mother filed this case, she has the burden of proof to show that an aide is required. The evidence at hearing was not sufficient to meet that burden. There has been no denial of FAPE.

ORDER

Student’s claims for relief are denied.

PREVAILING PARTY

Pursuant to California Education Code section 56507, subdivision (d), the hearing decision must indicate the extent to which each party has prevailed on each issue heard and decided. Here, the District prevailed on all issues heard and decided.

RIGHT TO APPEAL THIS DECISION

The parties to this case have the right to appeal this Decision to a court of competent jurisdiction. If an appeal is made, it must be made within 90 days of receipt of this Decision. (Ed Code, § 56505, subd. (k).)

Dated: February 22, 2012

SUSAN RUFF
Administrative Law Judge
Office of Administrative Hearings

In the Matter of: PARENTS ON BEHALF OF STUDENT,

v.
SAN RAFAEL CITY SCHOOLS.

OAH CASE NO. 2011080500

DECISION

Charles Marson, Administrative Law Judge, Office of Administrative Hearings (OAH), State of California, heard this matter on December 14-15, 2011, and January 3-4, 2012, in San Rafael, California.

Margaret M. Broussard, Attorney at Law, represented Student. Student’s Mother was present throughout the hearing. Student’s Father was also present except for a few brief absences. Student was not present.

Jan E. Tomsky, Attorney at Law, represented the San Rafael City Schools (District). Amy Baer, the District’s Executive Director of Student Support Services, was present throughout the hearing on behalf of the District.

Student filed his request for due process hearing on August 12, 2011. The matter was continued on September 28, 2011. At hearing, oral and documentary evidence were received. At the close of the hearing, the matter was continued to January 27, 2012, for the submission of closing briefs. On that day, the record was closed and the matter was submitted for decision.¹

ISSUES

1. Whether the District’s offer to place Student at the Anova Center for Education (Anova) in San Rafael at the May 11, 2011 individualized education program (IEP) team meeting was predetermined, thus depriving Parents of their right of meaningful participation in the IEP process?

2. Whether Student’s eligibility category for special education should be emotionally disturbed, rather than autistic-like behaviors?

3. Whether the District’s offer of placement at Anova was inappropriate, thereby denying Student a free appropriate public education (FAPE)?²

CONTENTIONS

Student contends that the District’s May 11, 2011 offer to place Student at Anova was predetermined by District members of the IEP team, thus depriving Parents of their right to participate in the IEP process. He also contends that the offer erroneously added to his IEP the statement that he is eligible for special education and related services because of autistic-like behavior as well as emotional disturbance. He argues that this misconception of his disabilities led directly to an inappropriate offer of placement at Anova, which primarily serves autistic students. He contends that at Anova, a licensed non-public school (NPS), he would be prevented from obtaining a FAPE because of the use of an inappropriate method of behavioral control, the challenges that would be presented to him by other students, and the difficulties he would encounter in making the transition to Anova. Parents have unilaterally enrolled Student in the Star Academy (Star), another NPS, and seek reimbursement of tuition and related expenses.

The District contends that its offer of placement at Anova was not predetermined. It argues that the addition of an eligibility category to the IEP of a student already eligible on another ground is not a decision regulated by the Individuals with Disabilities in Education Act (IDEA) and related laws, and in the alternative that its decision to add the eligibility category of autistic-like behavior to Student’s IEP was correct. It asserts that the May 11, 2011, IEP offer of placement at Anova would provide Student a FAPE.

FACTUAL FINDINGS

Jurisdiction and Background

1. Student is a 12-year-old boy who resides with Parents within the geographical boundaries of the District. He has at least average intelligence and is well above average on some measurements, such as reading comprehension and math. He is eligible for and has been receiving special education and related services under the category of emotionally disturbed. He suffers from extreme anxiety, fear of relations with other people, inattention and other deficits.

2. Student attended school for first and second grade at the District’s Coleman Elementary School, but Parents removed him from Coleman partway through the third grade. The parties agreed he would receive home instruction instead. Student spent much of his third grade year and all of his fourth grade year on home instruction and was primarily taught by Mother.

3. In fall 2009, at the beginning of Student’s fifth grade year, Parents enrolled him in the Star Academy (Star), an NPS in San Rafael. Student attended Star pursuant to two settlement agreements between Parents and the District under which the District financed Student’s attendance at Star. The second agreement expired at the end of the extended school year 2010-2011.

4. On May 11, 2011, Student’s triennial IEP team meeting was held to consider his program for the coming school year, 2011-2012. At the meeting the team members agreed generally on Student’s program and that he should attend an NPS. The District offered to send Student to Anova, another NPS in San Rafael. The District’s offer included the addition of autistic-like behaviors to Student’s IEP as another category in which Student is eligible for special education. Parents accepted most of the IEP offer but declined to enroll Student in Anova, preferring that Student remain at Star. Starting in August 2011, Parents have been paying Student’s tuition and expenses at Star, for which they seek reimbursement here.

Predetermination of the Placement Offer

5. Under the IDEA, parents of a child with a disability must be afforded an opportunity to participate in meetings with respect to the identification, assessment, educational placement, and provision of a FAPE to their child. A district must fairly and honestly consider the views of parents expressed in an IEP meeting. School officials may not arrive at an IEP meeting having already decided on the program to be offered. School officials do not predetermine an IEP offer simply by discussing a child’s programming in advance of an IEP meeting, but a district that predetermines the child’s program and does not consider the parents’ requests with an open mind has denied the parents’ right to participate in the IEP process.

6. Student argues that a few days before the May 11, 2011 IEP team meeting, the District and Anova agreed during a telephone call that Student would be admitted to Anova and that the District would offer placement at Anova at the upcoming meeting. The participants in the call were Michael Gardner and Amy Baer, the District’s top special education staff, and Andrew Bailey, the founder and chief executive officer of Anova. All three testified that a few days before Student’s May 11, 2011 triennial IEP team meeting, Ms. Baer and Mr. Gardner called Mr. Bailey about Student. They asked only whether there was space in Anova for him and whether Mr. Bailey could attend the IEP team meeting. Mr. Bailey said there was space and he could attend. All three testified that there was no understanding before the meeting that the District would offer placement at Anova or that Student would be accepted there.

7. Michael Gardner is the assistant director of student support services for the District’s elementary schools,³ and is the chief special education officer for those schools.⁴ He presided at the May 11, 2011 IEP team meeting. Mr. Gardner was a careful and thoughtful witness whose answers were direct, consistent with those of many other witnesses and the documentary evidence, and not significantly undermined by cross-examination. His testimony is given substantial weight here.

8. Amy Baer is Mr. Gardner’s superior and, as the Executive Director of Student Support Services at San Rafael City Schools, has responsibility for the oversight of all special education. Although her testimony was brief, since she did not attend the May 11, 2011 IEP team meeting, there is no reason in the record to doubt her credibility.

9. Andrew Bailey is a clinician and educational consultant, and executive director, principal, and director of educational services for the Anova Center for Education (ACE). Mr. Bailey began his special education career at the Spectrum Center, an NPS in Berkeley specializing in the treatment and education of autistic children. He worked there for 10 years, first as a paraprofessional and then as a special education teacher. Mr. Bailey received a bachelor’s degree in psychology from the University of Cincinnati in 1985 and a master’s in clinical psychology from John F. Kennedy University in 1991.

10. In 1994, Mr. Bailey became a licensed marriage and family therapist (MFT), and moved to Sonoma County to work for five years as a behavior analyst and educational consultant at On Our Own, then the largest non-public agency (NPA) in the North Bay. There he supervised a caseload of 50 to 60 students and 30 to 40 paraprofessionals in public and private schools, and in special and regular education settings, throughout the Bay Area. He also did home consultations for parents of disabled children for four different regional centers. He has extensive experience training special and regular education teachers for the Sonoma County and Marin Offices of Education and several large and small school districts, and he conducts lectures for parents of disabled children. He is a guest lecturer at Santa Rosa Junior College on the subject of autism.

11. Mr. Bailey was a credible witness whose testimony was thoughtful, detailed, fully responsive to questions, and consistent with the documentary evidence. Crossexamination did not reveal any significant weakness in his testimony. Mr. Bailey’s testimony is also given substantial weight here.

Mr. Bailey’s Email

12. Student argues that the testimony of these three credible witnesses must be disbelieved because Mr. Bailey essentially confessed in an email that the placement offer was predetermined. However, Student misinterprets Mr. Bailey’s email. On June 16, 2011, well after the May 11, 2011 IEP team meeting, Mother wrote an email to Mr. Bailey asking this question:

We heard that you had indicated that [Student] would be accepted at Anova. It was our understanding that you would have to review his application to determine if he was a good fit. Could you please clarify.

The next day Mr. Bailey responded as follows:

Have we ‘accepted’ [Student] at Anova? Answer: No. Not yet. I have not met James and therefore could not have made that decision. Based on what I have heard . . . he sounds quite appropriate but a final decision would require a meeting.

On July 11, 2011, Mr. Bailey emailed Mother to correct that statement as follows:

I DID inform the district prior to [Student’s] IEP meeting that we WOULD accept James based on a file review and reports from SRCS . . . without requiring a meeting with [Student]. I made this agreement due to the unusual nature of the case and the need to expedite a placement offer for your consideration. Unfortunately I did not fully recall having made this agreement while composing the below correspondence, but was reminded by district personnel after the fact.

[Italics supplied; capitalization in original.]⁵ Student now argues that the italicized sentence amounts to a confession by Mr. Bailey that Student’s placement at Anova was prearranged, and claims that the sentence is “in contrast to his testimony in the hearing where he stated he only looked at one redacted report.”

13. When the email is read in the context of the emails that preceded it and the testimony of Mr. Bailey, it does not support Student’s interpretation. Mr. Bailey testified that he is Anova’s intake committee and makes all final admission decisions himself. Normally he meets the student first, although there have been exceptions to that practice. In this case, when Ms. Baer and Mr. Gardner called him, he told them that he would accept Student without meeting him “if he were appropriate.” Mr. Bailey testified that a meeting with Student was unnecessary in this case because he had the benefit of listening to a full description of Student by his triennial assessors at the IEP team meeting, which gave him more information about Student than he would have acquired simply by meeting him. He testified he did not decide Student was appropriate for Anova until he heard about Student’s needs and goals at the IEP meeting.

14. Mr. Bailey testified further that he was actually surprised that the District made the Anova offer at the meeting.⁶ He testified credibly that he did not know any offer was going to be made at the IEP meeting, much less an offer of Anova, until it happened. It was clear to him at the meeting that Parents did not like the Anova offer, and when they visited Anova later he told them he did not like being put in the position of supporting a placement they opposed, but he firmly testified that there was no prearranged placement at Anova. He also credibly denied Father’s claim that he had told Parents he felt “played” by the District.

15. With this background, the meaning of Mr. Bailey’s email is clear: in stating that “we would accept [Student] based on a file review and reports from SRCS” he meant only that Anova would, after reviewing those documents, make an acceptance decision without having to meet Student. It did not mean that Mr. Bailey accepted Student before the meeting. If he had, he would not have written on June 16, 2011, that Anova had not yet accepted Student. Since Mr. Bailey testified that, prior to the May 11 meeting, he had looked only at a single redacted assessment concerning Student, the evidence showed that he had not yet conducted a “file review” or seen “reports” from the District before the meeting. Thus Mr. Bailey’s testimony was entirely consistent with his email. It meant he needed to see further records before the final decision was made, but he did not need to meet Student.

The Absence of a Discussion of Placement at Star

16. Mr. Gardner took notes of the May 11, 2011 IEP team meeting and attached them to the offer. Those notes do not mention a discussion of the appropriateness of placement of Student at Star. Student now claims that the absence of such an entry from Mr. Gardner’s notes means that the discussion did not take place, which in turn indicates that the District had already decided on its offer before the meeting.

17. Mr. Gardner testified that his notes were never intended to capture everything that was said at the meeting. In any event, it is what was actually said about Star at the meeting that matters, not what Mr. Gardner chose to write down. If the parties actually discussed the issue, the fact that Mr. Gardner did not record the discussion is irrelevant.

18. It is true that there was no discrete block of time set aside for a discussion of placement at Star as there was for placement at Anova, but that does not show that a placement offer had already been decided upon. Anova was new to Parents and had to be fully discussed. Star, on the other hand, was familiar to everyone at the meeting. Other students who live in the District attend Star. Placing Student at Star had been the subject of discussions between District staff and parents for years in connection with the settlement agreements and Student’s previous attendance at Star. The triennial assessments were largely conducted at Star with substantial assistance from Star staff, which included the provision of much information about Student’s performance at Star. The assessments themselves, which were discussed at length at the meeting, contain a great deal of information about Student’s time and progress at Star. The speech and language (S/L) assessment was done by Star’s S/L pathologist rather than a District assessor. Seven of the eight goals agreed upon by the IEP team were drafted by Star personnel. Because the IEP team already had so much information about Student’s time at Star, there was no need for it to go into the same kind of detail about a placement at Star as there was about a possible placement at Anova.

19. Nonetheless, the evidence showed that there was substantial discussion at the meeting of the relative merits of placement at Star or Anova. Annie Crowder, Star’s Head of School, testified that she voiced her concern that moving Student would be a bad idea; that he was not ready to change schools; and that mainstreaming was not appropriate for him.⁷ Mr. Gardner testified that Ms. Crowder described the program at Star, how Student had been doing in the last two years, and her belief that the program was still appropriate for him. Mother testified that Parents’ delegation asked for time for Marsha Norris, Student’s private therapist, to speak because Ms. Norris had to leave the meeting early, and at least a “little” time was given her.⁸ Mother also testified that each of Parent’s “witnesses . . . said a little bit on . . . how Student should be allowed to stay at Star because he is doing so well there.” These advocates included Ryan Hall, Student’s classroom teacher at Star, as well as Ms. Crowder and Ms. Norris.

20. The issue that most divided the IEP team and most affected the choice of schools was whether or not Student was ready for mainstreaming. That issue was fully aired at the meeting. Parents and their supporters all argued that he was not ready. Ms. Crowder offered the opinion that Student would not be ready for mainstreaming until high school, if then. (In May 2011 Student was two years away from high school.) District members of the team testified that this statement distressed them, and that they argued Student was either ready for mainstreaming or soon would be. They cited this difference of opinion as the principal reason they preferred a placement at Anova. Although the May 11, 2011 IEP offer does not itself provide for mainstreaming, the evidence showed that all meeting participants understood that Student would be mainstreamed sooner if he attended Anova than he would be if he continued to attend Star. Thus the extensive discussion of mainstreaming served as a discussion of whether Student should be placed at Anova or Star.

21. Ms. Crowder testified that Mr. Bailey’s mere presence at the meeting indicated to her that the decision to offer placement at Anova had already been made. That inference was unjustified. Federal law requires that a representative of a private school be present at an IEP team meeting before an offer of placement at that private school can be made. The District knew that there was general agreement that Student needed placement at an NPS. It knew that representatives of Star would be at the meeting. So the District had to have an Anova representative at the meeting or it would not have had the option to make any offer but Star, and, by the terms of its second settlement agreement with Parents, it had to make an offer of placement for the 2011-2012 school year before May 15, 2011. Thus Mr. Bailey’s presence merely ensured that the IEP team at least had the choice of offering Anova if the team thought the choice was appropriate.

22. Several of Student’s witnesses testified at hearing that they were rushed through the IEP team meeting, that they did not have adequate time to speak, and that this indicated to them the matter was already decided. However, these claims are inconsistent with their behavior at and after the meeting. The meeting lasted for two and a half hours, after which Mr. Gardner spent a half hour going over the paperwork with Parents. No one asked for another IEP team meeting, or for more time to speak. The signature page of the IEP shows that Father declined an opportunity to check a box requesting the scheduling of another IEP team meeting and checked a box requesting local mediation instead. Father initialed the statement “I have been fully informed of all information relevant to the proposed actions specified in [the IEP]. I understand the actions proposed. I understand my rights (Notice of Procedural Safeguards).” Next to the statement “As a means of improving services and results for your child did the school facilitate parent involvement?” Father checked “Yes.”

23. There was no evidence that Parents, or anyone on their behalf, asked for a continued IEP team meeting, or an additional meeting, or in any other way expressed the view that they had been rushed through the May 11, 2011 IEP team meeting, until the hearing itself.

24. Mr. Gardner testified that the process was not rushed at all. He testified that, as he reviewed the documents with Parents after the meeting, he asked whether Parents desired another meeting, and they declined. He also testified that Father actually complimented him on “involving [Parents] in the process” and that, despite their disagreements, “he felt like he did have the opportunity to participate.” Mr. Gardner thanked him for the compliment. At hearing Parents had an opportunity to rebut this testimony but did not attempt to do so.

25. For the reasons above, Student did not show by a preponderance of the evidence that the District decided before the May 11, 2011 IEP team meeting that Student would be offered placement at Anova.

Categorization of Student’s Disabilities

Areas of Agreement

26. The parties agree that Student qualifies for special education in the category of emotionally disturbed, and that he suffers from extreme anxiety, a fear of social situations and other people, and attention deficits. They also agree that Student’s disabilities are complex and difficult to categorize.

27. Student is irrationally afraid in social situations and has great difficulty approaching people. He does not properly interpret the intentions of others because he does not understand their behavior, intentions or body language; in large part he lacks the skills known as social pragmatics, social perception, or perspective taking. He frequently perceives the behavior of others to be directed at him when it is not, and feels threatened by it. He incorrectly believes that many things are intended to hurt him. If a ball bounces across a playground in his direction, he may believe it was thrown at him. If a student misbehaves in class, he may perceive it as an attack on him. He has interpreted a drawing by another student and a performance of a school play as personal attacks. When his younger sister was moved into his bedroom and cried, he believed that her crying was directed at him.

28. Student frequently exaggerates these incidents, perceives a small event as serious, and responds accordingly. On encountering these difficulties at school, Student has often developed somatic illnesses and insisted on going home, and has sometimes stayed away from school for several days. His attendance at school both before and after his period of home instruction has been poor, although it has been improving at Star.

Possible Presence of Autistic-Like Behaviors

29. Student has been assessed exhaustively since preschool. Assessors have variously found that Student suffers from attention deficit hyperactivity disorder (ADHD), depression, anxiety disorder, social phobia, pervasive development disorder not otherwise specified (PDD-NOS), oppositional defiance disorder (ODD), and possibly separation anxiety disorder. Some assessors have found that he is likely autistic; others have determined that he is not.

30. At hearing, the parties vigorously disputed whether the District’s May 11, 2011 IEP offer should have included the additional eligibility category of autistic-like behavior. A finding of eligibility requires the presence of any combination of seven defined behaviors. Parents argue that Student displays none of those behaviors; the District argues that he displays several of them.

31. For example, Student frequently retreats into himself or talks at undue length about videogames and dinosaurs when uncomfortable in social situations, and the parties dispute whether this constitutes an inability to use oral language for appropriate communication. For years the only protein Student has been willing to consume is in the form of an even number of chicken nuggets, usually in the shape of dinosaurs, and the parties dispute whether this shows an obsession to maintain sameness. In class at Star, Student sits on a large inflated therapy ball instead of a chair, and bounces on his ball almost constantly, even when his head is down on his desk. The parties dispute whether this indicates the presence of peculiar motoric mannerisms and motility patterns.

32. The ALJ declines the parties’ invitations to resolve this dispute over Student’s eligibility categories because it does not matter to the outcome here. Eligibility categories serve as gatekeepers for special education. Once eligible, a student is entitled to an IEP that meets all his disability-related needs, whether those needs would separately qualify him for eligibility or not. As a result, the IDEA and related laws do not entitle a student to eligibility under any particular category, nor do they regulate the addition of an eligibility category to the IEP of a student already eligible under another category. Thus the District’s addition of autistic-like behaviors to Student’s IEP offer, by itself, did not violate special education law whether it was correct or not. The IDEA and related laws require instead that Student be provided a FAPE, no matter what eligibility categories his IEP bears.

The District’s Offer of FAPE

33. To provide a FAPE, a disabled student’s IEP must meet his unique needs and be reasonably calculated to allow him to achieve educational benefit. In a dispute over whether an IEP offers a FAPE, the tribunal must focus on the validity of the District’s offer, not the relative merits of the parents’ preferred alternative.

34. Most of the IEP offered to Student at the end of the May 11, 2011 IEP meeting is not in controversy here. The District offered to place Student, for SY 2011-2012, in a special day class with individual and group speech and language (S/L) therapy for 30 minutes a week each; 60 minutes a month of occupational therapy (OT) consultation; and transportation to and from school. It also offered access to sensory regulating materials, sensory breaks, and a variety of other accommodations relating to test-taking. It set forth Student’s present levels of academic and functional achievement and proposed eight goals, four of which addressed Student’s social difficulties. At the end of the IEP meeting Parents accepted everything in the offer except the proposed placement at Anova rather than Star, and perhaps the addition of the eligibility category of autistic-like behaviors. Parents do not argue here that there are any other defects in the IEP (except for the use of the consultative model for OT, discussed below).

35. Student contends that the District’s offer to place him at Anova rather than Star denied him a FAPE. Since Student filed the request for due process hearing and bears the burden of proof, only those criticisms of the Anova offer that he makes will be addressed.

The Anova Center for Education

36. Anova is a small NPS having three campuses. The San Rafael campus has 45 students with a variety of disabilities. It is situated on leased land on the campus of the District’s Davidson Middle School. The majority of its students are on the autism spectrum, but many of them are also emotionally disturbed. Most of them were unsuccessful in public schools, and most of them have serious deficits in the enjoyment of social relationships and perspective taking. The school concentrates on improving their social skills and relationships as well as delivering a demanding academic curriculum.

37. Anova offers a unique multidisciplinary treatment model that involves the frequent and direct use of S/L therapy, OT, psychotherapy, and other support services. It has a high ratio of staff to students approximating one to two. At present, the middle school class into which Student would be put under the District’s offered IEP has eight to ten students, two teachers and two adult aides. All of Anova’s special education teachers are highly qualified within the meaning of state and federal law. The campus has two speech therapists, two occupational therapists (OTs), and a behavioral therapist, all of whom are full-time and present on the campus every day.

38. Anova is largely the creation of Mr. Bailey, who testified at length about his school and how it could serve Student. In 2000 Mr. Bailey and two colleagues opened Anova Education and Behavior Consultation and were certified as an NPA. They provided behavior intervention services for a wide variety of students. However, as Mr. Bailey testified, he and his colleagues soon recognized that there was a kind of private placement that was unavailable to a particular set of disabled children whose cases were complicated, enigmatic, and difficult to understand. Those students had available to them only programs for emotional disturbance or programs for autism, both of which were often inappropriate for them. So they founded Anova, which was certified as an NPS in August of 2003, and was begun on a public school campus in Petaluma with just two teachers and three students. By the time of hearing Anova had 135 children on three campuses, including the 45 on the San Rafael campus, which was opened in 2008.

Appropriateness of Anova Methodology

39. Student argues that Anova was specifically designed to serve autistic students, who comprise most of the student body; that Student is not autistic; and that he therefore cannot get a FAPE at Anova. This argument has several related aspects.

Misfit at a School for the Autistic

40. Student’s witnesses implied in their testimony, and seemed to assume, that if a school specializes in treating students with a particular disability, it cannot competently teach students with other disabilities. This is neither logical nor supported by the evidence. The Star Academy, for example, holds itself out as specializing in students with specific learning disorders (SLDs). However, 11 of its 64 students are autistic. Only four of its students (including Student) have emotional disturbance as a primary diagnosis, yet Star witnesses and Parents insist that Student can receive a FAPE at Star and nowhere else. As shown below, Anova is also capable of providing a FAPE to students with a variety of disabilities.

41. As shown by the history of Anova’s founding established by Mr. Bailey and mentioned above, Student’s characterization of Anova as “specifically designed” for autistic students is incomplete and inaccurate. The school was designed in large part for students whose disabilities, like Student’s, are difficult to categorize.

