BEFORE THE
OFFICE OF ADMINISTRATIVE HEARINGS
STATE OF CALIFORNIA

In the Matter of:
PARENTS ON BEHALF OF STUDENT,
v.
CLOVIS UNIFIED SCHOOL DISTRICT,

OAH CASE NO. 2012110503

DECISION

Administrative Law Judge Troy Taira (ALJ), from the Office of Administrative Hearings (OAH), heard this matter in Clovis, California, on January 23, 24, and 25, and February 4, 5, 6, 7, and 8, 2013.

Barbara Ransom, Yvette Sterling, and Marianne Malveaux, Attorneys at Law, appeared on behalf of Student. Student’s mother and father (Parents) were present during the hearing. Student did not attend the hearing.

Karen Samman, Attorney at Law, appeared on behalf of Clovis Unified School District (District). Mary Bass, special education administrator, was present on behalf of District.

Student filed his due process hearing request (complaint) on November 14, 2012, naming District. OAH granted a continuance on December 21, 2012. On January 25, 2013, the hearing was continued to February 4, 2013. At the close of the hearing on February 8, 2013, the matter was continued to March 3, 2013, for the submission of the parties’ closing briefs. On March 3, 2013, Student reported to OAH that he was unable to submit a closing brief due to computer problems. The undersigned ALJ continued the matter extending the deadline to submit closing briefs to March 6, 2013. The parties submitted their closing briefs on March 6, 2013, and the matter submitted for decision. ¹

On March 7, 2013, District filed an objection to Student’s closing brief, contending that Student failed to comply with the ALJ’s parameters for the closing brief and that the brief was untimely filed. On March 15, 2013, Student filed a response to District’s objection. ² On March 20, 2012, District filed a reply to Student’s response to District’s objection.

The ALJ limited the parties’ closing brief to 25 pages, double spaced, with 12 point font. Student’s brief is 40 pages total, and includes attached tables not in evidence. The substantive text of the Student’s brief runs from pages one through 23 and is single-spaced. Student filed his closing brief approximately one hour and 10 minutes after the deadline. The ALJ finds that Student’s closing brief was filed untimely and exceeded the page limit, but that the increased length and filing delay were de minimis and did not prejudice District. Therefore, the ALJ considered Student’s brief. The ALJ did not consider the attached tables which were not presented or moved into evidence during the hearing.

PROCEDURAL MATTERS

Evidentiary Objections

At the hearing, District objected to the admission of Student’s Exhibit S-130. The ALJ deferred ruling on the objection until after the hearing. The exhibit is a spreadsheet listing Student’s proposed individualized education program (IEP) goals. The spreadsheet was not provided prior to hearing, but was used to refresh witness recollection during the hearing without objection. In addition, the proposed goals were discussed in the IEP team meeting notes. The proposed goals are relevant and probative to the issues and the summary information is not cumulative. The spreadsheet summaries were helpful to the witnesses and are of assistance to the trier of fact. District did not establish that the contents were in error. Therefore, Exhibit S-130 is admitted into evidence.

Clarifying the Issues

During the prehearing conference and at the beginning of the hearing, the ALJ attempted to clarify the issues to be addressed in this decision. Therefore, upon further review of the issues in light of the evidence presented at hearing, the ALJ has further reframed the issues to conform to the applicable law. Many of Student’s issues were simply repetitive and were accordingly reframed. Finally, Student alleges in a separate issue that his IEP was not in the least restrictive environment (LRE) as required by law thereby denying Student a free appropriate public education (FAPE). Since the question of providing a FAPE includes a finding on the element of LRE, a separate LRE issue is also redundant and the issues have been reordered and reworded accordingly.

ISSUES ³

1. Did District’s proposed IEP for the 2012-2013 school year deny Student a FAPE in that it:

1. Does not offer Student annual goals reasonably calculated to meet his unique needs related to his disability;
2. Does not offer the appropriate supports and related services to meet Student’s specific learning needs and enable him to access the general education curriculum in the areas of:
   1. Communication and intelligibility. Specifically, speech and language therapy for articulation deficiency;
   2. Trained and supervised paraprofessionals. Specifically, instructional aide support;
3. Does not offer an appropriate educational placement because District:
   1. Offered limited academic instruction;
   2. Did not offer instruction in age-appropriate subjects;
   3. Did not offer access to the general education curriculum; and
   4. Does not offer an education in the LRE?