42. The characterization of Student as not autistic and therefore not an appropriate student for Anova oversimplifies Student’s disabilities and overlooks his similarity to many students who do attend Anova. Mr. Bailey established that Anova is certified to serve eight categories of disabled students, including the autistic, ED, other health impaired (OHI), SLD, and (if it is not their primary condition) the deaf and hard of hearing and visually impaired. Autistic students are the most numerous at Anova, followed by those with ED, but many of them fall in both categories, and the nature of the disabilities of some of them remains in dispute. Like Student, most Anova students have strong academic skills. Some Anova students are gifted. Several of them, like Student, display anxiety, depression, and attention deficits, as well as characteristics not unlike children with autism, whether they themselves are autistic or not. Mr. Bailey testified that he had seen Anova succeed with students whose anxiety was greater than Student’s.

43. Whether or not Student is technically eligible for special education because of autistic-like behaviors, the evidence summarized above showed that he displays at least some behaviors similar to those of autistic children, at least to some degree, so he is not very dissimilar to such students. The most important similarity is that social relationships are extremely difficult for Student, and for most autistic students as well. Anova specializes in encouraging social interaction among its students, and with nondisabled students when appropriate, and has so many staff members observing students’ interactions with others that they are able to intervene and smooth over difficulties immediately, rather than having to wait for the emotional aftermath.

Application of Applied Behavior Analysis

44. Student argues that since he would be regarded at Anova as autistic, he would be subjected to the techniques of applied behavior analysis (ABA), which is not an appropriate method for teaching him. ABA is a methodology for behavioral intervention first articulated by the psychologist B.F. Skinner and first applied to autistic children by Dr. O. Ivar Lovaas.⁹ Student quotes some marketing materials on Anova’s website that say, in discussing its autistic students, that “we … integrate the principles and practices of [ABA] into every facet of our program …” and argues this statement dispositively shows Student will be subjected to ABA if he goes there.

45. The evidence that Student would be denied a FAPE if exposed to the techniques of ABA was unconvincing. Dr. Maria Jose Prieto, an experienced clinical psychologist who assessed or helped assess Student three times in the last several years, testified that, in her opinion, he is not autistic and that application of ABA principles to him would be “inappropriate.”¹⁰ But when asked what she meant by “inappropriate,” she testified forthrightly that she used “appropriate” to mean the best way to treat Student, and “inappropriate” as a way that was less than the best. Since the IDEA does not require that a district provide a disabled student the best possible program, her observation fell far short of establishing that Student would be denied a FAPE if subjected to ABA.¹¹ Neither Dr. Prieto nor any other witness for Student who disapproved of the use of ABA for him has any significant training or experience as a behavioralist.

46. Dr. Prieto and other witnesses for Student assumed that because Anova treats autistic students it must use “ABA.” They spoke of ABA as unitary and a single known method; none claimed to know how it was used at Anova. Mr. Bailey, who has extensive training and experience in behavioral regulation, testified credibly that ABA is actually a group of several techniques. He established that while Anova staff are trained in ABA, and it is a foundation for some techniques used there for some students. The Anova method has evolved well beyond the traditional understanding of ABA. For example, Mr. Bailey and Anova reject the insistence of traditional ABA practitioners that only behavior matters, and that no true scientist would rely on such subjective matters as internal motivations. Mr. Bailey described that attitude as where ABA ends and cognitive behavioral models like those used at Anova begin. He testified that Anova’s emphasis on treating the inner motivations of its students is sometimes derided as “mentalism” by traditional ABA adherents.

47. ABA is only one of several kinds of methods that are integrated into the practices of Anova. Mr. Bailey established that the Anova method is a “propriety blend of existing technologies” including positive behavioral support, sensory integration, occupational therapy, speech and language therapy, social thinking, social pragmatics and highly individualized academic curriculum. Mr. Bailey and several other Anova staffers have been personally trained by Michelle Garcia Winner, a renowned S/L pathologist known for her “social thinking” technique, and they apply that technique in their teaching when appropriate. Social thinking is not ABA; it is a technique for improving the social interactions of disabled students that is also used extensively at Star. Thus Student did not prove that he would necessarily be subjected to “ABA” as that term was used by his witnesses.

Treatment as Part of a Category or Diagnosis

48. Student’s argument assumes that Anova would treat him as part of a category or a diagnosis rather than as an individual. Student argues in his brief that an eligibility category “drives” a student’s program, and that the addition to Student’s IEP of eligibility under the category of autistic-like behaviors led directly to the District’s offer of placement at Anova. But all the evidence at hearing was to the contrary. Every District witness who participated in the IEP team’s decision and addressed the relevance of eligibility categories testified that it was not the category that led to programming and placement, but the student’s individual needs as addressed in his goals and objectives. That view conforms to the requirements of the IDEA, which does not require that a student be eligible for special education in any particular category as long as he is eligible and his unique needs are adequately met.

49. In his testimony, Mr. Bailey persuasively rejected the notion that Anova would treat a student according to his diagnosis or eligibility category. He testified that a student’s needs, goals, and objectives determine his program, not a check beside an eligibility criterion. He testified that a student’s diagnosis “is interesting and it’s important, but it doesn’t drive our services on a day-to-day basis”; instead he and his colleagues directly address a student’s individual needs. He stated:

When we’re with your child in the classroom we’re not saying he’s autistic therefore we’re going to do this, or he’s anxious therefore we’re going to do that. We’re going to say he’s having some anxiety right now so were going to treat the anxiety . . .

Number of Autistic Students

50. A final variant of Student’s argument is that there are so many autistic students at Anova that Student cannot receive a FAPE if educated there. As previously discussed, Dr. Prieto testified that it would be “inappropriate” to place Student in a situation in which a “significant number” of students were autistic. Her reasons were that such a placement is not “what he needs” and that it would be more difficult for him to learn perspective taking – social pragmatics – while interacting with autistic students because they, too, suffer from deficits in perspective taking and the combination of such deficits would slow Student’s progress.¹² Ms. Crowder testified that Student has more difficulty at Star with autistic students than any others because he is bothered by their modulation of voice, loud and frequent talking, and repetitive questions. Isabella Gonzalez-Karcs, Student’s S/L pathologist at Star since fall 2010, testified that he has more difficulty than usual with students with “lower social radar” and unexpected behavior, and often those students were autistic.¹³

51. It is possible that relating to autistic students could complicate Student’s progress in perceiving the intentions and attitudes of others. It is worth noting that autistic students are frequently successfully educated with each other even though they would encounter the same perspective-taking problems among themselves. But Student’s evidence fell short of establishing that this phenomenon would be so pronounced that he could not obtain educational benefit at Anova.

52. The disabilities and quirks of many people may complicate Student’s progress in social perception, whether he is at Star or Anova; that does not necessarily deny him a FAPE. Student argues that he should not be educated with emotionally disturbed students either, as their behavior might upset him or make him anxious. But a district cannot be required to place Student with other students whose makeup is ideal for his advancement. Many things and people make Student anxious, and he cannot be guaranteed an environment that does not increase his anxiety.

53. Student does not have such an environment now. He already mixes with a significant number of autistic students. Roughly one in six students at Star is autistic, including five of the 31 students in middle school with Student. This fact has not prevented what Student characterizes as his “spectacular” progress at Star. The evidence showed that Student has had difficulty dealing with the behavior of two of the autistic students in his class, although he has recently overcome his difficulties with one of them and has befriended that student. However, having difficulty in dealing with two autistic students is not the same as being denied a FAPE.

54. In short, Student failed to establish by a preponderance of evidence that Anova can only adequately educate autistic students; that he would necessarily be subjected to ABA there as Student’s witnesses understood that term; that he would be treated as part of the category of autism rather than as an individual with unique needs; or that his exposure to numerous autistic students at Anova would significantly impede his ability to achieve educational benefit there.

Fear of Seeing or Knowing About Restraint and Seclusion

55. Some of Student’s witnesses testified that his anxiety is so pronounced that he could not tolerate seeing another student physically restrained or secluded by school staff. Ms. Crowder testified that the “level of behavioral challenges” posed by the students at Anova would be “literally terrifying” for Student and that merely “having the knowledge that [restraint and seclusion] exist at Anova” would be “horrible” for Student; he would be “anxiety-ridden 24/7,” that it would be very difficult even to get him to school. Ms. Crowder did not explain how she knows about the “level of behavioral challenges” posed by Anova students, and did not appear to know much about those students other than what she had gleaned from looking at Anova’s website and talking to Parents.

56. In explaining why she had rejected a previous placement at another school for Student several years ago, Mother testified that if Student witnessed another student subjected to restraint “it would scare him to death; he would completely check out . . . and I wouldn’t get him to school at all.”

57. These predictions were speculative and seemed exaggerated in light of the evidence, which showed that Student has witnessed restraint used at least twice at Star without subsequently refusing to go to school, or being unable to continue in his progress there. Ms. Norris testified that Student told her during a therapy session of an incident at Star in his fifth grade year in which a fellow student had been loud and noisy and would not stop or leave the classroom, so the teachers physically removed him. This scared Student; he still occasionally talks about the incident.

58. Ms. Norris mentioned the incident to Mother, who testified that she talked to the teacher and learned that the student in question was having a “meltdown” and was hanging on to a door, crying and screaming that he did not want to go, until two teachers finally got his hands off the door and removed him from the classroom. Mother testified this was “huge” for Student, who exaggerated the incident in his mind to the point that he believes five teachers were required to remove the student. But Ms. Norris also testified that Mother “resolved” the matter with the school. There was no evidence that the incident had any lasting effect on Student’s ability to attend and make progress at Star.

59. Mother also briefly described an incident more recently in which a young girl had a “meltdown” in the classroom in Student’s presence, crying and being “very, very loud,” and had to be physically removed from the room. But there was no evidence that this had any serious or lasting effect on Student. Ms. Norris also opined that Student would be upset to see restraint or seclusion used at Anova.

60. The fears of Student’s witnesses that he would witness extensive use of restraint at Anova, or the use of seclusion, did not have any substantial factual foundation. The evidence did not show that Ms. Crowder, Mother, or Ms. Norris had any personal knowledge of how or whether restraint and seclusion are used at Anova, and none of them claimed to have such knowledge.¹⁴ Ms. Crowder did not claim ever to have seen Anova.

61. Mr. Bailey established that the behavioral problems Student could expect to see in other students at Anova, and the school’s response to them, were much less serious than Student’s witnesses feared. He testified that Anova never uses seclusion as a method of behavior regulation. Instead it provides rooms where students may go voluntarily, if they feel it necessary, to lie down on a beanbag in a quiet place and reduce stress. Students are never required to do that; they come and go as they please, after having learned that the option to spend time in the quiet rooms as a technique for relieving their tensions is available to them.

62. Mr. Bailey also established that while he and his staff are trained in restraints, they rarely engage in them beyond keeping a student from leaving the campus – which may look like restraint if a student tries to push around them and out of the school. In the middle school group at Anova, where Student would be placed, there is only one student who ever requires restraint, and his behavior is not directed at other students. That one student has had to be restrained three or four times this year. The relative absence of the need to restrain students with behavioral problems reflects Anova’s admissions policies: the school accepts some students at younger age levels who may require occasional restraint because it is easier to do with a child of five or six years of age, but it never accepts an older student (for example of high school age) with serious external behavioral problems, because such a student will be bigger and stronger, and Anova does not desire even to attempt to restrain such a student. This admissions policy minimizes the need for restraints.

63. Mr. Bailey testified that Anova never uses restraints as a planned strategy, because it is not an intervention, it is not therapeutic and it has no legitimate use except to keep children safe.

64. Student did not prove that he would be so upset to observe another student restrained, or that Anova students require restraint with sufficient frequency or severity, that his ability to obtain educational benefit at Anova would be significantly impeded.

Student’s Predicted Difficulties with a Transition to Anova

65. Mother and several Star Academy witnesses testified that it would be wrong to move Student from Star to any other school because the transition would be so difficult it would virtually prohibit his educational progress. These views were premised on their observations of Student when he made the transition from home instruction to Star at the beginning of his fifth grade year. Mother testified that when Student started at Star he was very anxious about returning to school. He could not attend every day. He would quite frequently have difficulties with peers, his anxiety would turn into stomach pains, he would double over, and she could not get him to go to school.

66. Ms. Crowder was hired as Star’s Head of School about the time Student began to attend Star. She encounters him on the campus a few times a week and hears discussions of him in staff meetings. She testified that when Student arrived on campus in fall 2009, his extreme anxiety manifested itself in frequent absences, somatic complaints, aversion to physical education and large assemblies, hesitancy to address difficult tasks, and difficulties in tolerating peers. He dwelt on prior unpleasant incidences at school, anticipated similar difficulties at Star, perceived innocent actions as threats to him, and frequently would react to difficulties by not coming to school for a day or more. When he was on campus, she testified, his anxiety diminished his ability to focus in class and interact with peers.

67. Ms. Crowder testified further that although Student’s anxiety has lessened and his attendance has improved dramatically since he started at Star, it had taken Star and Parents a long time to achieve those gains, in part because Student’s trust in people at Star had grown very slowly. She testified that he was not ready to generalize those gains, and predicted that placement at a new school would be “traumatic” for him, in part because he would initially distrust the new people to whom he would relate. Ms. Crowder opined that Student would go “far, far backwards if he were to transition out of Star anywhere” and that it would take “a few years” to adjust to any change of school.

68. Ms. Gonzalez-Karcs testified when she first began providing S/L therapy to Student at Star in fall 2010, he was despondent, lethargic, presented with high anxiety, ruminated about things that had happened to him in the recent and distant past, had difficult relationships with peers, and could become extremely agitated by a single word from someone else. It took her a long time to establish trust with him. She testified that it would be “very unfair” and “very traumatic” for him to change schools because he was not ready to generalize the skills he has learned in any other school or setting.

69. Ryan Hall is Student’s SDC teacher at Star and taught him mathematics in his first year there.¹⁵ He testified that when Student began attending Star his attacks of anxiety could last for three or four days. He also described Student’s difficulties in establishing and maintaining relationships with his peers, and his lack of toleration for routine changes. He testified that moving Student to “a different school” would be “a very severe transition” because he would be without the peers he knows and the staff he trusts. He would “go right back to where he was, not really wanting to be at school.”

70. Not all of Student’s witnesses remembered his entry into Star as difficult. Ms. Norris began providing weekly therapy to Student in January 2008, and was in a position to observe Student before and after his entry into Star. She testified that it “didn’t take him very long to adjust to [Star]”; that she thought he would have more trouble than he did; and when he did not, she decided that it was because he was “glad to be around other kids.”

71. The concerns of Mother, Ms. Crowder, Ms. Gonzalez-Karcs and Mr. Hall about Student’s possible transition to Anova may have had some basis in their earlier experiences with Student, but their collective view that he could not now successfully make the transition to any other school was substantially exaggerated when measured against the evidence produced at hearing. Even if Student’s transition to Anova were fully as difficult as his transition into Star from home instruction, those difficulties would not rise to the level of a denial of FAPE. Student managed to obtain significant educational benefit from his transition to Star, notwithstanding all his initial difficulties, even in his first semester and first year. Ms. Crowder, Ms. Gonzalez-Karcs, Mr. Hall, Ms. Norris, and Mother all testified that Student has benefited greatly from his experience at Star, and none of them made an exception for his first semester or first year.

72. Student’s report card from January 2010, the end of his first semester at Star, shows that he made significant progress during his first semester. He was rated by his teacher as excellent in six various categories of his subjects, satisfactory in 24, and needing improvement in only five. His classroom teacher, Mariette Miller, wrote on the report card that Student “is settling into the Elementary Class nicely this semester” and “has made progress in talking and playing with [his peers] throughout the day.” She wrote that Student “has become an asset to our classroom; we enjoy his active participation, his interest and his curiosity.”

73. That same semester’s report card contains this comment from Student’s music teacher, Julie Nicholas:

Well, for someone who professes to be “too shy, embarrassed and a lousy singer,” [Student] knocked all of our socks off in the school play. [¶] I’d love to see him in the chorus this semester.

These contemporaneous reports do not describe a student who can barely stay in school.

74. In addition, the evidence did not support the assumption of Student’s witnesses that his transition from Star to Anova would be as rocky as his transition from home instruction into Star. Student had been removed from public school somewhere during his third grade year under unpleasant circumstances, and had received instruction at home from Mother, in relative isolation, for the rest of that year and throughout his fourth grade year. When he entered Star for fifth grade he had to deal again with teachers, service providers, fellow students and rules of behavior, after having been away from such an environment for a long time. In contrast, the transition from one small NPS to another, after a successful experience at the first, would likely be much easier.

75. The dire predictions of some of Student’s witnesses about his possible transition to Anova did not take into account all the progress he has made since he began to attend Star. Ms. Crowder testified that his attendance has improved “dramatically” and his anxiety has “improved greatly”; that he has achieved two years’ progress in two years’ time; and that although it took Student years to enjoy a sense of safety at Star, he was now able to take risks academically and socially. Ms. Gonzalez-Karcs agreed that Student has made much progress at Star, and recounted a recent incident in which Student’s handling of teasing from an autistic peer had greatly improved. She also reported that this year Student has befriended an autistic student with whom he previously had substantial difficulties, and now sits next to him in class.

76. Mr. Hall testified that at the beginning of the 2009-2010 school year Student could experience one negative event in a day and “hyperfocus” on it, even into the following day, but toward the end of the year was able to walk out of class with a smile and was able to praise his fellow students. His eye contact has improved. He can advocate for himself, which he could not do when he arrived. His relationships with some of his peers were “starting to blossom” at the end of SY 2010-2011, and he had a lot more age-appropriate conversations with them. It took him time to manage the two autistic students in his classroom, but he has learned that they are not deliberately trying to bother him and now is friendly with one of them.

77. In her testimony, Mother confirmed that Student’s attendance has undergone a “huge improvement” since he began at Star. She generally agreed with the descriptions of his progress by Star staff. Ms. Norris commented that as Student gets bigger and taller, he becomes less afraid. She also confirmed that he has befriended one of the two students at Star who bother him most, and is learning to cope with the other. Sandra Bennett, Student’s occupational therapist at Star, also testified she had seen significant improvement in him since he arrived.

78. Student’s own evidence thus showed that he has improved greatly in the last two years in his ability to relate to people, including other students and autistic students, and thus cannot be expected to have the same degree of difficulty with a transition to another school now as he did in 2009.

79. Finally, in predicting that Student could not manage a transition to Anova, Student’s witnesses displayed no knowledge of the assistance that Anova could give Student in such a transition. Mr. Gardner testified that in his 10 years in education he has had “great success” in transitioning children into Anova who are “among the most difficult types of kids to transition,” including one who was “the most school-phobic student I’ve ever met.” He testified that Anova has “a proven track record of working with kids who are very difficult to transition,” and that they have a process for doing it that works well. He testified that he has not once been disappointed by how the transition process into Anova has gone.

80. Ms. Baer testified that she has placed students at Anova before, and in her experience Anova has “done a very good job” transitioning students with a wide variety of needs, including those not expected to make the transition well. These successes include one student who had been on home instruction for an extended period of time and had a difficult time in public school; he has “done beautifully” making the transition to Anova. She attributed Anova’s success in supporting their students’ transitions to the facts that they have a very structured program, very high expectations, and the behavioral support on site to support students’ needs as they come up throughout the day.

81. Student made no attempt to refute the testimony of Mr. Gardner and Ms. Baer about Anova’s skills in helping students make the transition into the school.

82. For the reasons above, Student did not show by a preponderance of the evidence that any difficulties he might experience in making a transition to Anova would be sufficiently serious that they would significantly retard his education there or endanger his ability to achieve educational benefit.

Least Restrictive Environment

83. The IDEA requires that a student with a disability be placed in the least restrictive environment (LRE) in which he can be educated satisfactorily. The environment is least restrictive when it maximizes a student’s opportunity to mix with nondisabled students in class and other activities. Student’s argument that Star is the LRE for him has two parts.

84. First, Student points to a federal regulation requiring a district, in determining the LRE, to give consideration to any potential harmful effect on the child or on the quality of services that he or she needs. Then Student argues again that use of ABA and placement at Anova with allegedly disruptive students who will require restraint and seclusion will threaten him and his anxiety would rise. This is merely a restatement of the arguments rejected above. And there was no evidence that the district did not consider such potentially harmful effects. It appears that District IEP team members simply reached different conclusions about those effects than did Parents and their supporters.

85. The second aspect of Student’s LRE contention is that, unlike Anova, Star has some students who are not on IEPs and not eligible for special education, including some in Student’s current classroom, and that Star is therefore the LRE for him. This contention was first made only in Student’s closing brief, and was never previously discussed as an issue. Neither the District nor the ALJ had any reason to develop a record on the subject, and no adequate record on the subject was made. Student’s new contention is therefore untimely and supported only vaguely and indirectly in the record, and is rejected for those reasons alone.

86. In the alternative, the preponderance of evidence did not establish the premise of Student’s argument: that 20% of the students at Star are nondisabled students as that term is used in LRE analysis. The only evidence in support of that claim is an ambiguous statement made on direct examination by Ms. Crowder in the course of a discussion of whether all Star students would theoretically be eligible for special education. She replied that about 20 percent of them (or about 13 students) would not qualify for IEPs. Asked whether those 13 would be “typical mainstream students,” she replied: “Correct; general education with no support in the school districts.” ¹⁶

87. In isolation, Ms. Crowder’s answer to that question could be said to support Student’s new claim. However, the evidence at hearing showed that this interpretation is not even plausible.

88. Mr. Hall testified that of the 12 students in Student’s class, only five have IEPs. The other seven are apparently among the 13 students mentioned by Ms. Crowder; Student categorizes them that way in his closing brief. If Student is in a class of 12 with seven nondisabled students, the conclusion would be unavoidable that Student is being mainstreamed now, all day, in his classroom. That conclusion cannot be reconciled with the evidence in the record. The rest of Ms. Crowder’s testimony showed that she did not believe Student is being mainstreamed. When asked about Star’s mainstreaming practices, Ms. Crowder described several kinds of activities, all of which occurred at other schools. She made no mention of any mainstreaming at Star itself. She expressed both at hearing and at the May 11, 2011 IEP team meeting the strong opinion that Student should not be mainstreamed until high school, if then.

89. Every other witness for Student who was asked about mainstreaming also testified Student was not ready for it. Mother adamantly opposes mainstreaming Student. Mr. Hall, Ms. Gonzalez-Karcs, and Ms. Norris also expressed the view, either at hearing or the May 11, 2011 IEP team meeting, or both, that Student is not ready for mainstreaming. In order for Student’s new interpretation of Ms. Crowder’s testimony to be correct, all these witnesses would have been advocating against mainstreaming Student while simultaneously subjecting him to it, or at least knowing he was being mainstreamed. That is highly unlikely.

90. No witness claimed that Student was in fact being mainstreamed. All the testimony from Star employees was consistent with the view that Star itself does not regard those 13 students as nondisabled.

91. In addition, the principle of the LRE requires the education of disabled students with nondisabled students, not “mainstream” students. It is not clear from Ms. Crowder’s answer, quoted above, that she was addressing, or was aware of, the distinction between students who are nondisabled and students who are not eligible for IEPs. Many students are disabled but not eligible for special education because their educational needs can be met in the general education environment. And there is reason to believe that most if not all of the 13 Star students in question fit that description. Those students are privately placed by their parents in a school specializing in teaching disabled students and certified by the State to do so. Ms. Crowder described some of the 13 students without IEPs as students who “require a small protective setting,” others whose tests scores were too high to qualify them for eligibility,¹⁷ and still others as those whose parents simply decided they need a private school. Students selected according to their parents’ ability to afford an expensive private school, which they know to be for disabled students, are not necessarily nondisabled students.

92. The preponderance of evidence did not show that any significant number of Star students are nondisabled for the purpose of determining the LRE. It clearly did show that Student is not being mainstreamed at Star at present and has no prospect of being mainstreamed there in the near future. Therefore, Student’s contention that Star is the LRE for Student is contrary to almost all the evidence produced at hearing, and is not persuasive.

Occupational Therapy

93. Student argues in his closing brief that the District denied him a FAPE because it only offered 60 minutes of OT consultation a month, although Sandra Bennett, Star’s OT, testified that he “needs” direct services. Ms. Bennett actually testified only that Student could not be “properly served” without direct therapy, a statement that has little to do with the governing legal standard. And after observing Student in class at Star, the District’s OT April Manning testified persuasively that Student was doing very well in class, with sensory supports and accommodations, and that he did not need direct therapy during the school day. She also noted that pulling him out for direct therapy would take him out of class. Student did not prove that the District’s offer of OT was inadequate.

CONCLUSIONS OF LAW

Burden of Proof

1. Student filed the request for due process hearing, and therefore has the burden of proving the essential elements of his claim. (Schaffer v. Weast (2005) 546 U.S. 49, 62 [163 L.Ed.2d 387].)

Right to Reimbursement

2. Parents may be entitled to reimbursement for the costs of placement or services they have procured for their child when the school district has failed to provide a FAPE, and the private placement or services were proper under the IDEA and replaced services that the district failed to provide. (20 U.S.C. § 1412(a)(10)(C); School Comm. of Burlington v. Dept. of Educ. (1985) 471 U.S. 359, 369-371 [85 L.Ed.2d 385].)

Predetermination of IEP

3. An educational agency unlawfully predetermines its IEP offer when it has decided on its offer prior to the IEP meeting, including when it presents one placement option at the meeting and is unwilling to consider other alternatives. (H.B. v. Las Virgenes Unified School Dist. (9th Cir. 2007) 239 Fed.Appx. 342, 344-345 [nonpub. opn.].) A district may not arrive at an IEP meeting with a “take it or leave it” offer. (JG v. Douglas County School Dist. (9th Cir. 2008) 552 F.3d 786, 801, fn. 10.)

4. However, school officials need not come to an IEP meeting with a blank mind; they “can, and should, have given some thought” to placement before the meeting. (Doyle v. Arlington County School Bd. (E.D.Va. 1992) 806 F.Supp. 1253, 1262.) They do not predetermine an IEP simply by meeting to discuss a child’s programming in advance of an IEP team meeting. (N.L. v. Knox County Schools (6th Cir. 2003) 315 F.3d 688, 693, fn. 3.) Nor do they predetermine a placement by visiting a prospective site prior to the meeting. (K.D. v. Department of Educ. (9th Cir., Dec. 27, 2011 (No. 10-15454)) 2011 WL 6760338, p. 10.) District personnel may bring a draft of the IEP to the meeting as long as parents are provided an opportunity to discuss their questions, concerns, and recommendations before the IEP is finalized. (Fuhrmann v. East Hanover Bd. of Educ. (3d Cir. 1993) 993 F.2d 1031, 1036.)

5. District IEP team members may come to IEP meetings with opinions regarding a proposed program for the child, as long as they remain flexible and are willing to consider parents’ objections and suggestions. (Fort Osage R-1 School Dist. v. Sims (W.D. Mo., Sept. 30, 2010, No. 09-563-CV) 2010 WL 3942002, p. 17.) In M.C.E. v. Board of Educ. of Frederick County (D.Md., July 11, 2011, No. 09-3365) 2011 WL 2709196, pp. 8-9, district IEP team members arrived at the meeting believing a particular therapeutic placement was best for the student, but the district court held that they did not engage in predetermination because they listened to parents’ views at the meeting with an open mind. Considering a presentation by parents that the student is doing well in the private school preferred by parents supports a finding that district IEP team members did not predetermine the placement they offered. (Student v. Solana Beach School Dist. (2008) Cal.Offc.Admin.Hrngs Case No. N2007070255.)

6. Before a district places a student in a private school, it must bring a representative of that private school to the IEP team meeting. (34 C.F.R. § 300.325(a); see also Ed. Code, § 56034.)

Issue No. 1: Was the District’s offer at the May 11, 2011 IEP team meeting to place Student at the Anova Center for Education predetermined, thus depriving Parents of their right of meaningful participation in the IEP process?

7. Based on Factual Findings 4-25 and Legal Conclusions 1-6, Student did not show by a preponderance of the evidence that the District decided before the May 11, 2011 IEP team meeting to offer him placement at Anova, thus violating Parents’ procedural rights. Mr. Bailey’s disputed email does not establish that he had already agreed to accept Student; it merely shows that he agreed not to require a personal meeting with Student before the acceptance decision was made. The evidence showed that Parents and their supporters had an adequate opportunity to discuss the relative merits of placement at Star or Anova and did so. The evidence did not show that they were rushed through the meeting or needed or wanted more time to express their views.

Eligibility and Eligibility Categories

8. Not every student who is impaired by a disability is eligible for special education. Some disabled students can be adequately educated in a regular education classroom. Federal law requires special education for a “child with a disability,” who is defined in part as a child with an impairment “who, by reason thereof, needs special education and related services.” (20 U.S.C. § 1401(a)(3)(A)(ii); 34 C.F.R. § 300.8(a)(i)(2006).) State law requires special education for “individuals with exceptional needs, “who are defined in part as individuals whose “impairment . . . requires instruction, services, or both, which cannot be provided with modification of the regular school program.” (Ed. Code, § 56026, subd. (b).)

9. Special education is defined as “specially designed instruction … to meet the unique needs of individuals with exceptional needs, whose educational needs cannot be met with modification of the regular instruction program . . .” (Ed. Code, § 56031.) Accordingly, “[a] pupil shall be referred for special educational instruction and services only after the resources of the regular education program have been considered and, where appropriate, utilized.” (Ed. Code, § 56303; see also Hood v. Encinitas Union School Dist. (9th Cir. 2007) 482 F.3d 1175, 1184 [finding student with SLD properly placed in regular education under previous version of California statute].)

10. A student is eligible in California for special education and related services if, among other things, he “exhibits any combination of the following autistic-like behaviors, to include but not limited to:”

1. An inability to use oral language for appropriate communication.
2. A history of extreme withdrawal or relating to people inappropriately and continued impairment in social interaction from infancy through early childhood.
3. An obsession to maintain sameness.
4. Extreme preoccupation with objects or inappropriate use of objects or both.
5. Extreme resistance to controls.
6. Displays peculiar motoric mannerisms and motility patterns.
7. Self-stimulating, ritualistic behavior.

(5 Cal. Code Regs., § 3030, subd. (g).)¹⁸

11. A student’s eligibility category may have consequences for funding, the availability of outside services, statistical reporting, and other purposes, but if an IEP delivers a FAPE, the accuracy of the category under which it is delivered is not an issue for judicial review under the IDEA. (See B.B. v. Perry Township School Corp.(S.D.Ind. 2008, July 11, 2008, Nos. 1:07-cv-0323; 1:07-cv-0731) 2008 WL 2745094, p. 8 [nonpub. opn.].) The United States Department of Education has advised that “a child’s entitlement is not to a specific disability classification or label, but to a free appropriate public education.” (Letter to Fazio (OSEP 1994) 21 IDELR 572, 21 LRP 2759.) Student does not cite any IDEA decision affording relief from the addition or subtraction of an erroneous eligibility category when the student remained eligible for special education.

12. As long as a child remains eligible for special education and related services, the IDEA does not require that the child be placed in the most accurate disability category. The IDEA provides:

Nothing in this chapter requires that children be classified by their disability so long as each child who has a disability listed in . . . this title and who, by reason of that disability, needs special education and related services is regarded as a child with a disability. . .

(20 U.S.C. § 1412(a)(3)(B).) A properly crafted IEP addresses a student’s individual needs regardless of his eligibility category. (See Fort Osage R-1 School Dist. v. Sims (8th Cir. 2011) 641 F.3d 996, 1004 [category “substantively immaterial”]; Hailey M. v. Matayoshi (D. Hawaii, Sept. 7, 2011, No. 10-00733) 2011 WL 3957206, p. 3). “The very purpose of categorizing disabled students is to try to meet their educational needs; it is not an end to itself.” (Pohorecki v. Anthony Wayne Local School Dist., 637 F.Supp.2d 547, 557 (N.D. Ohio 2009).

13. In Heather S. v. State of Wisconsin (7th Cir. 1997) 125 F.3d 1045, the parties disputed the appropriate eligibility categories for a student whose disability was hard to characterize. In reasoning directly applicable here, the Court of Appeals declined to settle the dispute:

In any event, whether Heather was described as cognitively disabled, other health impaired, or learning disabled is all beside the point. The IDEA concerns itself not with labels, but with whether a student is receiving a free and appropriate education. A disabled child’s individual education plan must be tailored to the unique needs of that particular child. [Citation.] In Heather’s case, the school is dealing with a child with several disabilities, the combination of which in Heather make her condition unique from that of other disabled students. The IDEA charges the school with developing an appropriate education, not with coming up with a proper label with which to describe Heather’s multiple disabilities.

(Id. at p. 1055; see also Aaron P. v. Department of Educ. (D.Hawaii, Oct. 31, 2011, No. 1000574) 2011 WL 5320994, p. 28; C.H. v. Northwest Indep. School Dist. (E.D.Tex., Sept. 30, 2011, No. 4:09-cv-117)) 2011 WL 4537784, p. 6; Klein Indep. School Dist. v. Hovem (S.D.Tex. 2010) 745 F.Supp.2d 700, 708; Casey K. v. St. Anne Community High School Dist. No. 302 (C.D.Ill., Aug. 14, 2006, No. 04-2128) 2006 WL 2361881, p. 9, fn. 11; J.W. v. Contoocook Valley School Dist. (D.N.H. 2001) 154 F.Supp.2d 217, 228; Corning Union Elementary School Dist. v. Student (2009) Cal.Offc.Admin.Hrngs. Case No. 2008100547.)

Procedural Violations and Prejudice

14. A procedural violation of the IDEA results in a denial of FAPE only if it impedes the child’s right to a FAPE, significantly impedes the parents’ opportunity to participate in the decision-making process regarding the provision of a FAPE to the parents’ child, or causes a deprivation of educational benefits. (20 U.S.C. § 1415(f)(3)(E)(ii).)

Issue No. 2: Should Student’s eligibility category for special education be emotionally disturbed, rather than autistic-like behaviors?

15. Based on Factual Findings 26-32 and Legal Conclusions 1 and 8-14, Student did not establish any right to be classified as eligible for special education and related services only under the category of emotionally disturbed. Even if the additional classification under autistic-like behaviors was improper – an issue not decided here – Student suffered no educational loss and Parents lost no participatory rights as a result. The offered IEP was designed to address his individual needs, not his eligibility categories.

Requirements for a FAPE

16. Under the IDEA and state law, children with disabilities have the right to a FAPE. (20 U.S.C. § 1400(d); Ed. Code, § 56000.) A FAPE means special education and related services that are available to the child at no charge to the parent or guardian, meet state educational standards, and conform to the child’s IEP. (20 U.S.C. § 1401(a)(9).) “Special education” is instruction specially designed to meet the unique needs of a child with a disability. (20 U.S.C. § 1401(a)(29).)

17. In Board of Educ. v. Rowley (1982) 458 U.S. 176 [73 L.Ed.2d 690] (Rowley), the Supreme Court held that the IDEA does not require school districts to provide special education students the best education available, or to provide instruction or services that maximize a student’s abilities. (Rowley, supra, at p. 198.) School districts are required to provide only a “basic floor of opportunity” that consists of access to specialized instruction and related services individually designed to provide educational benefit to the student. (Id. at p. 201.) A student’s program is appropriate if it was designed to meet the child’s unique needs, and was reasonably calculated to enable the child to receive educational benefit. (Rowley, supra, at pp. 206-207.)

18. In determining the validity of an IEP, a tribunal must focus on the placement offered by the school district, not on the alternative preferred by the parents:

Even if the [placement was] better for [Student] than the District’s proposed placement, that would not necessarily mean that the placement was inappropriate. We must uphold the appropriateness of the District’s placement if it was reasonably calculated to provide [Student] with educational benefits.

(Gregory K. v. Longview School Dist. (9th Cir.1987) 811 F.2d 1307, 1314.)

19. An annual IEP must contain, among other things an explanation of the extent, if any, to which the child will not participate with nondisabled children in the regular class and in regular education activities. (20 U.S.C. § 1414(d)(1)(A)(i)(V); Ed. Code, § 56345, subd. (a)(4)(A)(5).)

20. An IEP is evaluated in light of information available to the IEP team at the time it was developed; it is not judged in hindsight. (Adams v. Oregon (9th Cir. 1999) 195 F.3d 1141, 1149.) An IEP “is a snapshot, not a retrospective.” (Id. at p. 1149, quoting Fuhrmann v. East Hanover Bd. of Educ., supra, 993 F.2d at p. 1041.) An IEP must be evaluated in terms of what was objectively reasonable when it was developed. (Ibid.)

21. The Rowley decision established that, as long as a school district provides an appropriate education, methodology is left to the district’s discretion. (Rowley, supra, 458 U.S. at p. 208; see also, Adams v. Oregon, supra, 195 F.3d at p. 1149; Pitchford v. Salem-Keizer Sch. Dist. No. 24J (D. Or. 2001) 155 F.Supp.2d 1213, 1232.) Courts are ill equipped to second-guess reasonable choices that school districts have made among appropriate instructional methods. “[C]ourts should be loathe to intrude very far into interstitial details or to become embroiled in captious disputes as to the precise efficacy of different instructional programs.” (Roland M. v. Concord Sch. Committee (1st Cir. 1990) 910 F.2d 983, 992-93, citing Rowley, supra, 458 U.S. at p. 202).)

Least Restrictive Environment

22. Federal and state law require a school district to provide special education in the LRE. A special education student must be educated with nondisabled peers “to the maximum extent appropriate,” and may be removed from the general education environment only when the nature or severity of the student’s disabilities is such that education in general classes with the use of supplementary aids and services “cannot be achieved satisfactorily.” (20 U.S.C. § 1412(a)(5)(A); 34 C.F.R. § 300.114(a)(2)(ii) (2006).) In general, a regular education setting is the least restrictive of available environments considered in placement decisions. (See Ed. Code, § 56361.)

23. “Educating a handicapped child in a regular education classroom with nonhandicapped children is familiarly known as ‘mainstreaming’ . . . .” (Daniel R.R. v. State Bd. of Educ. (5th Cir. 1989) 874 F.2d 1036, 1039.)

24. In selecting the LRE, a district must consider any potential harmful effect on the child or on the quality of services that he or she needs. (34 C.F.R. § 300.116(d)(2006).)

Issue No. 3: Was the District’s offer of placement at Anova inappropriate, thereby denying Student a FAPE?

25. Based on Factual Findings 1-4 and 33-93, and Legal Conclusions 1 and 16-24, the District’s May 11, 2011, IEP offer was appropriate and constituted an offer of FAPE. Student did not prove by a preponderance of the evidence that he could not be adequately educated at Anova; that he would be subjected to inappropriate behavioral methods; that he could not tolerate the presence of the other Anova students; or that he would be so damaged just by seeing and knowing about restraint or seclusion, or by the transition into Anova, that he could not obtain educational benefit there. Nor did the evidence show that Star would be the LRE for Student. The evidence showed instead that Anova is appropriately sensitive to the need to shape its techniques and practices to Student’s individual needs; that it would not mechanically treat Student as autistic or necessarily subject him to traditional ABA; and that its students are not so disruptive that Student would be unable to obtain educational benefit in their presence. The evidence also established that Student would be adequately supported if he makes the transition from Star to Anova.

ORDER

Student’s requests for relief are denied.

PREVAILING PARTY

Education Code section 56507, subdivision (d), requires this decision to indicate the extent to which each party prevailed on each issue heard and decided. The District prevailed on all issues.

RIGHT TO APPEAL THIS DECISION

The parties to this case have the right to appeal this Decision to a court of competent jurisdiction. If an appeal is made, it must be made within 90 days of receipt of this decision. (Ed. Code, § 56505, subd. (k).)

Dated: February 21, 2012

CHARLES MARSON
Administrative Law Judge
Office of Administrative Hearings

In the Matter of: SAN DIEGUITO UNION HIGH SCHOOL DISTRICT,

v.

PARENTS ON BEHALF OF STUDENT.

OAH CASE NO. 2011060359

DECISION

Carla L. Garrett, Administrative Law Judge (ALJ), Office of Administrative Hearings (OAH), heard this matter on November 28, 2011, December 13, 2011, and January 11, 2012, in Encinitas, California.

Justin R. Shinnefield, Attorney at Law, represented the San Dieguito Union High School District (District). District representative, Dr. Eric Beam, Director of Special Education, attended all three days of hearing.

Student’s father (Father) represented Student, and attended all days of hearing. A family friend also attended each day of hearing.

District filed its request for due process hearing (complaint) on June 8, 2011. On June 29, 2011, for good cause shown, OAH granted the parties’ joint request to continue the due process hearing. On September 12, 2011, and again on October 5, 2011, OAH granted, for good cause shown, District’s request for continuance. On December 14, 2011, OAH continued the final day of hearing from December 14, 2011 to December 16, 2011, due to illness on the part of the ALJ. On December 16, 2011, for good cause shown, OAH granted Student’s request to continue the final day of hearing to January 11, 2012. On January 11, 2012, at the close of the hearing, the parties were granted permission to file written closing arguments by January 27, 2012. After the parties’ timely filed their closing briefs, the record was closed and the matter was submitted.

ISSUE¹

Did District’s offer of placement and services in Student’s Individualized Education Program (IEP) dated October 27, 2010, completed on December 9, 2010, and amended on April 25, 2011, constitute a free appropriate public education (FAPE) in the least restrictive environment (LRE)?

FACTUAL FINDINGS

Jurisdictional and Background Information

1. Student is a 17-year-old young lady who at all relevant times resided within the boundaries of District. Student is eligible for special education and related services under the primary eligibility category of other health impairment (OHI), as a result of her attention deficit hyperactivity disorder (ADHD). Student is also eligible under the secondary eligibility category of specific learning disability (SLD).

2. Student initially qualified for special education services in 2000, when she was six-years-old. She attended school in several other school districts, where she had a significant history of multiple school changes, before attending school in District beginning in August 2010. Specifically, Student attended 10 different schools. Father, who provided testimony at hearing, explained that Student had multiple school placements because of problems stemming from her ADHD, as well as her oppositional defiant disorder (ODD). Special education placements had not worked for Student in the past, because the classes, in his opinion, were not designed for students who had ADHD, but rather for students with autism or an intellectual disability.

3. In the prior districts, Student received services that ranged from general education placement with instructional aide support to resource program pull-out services, to contained special day classes, to non-public school placements. In 2000, her primary eligibility category was SLD, which was later changed to OHI. In 2001, Student’s eligibility category was changed to emotional disturbance (ED). In 2005, Student’s primary eligibility category was changed back to OHI, and she no longer met the criteria for ED.

4. On July 15, 2009, Student’s private psychiatrist, Dr. Ariel De Llanos, who had seen Student as a patient since November 2008, wrote a one-page letter, pursuant to Father’s request, addressed to “To Whom It May Concern.” Dr. De Llanos advised in the letter that she had diagnosed Student with ODD, and ADHD with mood dysregulation and chronic irritability. Student, in her opinion, had been resistant to treatment, had a profound disrespect for Mother, had medication noncompliance, and a prominent rejection to authority. Despite eight months of treatment, which included mood regulators, weekly psychotherapy sessions, and family therapy, Student rejected all forms of treatment. Dr. De Llanos advised in the letter that Student felt “normal” and did not need “all those stupid doctors.” Due to Student’s constant rejection of any treatment modality, Dr. De Llanos advised that she could no longer treat Student, and felt it best for Student to find another physician for her psychiatry care. Dr. De Llanos also stated in the letter that she gave Mother a very strong suggestion that what Student ultimately needed was long-term residential care, as Dr. De Llanos felt it would be the most effective treatment for Student. Father provided the letter to the school district that Student had attended at that time. Dr. De Llanos did not testify at hearing.

5. Beginning in August 2010, when Student was in 10th grade, Student began attending District’s La Costa Canyon High School (LCCHS), which was a comprehensive high school that had approximately 2,700 students, and located on a sprawling campus. LCCHS had a two-hour rolling block class schedule, where the students received the equivalent of two class sessions for each subject. Student initially enrolled in mostly general education classes.

September 10, 2010 IEP

6. On September 10, 2010, the IEP team met for the purpose of establishing Student’s 30-day administrative placement. The attendees included Father and Student’s mother (Mother) (collectively, Parents), Kelly Borders, who was an education specialist, Lisa Krassny, who was a speech pathologist, Kristin Singh², who was a school psychologist, and the District Program Specialist, Meredith Wadley. District provided Parents with a notice of procedural safeguards. At the time of the IEP meeting, District had not received all of Student’s records from her previous school districts. The team reviewed Student’s most recent IEP from her previous school district developed in September 2009, as well as a transcript Parents provided from the Fusion Learning Center, which was a placement paid by her previous district.

7. Father explained to the team that Student had not performed well in special education classes, because Student disliked them, as she constantly worried about a perceived stigma associated with attending special education classes. In addition, Father explained that Student often felt as though she was mentally impaired because she had to attend special education classes, and she often worried about others treating her as if she was stupid.

8. In order to get a better idea of where Student currently performed academically, behaviorally, socially, and emotionally, the IEP team agreed to begin Student’s triennial assessments early, which were initially due in 2012, and move up her triennial review. District members agreed to develop a triennial assessment plan, and mail it home to Parents by September 29, 2010.

9. As her 30-day administrative placement, the team made an offer of placement and services consistent with the placement and services she had received from her most recent school district. Specifically, District offered Student 2,300 minutes of special education support per month in LCCHS’s Learning Center, and 60 minutes of workability consultation services per month.

10. Parents agreed to District’s offer. Parents did not raise any discussion about residential treatment facilities, and did not provide the team with a copy of the July 15, 2009 letter from Dr. De Llanos.

October 1, 2010 IEP

11. On October 1, 2010, the IEP team met for the purpose of reviewing Student’s credits and progress, and to change her placement. The attendees included Father, Ms. Borders, Ms. Wadley, and general education teacher, Catherine Close. Mother did not attend the IEP meeting, as Parents had recently divorced, and she had moved out of state. Although Parents had joint custody of Student, Father had primary physical custody of Student.

12. District provided Father with a notice of procedural safeguards. The general education teacher then reported to the team that Student had struggled with on-task behavior. Student also required significant prompting to complete her class work, and often engaged in avoidant behaviors, which had become disruptive, and impeded her learning and the learning of others. The team agreed to consult with the school psychologist to conduct classroom observations and assist in developing a behavior support plan (BSP) to address Student’s inattention in class.

13. In addition, District members offered to make a referral for the County of San Diego Department of Mental Health (CMH) to conduct a mental health assessment. District provided Father with a packet for him to complete in order for District to begin the mental health services referral. However, Father declined a mental health assessment for Student, as Student had a private behavior specialist from whom she received therapy.

14. The team discussed Student’s class credits based on several boxes of records District received from the previous school districts after the September 10, 2010 IEP meeting. The documents did not include a copy of the July 15, 2009 letter from Dr. De Llanos. The team noted that Student was 25 credits deficient. Consequently, District enrolled Student in a credit recovery program. The team agreed to reconvene on or before November 15, 2010 to review the proposed BSP. Father consented to the IEP. Father neither raised any discussion about residential treatment facilities, nor provided the team with a copy of the July 15, 2009 letter from Dr. De Llanos.

15. In mid-October 2010, Father provided District with a release to speak with Student’s private psychologist, Dr. Margot Kopley.

Speech and Language Assessment

16. District’s speech pathologist, Lisa Krassny, conducted a speech and language assessment of Student for her triennial review, and prepared a report dated October 21, 2010. Ms. Krassny, who provided testimony at hearing, has been employed with District as a speech and language pathologist for 25 years, and was assigned to LCCHS during the time in which Student attended the school. She received her bachelor’s degree in speech pathology and audiology in 1982 from the University of Seattle, and received her master’s degree in speech pathology from Ohio University in 1984. She holds a clinical rehabilitation credential, and a state license for private practice work. She attends about 130 IEP’s in a given school year, and assesses 65 students, on average, in a given school year.

17. Ms. Krassny administered the Listening Comprehension Test Adolescent (LCTA), the Clinical Evaluation of Language Fundamental – 4 (CELF-4), and the Test of Auditory Processing Skills – 3 (TAPS-3). Ms. Krassny explained that the assessments were valid, because she followed the assessment rules set forth by the publisher, and there were no disruptions in the testing. Ms. Krassny noted that Student was polite, cooperative, and appeared to try her best during the testing process, but found that Student had significant difficulty focusing and maintaining concentration.