2. Did District’s IEP implemented for the 2012-2013 school year deny Student a FAPE in that:

1. Student did not work on his annual goals reasonably calculated to meet his unique needs related to his disability;
2. District’s instructional aides were not adequately trained and supervised to support Student in the special education and general education classrooms;
3. Student’s curriculum was not modified to meet his unique learning style;
4. Student did not receive speech and language therapy for communication and
   intelligibility;
5. Student did not attend the regular education class for 57 percent of his school day?

PROPOSED RESOLUTIONS

Student requests that District provide Student with additional speech and language services and that District convene an IEP team meeting to draft an IEP to receive his educational program in the general education classroom at Alta Sierra Middle School with the supports and services listed above. Student requests that the District provide him with an inclusion program including curriculum modifications to grade-appropriate general education academic subjects to meet Student’s unique needs, teachers and paraprofessionals appropriately trained and supervised to provide special education and related services and who are trained in positive behavior approaches, inclusive practices, human sexuality for persons with disabilities, and appropriate boundaries between student and professional.

Student also proposes other remedies regarding his inclusion in the general education environment, including that the District implement a buddy system to help Student adjust and to facilitate friendships and to keep Student from becoming an easy target for bullying, sexual abuse or drugs; that the District ensure that all staff who interact with Student are aware of his goals and objectives and can assist Student to become more independent and able to interact with his peers; and that the District hire an inclusion specialist to assist general education teachers and aides to implement a scientifically-based inclusive educational program for Student. Finally, Student proposes as a resolution that the District reimburse Parents the costs of providing Student educational services during the 2012-2013 school year; that the District reimburse Parents the costs of counseling services for Student; and that the District provide compensatory education.

CONTENTIONS OF THE PARTIES

Student contends that District’s offer of a seventh grade placement in the 2012-2013 school year in a blended program consisting of 57 percent in general education and 43 percent in a special day class (SDC) failed to offer him a FAPE. ⁴ Student alleges that he obtained satisfactory educational benefit during his sixth grade elementary school general education program and that Student is more capable than District believes. Student alleges that District’s proposed seventh grade placement is inappropriate because the IEP does not offer appropriate goals, limits his academic instruction, is not age-appropriate, and does not access the general education curriculum. Student further contends that District failed to provide adequate speech and language therapy, trained and supervised instructional aides, and an adequate modified curriculum. Finally, Student alleges he does not attend the regular education class for 57 percent of his school day as the IEP requires.

District contends that it offered Student a placement that balances the nonacademic benefits of mainstreaming with general education students with his need for intensive academic support in a SDC. District asserts that Student’s deficits are so severe that an academic general education curriculum would have extensive modifications, as well as requiring continual and extensive assistance from an aide, to such an extent that he would not obtain meaningful educational benefit from placement in a full-time general education inclusion setting. District asserts that its SDC meets Student’s academic needs and its general education classes meets his social and communication needs so he can obtain meaningful educational benefit. District contends that it provides appropriate speech and language therapy with collaboration and consultation delivery models that addressed Student’s needs and that its instructional aides are adequately trained and supervised. Finally, District contends that Student does in fact spend 57 percent of his program in a general education setting.

FACTUAL FINDINGS

Jurisdictional and Background

1. Student is a 13-year-old boy who lives with Parents within the District’s geographical boundaries. Student has Down Syndrome and is eligible for special education and related services under the category of intellectual disability (ID). For the 2011-2012 school year, Student attended sixth grade at District’s Century Elementary School. For the 2012-2013 school year, Student attends seventh grade in District’s Alta Sierra Middle School. Based on Student’s limited academic levels of performance, District uses the academic standards in the California Alternate Performance Assessments (CAPA) for Student. The CAPA is the alternate statewide educational assessment test for students with severe cognitive disability.

2. For the 2011-2012 school year, in sixth grade, District’s IEP offered Student an educational placement consisting of 54 percent of his educational program in a SDC and 46 percent in the general education setting. Parents only consented to the general education placement and sent Student to school only to attend the general education class for 46 percent of his day, which were in the afternoon session. ⁵ Student did not attend his SDC for the morning session. ⁶ Parents supplemented Student’s school day with private tutoring. District provided a dedicated instructional aide to assist Student when he was in the general education class. Student also received speech and language therapy consisting of 30 minutes per week of direct therapy in the general education class and 30 minutes per week of consultation. Student’s last fully agreed-to IEP was dated April 19, 2010, where his placement consisted of spending 65 percent of his school day receiving specialized education in a SDC and 35 percent in general education.

District’s Offer for 2012-2013 School Year

3. In order to provide a FAPE, an IEP must adequately address a student’s unique needs and provide an educational program that is reasonably calculated to provide the student with some educational benefit in the LRE. A district is not required to provide a special education student with the best education available or to provide instruction or services that maximize a student’s abilities. A school district need only provide a basic floor of opportunity that consists of access to specialized instructional and related services, which are individually designed to provide an educational benefit to the student. The adequacy of an IEP is analyzed under the “snapshot rule.” That is, the IEP is not judged in hindsight, but in light of the information available at the time it was drafted.

April 16, 2012 IEP

4. An IEP is a written statement that includes 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 pupil can participate in regular educational programs, the projected initiation date and anticipated duration, and the procedures for determining whether the instructional objectives are achieved. It shall also include a statement of the program modifications or supports for school personnel that will be provided to the pupil to allow him or her to advance appropriately toward attaining the annual goals and be involved and make progress in the general education curriculum and to participate in extracurricular activities and other nonacademic activities.

5. District scheduled and held an IEP team meeting on April 16, 2012. The IEP team meeting continued to subsequent dates on April 23, May 11, and May 31, 2012. The IEP offer for the 2012-2013 school year that resulted from these team meetings (referred to as the April 2012 IEP) places Student in three periods in the SDC class for academic instruction in English language arts and math (900 minutes of weekly specialized instruction) and four periods in general education for social and language development. Student’s general education consists of two electives (art and drama), physical education, and lunch (a designated period). The placement offer thus consists of 43 percent of his school program in a SDC and 57 percent in general education classes. ⁷ Compared to the previous school year, this was 13 percent less time in a separate SDC, and an 11 percent increase in time spent in general education. District’s offer includes speech and language therapy for 30 minutes of direct collaboration therapy and 30 minutes consultation per week, and a dedication instructional aide for all general education periods. The offer provides Student with instruction in a special education setting for 43 percent of the time, and in a general education setting for 57 percent of the time.

6. Parents never signed the consent section in the IEP. The 2012-2013 school year started on August 20, 2012. On or about September 4, 2012, District received a typed unsigned IEP addendum statement from Parents giving their consent to the general education placement in drama, art, and physical education classes, but continuing to disagree with the offered SDC and contending that his annual goals could be met in a general education setting. On September 7, 2012, District interpreted Parent’s addendum to give consent to the IEP, except for the SDC placement. However, by placing Student in a 57 percent general education setting, Student by default attends the SDC for 43 percent of his program, even though Parents never agreed to the SDC placement. ⁸ Through Parents’ confusing and fractious consent mechanism, District reasonably implemented by default the proposed April 2012 IEP, including the placement and related supports and services.

Determination of Student’s Unique Needs and Present Levels of Performance

7. The Individuals with Disabilities in Education Act (IDEA) provides that an IEP must contain a statement of the current levels of educational performance, measurable annual goals, and a means to measure progress towards the goals. Additionally, the IEP team must take into account the results of the student’s most recent assessments in formulating the IEP to determine the student’s present levels of performance and the student’s unique needs. In order to determine whether District’s April 2012 IEP offer denied Student a FAPE in the areas at issue, evidence regarding District’s knowledge of Student’s unique needs must be evaluated.

District’s Triennial Assessment

8. The evidence established that the April 2012 IEP team considered Student’s 2011 triennial assessment results. For special education pupils, the law required school districts to conduct reassessments at least every three years. District conducted Student’s last required triennial evaluation in April 2011, when he was in fifth grade at Century Elementary School. District school psychologist Scott Berglund conducted the triennial psychological assessment on February 28, March 16, and April 1, 2011. ⁹ Mr. Berglund observed Student six times in general education and SDC settings, social settings, and during his speech and language therapy from March 7 through March 24, 2011. Mr. Berglund established that the assessment results were still relevant and appropriate during the April-May 2012 IEP team meeting period.