18. On the LCTA, Student scored in the 58th percentile on the main idea subtest, in the first percentile in the details subtest, in the 21st percentile on the reasoning subtest, in the 14th percentile on the vocabulary and semantics subtest, and in the 8th percentile on the understanding messages subset. Her total test score was in the 10th percentile.

19. On the CELF-4, Student scored in the 50th percentile on the recalling sentences subtest, in the 25th percentile on the formulated sentences and word-classes receptive subtests, in the 37th percentile on the word-classes expressive subtest, in the 91st percentile on the word definitions subtest, and in the fifth percentile in the understanding spoken paragraphs and semantic relationships subtests. Student’s overall receptive language score fell in the fifth percentile, and her expressive language score fell in the 37th percentile.

20. On the TAPS-3, Student scored in the 50th percentile on the word discrimination and phonological segmentation subtests, and in the 84th percentile on the phonological blending subtest. Her phonological cluster score was in the 63rd percentile. Student scored in the 75th percentile on the number memory forward subtest, in the 25th percentile on the number memory reversed and sentence memory subtests, and in the first percentile on the word memory subtest. Her memory cluster score was in the 23rd percentile. Student scored in the 25th percentile on the auditory comprehension subtest, and in the 37th percentile in the auditory reasoning subtest. Her cohesion cluster score was in the 32nd percentile.

21. When examining the results of the LCTA, CELF-4, and the TAPS-3, Ms. Krassny found, in the area of receptive language and memory skills, Student scored in the below average range, given her significant below average performance on the CELF-4, particularly on the understanding spoken paragraphs and semantic relationships subtests. However, on the TAPS-3, which tested Student’s auditory skills, Student scored in the average range on the phonological, memory, and cohesion clusters. She also scored in the average range on the LCTA on questions in the categories of identifying main ideas, reasoning, vocabulary, and semantics, but scored in the below average range in her ability to answer questions relating to details presented in stories and messages. Ms. Krassny concluded that, although Student had a scatter of scores in the area of auditory memory and comprehension, this area appeared to be a weakness for Student. She also concluded that Student’s auditory memory and comprehension skills were heavily impacted by Student’s limited ability to maintain focus and concentration.

22. In the area of vocabulary skills, Student scored in the above-average to low-average range. Specifically, Student scored in the average range in her ability to explain the association between pairs of words, and in the above-average to define words. She scored in the low-average in the area of vocabulary and semantics.

23. In the area of grammar skills, Student scored in the average range for her age in the ability to orally produce grammatically complete and correct simple and complex sentences. However, Ms. Krassny noted that Student lacked general organization of expressive language for sequencing thoughts and events in conversational speech. In addition, although Ms. Krassny did not formally assess Student in the area of pragmatic skills, she noted that Student had appropriate social skills for the testing environment, responded appropriately when meeting and greeting Ms. Krassny, initiated and maintained conversation with appropriate eye contact, and asked appropriate questions. Ms. Krassny also noted no irregularities in Student’s articulation, voice, or fluency skills.

24. Ms. Krassny concluded that Student demonstrated weaknesses in receptive language and in the organization of her expressive language skills. As such, Ms. Krassny concluded that Student could qualify for an IEP under the handicapping condition of speech-language impaired (SLI), according to California’s criterion.

October 27, 2010 Triennial IEP

25. On October 27, 2010, the IEP team convened for the purpose of reviewing behavioral concerns about Student and to begin Student’s triennial IEP. The attendees included Father, Ms. Borders, Sarah Chi, who was a general education teacher and education specialist, Bjorn Paige, who was an assistant principal, Ms. Singh, and Ms. Wadley. District provided Father with a notice of procedural safeguards. The IEP identified Student’s areas of need as receptive language, problem solving, reading comprehension, math computation, math fluency, work completion, written expression, self-initiation, on-task behavior, and attendance.

26. The IEP team discussed Student’s behavior and noted that Student had been referred to the assistant principal’s office seven times since school began. Based on these incidents, the school psychologist, Ms. Singh, developed a BSP, which Ms. Singh presented at the IEP meeting. The BSP noted that Student engaged in behavior that impeded learning. Specifically, Student engaged in off-task, avoidant behavior in the classroom setting, including talking to friends, fidgeting, coming to class unprepared, passive refusal to do work, noncompliance to teacher requests, and coming to class tardy. The behaviors occurred daily in all class settings. In addition, Student required direct teacher prompting to complete tasks, and completed very little work independently. During Ms. Singh’s observation of Student in small group instruction (i.e., five students), she noted that Student required direct instruction from the teacher 18 of 20 minutes.

27. Ms. Singh concluded that Student’s off-task and avoidant behaviors were the result of multiple factors, including the level of difficulty of Student’s curriculum, a means of avoiding undesired tasks, and difficulty with sustained attention related to her diagnosis of ADHD. Student’s off-task and avoidant behaviors impeded her learning and the learning of others, as the behaviors had become disruptive in class. Ms. Singh recommended in the BSP that Student should sit near the source of instruction and away from distracting peers; receive frequent teacher checks for understanding and on-task behavior; receive visual prompts such as graphic organizers, sentence starters, and “to-do” lists; have access to a quiet environment for tests and assignments; receive a visual key from teachers that outlined the points/grades Student could earn based on the amount of work completed; receive instruction on self-monitoring and self-evaluations; and receive short (i.e., one to two minutes) sensory breaks to refocus after 15 minutes of continuous on-task behavior.

28. Ms. Singh also advised the team that Student was very resistant to special education supports and services. The team agreed to provide Student with 30 minutes of school-based counseling per week, and agreed for Ms. Singh to work with Student to develop a counseling goal. The team also agreed to implement the BSP.

29. The team reviewed Student’s academic progress, and noted that it appeared impacted by her significant attention issues. As such, the team agreed to utilize additional resources through the North Costal Consortium of Special Education (NCCSE) to conduct observations and provide recommendations for support services, and placement options for Student. The team agreed to reconvene on December 3, 2010 to review the observations and recommendations, as well as to review the triennial assessments results. In addition, the team agreed to adjust Student’s class schedule to provide additional math support with special education support. Father consented to the implementation of the BSP, the addition of counseling, and the addition of fundamental mathematics. Father did not discuss residential treatment facilities, or provide the team with a copy of the July 15, 2009 letter from Dr. De Llanos.

30. On October 27, 2010, District staff found Student in possession of marijuana on campus. Consequently, District required Student to participate in the Recovery, Education, and Alcohol & Drug Intervention Program (READI), in lieu of suspension, which included instructional days, community service, Alcoholics Anonymous and Narcotics Anonymous meeting attendance, and weekly group attendance. Father requested an IEP team meeting as a result of Student’s marijuana incident.

November 5, 2010 IEP

31. On November 5, 2010, the IEP team convened to discuss Father’s concerns about Student’s safety on campus, specifically as it related to Student’s access to marijuana at school, the negative influences of other students, and Student’s questionable judgment during passing periods. The attendees included Father, Ms. Borders, Ryan Gold, who was a general education and Learning Center specialist, Mr. Paige, and Ms. Wadley. District provided Father with a copy of procedural safeguards. At the meeting, Father requested that Student have a staff member assigned to her throughout the school day.

32. District offered Student 100 percent placement in the LCCHS’s Learning Center with instructional support, as well as a staff member to escort Student from the parent drop-off area at the beginning of the school day, as well as to the parent pick-up area at the end of the school day. The team also decided that, based Student’s excessive tardies, Student would remain in the Learning Center during breaks and lunch to minimize her tardies and time out of class. The team also agreed to drop Student’s general education English and enroll Student in fundamental English, to be provided in the Learning Center. The team agreed that the placement at the Learning Center was temporary, and not a stay put placement, and they agreed to review the placement at the triennial IEP scheduled for December 3, 2010.

33. At the meeting, Father requested an audiology assessment. The team agreed to discuss the request at the December 3, 2010 IEP.

34. Father consented to the IEP. Father neither raised any discussion about residential treatment facilities, nor provided the team with a copy of the July 15, 2009 letter from Dr. De Llanos.

35. Ten days later, on November 15, 2010, the IEP team convened, pursuant to Father’s request. Father advised the team that Student’s safety on campus was no longer his primary concern. Rather, Student’s social-emotional well-being was of greater concern, because Student felt stigmatized by the presence of the escort. She also felt disgraced by having to receive all of her instruction in the Learning Center. In addition, Student began acting out a home as a result of her resentment for having to have an escort and attend the Learning Center for 100 percent of her school day. She also expressed unwillingness to complete work in the Learning Center. Consequently, Father requested that District cease all escort services, and requested that Student be allowed to return to her previous placement and courses. The team agreed to amend the October 27, 2010 IEP to eliminate escort services, and return Student to her regular class schedule, which included 67 percent (2,300 minutes) of her school day in special education in the Learning Center, because they wanted Student to willingly participate in her education.

36. Father consented to the amendment. Father neither raised any discussion about residential treatment facilities, nor provided the team with a copy of the July 15, 2009 letter from Dr. De Llanos.

Psychoeducational Assessment

37. On November 9 and 16, 2010, Ms. Singh, who provided testimony at hearing, conducted a psychoeducational assessment of Student as part of Student’s triennial review. Ms. Singh has worked for District for the past six years as a school psychologist. Prior, she worked for two years as a school psychologist for the San Diego Unified School District. She received her bachelor’s degree in psychology from University of California at Irvine in 2000, and her master’s degree in psychology from Humboldt State University in 2003. She holds a PPS credential in school psychology, which she received in 2004. Her duties as a school psychologist include conducting psychoeducational assessments, participating in IEP meetings, and providing counseling to students. In her career as a school psychologist, she has conducted approximately 800 psychoeducational assessments, and has attended up to 1,200 IEP meetings. Ms. Singh first became aware of Student in September 2010, after Student’s enrollment in LCCHS.

38. In preparation for her assessment, Ms. Singh reviewed Student’s school records that District had received from Student’s other school districts. Ms. Singh also attempted, on two occasions, to interview Student’s private therapist, Dr. Kopley, but Dr. Kopley never returned Ms. Singh’s telephone calls.

39. Ms. Singh’s records review showed that Student’s teachers noted significant difficulty in her ability to maintain attention and focus, as well as difficulty with motivation and independent work completion. The teachers also noted behavioral concerns, such as off-task behavior, avoidant behaviors, and defiance. Previous IEP notes and goals showed that Student made the most academic and social progress when she received individual or very small group instruction.

40. Ms. Singh noted that in her current placement, Student continued to struggle with off-task behavior, avoidance, significant distractibility, and poor behavioral choices. Student required a very high degree of prompting to stay on task, and a high degree of individual attention in her classes in order to complete any work. In addition, Student engaged in defiant and disruptive behaviors, resulting in 11 discipline entries since the start of the school year. Ms. Singh also noted Student’s possession of marijuana and the resultant enrollment in the READI program. In addition, Ms. Singh reviewed Student’s attendance records, and found that Student had nine period truancies, and 19 period tardies since the start of the school year.

41. Ms. Singh reviewed previous Student’s assessments. She noted that in 2005, Student’s cognitive abilities were in the average range overall, and her nonverbal reasoning was in the low average range. Student had psychological processing deficits in the areas of attention and sensory motor skills. In 2008, Student’s cognitive ability was in the borderline range overall, with strengths in the area of working memory. In addition, Student’s verbal comprehension and perceptual reasoning were in the low average range, and her processing speed was significantly below average. Student’s visual-motor integration skills were low, and she scored below average overall on tests of auditory processing. Ms. Singh also noted that Student’s audiology reports conducted in 2005 and 2006 confirmed central auditory processing disorder.

42. Ms. Singh used the following assessment tools: (1) Cognitive Assessment System (CAS); (2) Beery-Buktenica Developmental Test of Visual-Motor Integration (VMI); (3) Behavior Rating Inventory of Executive Function (BRIEF); (4) Woodcock-Johnson III (WJ-III); and (5) Behavior Assessment System for Children (BASC). Ms. Singh considered Student’s racial, ethnic, and linguistic backgrounds prior to the selection and interpretation of assessment procedures and measures. Ms. Singh administered the assessment tools according to standard procedures and for the specific purposes recommended by the publishers. Although Ms. Singh considered the tests to be fairly reliable estimates of Student’s cognitive functioning and expected levels of academic achievement, she noted that the results of the assessment should be interpreted with extreme caution, as it was difficult to ascertain the extent to which Student’s attentional and motivational difficulties impacted her performance. Specifically, at times, Student appeared to rush through items, responding without much thought or without looking at all of the response options.

43. Ms. Singh administered the CAS to measure Student’s processing and cognitive abilities. Overall, Student’s performance on the CAS ranged from very low to high average, with significant scatter noted between all subtests. Student’s quotient score in the area of planning fell in the below average range overall, with a standard score of 77, which represented the eighth percentile. Her quotient score in the area of simultaneous processing fell into the very low range, with a standard score of 73, which represented the fourth percentile. In the area of attention, Student’s quotient score fell in the average range, with a standard score of 91, which represented the 27th percentile. Student’s quotient score in the area of successive processing fell in the average range, with a standard score of 108, which represented the 70th percentile.

44. Ms. Singh administered the VMI to assess Student’s perceptual skills, fine motor coordination, and her ability to integrate both processes. Student scored in the very low range on the Beery VMI subtest, with a standard score of 69, representing the second percentile. In the visual perception subtest, Student scored in the below average range, with a standard score of 83, representing the 13th percentile. In the motor coordination subtest, Student scored in the below average range, with a standard score of 79, representing the eighth percentile.

45. Ms. Singh distributed the BRIEF, which was a questionnaire for parents and teachers, to assess executive function behaviors in the home and school environments. Specifically, Ms. Singh gave the BRIEF questionnaire to Father, and three of Student’s LCCHS teachers. Student’s scores on the behavioral regulation index, which included the inhibit, shift, emotional control, and self-monitor scales, were primarily in the significant range overall. Specifically, on the inhibit scale, which assessed inhibitory control and impulsivity, Student scores were highly elevated compared to her peers. This suggested that Student had difficulty resisting impulses and considering consequences before acting. On the shift scale, which assessed the ability to move freely from one situation, activity, or aspect of a problem to another, Student’s score was significantly elevated compared to her like-aged peers. This suggested that Student had marked difficulties with behavioral shifting, attentional shifting, and/or cognitive shifting, which could compromise problem-solving abilities. On the emotional control scale, which measured the impact of executive function problems on emotional expression and assessed the ability to modulate or control emotional responses, Student’s score was significantly elevated. This suggested that Student was likely to overreact to events and likely demonstrated sudden outbursts, sudden and/or frequent mood changes, and excessive periods of emotional upset.

46. Student’s scores on the metacognitive index of the BRIEF, which included the working memory, planning and organization, organization of materials, and task completion scales, were consistently within the significant range. Specifically, on the initiate scales, which measured Student’s ability to begin a task or activity and to independently generate ideas, responses, or problem-solving strategies, Student’s score was significantly elevated compared with like-aged peers. This suggested that Student had marked difficulty beginning, starting, or “getting going” on tasks, activities, and problem-solving approaches. On the working memory scale, which measured the capacity to hold information in mind for the purpose of completing a task, encoding information, or generating goals, plans, and sequential steps to achieving goals, Student’s scores were significantly elevated. This suggested that Student had substantial difficulty holding an appropriate amount of information in mind or in active memory for further processing, encoding, and/or mental preparation. Her scores also suggested difficulties sustaining working memory, which had a negative impact on her ability to remain attentive and focused for appropriate lengths of time.

47. On the plan and organization scale, which measured Student’s ability to manage current and future-oriented task demands, Student score was significantly elevated, which suggested that Student had marked difficulty with planning and organizing information which had a negative impact on her approach to problem solving. On the organization of materials scale, which measured the orderliness of Student’s work, play, and storage spaces, Student’s score ranged from average to significant, depending on the rater. This suggested that Student, in some circumstances, could keep her personal belongings organized. On the monitor scales, which assessed task-oriented monitoring or work-checking habits and self-monitoring or interpersonal awareness, Student’s score was significantly elevated. This suggested substantial difficulty with monitoring, and a tendency to be less cautious in her approach to tasks or assignments.

48. Student also completed a BRIEF questionnaire. On the inhibit scale, Student viewed herself as typically able to resist impulses and to consider consequences before acting. On the shift scale, Student’s score was significantly elevated, which suggested that Student experienced difficulty with both behavioral and cognitive flexibility. On the emotional control scale, Student scored in the average range as compared to like-aged peers, which suggested that Student experienced herself as having appropriate ability to modulate or regulate emotions overall. On the monitor scale, Student’s score was mildly elevated, suggesting some difficulty with monitoring her own behavior in social settings. On the working memory scale, Student’s score was mildly elevated, which suggested that Student experienced some difficulty holding an appropriate amount of information in mind or in active memory. On the plan and organization scale, Student’s score was within the expected ranged, which suggested that Student perceived herself as able to plan and organize her approach to problem solving appropriately, and was able to grasp the overall structure or framework of novel information that facilitated learning and later recall. On the organization of materials scale, Student’s score fell in the average range relative to like-aged peers. Student described herself as able to keep materials and belongings reasonably organized. On the task completion scale, Student’s score fell in the mildly elevated range, which suggested that Student had difficulty finishing homework or other projects in a timely fashion.

49. Education pecialist, Kelly Border, administered the WJ-III to assess Student’s academic achievement, which Ms. Singh incorporated into her psychoeducational assessment report. Student’s academic skills ranged from very low in the areas of math and written expression, to average in basic reading. Specifically, Student’s broad math score was in the very low range in math reasoning and math calculation, and in the below average range in math fluency for basic addition, subtraction, and multiplication. Student’s broad reading score was in the average range overall, with average scores in reading, decoding, and fluency, and below average scores in reading comprehension. Student’s broad written language was in the below average range overall, as her writing samples were in the very low range. However, she demonstrated average spelling and writing fluency. Student’s oral language cluster score was in the below average range overall. She scored in the low average range for auditory short-term recall and working memory, and in the very low range for long-term memory.

50. Ms. Singh assessed Student’s social-emotional functioning and self-perceptions by issuing BASC rating scales to Student, Father, and Student’s teachers. The BASC rating scales examined Student’s behaviors in the areas of internalizing problems, externalizing problems, school problems, adaptive skills, and behavior symptoms. Student completed the BASC self-report of personality, and scored in the average range overall on the school problems composite. Specifically, she reported a generally positive attitude toward school, but a slightly negative attitude toward teachers. She did not report any tendencies toward risk-taking or thrill-seeking behaviors. On the internalizing problems composite, Student scored in the average range overall, and did not report any thoughts or feelings associated with social stress, anxiety, depressed mood, or somatic complaints. Her scores on the inattention/hyperactivity composite were in the average range overall, with a slightly elevated score on the attention problems scale. She did not report any feelings of hyperactivity or restlessness. Student’s scores on the personal adjustment composite were in the average range overall. She reported slightly strained relationships with her parents at times, but positive relationships with her peers. She also reported having positive self-esteem, and a strong sense of self-reliance.

51. The BASC rating scales completed by Father and Student’s teachers showed that Student scores on the externalizing problems composite were in the significant range for three raters, and in the average range for one. They reported that Student demonstrated a high degree of hyperactivity, impulsivity, and conduct problems, including defiance, lying, and rule breaking, in the home and school environments. Scores on the internalizing problems composite were in the average range for all raters, however, Father rated her in the at-risk range for depressive symptoms. Scores on the school problems composite ranged from at-risk to significant for all teacher ratings. Student’s teachers reported a high degree of attention problems and learning problems, which was consistent with Father’s rating of significant on the attention problems scale. Scores on the adaptive skills composite ranged from at-risk to significant. The raters indicated difficulties with adaptability, social skills, study skills, and functional communication. Results of the content scales reflected concerns with anger control, bullying behaviors, poor social skills, communication with others, and poor executive functioning. Mild concerns were noted with negative emotionality and lack of resiliency. Based on the parent and teacher ratings, Ms. Singh noted diagnostic indicators for ADHD and conduct disorder, which were consistent with Student’s previous diagnoses.

52. Based on the results of the assessments, Ms. Singh concluded that Student continued to meet the eligibility criteria for OHI, due to significant attention and executive functioning deficits associated with a diagnosis of ADHD, which impacted Student’s academic performance. She also concluded that Student met the eligibility criteria for SLD, due to discrepancies between Student’s cognitive ability and academic achievement in the areas of reading comprehension, math calculation and reasoning, and written expression, coupled by deficits in visual-motor integration, visual processing, and auditory processing. Ms. Singh, who was aware of Student’s previous eligibility of ED in 2001, considered ED, but found that Student did not meet the criteria for ED. At hearing, Ms. Singh advised that her assessment did not uncover signs of depression, anxiety, or OCD. Ms. Singh recommended that the IEP team review the results of her assessment in conjunction with additional assessment reports, school records, teacher feedback, and parental input in determining the most appropriate level of service and accommodations to meet Student’s individual needs.

Continued Triennial IEP Meeting of December 9, 2010

53. Student’s triennial IEP meeting was scheduled to convene on December 3, 2010, however Father was unable to attend on that day. Consequently, the IEP team convened for Student’s triennial review on December 9, 2010. The attendees included Father, Ms. Borders, Mr. Gold, Ms. Wadley, Ms. Krassny, Ms. Singh, and Student’s advocate, Andrea Frimmer, M.Ed. District provided Father with a copy of procedural safeguards.

54. Ms. Krassny presented her speech and language assessment results to the team, and recommended speech and language services of 60 minutes per week in two 30 minute sessions. The team noted that Student’s previous school district had discontinued speech services, and noted that Student had a previous diagnosis of auditory processing deficits. Consequently, the team agreed to fund an auditory processing assessment conducted by a District contracted assessor. Ms. Singh reviewed her psychoeducational assessment results, and Ms. Borders presented the results of the WJ-III. Based on these results, the team concluded that Student continued to meet the eligibility criteria for special education services under the primary disability category of OHI, due to her ADHD, and the secondary disability category of SLD.

55. The team reviewed, and the IEP document included, Student’s present levels of performance based on the results of the academic, speech and language, and psychoeducational assessments, and determined that Student’s areas of need were receptive language, problem solving, reading comprehension, math computation, math fluency, work completion, written expression, self-initiation, on-task behavior, and attendance. The team then discussed and developed 10 measurable goals in those areas of need. At hearing, Ms. Singh expressed that the goals developed by the team were appropriate for Student, as they were designed to address her unique needs as identified in her assessment reports.

56. The IEP also included a statement of how Student’s disability affected her involvement and progress in the general education curriculum. Specifically, the IEP stated that Student’s “ADHD impacted her ability to access the general education curriculum, and necessitated special education support.”

57. At the meeting, Father requested a residential treatment center placement for Student, but neither Father nor Student’s advocate provided any reports or documents suggesting that a residential treatment center was appropriate, including the July 15, 2009 letter from Dr. De Llanos. District members of the team explained that they were not prepared to make a residential placement, as a mental health assessment had previously been declined by Father. Father then agreed to accept the offer of a mental health assessment, and agreed to complete the mental health assessment referral packet and return it to District. District members agreed to process the mental health assessment referral within three business days of their receipt of the packet from Father.

58. District made the following offer of placement and services: non-public school (NPS) placement at Arch Academy (Arch), including related services of speech and language services of 60 minutes per week (two 30 minute sessions), school-based counseling services 30 minutes per week, workability consultation services of 60 minutes per month, and curb-to-curb transportation services. District also agreed to provide accommodations and modifications that included sensory breaks to help Student refocus, chunk instruction and assignments into manageable pieces, provide visual support for auditory instruction, consult with general education teachers, check Student for understanding, provide preferential seating, provide the use of a calculator or multiplication chart for math assignments and assessments, provide a graphic organizer for written assignments, provide access to a word processor for written assignments, provide access to support staff (e.g., school psychologist, counselor, case manager) when needed, assist with organization of tasks and assignments, and provide the use of a calculator for the California High School Exit Examination (CAHSEE). The IEP also included an Individualized Transition Plan (ITP), which the team reviewed and discussed, that included post secondary goals, transition services, and activities.

59. Father, who had once visited Arch several years prior when another school district considered it as a placement for Student, agreed to visit Arch again before making a decision whether to accept the placement. He consented to the audiology assessment, the mental health assessment, and speech and language services. The team agreed to reconvene to review the offer of placement and services following Father’s observation of Arch.