9. District’s psychological assessment consisted of the following: Record review; observations and interviews; Health Background Study; Woodcock-Johnson Test of Academic Achievement, Third Edition (WJ-III), to measure Student’s academic skills in reading, written language, and math; Brigance academic profile; kindergarten assessment profile; Beery Developmental Test of Visual-Motor Integration (Beery VMI); Universal Nonverbal Intelligence Test (UNIT); Wechsler Intelligence Test for Children (WISC-IV); Vineland Adaptive Behavior Scales-II (Vineland-II) parent and teacher rating scales; and a speech and language evaluation.

10. On the UNIT which measures general intelligence and cognitive abilities for children disadvantaged by traditional verbal or language base measures, Student scores ranked him at or below the 0.1 percentile, placing him in the “very delayed” category. On the WISC-IV for overall intelligence, Student’s full scale intelligence quotient was measured at 40, which is ranked him below the 0.1 percentile, placing him in the extremely low category with considerable weaknesses in the areas of overall expressive language reasoning, problem solving, working memory, and processing speed. On the Vineland-II, Parents rated Student in communication (sixth percentile, moderately low), daily living skills (13th percentile, moderately low), socialization (13th percentile, moderately low), motor skill (68th percentile, adequate), adaptive composite score (eight percentile, moderately low). Students’ teacher rated Student lower in most categories -communication (first percentile, low), daily living skills (below first percentile, low), socialization (first percentile, low), motor skill (10th percentile, moderately low), adaptive composite score (63rd percentile, moderately low).

11. Leanne Rosa conducted Student’s triennial speech and language assessment. ¹⁰ She administered the Expressive Vocabulary Test, Second Edition; Peabody Picture Vocabulary Test, Fourth Edition; and Language Processing Test, Third Edition. Student scored below the first percentile in the three tests, meaning that Student has considerable overall expressive and language delays.

12. Alison Carberry conducted the academic assessment portions of Student’s triennial on March 4, 11, 16, 22, and April 1, 2011. According to the California State Standards, the CAPA, and the Brigance Diagnostic Comprehensive Inventory of Basic Skills, Student’s academic achievement assessment found him in the kindergarten range in reading and writing and math (with some overlap in the first grade level). The WJ-III test also indicated Student had considerable delays in overall reading, written language, and math skills consistent with the academic assessment.

13. The evidence of the triennial assessments established persuasively that Student, in spring 2011, had considerable delays in overall cognitive development. The WISC indicated his cognitive skills in the extremely low range, with considerable weaknesses in overall expressive language, reasoning, problem solving, working memory, and processing speed. Academically, the assessment indicated student continued to demonstrate considerable academic delays in the areas of overall reading, written language, and mathematics skills. Based on these assessments, Student needed a modified curriculum and the support of specially designed instruction. Student’s overall rate of progress, while lower than similarly-aged peers, appeared to be commensurate with his overall global cognitive functioning. In 2011, at the time the triennial assessments were done, Student made progress within a SDC and met many of his goals, indicating two years of growth during the preceding six years. Student was able to work short durations on modified curriculum where he was able to demonstrate success. Student had limited ability to request or respond, and often required more than one verbal directive. Student did not initiate social interaction or verbal communication. Student did not respond well emotionally to minor setbacks.

14. Student had deficits in cognitive delays requiring administration of the CAPA, along with deficits in social interaction, initiation with peers, and transition. The evidence showed Student needed a structured language enriched repetitive drill, small group setting, which contains an emphasis and focus on his individual and functional goals. Student was able to continue to access the general education setting and his general education peers for social benefit purposes, during mainstream opportunities, lunch, recess, and other school functions.

Independent Psychological Evaluation

15. District’s April 2012 IEP team also considered Student’s 2011 independent psychological evaluation. Dr. Robert Wells conducted an independent psychological evaluation at Parent’s request. He evaluated Student on June 7, 2011, and July 12, 13, 14, and 19, 2011. ¹¹ Dr. Wells’ evaluation consisted of the following: assessment exam and interview; record review; Naglieri Nonverbal Ability Test (NNAT); Kaufman Assessment Battery for Children, Second Edition (KABC-II); Kaufman Test of Educational Achievement, Second Edition (KTEA-II); Peabody Picture Vocabulary Test; and Bender Visual-Motor Gestalt Test. District received Dr. Wells’ evaluation report on August 15, 2011.

16. Dr. Wells established that his 2011 assessment results were still relevant and applicable at the time of the IEP offer. He found Student to be developmentally delayed, remaining well behind his peers. Dr. Wells was persuasive that Student’s most significant weakness is his receptive and expressive language processing disorder which interferes with his ability to understand complicated instructions to recall verbal information, and to organize his thoughts or verbal expression. Therefore, when he is confused and stressed, he tends to shut down and needs time to reset. Student also has significant dysgraphia which interferes with his ability to complete paper and pencil assignments in an efficient manner. Student’s reading and written expressive language skills appear to be somewhat better developed than his math and oral language skills. Dr. Wells was persuasive in establishing that Student continues to need specialized academic services. Dr. Wells did not state a specific placement recommendation, but indicated that “extensive mainstreaming” for Student with 57 percent in general education would be appropriate. Dr. Wells did not specify classes or activities Student should take.

17. On the KABC-II, this measures Student’s cognitive abilities, Student’s mental processing index score ranked Student below the 0.1 percentile, placing him in the lower extreme category. Student’s WISC-IV and KABC-II scores measuring his cognitive abilities were consistent. Dr. Wells opined that Student’s scores on the KTEA for academic achievement showed he had greater academic accomplishment that his score in District’s WJ-II indicated. Dr. Wells felt that the discrepancy where Student scored higher on academic achievement tests that on IQ tests show that Student’s IQ scores underestimate his true cognitive potential. Dr. Wells’ report stated Student’s difficulties with language comprehension and focal attention compromise his ability to do well on tests presented on IQ tests, and that he has done much better on academic tests where he understood what was expected. Dr. Wells estimated that Student’s IQ test scores underestimate his intellectual functioning and that his true IQ is likely in the range of 50 to 70, placing him in the mildly developmentally delayed range. The opinion that Student’s is only mildly developmentally delayed is unpersuasive. There is no objective assessment data to support the contention that Student’s IQ scores could be higher if he progressed in the areas of language comprehension and attention. Nevertheless, Dr. Wells’ assessment results was not that significantly different than District’s assessment. The weight of the evidence shows Student has significant cognitive delays. Finally, while it is possible that a future assessment could yield results where Student’s IQ scores improve, the possibility does not negate the current data the IEP team had about Student’s present levels of performance.

Additional Assessments Considered

¹² Ms. Bustos-Ponce has been working with Student since approximately January 2011. Ms. Bustos-Ponce attended student’s IEP team meetings. Ms. Bustos-Ponce has a master’s degree in education (administrative services) with credentials in multiple-subject teaching and bilingual cross-cultural language development, and has over 17 years of educational experience at another school district.

18. The April 2012 IEP team also considered an academic evaluation report conducted and presented by Ms. Ana Bustos-Ponce, a private educational consultant and tutor.¹² The report is dated April 23, 2012, and the reading and math assessments were conducted over a series of dates during the period January 2012 through April 2012. Ms. Bustos-Ponce’s report credibly showed Student, as a sixth grader, to be functioning in the first grade range in reading and math which is consistent with District’s assessment which found Student functioning at the kindergarten level with some first grade overlap. Ms. Bustos-Ponce disagreed with District’s IEP team members’ conclusions regarding Student’s performance levels. Ms. Bustos-Ponce opined that Student would function at a higher level if presented with higher expectations and if given adequate learning opportunities could learn core first grade reading, language arts, and math standards. While Ms. Bustos-Ponce was persuasive that Student would function at a higher level if presented with higher expectations and could learn core first grade materials, this point does not help resolve the dispute in this case whether Student can be in a seventh grade middle school curriculum. In fact, Ms. Bustos-Ponce’s assessment was similar to District’s educational assessment which placed Student in the range of kindergarten to early first grade level.