60. Meredith Wadley, District Program Specialist, who attended every IEP meeting concerning Student since she enrolled in District, provided testimony at hearing. Ms. Wadley has been District Program Specialist for seven years. In that capacity, she serves as an administrative designee in IEP meetings, where she attends approximately 400 IEP meetings per year. Prior to becoming District Program Specialist, Ms. Wadley was a general education teacher for six years with District, for grades nine through twelve. In addition, she served as a guidance counselor for District for 13 years. She received her bachelor’s degree in social studies from the University of Redlands in 1985, and her master’s degree in school counseling and guidance from Point Loma Nazarene University in 1994. Ms. Wadley has a PPS credential and a preliminary administrative credential. At hearing, Ms. Wadley explained that the team believed that Student needed a smaller environment than that of a comprehensive campus to meet her behavioral needs, off-task behavior, class-toclass and free time transitional issues, and her social, emotional, behavioral, and academic issues. In addition, Ms. Wadley felt that LCCHS’s two-hour block schedule was difficult for Student due to her inattention issues. Ms. Wadley had observed Arch, which was a small NPS self-contained program that also provided related services. Arch contained 25 students in its entire program, for grades seven through twelve, and had a therapeutic component embedded in its program. Ms. Wadley spoke to Arch’s director and principal about Student’s needs, and provided Arch with a packet that including Student’s IEP’s. The director and principal advised that Arch could implement the goals set forth in the IEP, and could meet Student’s unique needs. Ms. Wadley felt the program at Arch was appropriate for Student, as it minimized transitions, provided a smaller and more structured environment, provided the related services Student required, and provided a therapeutic environment on the campus. Ms. Wadley explained that she and the other District members of the IEP team felt that they had exhausted all resources to help Student access her curriculum prior to offering a NPS, such as a BSP, school counseling, an escort, and the Learning Center.

61. Ms. Borders testified at hearing. Ms. Borders was Student’s Learning Center teacher and case manager and had attended all of Student’s IEP team meetings. Ms. Borders has been a special education teacher for ten years. Prior, she was a teacher at a private high school, and an adjunct professor at Azusa Pacific University, where she taught aspiring special education teachers for four years. She received her bachelor’s degree in physical therapy from San Francisco State University in 1996, earned her credential in 2002, and received her master’s degree from National University in special education in 2003. In her capacity as Student’s case manager, she attended Student’s IEP’s and ensured that Student’s teachers were aware of Student’s goals, objectives, accommodations, and modifications. In her capacity as Student’s teacher, she provided Student with academic support, tackled organizational issues, reviewed homework given by other teachers, and assisted with basic skill remediation. As Student’s teacher, Ms. Borders observed that Student had executive functioning, academic, social-emotional, and motivational needs. Ms. Borders opined that Student needed a smaller environment, as Student required less distractions and more structure than that offered in a large comprehensive environment. Ms. Borders felt that Arch was an appropriate placement for Student, because of the substantially smaller environment, and because Arch, which had a year-round program, offered classes one at a time, as opposed to requiring students to take six classes at a time. As such, Student would have a better chance of accessing her curriculum given her attention needs and social-emotional needs. This was especially important because Student seemed overwhelmed by the six classes she was required to take at LCCHS.

62. At hearing, Ms. Singh also persuasively opined that Student required a higher level of service than what District could provide at LCCHS and that Arch was appropriate. Specifically, Ms. Singh believed that Student required a more contained environment, a smaller teacher to student ratio, a program that provided counseling, and a program that limited her transition from class to class, given her history of transitioning problems. Ms. Singh felt that Arch could meet those needs.

63. Ms. Krassny implemented speech and language services after the December 9, 2010 IEP meeting. Specifically, she met with Student once for a 30 minute session. When she tried to convene more sessions, Student was listed as truant. Thereafter, District closed for winter break.

64. Father visited Arch in December 2010. At hearing, Father explained that his overall impression of Arch was that it would not be able to address Student’s psychological and behavioral issues, because it was a very pronounced special education environment, with approximately 50 percent of the students appearing to be low functioning, and intellectually disabled. Consequently, Father felt that Student would not thrive in that environment, and that she would shut down. Furthermore, given Student’s unsuccessful history in special education classes, and the extent of Student’s behavioral, emotional, and academic challenges, Father opined that Student would not show substantial improvement unless she was in a therapeutic environment 24 hours a day, seven days a week. He also felt that Student was running out of time because her high school years were almost over, yet she had not made the academic, behavioral, and social-emotional progress he felt she should have made. As such, Father concluded that neither Arch, nor any other non-residential placement, would be appropriate for Student. He decided at that time that he would not consent to anything less than a residential placement for Student.

65. Thereafter, Father discovered that Student had communicated on the family computer to arrange to receive drugs at school from peers. Father also discovered that Student had begun cutting herself. At hearing, Father explained that he felt a sense of urgency to get Student in a residential placement, because of her drug use, and because he felt Student was out of control and shutting down.

66. On December 13, 2010, Student’s private psychologist, Dr. Kopley, provided Father with a one page, handwritten letter to support Father’s request for residential treatment for Student. Dr. Kopley’s letter advised that she had been treating Student since October 2010, and felt that it was evident that Student required a comprehensive, 24 hours a day, seven days a week, program to address Student’s social, emotional, behavioral, and academic functional impairments. She further stated that Student needed to attend a setting that would have the components of behavioral programming, social-emotional support and education, and educational assistance. Dr. Kopley also stated that a special education environment would likely alienate Student. Dr. Kopley’s letter included no reference to any assessment results that formed the basis of her recommendation. Father provided District with a copy of Dr. Kopley’s letter at around the time he received the letter, which was near the time school closed for winter break. Dr. Kopley did not testify at hearing.

67. On January 4, 2011, after winter break, Father unilaterally placed Student in an out-of-state residential facility, pursuant to the recommendation of Dr. Kopley. Specifically, Father placed Student at Aspen Ranch Academy (Aspen Ranch) in Utah, which was a therapeutic boarding school for adolescents experiencing emotional, behavioral, and mental health issues. On the same day, Father notified District via email that he placed Student at Aspen Ranch, and would be seeking reimbursement for the residential placement. Father obtained a 30 year loan to pay for Student’s placement at Aspen Ranch, and paid Aspen Ranch $6,000 per month. At the time, Father had not returned the mental health assessment referral packet to District.

68. On or about January 5, 2011, Ms. Singh learned about Dr. Kopley’s December 13, 2011 letter, after returning from winter break.

January 12, 2011 IEP

69. On January 12, 2011, the IEP convened for the purpose of reviewing the offer of placement and services. The attendees included Father, Ms. Borders, Mr. Gold, Ms. Wadley, Ms. Krassny, Ms. Singh, Dr. Eric Beam, who was the Director of Special Education, a family friend, and educational attorney, Mara Allard. District provided Father with a copy of procedural safeguards.

70. The team first discussed Student’s discipline record, which showed that Student had 14 documented incidents in her record, with attendance and tardies comprising the majority of entries. Specifically, the team noted that as of December 9, 2010, Student had 32 period tardies and nine period truancies, and attended school 58 out of 64 days of enrollment. The team then discussed the graduation process, noted that Student was approximately a semester behind schedule, and advised that given Student’s unilateral placement at Aspen Ranch, she would not receive normal semester grades from District, but would rather receive transfer grades for her class work that Student had completed at the time of the unilateral placement.

71. Father advised the team that he had visited Arch and believed Arch was inappropriate, because most of the students appeared to have needs primarily related to autism, and that Arch would not have met Student’s special and emotional needs. Rather, Father believed Aspen Ranch would best meet Student needs, because it offered a multitude of services for her social and emotional needs, such as equine therapy, peers with similar needs, one-on-one academic instruction as needed, therapeutic services, and supervision 24 hours a day, seven days a week.

72. District members advised that they believed a placement in a residential, outof-state facility was unnecessarily restrictive for Student to access educational benefit in the least restrictive environment. Specifically, District members felt the clinical need for acute or crisis intervention did not drive educational placement decisions, especially considering the absence of incarcerations or hospitalizations, and believed that District could meet Student’s needs in an environment that was less restrictive than a residential placement. In addition, District members felt that Student’s primary obstacles in accessing her curriculum were off-task and avoidant behaviors, which did not warrant a residential placement. Also, District members reiterated that Student did not qualify for special education under the eligibility category of ED. As such, Student did not demonstrate that she required a 24 hour, seven days a week, therapeutic setting. Moreover, District IEP team members believed the offer of placement and services in the December 9, 2010 IEP was designed to meet Student’s needs, as well as address, as necessary, her social-emotional issues that prevented her access to the curriculum.

73. District continued to offer placement at Arch to address Student’s academic, on-task behavioral, and executive functioning needs. The placement included speech and language services of 60 minutes per week (two 30 minute sessions), school-based counseling services 30 minutes per week, workability consultation services of 60 minutes per month, curb-to-curb transportation services, a BSP, and continued offer for an audiology assessment, contingent upon Father making Student available for the assessment. In addition, District continued to offer a referral for a mental health assessment for consideration of eligibility for mental health services, as well as an Independent Educational Evaluation (IEE) with a mutually agreed upon assessor to reconsider the eligibility criteria of ED. District offered the IEE as a way to resolve the disagreement of whether a residential placement was appropriate, and not because District believed that its offer of Arch was inappropriate. Father and the educational attorney disagreed with the offer of placement and services, so Father declined to provide his consent. Father requested the team to consider further information from Aspen Ranch, but Father never provided any further documents.

74. At hearing, Ms. Singh explained that in her experience as a school psychologist, students that required residential placement were generally those who had demonstrated significant maladaptive behaviors, which Ms. Singh did not see in Student.

75. On January 13, 2011, Ms. Singh sent a letter to Dr. Kopley requesting more information for the basis of her recommendation that Student warranted placement in a residential facility. Dr. Kopley never responded to the letter, and never contacted Ms. Singh.

76. On January 25, 2011, Ms. Wadley, sent Father a letter advising that District had sent him, via registered mail on January 19, 2011, another packet to begin a mental health services referral. Ms. Wadley also advised that District would process the packet within three business days upon its receipt from Father. In addition, Ms. Wadley advised that District was still ready, willing, and able to complete Student’s audiology assessment, and requested Father to advise her when Student would be made available. Ms. Wadley further requested that if Father did not intend to have Student leave Aspen Ranch, to please advise District of that intention. Father never responded to this letter.

77. On February 7, 2011, Ms. Wadley sent Father, via certified mail, prior written notice of District’s response to Father’s request for reimbursement for his unilateral placement of Student at Aspen Ranch. Specifically, District denied Father’s request for reimbursement, as District believed that its offer of placement and services at the January 12, 2011 IEP constituted an offer of FAPE in the least restrictive environment. As of February 7, 2011, District had not received the mental health assessment referral packet from Father.

78. Thereafter, Father returned the mental health packet to District, which District processed, and forwarded to CMH. CMH received the packet on approximately February 15, 2011, which included IEP’s, Student’s psychoeducational assessment, speech and language assessment, and other records.

79. On March 17, 2011, CMH requested an extension of the timeline for conducting a mental health assessment, and an extension of the timeline for holding an IEP meeting. Because Student was out of state, CMH experienced obstacles in completing Student’s assessment in a timely fashion.

CMH Assessment

80. On March 25, 2011, Chrystyne Curry, LMFT, a licensed mental health clinician from CMH, completed an assessment of Student, and prepared a written report. Ms. Curry provided testimony at hearing. Ms. Curry received her bachelor’s degree in child psychology from West Virginia University in 1967, her master’s degree in marriage, family, and child psychology from Chapman University in 1996, and has had her marriage and family therapy license since 2000. Ms. Curry has worked for CMH for seven years, and has assessed children in grades kindergarten through twelfth grade that were referred by school districts for possible mental health issues. In her capacity as an assessor, Ms. Curry conducts 50 to 60 mental health special education assessments per year, attends approximately 50 to 60 IEP meetings per year, and has recommended approximately 75 to 100 children for residential treatment over the last seven years. At hearing, Ms. Curry explained that the purpose of mental health evaluations for special educations students was for CMH to make recommendations for treatment to help the special education student perform educationally.

81. Ms. Curry noted that District referred Student for an assessment due to problems with Student’s social, emotional, and behavioral functioning, that were impacting upon her ability to perform in the special education environment. She also noted that Student’s most recent difficulties included a contentious relationship with her parents, inattention and off-task behaviors, habitual tardiness and truancy, substance abuse, and a history of cutting.

82. Ms. Curry used the following assessment procedures: (1) conducted interviews of Father, Student (via webcam), Dr. Margot Kopley (Student’s private therapist), Ms. Wadley, Todd Graves (Student’s therapist at Aspen Ranch), Ms. Borders, and Ms. Singh; and (2) reviewed records. Specifically, Ms. Curry reviewed the November 2010 psychoeducational assessment report, the October 2010 speech and language assessment report, IEP’s dated September 10, 2010, October 27, 2010, December 9, 2010, and January 12, 2011, discipline records from October 2010 through January 2011, a bio-psycho-social assessment report from Aspen Ranch dated January 5, 2011, transcripts, grades, and attendance records.

83. During her interview with Father, Father reported that before he placed Student at Aspen Ranch, the atmosphere at home was unbearable. Father and Student had a contentious relationship. Student sometimes lost control, and would scream, yell, push Father, and throw things. Father advised that Student’s frustration level was low, and Student had poor self-esteem. She exhibited anxiety and had a history of cutting. Father reported that when Student was moved to the Learning Center for instructional support for 100 percent of her school day, Student began spiraling downward. Student was attracted to the “fringe crowd,” was caught smoking marijuana, and would leave school during the day. Father also advised that Student’s concentration was poor, and that she did not pick up on social cues. Father reported that Student often had difficulty following instructions, lied to get what she wanted, was cruel and mean to others, had temper outbursts, argued with adults, blamed others for her problems, and would become easily annoyed by others. Although Father enrolled Student in horseback riding and dancing, and encouraged Student to attend church, these activities did not help to improve Student’s attitude. Father did not provide Ms. Curry with any documents he wished for her to consider.

84. When Ms. Curry interviewed Student’s private therapist, Dr. Kopley, Dr. Kopley reported that she counseled Student every two weeks from October 2010 through December 2010. Dr. Kopley described Student as academically impaired with learning disabilities and poor social and emotional functioning. Dr. Kopley attributed Student’s misbehavior to school failure and a history of family difficulties. She reported that Student exhibited little common sense and displayed poor social judgment, and that Student found it difficult to learn, and teachers found Student difficult to teach. Student confided in Dr. Kopley that she was insulted when she was placed in special education classes. Dr. Kopley’s treatment plan for Student included goals to increase polite discourse and negotiate appropriately with Father without acting out or arguing. There is no evidence that Ms. Curry and Dr. Kopley discussed the issue of residential placement.

85. During her interview with Ms. Wadley, Ms. Wadley reported that Student struggled with poor attention, and had significant deficits in the learning arena. Ms. Wadley believed that Student’s multiple school placements contributed to her poor academic performance. In addition, Ms. Wadley felt Student mainly came to school to socialize, and was a “follower”.

86. During Ms. Curry’s interview with Ms. Singh, Ms. Singh reported that Student avoided work, was often off-task, and was easily distracted. Student, after many prompts, worked reluctantly, and possessed poor executive functioning in the areas of self-monitoring, time management, memory, planning, and organizing. When at school, Student did not exhibit crying, depression, or any outbursts.

87. When Ms. Curry interviewed Ms. Borders, Ms. Borders reported that Student had significant learning issues with math. Student was inconsistent with compliance, and had been defiant in the past. Ms. Borders found Student impulsive, easily frustrated, and demonstrated poor persistence. Student’s work productivity was low, and before she left LCCHS, Student had mostly F’s. Ms. Borders reported that when Student received clear boundaries with tight controls, she performed well on tasks, when given in small chunks. Student appeared not to know social rules, and read social cues poorly.

88. During Ms. Curry’s interview of Mr. Graves, Student’s therapist at Aspen Ranch, Mr. Graves reported that Student was an impressionable girl who preferred to spend time with defiant and aggressive peers. She tended to become attracted to oppositional peers who pushed her around and who bossed her. She had great difficulty in reading social cues and processing social situations. Mr. Graves reported that Student’s program at Aspen Ranch focused on difficulties in the social environment, defiance, rebellious attitude, control issues, and participating as a team member. Mr. Graves found that Student had a poor understanding of cause and effect, and the consequences of her actions. She also had an immature ego and low self-esteem. Mr. Graves believed that Student benefitted from the structure at Aspen Ranch. He found that in individual and family therapy, Student easily manipulated Father, in that she perseverated on things, and hounded him until she got her way. Mr. Graves advised that Student was not prescribed any medications at Aspen Ranch.

89. Ms. Curry interviewed Student via webcam. Although Ms. Curry ideally should have had a face-to-face interview with Student, Student had been unilaterally placed out-of-state. Ms. Curry considered a webcam interview to be the next best thing and sufficient under the circumstances. The interview lasted about 30 minutes, and Student admitted to Ms. Curry that before she arrived at Aspen Ranch, she smoked cigarettes daily, smoked marijuana daily, and drank to drunkenness at least three times. She had tried cocaine once, and drank a half bottle of cough and cold medicine. She had also engaged in cutting. Student believed that Father placed her at Aspen Ranch because she could not get along at home. She admitted to arguing with Father, slamming doors, and otherwise expressing her anger and frustration. In therapy, Student worked on self-awareness and how she affected others. At Aspen Ranch, Student earned B’s, but did not get along with her team, because they bickered and fought a lot. She did not express any thoughts of self-harm or harm to others.

90. At hearing, Ms. Curry explained that her impression of Student was that she was oppositional to authority, had a contentious relationship with Parents, and had difficulty with peers and handling social cues. Ms. Curry also believed Student was not suicidal, never ran away from home, and though she used drugs, Ms. Curry felt that Student did not used them in excess. Finally, based on the records she had, as well as the interviews she conducted, Ms. Curry felt she had enough information to determine whether Student was depressed or had an anxiety disorder, and concluded that Student had neither.

91. Ms. Curry concluded that Student qualified for mental health services, which were designed to assist students in their school setting. The emphasis in treatment would be to help Student develop skills to gain better behavioral control in order to help her maintain focus in the classroom, and benefit from her educational placement. Ms. Curry concluded that the least restrictive level of care to address Student’s needs was outpatient services, such as individual, group and/or family therapy sessions, for a total of 15 sessions. At hearing, Ms. Curry explained that she recommended outpatient services for Student because Student’s risk potential was low, evidenced by Student’s lack of hospitalizations, manic episodes, medication, suicidal thoughts, or a run-away history. Additionally, Ms. Curry recommended the provision of case management and medication management services, if appropriate. Finally, Ms. Curry developed two social-emotional-behavioral goals. One goal addressed Student’s self-control and focused on Student developing appropriate behaviors when angered, annoyed, frustrated, or upset. The second goal addressed Student sobriety, and a relapse prevention plan.

April 25, 2011 IEP

92. On April 25, 2011, the IEP team convened to review the mental health assessment. The attendees included Father, Ms. Borders, Ms. Krassny, Ms. Singh, Dr. Beam, Ms. Curry, and a family friend. Father waived the presence of a general education teacher, due to Student’s absence from LCCHS since December. District members provided Father with a copy of procedural safeguards.

93. Ms. Curry presented her report, and advised the team that Student did not qualify for residential treatment through CMH. Rather, Student qualified for outpatient services, such as individual, group and/or family therapy. Father disagreed, and advised the team that Student necessitated a higher level of care than District and CMH could provide.

94. District continued to offer placement at Arch, which included speech and language services of 60 minutes per week (two 30 minute sessions), school-based counseling services 30 minutes per week, workability consultation services of 60 minutes per month, and curb-to-curb transportation services. District also offered mental health services that would include individual, group and/or family therapy sessions, for a total of 15 sessions, until the IEP annual review in of October 2011. District also offered to provide case management and medication management services, if appropriate. Father declined to consent to District’s offer of placement and services.

95. Director of Special Education, Dr. Eric Beam, who attended Student’s January 12, 2011 and April 25, 2011 IEP meetings, provided testimony at hearing. Dr. Beam has been employed with District since December 2010. Prior, he was the Coordinator of Psychological Services for one and one-half years, a vice principal for nearly two years, a school psychologist for five years, and the lead psychologist for eight months with the Antelope Valley Union High School District. He received his bachelor’s degree in psychology from the University of Massachusetts, his master’s degree in applied educational psychology from Northwest University, and his doctorate in educational leadership from the University of California at Los Angeles. He has a clear pupil personnel services credential, a clear administrative services credential, and is a licensed educational psychologist. He also taught college courses in educational psychology at the University of LaVerne in 2005, child development at Chapman University in 2005, and in physiological psychology at Brandman/Chapman University in 2009 and 2010. Dr. Beam attended Student’s IEP meetings as an administrator designee, and, including the period in which he was a school psychologist, has attended thousands of IEP meetings.

96. Dr. Beam explained that if CMH had recommended residential treatment, District would have offered it. Dr. Beam opined that the offer of placement and services was appropriate for Student, because it was designed to meet her presenting needs in terms of addressing her educational obstacles. Dr. Beam explained that he visited Arch in January or February 2011, and it consisted of 20 students, 12 of whom were students of District. Because Arch was not on a comprehensive campus, he believed that many of the distractions Student experienced on a comprehensive campus would be eliminated. In addition, two of the five staff members at Arch were licensed clinicians, and could address directly Student’s off-task behaviors, as well as other behavioral, social, and emotional concerns. Furthermore, Arch had a diploma-oriented program, and not a certificate of completion program. As such, Dr. Beam explained that Arch was not a school for those with low to moderate autism, or severe cognitive or developmental needs. Rather, the majority of District students sent to Arch were college-prep students, who had social, emotional, or behavioral issues that needed to be addressed.

April 2011 Psychological Evaluation

97. While at Aspen Ranch, licensed psychologist, Dr. Kevin M. Fenstermacher, conducted a psychological evaluation of Student, which he began on April 14, 2011, and subsequently prepared a written report. The purpose of the evaluation was to provide information about Student’s cognitive, academic, personality, and mental health functioning to assist Aspen Ranch in treatment planning. Father received a copy of the report, but never provided District administrators or the IEP team with a copy. Dr. Fenstermacher did not provide District with a copy of his report either.

98. The report stated that Parents enrolled Student in Aspen Ranch because of aggressive and disrespectful behavior toward Parents, her refusal to do her academic work, her failing grades, and her alcohol and drug use. The report also noted that Student had a long and complicated history of academic placements and learning difficulties, which had a significant, negative impact on her self-esteem. Student also struggled socially, and despite changing schools almost every year, her poor social skills routinely resulted in her either alienating peers, or being bullied by her female peers. The report also noted Student’s previous diagnosis of ADHD, ODD, and that Student had exhibited symptoms of an auditory processing problem. The report also noted obsessive-compulsive rituals, such as collecting items, demanding sameness in her personal space, and spending hours folding her laundry perfectly.

99. The report noted that since enrolling at Aspen Ranch, Student had been largely compliant, but had struggled considerably with her female peers. She also had difficulty completing her academic tasks and required a great deal of one-on-one attention and support from her teachers to do so.

100. Dr. Fenstermacher used the following assessment tools: (1) Weschler Adult Intelligence Scale-Fourth Edition (WAIS-IV); (2) WJ-III; (3) Minnesota Multiple Personality Inventory-Adolescent Edition (MMPI-A); (4) Millon Adolescent Clinical Inventory (MACI); (5) Behavior Rating Inventory of Executive Function-Self-Report (BRIEF-SR); (6) Rorschach Inkblot Test (Rorschach); (7) Substance Abuse Subtle Screening Inventory-Adolescent Edition (SASSI-A2); (8) A Finishing Game Sentence Completion Task; (9) Mental Status Examination; (10) Clinical Interview of Student; (11) Interviews of Parents; (12) Interview of Student’s Aspen Ranch therapist, Mr. Graves; and (13) review of relevant clinical records.

101. The report noted that Student had a history of aggression, in that she had been verbally and physically volatile throughout her life, and her tantrums had become more intense as she aged. She had numerous verbal conflicts with Parents over the years, had broken things, and had put holes in walls when angry. The police had been called to her house on four occasions, because Student and Mother had been engaged in intense conflicts. The report also noted that Student, who was 16-years-old, smoked marijuana daily, and that she started experimenting with marijuana when she was 14 years old.