19. The team also considered an educational assessment conducted by Michelle Kusch, District Resource Specialist. ¹³ Ms. Kusch assessed Student on May 14, 15, 16, 24, 29, and 30, 2012, just prior to the last IEP team meeting on May 31, 2012. Ms. Kusch used the Developmental Reading Assessment, Second Edition (DRA-2); Silveroll Individual Reading Inventory; Lindamood Auditory Conceptualization Test (LAC-3); Phonological Awareness Test (PAT); Key Math 3; Test of Written Language-3; math problems using a calculator and number recognition; indoor and outdoor environmental sign recognition exercise; interviews and observations. Ms. Kusch determined Student functioning within the very low range across all academic areas with age equivalents ranging from five to six years of age. Student’s global academic skills fall within the range of the end of kindergarten to early first grade. ¹⁴ Student’s chronological age was 12 years and eight months old.

20. Highly trained professionals may disagree as they did in this case. However, the fact that Student’s experts at hearing disagreed with District’s evaluations and Student’s ability levels does not necessarily make District’s IEP defective. The test is whether the IEP offer was reasonable calculated to provide Student with educational benefit. Moreover, Student’s criticism of District’s assessments is misplaced. The appropriateness of District’s 2011 triennial assessments is not at issue. Rather, the question is whether the District’s 2012 IEP offer constituted a FAPE, based on all information known to the IEP team at the time. The fact that District team members did not agree with Parents’ recommendations does not mean that District’s offer denied Student a substantive FAPE. The focus remains on whether the IEP failed to offer a FAPE based on what the IEP team knew about Student’s levels of performance and areas of unique needs at the time of the offer.

Student’s Unique Needs in the Areas of Communication, Social, Emotional, and Behavioral Development

21. Credible testimony from District’s speech and language specialists, Ms. Rosas, Debra Tetz, and Kathryn Wage, established Student’s communication deficits, specifically intelligibility. ¹⁵ Student has significantly low receptive, expressive, and pragmatic language development skills. Student is hard to understand. While Student’s tongue is larger than a typical peer consistent with Down Syndrome, this condition does not appear to impact his ability to articulate (produce) sounds. Rather, his deficits in communication are more related to his overall intelligibility, the ability for others to understand what he says. Student shows the ability to express himself in isolated therapy and SDC settings, but is unable to transfer that ability to everyday social and educational settings with others in a general education setting. Student needs to learn to speak up and interact with other students without prompting, especially in a general education setting with typically developing peers.

22. Student also requires the assistance of a dedicated instructional aide to facilitate interaction with other students and to navigate around school grounds. Student is able to communicate his desires or requests in controlled situations, but requires additional practice in more natural settings such as in the classroom or playground. Student is able to engage in reciprocal exchanges with adult staff members, but required prompting approximately 50 percent of the time to initiate interaction with his peers.

23. In summary, Student is able to respond to others, but does not initiate interaction. Student requires verbal prompts and verbal modeling in order for him to present basic information to his peers in a classroom setting. He also requires an adult to monitor activities when he is doing tasks or classroom errands. He can follow two related commands, but cannot follow three related commands independently without help. Student is unable to navigate to the restroom independently, but can use the restroom once there. Student manages his own eating, but gestures when requesting help opening items.

24. Based on the foregoing, by the end of May 2012, District IEP team members had knowledge of Student’s then-present levels of performance and needs through Student’s assessment scores, observations, interviews, parental input. The evidence establishes that District accurately determined Student’s present levels of performance as impacted by his significant cognitive delays and communication deficits. District properly identified all areas of Student’s academic, and social and emotional needs.

Annual Goals

25. Based on Student’s present levels of performance and needs, derived from the information known to the District, rather than on speculative future potential, District staff on the IEP team developed 13 academic goals and four communication and language goals to improve Student’s skills in language, math, and communicating with others. Eight goals address Student’s skills in reading and spelling. Five goals address Student’s math and number skills. Four goals address Student’s social and communication skills.

26. Parents disagreed with all of the goals because they felt Student is more capable than what the District’s IEP team determined. Parents contend the Student would not benefit from the proposed goals because he had already mastered the goals, or the goals were not academic in nature and could be taught at home. As found below, Student did not establish that District’s proposed annual goals failed to comply with the law.

27. The functional signs goal was to improve Student’s ability to identify indoor and outdoor safety signs in the classroom environment with 80 percent accuracy and no more than one verbal prompt for three consecutive trials, as measured by teacher observations and data. The baseline measurement, meaning Student’s known level of performance, was his ability to identify 38 out of 80 indoor and outdoor signs.

28. The decoding goal was to improve Student’s ability to orally combine consonant blend letter patterns presented in random order to create recognizable words with 80 percent accuracy in three consecutive trials as measured by teacher observations and data charts. The baseline measurement was Student’s ability to create recognizable words with 40 percent accuracy with verbal prompts and zero percent accuracy in creating recognizable words independently.

29. The vocabulary goal was to improve Student’s ability to sort high-frequency words by category with 80 percent accuracy and no more than one adult prompt in three consecutive trials, as measured by teacher observation and data collection. The baseline measurement was Student’s ability to sort first grade words with pictures supports with 90 percent accuracy in three trials, all of which require prompting. Without prompting Student was 30 percent accurate.

30. The reading fluency goal was to improve Student’s ability to read beginning first grade book passages with four to five word sentences with 90 percent accuracy over three consecutive trial days or weeks as measured by data collection. The baseline measurement was Student’s ability to read beginning first grade books composed of four to five word sentences with 50 percent accuracy.

31. The reading comprehension goal was to improve Student’s ability to identify the possible causes of a given effect based on information gained from reading from a text with 80 percent accuracy over three consecutive trial days or weeks as measured by data collection. The baseline measurement was Student’s ability to identify the problem or conflict in a story with 20 percent accuracy when picture cues were paired with a multiplechoice format.

32. The comprehension goal was to improve Student’s ability to answer inferential questions in multiple-choice format with 50 percent accuracy when given three pictures in sequence with no more than one prompt in 10 consecutive trials as measured by data collection. The baseline measurement was Students ability to answer inferential questions and multiple-choice answers with zero percent accuracy with prompts.

33. The spelling goal was to improve Student’s ability to write dictated words when given 25 high-frequency and consonant-vowel-consonant words from the reading material at his instructional level with 80 percent accuracy over three consecutive trial days or weeks as measured by data collection. The baseline measurement was Student’s ability to spell 24 percent of the words correctly when dictated aloud.

34. The sentence creation goal was to improve Student’s ability to create and write a sentence using correct capitalization and punctuation when given four to five words on cue cards with no more than one verbal prompt in eight out of 10 opportunities, as measured by teacher observation and work samples. The baseline measurement was Student’s ability to write three word sentences with correct capitalization and punctuation with 60 percent accuracy, requiring no more than one prompt per sentence. Student was able to construct a four to five word sentence using correct capitalization and punctuation, requiring no more than one prompt per sentence with 10 percent accuracy.

35. The number sense goal was to improve Student’s ability to use a calculator to determine the sum of whole numbers when presented with 10 addition problems with two three-digit addends with 80 percent accuracy over three consecutive trial days or weeks as measured by data collection. The baseline measurement was Student’s ability to use a calculator to add the equation with 60 percent accuracy and his ability to use a calculator to add double-digit numbers with 75 percent accuracy.

36. The second number sense goal was to improve Student’s ability to add singledigit math facts with at least one addend greater than five without a prompt, with 70 percent accuracy in three consecutive trial days as measured by teacher observation, work samples, and data collection. The baseline measurement was Student’s 37 percent accuracy in math facts with one or more addends greater than five without a prompt.

37. The ordinal position goal was to improve Student’s ability to place objects in ordinal positions (first, second, last, etc.), identifying each position, with no more than one adult prompt and with 80 percent accuracy in three consecutive trials as measured by observation teacher-made tests. The baseline measurement was Student placing objects in the correct ordinal position in 10 opportunities with 40 percent accuracy, requiring one adult prompt.

38. The money goal was to improve Student’s ability to identify coins and bills both expressively and receptively with no more than one prompt and 80 percent accuracy in three consecutive trials, as measured by teacher observation and data collection. The baseline measurement was Student’s ability to identify a penny and a dollar bill expressively and receptively, but inability to identify a nickel, quarter, or dime expressively, although he was able to match using a one-to-one correspondence with prompting. He was unable to identify the values of the coins and bills.

39. The second money goal was to improve Student’s ability to round off the price of a single item to the next whole dollar amount (dollar-up method) with 80 percent accuracy over three consecutive trials days or weeks as measured by data collection. The baseline measurement was Student’s inability to round the dollar amount to the next whole dollar when asked.