102. Dr. Fenstermacher noted in his report that Student presented as a young woman who was developmentally immature and quite egocentric in her thinking and problem-solving. She struggled with even the most basic insight into her emotional motivators behind her behavior, as well as the impact that her social behavior had on her relationships.

103. In order to assess Student’s intellectual capacities, Dr. Fenstermacher administered the WAIS-IV, and found that Student’s cognitive abilities ranged from the borderline to the average range of functioning. Her full scale IQ score of 78 on the WAIS-IV showed that Student’s verbal and non-verbal reasoning ability were in the bottom of the low average range of functioning. She had a relative strength in her auditory working memory, a considerably slower processing speed, and struggled with cognitive efficiency. Dr. Fenstermacher concluded that this combination of factors suggested that Student was at cognitive risk for hitting “information overload” when presented with information at a rapid pace.

104. Student completed the BRIEF-SR to provide information about her executive functioning. Student’s overall response profile suggested that she did not perceive herself as having any concerns regarding her everyday executive functioning. Dr. Fenstermacher noted that this was very inconsistent with her history and reports from her treatment providers at Aspen Ranch, who described Student as having struggles with many aspects of her executive functioning, including her ability to organize, plan, and tolerate changes in her environment. The report indicated that these factors reflected Student’s anxiety, lack of insight, and an unwillingness to reflect upon her difficulties.

105. In order to assess Student’s level of achievement across a range of academic subjects, Dr. Fenstermacher administered the WJ-III. In the area of broad reading, Student’s scores ranged from the top of the low average range to the average range of functioning. She scored in the 48th percentile in the area of letter-word identification, representing the average range, in the 24th percentile in the area of reading fluency, representing the low average range, and in the 20th percentile in the area of passage comprehension, representing the low average range. In the area of mathematics, Student scored in the 11th percentile for calculations, representing the low average range, in the fifth percentile for math fluency, representing the borderline range, and in the fourth percentile for applied problems, representing the borderline range. Overall, Student’s math abilities were well below average, and at approximately the fourth grade level. In the area of written language, Student scored in the 18th percentile for spelling, representing the low average range, in the 41st percentile for writing fluency, representing the average range, and in the 18th percentile for writing samples, representing the low average range. Overall, Student’s writing scores were considered below average, and at approximately the seventh grade level. Dr. Fenstermacher concluded that based on Student’s overall cognitive profile, lower processing speed, and pervasive learning difficulties, she met the DSM-IV criteria for a Learning Disorder NOS diagnosis.

106. In order to evaluate Student’s personality functioning and mental health issues, Dr. Fenstermacher administered the Rorschach, MMPI-A, the MACI, and A Finishing Game sentence completion task. Dr. Fenstermacher concluded from the results of these tests that Student’s self-esteem had been negatively impacted by her academic and behavioral struggles, and it appeared that Student developed well-engrained patterns of “learned helplessness” and a prominent fear of failure concerning her ability to be successful in her academic environments. She withdrew and avoided when required to exert effort rather than risk embarrassment or failure. Emotionally, Student experienced chronic feelings of anxiety and dysthymia, as well as exhibited a level of dysregulation that was consistent with her diagnosis of ADHD. Her pervasive need to be in control was evident in her somewhat brash and oppositional behavior, as well as in her expression of obsessive tendencies. Student used her behaviors as a smoke screen to prevent others from seeing her learning and social difficulties and to protect her fragile self-esteem.

107. Dr. Fenstermacher’s report noted that Aspen Ranch would be closing at the end of the 2011-2012 school year, and noted that Student would be transferring to another residential treatment center. Dr. Fenstermacher recommended that Student’s subsequent placement be a smaller, structured, social-skill building environment that would help Student address her social deficits while also improving her overall self-awareness. He also indicated that Student continued to require a nurturing therapeutic environment. Because of Student’s history of ADHD, cognitive issues, slower processing speed, and other learning issues, Dr. Fenstermacher recommended the following: (1) connecting her current learning to an already existing knowledge base; (2) increase her ability to use organizational schemes; (3) frequent summarization of information that has been presented; (4) frequent checking for understanding; (5) in depth discussions of topics taught and connecting the information with topics already learned by Student; (6) clear behavior contracts outlining expected behavior and consequences; (7) incorporating and applying taught information to Student’s life; (8) teaching study strategies, such as checking her work, asking for help, highlighting information, effective note-taking, reading, and reviewing the chapter subheadings before tackling the larger chapter; (9) regularly scheduled breaks; and (10) use of a calculator on assignments and tests.

108. Dr. Fenstermacher also recommended that Student receive ongoing treatment to solidify her sense-of-self around her strengths, rather than continue to be overwhelmed by her anxieties, fears, and perceived weaknesses. In addition, Dr. Fenstermacher recommended continued individual and group-related therapeutic experiences, as well as ongoing family therapy. Dr. Fenstermacher did not testify at hearing.

109. In June 2011, after Aspen Ranch closed for financial reasons, Student enrolled at the Academy at Sisters Therapeutic Boarding School (Academy) in Oregon, which was an all-girls boarding school. At hearing, Father advised that Academy offered a lot of one-to-one instruction to Student, as well as weekly individual psychological therapy sessions, under which Student has thrived. Specifically, Student has become less oppositional and has begun to invest herself in treatment. Additionally, Student has applied herself in school, made academic progress, and has developed academic skills.

LEGAL CONCLUSIONS

1. District contends that its offer of placement and services in Student’s triennial IEP dated October 27, 2010, completed on December 9, 2010, and amended on April 25, 2011, constituted a FAPE in the LRE, as it offered Student an appropriate NPS placement and services to address Student’s unique needs. Student disagrees, and contends that Student required placement and services in a therapeutic residential facility, as recommended by Dr. De Llanos, Dr. Kopley, and Dr. Fenstermacher, and based on Student’s current success at her residential treatment facility.

Applicable Law

2. The petitioner in a special education due process hearing has the burden to prove his or her contentions at the hearing. As the petitioning party, District has the burden of persuasion on all issues. (Schaffer v. Weast (2005) 546 U.S. 49, 56-62 [126 S.Ct. 528, 163 L.Ed.2d 387].)

3. California special education law and the IDEA provide that children with disabilities have the right to a FAPE that emphasizes special education and related services designed to meet their unique needs and to prepare them for employment and independent living. (20 U.S.C. §1400(d); Ed. Code, §56000.) FAPE consists of special education and related services that are available to the child at no charge to the parent or guardian, meet the standards of the State educational agency, and conform to the student’s individual education program. (20 U.S.C. § 1401(9).) “Special education” is defined as “specially designed instruction at no cost to the parents, to meet the unique needs of a child with a disability….” (20 U.S.C. § 1401(29).) California law also defines special education as instruction designed to meet the unique needs of individuals with exceptional needs coupled with related services as needed to enable the student to benefit fully from instruction. (Ed. Code, § 56031). “Related services” are transportation and other developmental, corrective and supportive services as may be required to assist the child in benefiting from special education. (20 U.S.C. § 1401(26).) In California, related services are called designated instruction and services (DIS), which must be provided if they may be required to assist the child in benefiting from special education. (Ed. Code, § 56363, subd. (a).)

4. In Board of Education of the Hendrick Hudson Central School District, et al. v. Rowley (1982) 458 U.S. 176, 201 [102 S.Ct. 3034, 73 L.Ed.2d 690] (Rowley), the Supreme Court held that “the ‘basic floor of opportunity’ provided by the [IDEA] consists of access to specialized instruction and related services which are individually designed to provide educational benefit to” a child with special needs. Rowley expressly rejected an interpretation of the IDEA that would require a school district to “maximize the potential” of each special needs child “commensurate with the opportunity provided” to typically developing peers. (Id. at p.200) Instead, Rowley interpreted the FAPE requirement of the IDEA as being met when a child receives access to an education that is reasonably calculated to “confer some educational benefit” upon the child. (Id. at 200, 203-204.)

5. In resolving the question of whether a school district has offered a FAPE, the focus is on the adequacy of the school district’s proposed program. (See Gregory K. v. Longview School District (9th Cir. 1987) 811 F.2d 1307, 1314.) A school district is not required to place a student in a program preferred by a parent, even if that program will result in greater educational benefit to the student. (Ibid.) For a school district’s offer of special education services to a disabled pupil to constitute a FAPE under the IDEA, a school district’s offer of educational services and/or placement must be designed to meet the student’s unique needs, comport with the student’s IEP, and be reasonably calculated to provide the pupil with some educational benefit in the least restrictive environment. (Ibid.) An IEP is evaluated in light of the information available to the IEP team at the time it was developed; it is not judged in hindsight. (Adams v. State of Oregon (9th Cir. 1999) 195 F.3d 1141, 1149.) “An IEP is a snapshot, not a retrospective.” (Id. at p.1149, citing Fuhrman v. East Hanover Bd. of Education (3d Cir. 1993) 93 F.2d 1031, 1041.) Whether a student was denied a FAPE must be evaluated in terms of what was objectively reasonable at the time the IEP was developed. (Ibid.)

6. In determining the educational placement of a child with a disability, a school district must ensure the following: (1) the placement decision is made by a group of persons, including the parents, and other persons knowledgeable about the child, the meaning of the evaluation data, and the placement options, and consider the requirement that children be educated in the least restrictive environment (LRE); (2) placement is determined annually, is based on the child’s IEP and is as close as possible to the child’s home; (3) unless the IEP specifies otherwise, the child attends the school that he or she would if non-disabled; (4) in selecting the LRE, consideration is given to any potential harmful effect on the child or on the quality of services that he or she needs; and (5) the child with a disability is not removed from education in age-appropriate regular classrooms solely because of needed modifications in the general education curriculum. (34 C.F.R. § 300.116 (2006).³)

7. In order to provide the LRE, school districts must ensure, to the maximum extent appropriate, that children with disabilities, including children in public or private institutions or other care facilities, are educated with children who are not disabled, and special classes, separate schooling, or other removal of children with disabilities from the regular educational environment occurs only when the nature and the severity of the disability of the child is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily. (20 U.S.C. § 1412(a)(5)(A); Ed. Code, § 56031; 34 C.F.R. § 300.114(a).) To determine whether a special education student could be satisfactorily educated in a regular education environment, the Ninth Circuit Court of Appeals has balanced the following factors: (1) “the educational benefits of placement full-time in a regular class”; (2) “the non-academic benefits of such placement”; (3) “the effect [the student] had on the teacher and children in the regular class”; and (4) “the costs of mainstreaming [the student].” (Sacramento City Unified School Dist. v. Rachel H. (9th Cir. 1994) 14 F.3d 1398, 1404 (Rachel H.) [adopting factors identified in Daniel R.R. v. State Board of Ed. (5th Cir. 1989) 874 F.2d 1036, 1948-1050]; see also Clyde K. v. Puyallup School Dist. No. 3 (9th Cir. 1994) 35 F.3d 1396, 1401-1402 [applying Rachel H. factors to determine that self-contained placement outside of a general education environment was the LRE for an aggressive and disruptive student with attention deficit hyperactivity disorder and Tourette’s Syndrome.].) If it is determined that a child cannot be educated in a general education environment, then the LRE analysis requires determining whether the child has been mainstreamed to the maximum extent that is appropriate in light of the continuum of program options. (Daniel R.R. v. State Board of Ed., supra., 874 F.2d at p. 1050.)

8. The continuum of the program options includes, but is not limited to, regular education, resource specialist programs, designated instruction and services, special classes, nonpublic, nonsectarian schools, state special schools, specially designed instruction in settings other than classrooms, itinerant instruction in settings other than classrooms, and instruction using telecommunication instruction in the home or instructions in hospitals or institutions. (Ed. Code, § 56361.)

9. When a school district seeks to prove that it provided a FAPE to a particular student, it must also show that it complied with the procedural requirements under the IDEA. (Rowley, supra, 458 U.S. at pp. 200, 203-204, 206-207.)

10. The IEP team is required to include one or both of the student’s parents or their representative, a regular education teacher if a student is, or may be, participating in the regular education environment, a special education teacher, a representative of the school district who is qualified to provide or supervise specially designed instruction to meet the unique needs of children with disabilities, is knowledgeable about the general education curriculum and is knowledgeable about available resources. (34 C.F.R. § 300.321(a).) The IEP team is also required to include an individual who can interpret the instructional implications of assessment results, and, at the discretion of the parent or school district, include other individuals who have knowledge or special expertise regarding the child. (34 C.F.R. § 300.321(a).) Finally, whenever appropriate, the child with the disability should be present. (34 C.F.R. § 300.321(a).)

11. The parents of a child with a disability must be afforded an opportunity to participate in meetings with respect to the identification, evaluation, and educational placement of the child, and the provision of FAPE to the child. (34 C.F.R. § 300.501(a); Ed. Code, § 56500.4.) A parent has meaningfully participated in the IEP process when he or she has an opportunity to discuss a proposed IEP and when parental concerns are considered by the IEP team. (Fuhrmann v. East Hanover Bd. Of Educ., supra, 993 F.2d at p. 1036.)

12. An IEP is a written document for each child with a disability that includes: a statement of the child’s present levels of academic achievement and functional performance, including how the child’s disability affects the child’s involvement and progress in the general education curriculum; and a statement of measurable annual goals, including academic and functional goals, designed to meet the child’s needs that result from the child’s disability to enable the child to be involved in and make progress in the general education curriculum, and meet each of the child’s other educational needs that result from the child’s disability. (20 U.S.C. § 1414(d)(1)(A); 34 C.F.R. §§ 300.320.) When appropriate, the IEP should include short-term objectives that are based on the child’s present levels of academic achievement and functional performance, a description of how the child’s progress toward meeting the annual goals will be measured, when periodic reports of the child’s progress will be issued to the parent, and a statement of the special education and related services to be provided to the child. (20 U.S.C. § 1414(d)(1)(A); 34 C.F.R. §§ 300.320.) The IEP must also contain a statement of how the child’s goals will be measured. (20 U.S.C. § 1414(d)(1)(A)(iii); Ed. Code, § 56345, subd. (a)(3).) An IEP must include a statement of the special education and related services, based on peer-reviewed research to the extent practicable, that will be provided to the student. (20 U.S.C. § 1414(d)(1)(A)(i)(IV); 34 C.F.R. § 300.320(a)(4); Ed. Code, § 56345, subd. (a)(4).) The IEP must include a projected start date for services and modifications, as well as the anticipated frequency, location, and duration of services and modifications. (20 U.S.C. § 1414(d)(1)(A)(i)(VII); 34 C.F.R. § 300.320(a)(7); Ed. Code § 56345, subd. (a)(7).) The IEP need only include the information set forth in title 20 United States Code section 1414(d)(1)(A)(i), and the required information need only be set forth once. (20 U.S.C. § 1414(d)(1)(A)(ii); 34 C.F.R. § 300.320(d); Ed. Code § 56345, subds. (h) and (i).)

13. An IEP must include a post-secondary transition plan during the school year in which the child turns 16 years old. (Ed. Code, § 56043, subd. (g)(1).) “Transition services” means “a coordinated set of activities for an individual with exceptional needs” that: (1) “Is designed within a results-oriented process, that is focused on improving the academic and functional achievement of the individual with exceptional needs to facilitate the movement of the pupil from school to postschool activities, including postsecondary education, vocational education, integrated employment, including supported employment, continuing and adult education, adult services, independent living, or community participation”; (2) “Is based upon the individual needs of the pupil, taking into account the strengths, preferences, and interests of the pupil”; and (3) “Includes instruction, related services, community experiences, the development of employment and other post-school adult living objectives, and, if appropriate, acquisition of daily living skills and provision of a functional vocational evaluation.” (20 U.S.C. § 1401(34); Ed. Code, § 56345.1, subd. (a).)

14. In developing the IEP, the IEP team must consider the strengths of the child, the concerns of the parents for enhancing the child’s education, the result of the most recent evaluation of the child, and the academic, developmental, and functional needs of the child. (20 U.S.C. § 1414(d)(3)(A); 34 C.F.R. §§ 300.324 (a).)

15. To provide information to the IEP team, a school district is required to conduct a reevaluation of each child at least once every three years, unless the parent and the local educational agency agree that a reevaluation is unnecessary. (34 C.F.R. 300.303(b)(1) (2006);⁴ Ed. Code, § 56381, subd. (a)(2).) A school district is required to assess a child in all areas of suspected disability. As part of any reassessment, the IEP team is required to review existing assessment data and, on the basis of that data, identify what additional data, if any, is necessary to determine whether the pupil continues to have a disability, the pupil’s present levels of performance and educational needs, whether the pupil continues to need special education and related services, and whether any additions or modifications to the educational program are needed to enable the pupil to meet his annual IEP goals. (Ed. Code, § 56381, subd. (b).)

16. Education Code section 56320, subdivisions (a) through (e), provides that assessments must be conducted in accordance with the following pertinent requirements: that testing and assessment materials and procedures be selected and administered so as not to be racially, culturally, or sexually discriminatory; that the materials and procedures be provided and administered in the student’s primary language or other mode of communication, unless unfeasible to do so; that the assessment materials be validated for the purpose for which they are used; that the tests be administered by trained personnel in conformance with test instructions; that the tests and other assessment materials be tailored to assess specific areas of educational need, and not merely those that are designed to provide a single general intelligence quotient; that the tests be selected and administered to best ensure that, when administered to a student with impaired sensory, manual, or speaking skills, the test produces results that accurately reflect the student’s aptitude, achievement level, or any other factors the test purports to measure; and that no single measure be used as the sole criterion for determining eligibility or an appropriate educational program for the student.

17. Assessments must be conducted by qualified persons who are knowledgeable of the student’s disability, who are competent to perform the assessments, as determined by the local educational agency, and who give special attention to the student’s unique educational needs, including, but not limited to, the need for specialized services, materials, and equipment. (Ed. Code, §§ 56320, subd. (g), and 56322.) The personnel who assess the student must prepare a written report of the results of each assessment, and provide a copy of the report to the parent. (Ed. Code, §§ 56327 and 56329.) The report shall include, but not be limited to, the following: (1) whether the student may need special education and related services; (2) the basis for making the determination; (3) the relevant behavior noted during the observation of the student in an appropriate setting; (4) the relationship of that behavior to the student’s academic and social functioning; (5) the educationally relevant health and development, and medical findings, if any; (6) a determination concerning the effects of environmental, cultural, or economic disadvantage, where appropriate; and (6) the need for specialized services, materials, and equipment for students with low incidence disabilities. (Ed.Code, § 56327.)

18. If the parent or guardian of a child who is an individual with exceptional needs refuses all services in the IEP after having consented to those services in the past, the local educational agency shall file a request for due process hearing. (Ed. Code, § 56346, subd. (d).)

Analysis

19. Here, the evidence showed that Student was properly assessed prior to the December 9, 2010 IEP team meeting. In order to provide the most appropriate program for Student, District assessed Student in all areas of suspected disability by conducting a series of assessments designed to measure Student’s academic achievement, cognitive development, learning ability, visual perceptual skills, fine motor coordination, executive functioning, speech and language development, and social, emotional, and behavioral development. The assessments included the administration of standardized tests, rating scales, records review, interviews, teacher input, and observations of Student. All of the assessments were appropriate in that they were not racially, culturally, or sexually discriminatory, were not designed to provide a single general intelligence quotient, were administered in Student’s primary language, and were selected and administered to produce results that accurately reflected Student’s aptitude, achievement level, and other factors the tests were purported to measure.

20. In addition, the assessments were administered by very qualified individuals. Specifically, school psychologist, Ms. Singh, who prepared the psychoeducational report, had been a school psychologist for approximately eight years at the time she conducted Student’s assessment. In addition, she had conducted approximately 800 assessments during the course of her career, and had provided credible testimony at hearing. Ms. Singh’s report was comprehensive, and demonstrated that the assessments were conducted properly. In particular, Ms. Singh’s report demonstrated an extensive review of Student’s background information and prior assessments, as well as her observations, interviews, and receipt of teacher input. In addition, Ms. Singh’s assessment included the administration of multiple tests to measure Student’s intellectual functioning, academic performance, adaptive behavior functioning, and social and emotional functioning. Similarly, Ms. Krassny, who conducted the speech and language assessment report, had approximately 25 years of experience as a speech pathologist with District, and had conducted approximately 65 assessments in a given school year, equaling approximately 1,625 assessments. She, too, prepared a comprehensive report setting forth assessment tools used to measure Student’s receptive language and memory skills, vocabulary skills, grammar skills, and speech skills. Also, Ms. Borders, who administered the WJ-III, had been a special education teacher for approximately 20 years at the time of the assessment, and prepared the results to be incorporated in the psychoeducational assessment. The reports described above included the assessor’s conclusions and recommendations for the IEP team to consider concerning Student’s unique needs, all of them confirming that Student still required special education and related services, and none of them revealing results that conflicted with the other.

21. The evidence also showed that Student was also properly assessed for educationally-related mental health services prior to the April 25, 2011 IEP team meeting. Specifically, Ms. Curry, who completed a mental health assessment of Student, had been a licensed mental health clinician with CMH for seven years, and in that capacity, conducted 50 to 60 assessments a year, equaling 350 to 420 assessments. Her report demonstrated an extensive review of school records, including IEP’s, prior assessment reports, discipline records, transcripts, grades, attendances records, as well as a bio-psycho-social assessment report from Aspen Ranch. In addition, her report established that she conducted in depth interviews of Student, Father, Ms. Wadley, Ms. Borders, Ms. Singh, and Student’s private therapist, Dr. Kopley, as well as Student’s therapist at Aspen Ranch, Mr. Graves. Moreover, her report included her conclusions and recommendations for the IEP team to consider concerning Student’s unique needs.

22. The evidence showed that all of Student’s IEP meetings, including the ones held on October 27, 2010, December 9, 2010, and April 25, 2011 IEP, were procedurally proper. Father received written notices of procedural safeguards and participated in each meeting. Also, Student’s advocate participated in the December 9, 2010 meeting, and her attorney participated in a subsequent IEP meeting held on January 12, 2011. In addition, the correct district personnel attended all of the IEP team meetings, including the one on April 25, 2011, where, pursuant to Father’s authorization, the only required person not in attendance was the general education teacher. Also, all assessments were explained by IEP team members who were qualified to do so. Specifically, at the December 9, 2010 IEP meeting, Ms. Krassny reported on her speech and language assessment of Student, Ms. Singh reported on her psychoeduational assessment, Ms. Borders presented the results from the WJ-III, and at the April 25, 2011 meeting, Ms. Curry presented the results of her mental health assessment. Moreover, the IEP’s met the requirement of including a statement of the special education and related services to be provided to Student, as well as specifying the frequency, duration, and location of services. Also, the IEP dated October 27, 2010, and completed on December 9, 2010, included Student’s present levels of academic achievement and functional performance, including how Student’s disability affected her involvement and progress in the general education curriculum. District also met the requirement of including in the IEP document a statement of measurable annual goals for Student, including goals for receptive language, problem solving, reading comprehension, math computation, math fluency, work completion, written expression, self-initiation, on-task behavior, and attendance goals, which were designed to meet Student’s needs as identified in Ms. Singh and Ms. Krassny assessment reports. In addition, District also included two additional social-emotional-behavior goals in the April 25, 2011 IEP, as developed by Ms. Curry, which focused on self-control, and sobriety.

23. The evidence also showed that the offer of placement and services made in the IEP dated October 27, 2010, and completed on December 9, 2010, as amended on April 25, 2011, was appropriate to meet Student’s unique needs. Specifically, District offered Student a placement at Arch, where Student would also receive related services of speech and language therapy services 60 minutes per week (two 30 minute sessions), school-based counseling services 30 minutes per week, workability consultation services of 60 minutes per month, and curb-to-curb transportation services. District offered Arch, which was a self-contained NPS with 25 students or less, because it believed Student could benefit from more small group and individualized instruction, in a smaller environment, in order to meet her behavioral needs, off-task behavior, transition issues, and social, emotional, behavioral, and academic needs. This conclusion was supported by Ms. Singh’s psychoeducational report, which demonstrated that Student struggled significantly with executive functioning, that impacted Student’s learning and behavior in the school environment, including behavior regulation, such as cognitive planning and organizing, inhibiting behaviors, and emotional self-regulation. She also struggled with initiating tasks, planning and organizing, working memory, self-monitoring, and task completion. Ms. Singh’s report also demonstrated significant concerns in the area of externalizing behaviors, such as hyperactivity, and conduct problems, as well as attention problems, learning problems, and adaptive skills issues. Additionally, Ms. Singh provided credible testimony that Student required a higher level of service than what District could provide on a comprehensive campus, yet had not demonstrated the types of extreme behavior problems requiring a residential placement. Specifically, Ms. Singh believed that Student required a more contained environment, a smaller teacher to student ratio, a program that provided counseling, and a program that limited Student’s transition from class to class, given her history of transitioning problems.

24. Additionally, according to the credible testimony of Ms. Wadley, District had exhausted all resources to help Student access her curriculum before offering a NPS, such as a BSP, school counseling, an escort, and more time in the Learning Center. Arch, which Ms. Wadley observed to be a small NPS with a therapeutic component embedded in its program, could provide a smaller and more structured environment, provide the related services Student required, and provide a therapeutic environment on the campus to address Student’s social, emotional, and behavioral needs. Indeed, according to the credible testimony of Dr. Beam, two of the five staff members at Arch were licensed clinicians, and could address directly Student’s behaviors. In addition, Ms. Wadley credibly testified that the principal and director of Arch, to whom Ms. Wadley had provided a copy of Student’s IEP, indicated that Arch could implement the goals set forth in Student’s IEP dated October 27, 2010, and completed on December 9, 2010.

25. Similarly, Ms. Borders credibly testified that Arch could provide Student with less distractions because of the substantially smaller environment, and, because of Arch’s year-round program, could offer Student one class at a time, as opposed to requiring Student to take six classes at a time, and, as such, could increase Student’s chances of accessing her curriculum and addressing her social-emotional needs. Ms. Borders persuasively established that taking a smaller number of classes at one time was especially important for Student, because she seemed overwhelmed by the six classes she was required to take at LCCHS.

26. Father contends that Arch was not an appropriate placement because it provided a very pronounced special education environment, with approximately 50 percent of the students appearing low functioning, and intellectually disabled. Consequently, Father felt that Student would not thrive in that environment, and that she would shut down. However, contrary to Father’s assertion, and according to the credible testimony of Dr. Beam, Arch had a diploma-oriented program, as most of its students were college-bound. In addition, Arch had no certificate of completion program, and was, therefore, not appropriate for those more developmentally disabled, or for students with low to moderate autism, or severe cognitive or developmental needs.

27. Father further contends that, given Student’s unsuccessful history in special education classes, and the extent of Student’s behavioral, emotional, and academic challenges, Student would not show substantial improvement unless she was in a therapeutic environment 24 hours a day, seven days a week. He also argues that his position is supported by the recommendations of Dr. De Llano, Dr. Kopley, and Dr. Fenstermacher, buttressed by Student’s current success at the residential treatment facility. However, an IEP, including its offer of placement, must be evaluated in terms of what was objectively reasonable at the time the IEP was developed. (See Adams, supra, 195 F.3d at p. 1149; Fuhrman, supra, 93 F.2d at p. 1041.) In other words, the placement offer must not be judged in hindsight. (Ibid.) When the team developed the IEP dated October 27, 2010 and completed on December 9, 2010, the evidence conclusively showed that District was unaware of any recommendations for residential treatment from Dr. De Llano, Dr. Kopley, or Dr. Fenstermacher. Specifically, Father never raised the issue of residential treatment at any IEP meetings held prior to December 9, 2010 (i.e., September 10, 2010, October 1, 2010, October 27, 2010, or November 5, 2010), and never provided the team with a copy of Dr. De Llano’s one-page report for the team to consider, or to elicit information from her concerning the basis of her recommendation. In addition, the evidence showed that prior to the October 27, 2010 IEP meeting, Ms. Singh attempted to communicate with Dr. Kopley, as Student’s private therapist, in preparation for her psycheducational assessment of Student, but Dr. Kopley never returned Ms. Singh’s calls, and, therefore, provided District with no information concerning her recommendations for placement prior to the October 27, 2010 and December 9, 2010 IEP meetings. District did not become aware of Dr. Kopley’s recommendation of residential treatment until after the December 9, 2010 IEP meeting, when Father provided District with a one-page, handwritten letter dated December 13, 2010 from Dr. Kopley that recommended a residential placement, but included no evidence of any assessment results that formed the basis for her recommendation. When District attempted to communicate with Dr. Kopley to discuss the substance of her December 13, 2010 letter, Dr. Kopley never responded. Consequently, District did not have an opportunity to explore her reasons for her residential placement recommendation prior to the subsequent IEP amendment meeting held on April 25, 2011. Notably, the CMH assessor, Ms. Curry, who did have an opportunity to speak with Dr. Kopley prior to the April 25, 2011 meeting, included a summary of her interview with Dr. Kopley in her report, but it included nothing demonstrating that Dr. Kopley discussed her residential treatment recommendation with Ms. Curry. Finally, the evidence showed that neither Father nor Dr. Fenstermacher ever provided District with a copy of Dr. Fenstermacher’s report; therefore, the team had no opportunity to consider his recommendations either.

28. The team did, however, have an opportunity to consider Ms. Curry’s recommendation stemming from her mental health assessment of Student, and as discussed above, she had reasonably concluded that a residential placement was not required to provide Student a FAPE. According to the credible testimony of Ms. Curry, Student’s risk potential was low, evidenced by Student’s lack of hospitalizations, manic episodes, medication, suicidal thoughts, and run-away history. In addition, Ms. Curry detected no evidence of depression or anxiety at the time of her interview of Student. This was consistent with the findings of Ms. Singh’s psychoeducational assessment of Student, where she found that Student did not meet the eligibility criteria for ED, and, according to her credible testimony, Student did not demonstrate signs of depression, anxiety, or OCD. According to the persuasive testimony of Dr. Beam, if Ms. Curry had recommended residential treatment for Student, District would have offered it.

29. District also met its burden of demonstrating that the placement offer was in the least restrictive environment. Overall, a determination of whether a district has placed a pupil in the least restrictive environment involves the analysis of four factors: (1) the educational benefits to the child of placement full time in a regular class; (2) the nonacademic benefits to the child of such placement; (3) the effect the disabled child will have on the teacher and children in the regular class; and (4) the costs of mainstreaming the child. (See Rachel H., supra, 14 F.3d at p. 1404.) Regarding the first factor, the evidence showed that Student experienced significant difficulty in the general education environment, which impacted her ability to access the curriculum. Specifically, at the October 1, 2010 IEP meeting, the general education teacher reported to the team that Student struggled with on-task behavior, and required significant prompting to complete her class work. The teacher also reported that Student often engaged in avoidant behaviors, which had become disruptive, and impeded her learning. Despite District’s efforts to address these behaviors in the general education environment, such as a BSP, and school counseling, Student continued these behaviors, and remained academically unsuccessful. Specifically, assessment results demonstrated that Student performed significantly under grade level academically, and that her lack of academic competence negatively affected her ability to access the general education curriculum. Consequently, Student’s receipt of educational benefits in a general education setting was limited, at best.

30. In reference to the second factor, Student could receive a non-academic benefit of interacting with her peers, giving Student more opportunity to practice her socialization skills, as well as model behavior from typically developing peers. However, the third factor, specifically the effect Student’s full time presence would have on the teacher and children in the regular class, poses several problems. The evidence showed that the general education teacher advised the IEP team that Student’s avoidant behaviors had become disruptive to the class, which impeded the learning of others. In addition, during Ms. Singh’s observation of Student for the development of the BSP, Student required direct teacher prompting to complete tasks, completed very little work independently, and required direct instruction from the teacher 18 of 20 minutes. Consequently, a general education teacher would be required to focus significant time and resources on Student, taking attention away from the other students in the class. Finally, regarding the fourth element, neither party introduced any evidence demonstrating the costs associated with educating Student in a general education setting versus a special education setting. Weighing the above factors, a general education placement would not be appropriate.

31. Placement in an out-of-state residential treatment center would be equally inappropriate, as the law requires school districts to educate students in the least restrictive environment. On the continuum of placement options, an out-of-state residential facility is significantly more restrictive than an in-state, non-residential NPS. District persuasively established that it could meet Student’s needs without resorting to the most restrictive of placements, an out-of-state residential facility. Specifically, according to the credible testimony of Ms. Wadley, Dr. Beam, and Ms. Borders, and as established above, Arch could meet Student’s unique needs, and implement the goals set forth in Student’s IEP.

32. District’s offer of related services was also appropriate. Specifically, in the IEP dated October 27, 2010, and completed on December 9, 2010, District offered speech and language services of 60 minutes per week (two 30 minute sessions), school-based counseling services of 30 minutes per week, workability consultation services of 60 minutes per month, and curb-to-curb transportation services. District witnesses credibly established the appropriateness of the frequency and duration of these services, and their testimony was uncontradicted. Specifically, the credible testimony of Ms. Krassny and Ms. Singh clearly demonstrated that Student required such services, as established by the findings of their assessment results. In the April 25, 2011 amendment IEP, District offered additional related services to address Student’s mental health needs, specifically, individual, group, and/or family therapy sessions, for a total of 15 sessions. District also offered to provide case management and medication management services, if appropriate. District appropriately based their offer on the recommendations of Ms. Curry, who conducted a mental health assessment of Student, and determined that Student qualified for educationally-related mental health services. The evidenced supported Ms. Curry’s conclusion that the least restrictive level of care to address Student’s needs was outpatient services, due to Student’s low risk potential.

33. Given the above, District met its burden of demonstrating by a preponderance of the evidence that it offered Student a FAPE, as set forth in the IEP dated October 27, 2010, completed on December 9, 2010, and amended on April 25, 2011. (Factual Findings 1 -109; Legal Conclusions 1 -33.)

ORDER

District offered Student a FAPE as set forth in Student’s IEP dated October 27, 2010, completed on December 9, 2010, and amended on April 25, 2011.

PREVAILING PARTY

Pursuant to California Education Code section 56507, subdivision (d), the hearing decision must indicate the extent to which each party has prevailed on each issue heard and decided. Here, the District was the prevailing party on the sole issue presented.

RIGHT TO APPEAL THIS DECISION

The parties to this case have the right to appeal this Decision to a court of competent jurisdiction. If an appeal is made, it must be made within 90 days of receipt of this decision. (California Education Code § 56505, subd. (k).)

DATED: February 14, 2012

CARLA L. GARRETT
Administrative Law Judge
Office of Administrative Hearings

In the Matter of:
PARENT ON BEHALF OF STUDENT,

v.

LOS ANGELES UNIFIED SCHOOL DISTRICT AND THE LOS ANGELES COUNTY DEPARTMENT OF MENTAL HEALTH.

OAH CASE NO. 2011080612

DECISION

This matter was heard before Glynda B. Gomez, Administrative Law Judge (ALJ), Office of Administrative Hearings (OAH), State of California, on December 6 and 8, 2011 and January 23, 24 and 25, 2012 in Los Angeles, California.

Student’s Mother (Mother) represented Student. Student’s Father (Father) was also present for the hearing. Student was not present.

Sioban Cullen, Attorney at Law, represented the Los Angeles Unified School District (District). District due process specialists, Cynthia Shimizu and Ernest Campos were also present for portions of the hearing.

Zoe Trachtenberg, licensed clinical social worker, represented the Los Angeles County Department of Mental Health (DMH).

Student filed the Request for Due Process Hearing (RDPH) on August 15, 2011. On September 23, 2011, District’s motion to reset timelines was granted by OAH. Pursuant to the order, the timelines on this matter were reset as of September 15, 2011. A continuance was granted for good cause on October 26, 2011. The matter was submitted on January 25, 2012.

ISSUES

1. Did District and DMH deny Student a free appropriate public education (FAPE) by failing to notify Parent and obtain her consent for Student’s AB 3632 mental health assessment and failing to notify Mother of Student’s placement in an out-of-state residential treatment center (RTC)?

2. Within two years immediately preceding the filing of the complaint, did District and DMH deny Student a FAPE by significantly impeding Parent’s right to participate in Student’s individualized education program (IEP)?

3. For the 2010-2011 and 2011-2012 school years, beginning in April 2011, did District and DMH deny Student a FAPE by placing him in an out-of-state RTC at Devereux in Texas, instead of an educational placement in the least restrictive environment (LRE) near his home in California?

FACTUAL FINDINGS

1. Student is a 14-year-old boy who has been eligible for special education under the category of emotional disturbance (ED) since April 28, 2008. Student has a diagnosis of bipolar disorder and intermittent explosive disorder (IED), a history of psychiatric hospitalizations, and a history of violent outbursts at home and school.

2. At all relevant times, Student resided within the boundaries of District. Student has been enrolled in District schools since first grade. Student attended Barrett Elementary School (Barrett) for first and second grade, Barrett and Marvin Elementary School and 59th Street Elementary School (59th) for third grade, and 59th and 74th Street elementary school for fourth and fifth grades. Student attended Horace Mann Middle School (Horace Mann) for sixth and seventh grade, and Kayne Eras Center (Kayne Eras), a California certified nonpublic school (NPS) from September 2010 to April 2011 for eighth grade. At the time of hearing, Student attended Devereux, a RTC, in League City, Texas.

3. Student was hospitalized four times for incidents related to his bipolar disorder and IED during the period of 2004 to 2008. His most recent hospitalization was at Aurora Charter Oak Hospital from February 28, 2008 to March 7, 2008. He also received therapy through Hathaways Sycamore, Kedren Community Center, and county wraparound services. Student currently takes medication to address his bipolar disorder and IED, namely Seroquel and Guanfacine. Previously, he took Zoloft, but discontinued it because of weight gain. Student is approximately 6 feet tall and weighs 250 pounds.

4. Student’s parents have been engaged in a contentious custody battle for most of Student’s life. As a result, Student’s residence has over time shifted between Mother and Father. Student has lived with Father since 2005. At all relevant times, Mother and Father shared joint legal custody and Father had physical custody of Student.

5. On May 16, 2007, Los Angeles Superior Court Judge Maren E. Nelson (Judge Nelson) issued an order (May 16, 2007 order) which, in pertinent part, awarded physical custody of Student to father, and “joint legal custody” to both Mother and Father. The order also detailed the visitation schedule. In pertinent part, it provided that Mother would have reasonable visitation on alternate weekends from Friday after school or 4:00 p.m. until 6:00 p.m. on Sunday. The order also detailed how holidays and school break visitations would be shared. In addition, the order also provided that Father was to notify Mother within 24 hours of any medical appointments for Student. The May 16, 2007 order did not make Father the sole holder of educational rights and did not make any specific reference to educational rights.

6. On July 15, 2008, Judge Nelson appointed Guy Leemhuis, Attorney at Law, as minor’s counsel (minor’s counsel) for Student. Minor’s counsel mentioned to Mother and Father in 2008 the prospect of Student attending an RTC such as Devereux. Mother advised minor’s counsel that she was opposed to such a placement.

7. On May 6, 2010 and May 18, 2010, while Student was in seventh grade at Horace Mann, District psychologist Susan Williams (Williams), with Father’s consent, conducted a psychoeducational assessment of Student. The assessment was to confirm continued eligibility, determine present levels of performance (PLOPs), and to evaluate whether Student needed a more restrictive placement and additional services. To evaluate Student, Williams used the Cognitive Assessment Scales (CAS); Kaufman Test of Educational Achievement-Second Edition (KTEA-II); Comprehensive Test of Phonological Processing (CTOPP); Test of Visual-Perceptual Skills-Third Edition (TVPS-3); Beery-Buktennica Development Test of Visual Motor Integration (VMI); Behavior Assessment System for Children, Second Edition-Parent, Teacher, Student (BASC); Conners 3, Teacher, Parent and Self report; Kovacs’ Children Depression Inventory (CDI); Sentence Completion; teacher, Father and Student interviews; and review of records. Mother was never made aware of the assessment, was not interviewed, and did not have an opportunity to complete any ratings scales. Williams memorialized her assessment in a report dated May 21, 2010. Williams found that Student performed in the average range in academics, but displayed aggression, depression, non-compliant behavior, poor peer relations and conduct problems. She opined that Student continued to qualify for special education and recommended that the IEP team reconsider Student’s placement, services and behavior interventions and evaluate whether or not a more restrictive placement would be appropriate for Student

8. An IEP meeting was held on May 12, 2010. Mother did not attend the May 12, 2010 IEP meeting. It is not clear from the evidence whether Mother was invited to the meeting or aware of the meeting. Mother had previously attended IEP meetings at Horace Mann and had provided her contact information to Horace Mann staff. Horace Mann teacher Floyd Webb provided Mother a letter attesting to her involvement in Student’s education and concern for Student for submission to the Superior Court.

9. On May 12, 2010, Father provided written consent for a referral to DMH for mental health services. On May 12, 2010, Williams made a written referral and request to the DMH for an AB 3632 mental health assessment. ¹ Williams’ request included addresses and phone numbers for both parents.

10. On June 6, 2010, Father provided written authorization for AB 3632 psychological assessment plan and consent for release of assessment information.

11. Student was removed from Horace Mann and placed at Kayne Eras effective September 2010 after selling Marijuana on campus and for violent outbursts which required police intervention. Mother was not notified of Student’s removal from Horace Mann or his placement at Kayne Eras. Two months after Student’s placement a Kayne Eras, Mother learned of the placement in a conversation with Student.

12. When she learned of the placement, Mother contacted Kayne Eras and spoke with some of Student’s teachers to learn about his progress and to obtain more information about the school. She spoke with Student’s teachers, Walker (Walker) and Sterling Brown (Brown) several times. She also spoke with the Kayne Eras assistant principal George Woods (Woods). On one occasion, Walker called Mother and had Student speak to Mother to calm him down after an incident at school. Mother left several telephone messages for Woods and included her telephone number with each. On one occasion, Mother met briefly with Woods at Kayne Eras when she came to pick up letters drafted by Walker and Brown. Mother believed that Student was appropriately placed at Kayne Eras and that he was making progress there.

13. On January 24, 2011, DMH contractor Lora Joe (Joe), a licensed clinical social worker, contacted Father about the DMH assessment and obtained preliminary information from him. Joe has conducted hundreds of assessments for DMH and has previous professional experience as the educational director and intake coordinator for an RTC. Joe acknowledged that the file she received had contact information for both parents, but that she only contacted Father. She only contacted Father because District had indicated in the referral that he was the contact person and the person with which Student lived. When Joe contacted Father, Father told Joe that Mother was “not involved.” Joe accepted Father’s representation without further investigation, although she was aware that Student had every other weekend visits with his Mother. Joe interviewed Student, Father, Kayne Eras teachers Brown and Bunchen and Kayne Eras therapist Fred Rule on January 31, 2011. Joe did not contact Mother although Mother’s contact information was in the DMH file and readily available to her. Joe reviewed the District DMH referral, Student’s April 28, 2008 and May 12, 2010 IEP’s, May 12, 2008 District counseling notes and an April 25, 2008 District psychoeducational assessment. Joe did not conduct any standardized testing and did not conduct any classroom or home observations.

14. Before writing her report and making a formal recommendation, Joe discussed her preliminary findings with Father and her tentative recommendation for an RTC. She explained to Father that her recommendation would be for either outpatient services or an RTC. After discussion, Father expressed a preference for RTC. Joe agreed that an RTC would be appropriate based upon the totality of Student’s circumstances including violent outbursts at home, destruction of property at home, elopement from home, stealing, drug use, drug sales, and his history of counseling, psychiatric hospitalizations, and noncompliance with medication. Joe opined that Student had not used the coping strategies and interventions that he had been taught in counseling. Had Father not been amenable to placement at an RTC, Joe would have recommended outpatient services.

15. On February 15, 2011, Joe completed her report and submitted it to her DMH supervisor, Diane Spielman (Spielman), for approval. On March 8, 2011, Spielman reviewed and signed the report. At that time, DMH considered the report to be final.

16. In or about March 2011, Student ran away from home after having a disagreement with Father, and walked several miles to Kayne Eras. On his way to Kayne Eras, gang members confronted and attacked Student. As a result, he suffered a head injury. He felt safe with staff at Kayne Eras and spoke with counselors about his dispute at home.

17. Father received notice and an invitation to an IEP team meeting on April 7, 2011. Mother was not invited to the IEP meeting despite the fact that Kayne Eras staff and Horace Mann staff were aware that Mother was active in Student’s life. District, DMH, and Kayne Eras all had contact information for Mother.

18. On April 7, 2011, Student’s IEP meeting was held at Kayne Eras. In attendance at the IEP meeting were Father, administrative designee/District psychologist Perky Waterman, Kayne Eras counselor Fred Rule, Kayne Eras administrator George Woods, Kayne Eras special education teacher Sterling Brown, District AB3632 representative Sylvia Gonzalez, and DMH AB3632 representative Michele Amestoy. The IEP listed only Father as parent and did not list the name, address or contact information for Mother.

19. The IEP team discussed Student’s PLOPs and determined that Student had educational needs in the areas of social emotional/counseling, behavior, reading, language arts, vocational education, mathematics, and mental health. Measurable goals were established in each area of need.

20. The IEP noted that Student had a history of difficulty expressing emotions and managing his anger, and that Student had explosive outbursts, mood swings and difficulty calming himself when upset. It further noted that, at school, he had a history of being argumentative, demonstrating irritability, and yelling at teachers and students. The referenced behaviors occurred primarily before his placement at Kayne Eras. At Kayne Eras, Student had some minor incidents and confrontations with other students.

21. The IEP also noted that Student had significant difficulties at home. At hearing, Father explained that Student did not always take his medication, and had outbursts and rages. The team discussed Student’s March 2011incident, where he ran away from home. The team also discussed Student’s stepmother and half-sister moving out of the family residence because of Student’s outbursts and accusations of abuse against them.

22. The IEP team determined that Student was eligible for mental health services. The IEP team, based upon the DMH assessment, recommended that Student be placed in a structured, 24-hour residential therapeutic treatment facility (RTC). The IEP team determined that Student was to receive 60 to 120 minutes of individual therapy per week, 120-240 minutes of family therapy per month, medication support as deemed appropriate by the attending psychiatrist, case management for collaboration with school, and group therapy for 300 minutes per week. DMH proposed two treatment goals: 1) to reduce anger outbursts and 2) improve age-appropriate coping skills.

23. At hearing, teacher Brown testified that Student had been doing well and making progress at Kayne Eras. Having previously worked at Starview, a level 14 RTC, Brown was shocked that the IEP team offered Student RTC placement. Brown testified that he did not agree with the placement and felt that the decision to place Student at an RTC was rushed. Brown acknowledged that Student had presented himself as an angry person and had altercations with some of the other students. He also acknowledged that Student had a fascination with gang graffiti and gang culture. Brown believed that he had developed a positive relationship with Student and that Student was showing improvement and maturity in the seven months that he attended Kayne Eras. Brown cited one incident in which Student made an appointment with Woods and successfully explained to Woods that his points total for his grades had been erroneously calculated and should be raised. Brown believed that Student showed maturity and restraint in handling the situation. Student was awarded Student of the week recognition six times during his tenure at Kayne Eras.

24. At hearing, Woods testified that Student was making progress at Kayne Eras, but had a few disciplinary incidents. Woods opined that Student was not offered an RTC placement for academic difficulties. According to Woods, the placement was made after considering the totality of Student’s situation and was heavily influenced by Student’s difficulties at home.

25. On April 7, 2011, Father consented to the IEP and accepted the DMH recommendation for placement at an RTC with interim outpatient mental health services at Kedren Community Services.

26. DMH sent referral packets requesting placement for Student to four California RTCs and two out of state RTCs. Devereux in Texas and Heritage School in Utah both accepted Student for placement on April 18, 2011 and April 19, 2011, respectively. In California, the Help Group in Los Angeles and the Oak Grove Institute in Murietta rejected Student because of his history of aggressive behaviors. Hillsides Home for Children in Los Angeles did not have openings as of April 18, 2011. Father did not return telephone messages from Vista del Mar in Los Angeles to set up an interview for potential admission to its facility. When asked about his failure to return calls from Vista del Mar, Father responded that he was busy with many things for Student at the time and may not have remembered to call Vista del Mar. When asked whether he had a preference for an out of state placement over placement in California, Father was evasive and did not answer the question. Father testified that he had contacted minor’s counsel before placing Student at Devereux and had been assured by minor’s counsel that Father had the right to place Student at Devereux.

27. Father took Student to Texas on or about April 20, 2011 on the pretense of going on a sightseeing and birthday shopping trip there. Instead, Father checked Student into Devereux. When Father returned to California the next day, he informed Mother that Student was at Devereux in League City, Texas.

28. Initially, Devereux would not allow Mother to see or speak with Student. After Mother’s lawyer intervened and provided Devereux with a copy of the May 16, 2007 Order, Mother was permitted to see Student, speak with him by telephone at specified times and participate in family counseling by telephone.

29. District’s policy is to pay for four parental visits to RTCs per year for each Student placed in an out-of-state RTC pursuant to an IEP. Initially, District gave all four paid visits to Father for his use. Father had not visited Student, but agreed to give two of the District paid visits to Mother. At the time of hearing, Mother had visited Student once, and planned to visit a second time. Mother was distressed about Student being far from home and her inability to visit him on a regular basis due to financial constraints. Mother is considering moving to Texas to be closer to Student.

30. Devereux has both school and residential components. Devereux students attend classes from 9:00 a.m. to 3:00 p.m., Monday through Friday. The students are assigned to units where they live and receive counseling. Because Devereux is a level 14 facility, students may be locked in the facility if circumstances warrant and are not free to leave the facility. Each student is assigned a psychiatrist, therapist, nurse, case coordinator and two classroom teachers. These professionals comprise Student’s treatment team. Devereux uses a level system consisting of three levels for behavior Management. In order to complete the Devereux program, a participant must complete all three levels. Typically, students take two to six weeks to move through each level. Each level is comprised of three phases.

31. At Devereux, Student was placed in Unit 5, which housed clients up to the age of 22 years. Student, as a 14-year-old, was youngest person on the unit, and had been attacked and bitten by an 18-year-old on the unit. When Mother visited Student, she learned that Student had been diagnosed with high blood pressure and migraine headaches.

32. John Donato (Donato), a licensed clinical social worker, is the DMH representative responsible for overseeing Student’s placement. Donato made three visits to Devereux to see Student on June 16, 2011, September 13, 2011 and November 19, 2011. He was not aware that Student had been treated for high blood pressure and migraines. Donato was aware of the incident in which Student was attacked and bitten by another student at Devereux on October 19, 2011. Texas licensing officials contacted Donato during their investigation of the incident. According to Donato, Student made progress at Devereux, but was not consistent in using his coping strategies. At the time of hearing, Student was on the second of three levels in the Devereux level program. Donato did not have an estimate of how long Student would be at Devereux.

33. On June 1, 2011, the IEP team convened for a 30 day review IEP meeting. Mother participated in the meeting by telephone. Meeting participants were Mother, Father, District psychologist Debbie Gallinot (Gallinot), Devereux education director Charles Lynn Luther, Devereux therapist Amy Bush, Devereux case coordinator Tiffany Parnell, DMH representative John Donato and Devereux special education teacher Crystal Kline. At the June 1, 2011 IEP meeting, the IEP team discussed Student’s progress, goals, services and placement. All IEP team members except Mother were in agreement that Student should remain at Devereux in the RTC. The IEP stated “[t]he team recommends continued placement at the residential facility; however, Mother is in disagreement. Given that both parents hold educational rights, said dispute will be resolved with the court system. It should be documented that both mother and father participated in this IEP.”

34. At hearing, Gallinot, the District’s psychologist, testified that it was her belief that the consent of Father was sufficient to permit placement at Devereux. Gallinot explained that based upon her experience, District was not required to obtain Mother’s permission when both parents held legal custody of a student. Gallinot opined that it was an issue for a family law court to determine whether or not Mother’s permission was required.

35. Several witnesses testified that they were familiar with Student and had not observed any inappropriate behavior by Student. Specifically, Mother’s aunt was familiar with Student, had regular interactions with him, and was his babysitter when he was younger. She credibly testified that she did not see any rage, anger or outbursts from Student. Mother’s friend and former roommate, Starr Carter, was familiar with Student and had observed him many times. She credibly testified that she had never seen him misbehave or be disruptive. Mother’s employer, Katrina Watkins, had also observed Student on many occasions including play dates with her own son and had never seen Student behave inappropriately.

36. On December 6, 2011, at the request of minor’s counsel, Judge Nelson issued an ex parte order granting Father temporary sole legal custody of Student for medical and educational purposes (December 6, 2011 order). The December 6, 2011order further provided that Father was not to make any decisions without first contacting Mother. In addition, the order provided that if the parties could not come to a joint decision, Father “ha[d] the power of decision and w[ould] make the final decision.”

LEGAL CONCLUSIONS

1. In a special education administrative due process hearing, the party seeking relief has the burden of proving the essential elements of its claim. (Schaffer v. Weast (2005) 546 U.S. 49, 56-62 [126 S.Ct. 528, 163 L.Ed.2d 387].) Here, Student has the burden of proof.

Issue One

2. In her first issue, Mother contends that District and DMH violated her rights as a joint legal custodian, under the Individuals with Disabilities Education Act (IDEA), by not obtaining her consent and not providing her with prior written notice of its intent to assess Student for mental health services and placement in an out-of-state RTC. District and DMH admit that Mother was not given written notice of the mental health assessment or the placement, and that Mother did not provide consent for the assessment or the placement. District and DMH contend that the consent of Father was sufficient for the assessment and placement.

3. Under the Individuals with Disabilities Education Act (IDEA) and companion state law, students with disabilities have the right to FAPE. (20 U.S.C. § 1400; Ed. Code, § 56000.) FAPE means special education and related services, under public supervision and direction that are available to the student at no cost to the parents, that meet the state educational standards, and that conform to the student’s IEP. (20 U.S.C. § 1401(9); Cal. Code Regs., tit. 5, § 3001, subd. (o).)

4. For purposes of the IDEA, the term parent means a biological or adoptive parent unless the biological or adoptive parent does not have legal authority to make educational decisions for the child. (20 U.S.C. § 1401(a)(23); 34 C.F.R. §300.30(a).) When a judicial decree or order identifies a specific person or persons as having authority to make educational decisions on behalf of a child, that person is determined to be the parent for the purposes of the IDEA. (34 C.F.R. § 300.30(b).) In a situation where the parents of a child are divorced, the parental rights established by IDEA apply to both parents, unless a court order or state law specifies otherwise. (Analysis of Comments and Changes to 2006 IDEA Part B Regulations, 71 Fed. Reg. 46568 (August 14, 2006).)

5. A school district must provide prior written notice whenever it proposes or refuses to initiate or change the identification, evaluation, or educational placement of the child or the provision of FAPE to the child. (20 U.S.C. § 1415(b)(3); 34 C.F.R. § 300.503(a); Ed. Code, § 56500.4.) Prior written notice must include: (1) a description of the action proposed or refused by the agency; (2) an explanation of why the agency proposes or refuses to take the action and a description of each procedure, assessment, record, or report the agency used as a basis for the proposed or refused action; (3) a statement that the parents of a child with a disability have protection under the procedural safeguards of the IDEA and, if the notice is not an initial referral for evaluation, the means by which a copy of a description of the procedural safeguard can be obtained; (4) sources for parents to contact to obtain assistance in understanding their rights; (5) a description of other options considered by the IEP team and the reason why those options were rejected; and (6) a description of the factors that are relevant to the agency’s proposal or refusal. (20 U.S.C. §1415(c)(1); 34 C.F.R. §300.503 (b).)

6. In order to assess or reassess a student, a school district must provide proper notice to the student and his parents (20 U.S.C. §1415(b)(1); Ed. Code, §56321.) The notice consists of the proposed assessment plan and a copy of parental and procedural rights under IDEA and state law. (20 U.S.C. § 1414 (b)(1); Ed. Code §56321, subd. (a).) The assessment plan must appear in language easily understood by the public and the native language of the student, explain the assessments that the district proposes to conduct and provide notice that the district will not implement an IEP without the consent of the parent. District must give the parents and/or the student 15 days to review, sign and return the proposed assessment plan. (Ed. Code, §56321, subd. (a) & (b).)

7. If the parents do not consent to a reassessment plan, the district may conduct the reassessment by showing at a due process hearing that it needs to reassess the student and it is lawfully entitled to do so. (20 U.S.C. § 1414(c)(3); 34 C.F.R. § 300.300(c)(ii); Ed. Code, §§ 56381, subd. (f)(3), 56501, subd. (a)(3).)

8. At one time, California law provided that the provision of mental health services that were necessary to provide a FAPE were the responsibility of county offices of mental health under the supervision of the State Department of Mental Health. (See Gov. Code §7570, et seq., [commonly known by its Assembly Bill name, AB 3632 (Chapter 26.5)].) However, this mandate was rendered inoperative, and responsibility for the provision of services reverted completely to the local education agencies by the Governor’s veto of funding for this program on October 8, 2010. (California School Boards Ass’n, v. Brown, supra, 192 Cal.App.4th at pp. 1519-1520.) Subsequently, by operation of AB 114, Chapter 43, Statutes of 2011, Government Code section 7576, which mandated that IDEA mental health services be provided by the state Department of Mental Health, became inoperative effective July 1, 2011, and repealed effective January 1, 2012.

9. Prior to the repeal of the mandate on October 8, 2010, a student who was determined to be an individual with exceptional needs and was suspected of needing mental health services to benefit from his or her education, could, after the local educational agency obtained a parent’s consent, be referred for assessment to a community mental health service, such as DMH. (Former Gov. Code, § 7576, subd. (b).) Although under this system a county mental health department was responsible for providing the assessment and any required services, the duty to obtain written parental consent remained exclusively with the local educational agency. (See former Gov. Code, § 7576, subds. (b)(2) and (c)(2).) After the local educational agency obtained parental consent for the referral, the assessment would only go forward if the district, in accordance with specific requirements, prepared a referral package demonstrating that the student met the criteria for referral. (Ed. Code, § 56331, subd. (a); Cal. Code Regs., tit. 2, § 60040, subd. (a); former Gov. Code § 7576.)

10. There are two parts to the legal analysis of a school district’s compliance with the IDEA. First, the tribunal must determine whether the district has complied with the procedures set forth in the IDEA. (Board of Educ. v. Rowley (1982) 458 U.S. 176, 206-207, [73 L.Ed. 2d 690] (Rowley).) Second, the tribunal must decide whether the IEP developed through those procedures was designed to meet the child’s unique needs, and reasonably calculated to enable the child to receive educational benefit. (Ibid.) In Rowley, the Supreme Court emphasized the importance of adherence to the procedural aspects of the IDEA. In pertinent part the court stated: “…we think that the importance Congress attached to these procedural safeguards cannot be gainsaid. It seems to us no exaggeration to say that Congress placed every bit as much emphasis upon compliance with procedures giving parents and guardians a large measure of participation at every stage of the administrative process… as it did upon the measurement of the resulting IEP against a substantive standard.” (Rowley, supra, at 206-207.)

11. Procedural flaws do not automatically require a finding of a denial of FAPE. A procedural violation does not constitute a denial of FAPE unless the procedural inadequacy: (a) impeded the child’s right to a FAPE; (b) significantly impeded the parent’s opportunity to participate in the decision making process regarding the provision of FAPE; or (c) caused a deprivation of educational benefits. (20 U.S.C. § 1415(f)(3)(E)(i) & (ii); Ed. Code, § 56505, subd. (f)(2); W.G. v. Board of Trustees of Target Range School Dist. No. 23 (9th Cir. 1992) 960 F.2d 1479, 1483-1484.)

12. Where a procedural violation is found to have significantly impeded the parents’ opportunity to participate in the IEP process, that analysis does not include consideration of whether the student ultimately received a FAPE, but instead focuses on the remedy available to the parents. (Amanda J. ex. Rel. Annette J. v. Clark County School Dist. (9th Cir. 2001) 267 F.3d 877, 892-895 [school’s failure to timely provide parents with assessment results indicating a suspicion of autism significantly impeded parents right to participate in the IEP process, resulting in compensatory education award]; Target Range, supra, 960 F. 2d at pp. 1485-1487 [when parent participation was limited by district’s preformulated placement decision, parents were awarded reimbursement for private school tuition during time when no procedurally proper IEP was held.])

13. Here, the evidence showed that DMH could not have deprived Student of a FAPE by failing to provide Mother with prior notice of the May 2010 plan to conduct a mental health assessment, or by failing to provide Mother with prior notice of the change in placement to an RTC at the April 7, 2011 IEP team meeting. As discussed in Legal Conclusions 8 and 9, above, the duty to obtain parental consent for the mental health assessment rested solely with District by operation of former Government Code section 7576, subdivisions (b)(2) and (c)(2). Similarly, effective October 8, 2010, although DMH remained in place as District’s mental health assessor, the duty to provide a FAPE to Student rested solely on District. Accordingly, DMH could not have deprived Mother of her procedural rights to notice as a matter of law, as all responsibility for ensuring those rights rested with District, which was student’s local educational agency. In sum, DMH did not deprive Student a FAPE on this ground. (Factual Findings 1-36; Legal Conclusions 1-13.)

14. However, as to District, Mother met her burden of demonstrating a denial of a FAPE because her rights to participate in the decision-making process were denied. Specifically, at the time of the assessment and placement, Mother held joint legal custody with Father and had the right to receive prior written notice of the assessment and proposed placement and to withhold consent for assessment and placement of Student. The evidence showed that District had Mother’s contact information and was aware of Mother’s existence and involvement in Student’s life. Nevertheless, District opted to proceed with assessing and ultimately placing Student in an out-of-state RTC without notice to Mother and without obtaining her consent. The actions of District deprived Mother of her right to participation in the decision-making process at two critical stages, the consent for the mental health assessment, and the IEP at which a RTC was offered. Mother had no way of providing her input to the decisions without notice. As such, District significantly infringed upon Mother’s rights, which constituted a denial of FAPE. (Factual Findings 1-36; Legal Conclusions 114.) Mother’s remedy for the denial of her procedural rights will be discussed separately below.

Issue Two

15. In Issue Two, Mother contends that she was deprived of her right to participate in the IEP process between August 15, 2009 and August 15, 2011 (i.e. two years immediately preceding the filing of the RDPH), namely the IEPs of May 12, 2010, April 7, 2011, and June 1, 2011. She further contends that the deprivation was not cured by the June 1, 2011 IEP team meeting because her concerns were not seriously considered. District contends that Mother was afforded the opportunity to participate in the IEP process when it convened the June 1, 2011 IEP meeting.

16. As set forth in legal conclusions 3, 4, 8, 9, 10, 11 and 12 above, Student has a right to a FAPE. To comply with the IDEA, the District must comply with both procedural and substantive aspects of the IDEA.

17. The parents of a child with a disability must be afforded an opportunity to participate in meetings with respect to the identification, assessment, educational placement and provision of a FAPE to the child. (Ed. Code, §§ 56304, 56342.5; 34 C.F.R. § 300.501(b).) An IEP team consists of (1) parents, (2) one regular education teacher, (3) one special education teacher of the pupil, (4) a representative of the local education agency (LEA), (5) an individual who can interpret the instructional implications of the assessment results, (6) at the discretion of the parents or LEA, other individuals who have knowledge or special expertise regarding the pupil, including related services personnel, as appropriate, and (7) the individual with exceptional needs. (20 U.S.C. § 1414 (d)(1)(B); Ed. Code, § 56341, subds. (b)(1-7).)

18. Each public agency must take steps to ensure that one or both of the parents of a child with a disability are present at each IEP team meeting or are afforded the opportunity to participate, including notifying parents of the meeting early enough to ensure that they will have an opportunity to attend and scheduling the meeting at a mutually agreed on time and place. (34 C.F.R. § 300.322.) A meeting may be conducted without a parent in attendance if the public agency is unable to convince the parents that they should attend. In this case, the public agency must keep a record of its attempt to arrange a mutually agreed upon time and place, such as detailed telephone records, copies of correspondence, records of visits to Parent’s home or work site, use of interpreters and other measures and to provide a copy of the IEP to the parent. (34 C.F.R. § 300.322.)

19. A parent has meaningfully participated in the development of an IEP when he is informed of his child’s problems, attends the IEP meeting, expresses his disagreement regarding the IEP team’s conclusions, and requests revisions in the IEP. (Amanda J., supra, 267 F.3d 877, 882; N.L. v. Knox County Schools (6th Cir. 2003) 315 F.3d 688, 693; Fuhrmann v. East Hanover Bd. of Education (3d Cir. 1993) 993 F.2d 1031, 1041.)

20. Here, as set forth above, Mother held joint legal custody of Student. Consequently, she had a right to be a part of the IEP team at Student’s May 12, 2010, April 7, 2011, and June 1, 2011 IEPs. When District failed to invite Mother to the May 12, 2010 and April 7, 2011 IEP meetings, despite having Mother’s contact information, District interfered with her opportunity to participate in the IEP process, which constituted a procedural violation. Although Mother had not been a part of the May 12, 2010 IEP team, where District offered Student placement at Kayne Eras, Mother testified that when she learned of the placement, she did not disagree with it, despite District’s procedural violation. However, with respect to the April 7, 2011 IEP, Mother persuasively established that she did not want Student placed in an RTC and specifically did not want Student placed out of state, and had she been part of the IEP process, she would have advised the team accordingly. As such, District’s failure to notify Mother of the April 7, 2011 IEP significantly infringed upon Mother’s rights.

21. Despite District’s assertion to the contrary, the subsequent June 1, 2011 IEP did nothing to remedy the error. As a joint educational rights holder at the time of the IEPs, Mother had the unequivocal right to refuse consent to the April 7, 2011 IEP, prior to Student’s ultimate placement in the RTC in Texas. District cited no authority to support its proposition that infringement upon a parent’s right to participate in the IEP process in one meeting can be cured by inviting the parent to a subsequent IEP meeting. By the time of the June 1, 2011IEP, the damage was done, as Student had already been placed in the out-ofstate facility without Mother’s input or consent. Given the above, during all relevant time periods, District denied Mother the opportunity to participate in the IEP process. (Factual Findings 1-36; Legal Conclusions 1-20.) To the extent Student asserts this claim as to DMH, Student’s claim fails because DMH was not the local educational agency responsible for holding IEP meetings either at the time of the May 12, 2010 IEP team meeting or the April 7, 2011 and June 1, 2011 IEP team meetings. Accordingly, DMH did not deprive Mother of her procedural rights under the IDEA on this ground. (Factual Findings 1-36; Legal Conclusions 3, 4, 8-13, 17-19.)

Issue Three

22. Because the ALJ has already determined that District denied Student a FAPE by infringing upon Mother’s right to participate in the IEP process (Issue Two), as well as failing to provide prior written notice (Issue One), it is not necessary to address Issue Three, which questions whether Student was denied a FAPE by District’s placement of Student at Devereux, instead of an educational placement near his home in California. (Factual Findings 1-36; Legal Conclusions 1-22.) As to DMH, for the reasons set forth in Legal Conclusion 13, incorporated by reference, DMH did not deny Student a FAPE as a matter of law. Although DMH continued as District’s mental health assessor after October 8, 2010, DMH had no legal duty to provide Student with the services necessary to provide a FAPE, which instead were the sole responsibility of District. Accordingly, Issue Three fails as to DMH.

Remedies

23. As set forth above, where a procedural violation is found to have significantly impeded the parents’ opportunity to participate in the IEP process, the analysis next focuses on the remedy available to the parents. (Amanda J., supra., 267 F.3d at pp. 892-895.) As discussed above, after October 8, 2011, the duty to provide a FAPE became the sole responsibility of District, who was the local educational agency for purposes of serving Student under the IDEA. Therefore, the relief ordered in this case will only be directed to District.

24. There is broad discretion to consider equitable factors when fashioning relief. (Florence County School Dist. v. Carter (1993) 510 U.S. 7, 16 [114 S.Ct. 361, 126 L.Ed.2d 284) The conduct of both parties must be reviewed and considered to determine whether relief is appropriate. (Parents of Student W. ex rel. Student v. Puyallup School Dist. No. 3 (9th Cir. 1994) 31 F.3d 1489, 1496.)

25. Here, District shut Mother out of the assessment and IEP process by violating her procedural rights under the IDEA. Mother was a joint legal custodian and a holder of educational rights at all relevant times. District should have taken steps to ensure Mother’s participation in the assessment and IEP process. In doing so, District did not obtain a complete view of Student and his unique needs because it failed to obtain any information from Mother as part of the mental health assessment process. As to placement, had District included Mother in the process as the IDEA required, Mother would have objected to placement at Devereux in Texas and Student would not have been sent to Devereux. As a result, Mother had to obtain counsel to exercise her rights to see Student, to speak to him by telephone, and to visit him at Devereux. District did not make provisions for Mother to visit Student and she was not financially able to pay for the lodging and travel herself. She has been able to see Student once since April of 2011 instead of the two to three times per month that she in entitled to visit Student had he not been placed out-of-state. (Factual Findings 136; Legal Conclusions 1-25.)

26. While it is true that after this matter was filed, Student’s counsel obtained an order giving Father final say over educational decisions. However, significantly, even the juvenile court recognized that Mother should at least have a say in the process. The District’s failure to provide Mother with her procedural rights to participate was not cured in any way by the December 6, 2011 Order. Accordingly, as a remedy in this matter, the IEP team must go back and examine the information that it failed to obtain when it shut Mother out of the process, specifically, by updating its mental health assessment of Student to include information from Mother. In addition, the evidence showed that District may not have met its obligation to exhaust placements in California given Father’s testimony that he did not return a phone call from the Vista Del Mar RTC located in Los Angeles. Further, the evidence showed that District took no consideration of Mother when discussing its policy of paying for four yearly visits per year. Accordingly, District must document the exhaustion of potential placements in California as part of any IEP placing Student out-of-state. Further, by not including Mother in the assessment or IEP process, no provision was made for visitation by Mother, or for participation in family therapy. As a remedy, District is ordered to modify Student’s IEP to expressly provide for Mother’s participation in family therapy if required by Student’s treatment plan, and to provide for visits to Devereux in an amount equal to those afforded to Father. As a further compensatory remedy, District shall fund up to four visits to Devereux by Mother, consistent with District guidelines, to be used at any time for as long as Student is placed there. Finally, because the December 6, 2011 Order is temporary, and still gives Mother a voice in making decisions about Student’s education, District shall ensure that Mother has notice of any proposed assessments or IEP team meetings. (Factual Findings 1-36; Legal Conclusions 1-26.)

ORDER

1. Within 30 days of this order, District is ordered to supplement the mental health assessment of Student with an interview of Mother by either a school psychologist or licensed clinical social worker.

2. Within 60 days of this order, District is ordered to convene an IEP team meeting with all required participants, including Mother, to present and consider the information from the supplemented mental health assessment, and consider Mother’s input. The IEP team must discuss the continuum of placement options for Student, and explore available placements. If placement in a California RTC is not available, District must document the unavailability in the IEP notes. Student’s IEP shall be modified to expressly provide Mother equal visitation to any out-of-state RTC that is offered to Father. In addition, the IEP shall expressly address the extent to which Mother will participate in family therapy as part of Student’s treatment plan.

3. As a compensatory remedy, in excess of the visitation provided in Student’s IEP, District shall, consistent with District guidelines for reimbursement of transportation and lodging, provide Mother with four visits to Devereux, to be used at any time for as long as Student is placed there.

4. Until such time as a court permanently orders Mother’s parental rights to be terminated, District shall provide Mother with notice of any assessment plans and IEP team meetings for Student.

PREVAILING PARTY

The decision in a special education administrative due process hearing must indicate the extent to which each party prevailed on the issues heard and decided at the hearing. (Ed. Code, § 56507, subd. (d).) Mother, on behalf of Student, prevailed on all issues as to District. DMH prevailed as to all issues against it.

RIGHT TO APPEAL THIS DECISION

The parties to this case have the right to appeal this decision to a court of competent jurisdiction. If an appeal is made, it must be made within 90 days of receipt of this decision. (Ed. Code, § 56505, subd. (k).)

Dated: February 3, 2012

GLYNDA B. GOMEZ
Administrative Law Judge
Office of Administrative Hearings