40. The goal for following directions was to improve Student’s ability to appropriately follow three-step directions with 80 percent accuracy with no more than one prompt, over 10 consecutive trials as measured by teacher observation and data collection. The baseline measurement was Student’s ability to follow three-step directions 40 percent of the time with more than one prompt.

41. The requesting goal was to improve Student’s ability to make a request from adults or peers for a needed or preferred item in the educational setting across three locations on campus such as in the classroom, library, office, nurses office, or cafeteria, on at least four out of five opportunities, with one or less prompts as measured by observation. The baseline measurement was Student’s ability to independently request in a general education classroom setting on two out of five observations, and no observations of Student making independent requests in other locations on campus.

42. The goal for reciprocal exchange with peers was to improve Student’s ability to participate in an educational setting in one reciprocal exchange with another student on a given topic where Student would ask a question and respond to the other student’s questions on four out of five opportunities, with no more than one prompt as measured by teacher observation, probes, or recorded data. The baseline measurement was Student’s ability to answer a peer’s question, but inability to initiate another question or make a follow up comment after his initial response without prompts to continue the reciprocal exchange.

43. The goal for pragmatic language and observational learning was to improve Student’s ability to participate in a minimum of three functional routines referencing his peers with no more than one prompt in four out of five opportunities as measured by observation or recorded data. The baseline measurement was Student’s ability to reference his peers in two functional routines in an educational setting. District did not offer specific intelligibility goals, but the communication goals for requesting, reciprocal exchange, and pragmatic language necessarily involve intelligibility.

44. The evidence establishes that the proposed annual goals in the April 16, 2012, IEP were measurable, consistent with the requirements of the IDEA, and designed to address Student’s identified areas of need. Student’s baseline levels of measured performance for each goal established his fundamental skill levels at about first grade and demonstrate that each goal was reasonably calculated to provide Student with the opportunity to progress in each area. In addition, the goals addressed multiple levels of need. For example, the goals necessarily included work on Student’s attention levels to the tasks called for. Therefore, the goals met Student’s educational needs.

45. Parents contend the goals are inappropriate given Student’s higher functioning level. For example, Parents contend that Student could already identify safety signs and count money and that these types of non-academic goal could be taught at home. Ms. Bustos-Ponce indicated that her evaluation of Student’s abilities in reading and math show a higher level of ability than the levels District based the goals on. In addition, Ms. Wage recommended a typing goal to address Student’s communication deficits so he can learn to communicate using email or texting. These assertions are unpersuasive in establishing that District’s proposed goals did not comply with the law. While Student may have a slightly higher level of ability than what District’s assessments show, the weight of the evidence, including Parents’ videos of Student doing reading, math, and money exercises, confirm that Student has significant cognitive delays with communication deficits.

46. The credible evidence did not establish that District omitted an annual goal in a significant area of need or that the goals were unreasonable or not reasonably related to his skill levels. The question for this dispute is whether District failed to offer annual goals in the April 16, 2012 IEP that were measurable and designed to address Student’s identified areas of need. The evidence does not establish District offered inadequate goals to meet Student’s unique educational needs.

Related Services

47. An IEP must also contain related services when needed to enable the student to benefit fully from instruction such as developmental, corrective, and other supportive services. Counseling, occupational therapy, speech and language therapy, physical therapy, transportation, and other services are examples of what may be required to assist a child to benefit from special education.

Speech and Language Therapy

48. Student contends that the April 2012 IEP denied him a FAPE because District failed to offer speech and language therapy for articulation deficiency. In addition, Student contends that the speech and language therapy Student receives fails to meet his unique needs. District contends that it offers and provides appropriate speech and language therapy with collaboration and consultation delivery models that addresses Student’s needs in his overall intelligibility. As discussed in Factual Findings 21, the evidence established that Student does not have a significant problem in the area of articulation. Rather, Student’s communication problems should be addressed in natural settings that he can apply across the board.

49. The April 16, 2012 IEP offers to provide Student with speech and language for 30 minutes per week of direct collaboration therapy and 30 minutes per week of consultation for total of 240 minute of speech and language therapy per month. As discussed above, Student’s communication deficits include his overall ability to be understood in social and educational settings. Student’s articulation (ability to produce sounds) is impacted by the physical structure of his oral cavity due to Down Syndrome. However, Student does not have a significant problem in this area and does not need specific goals for articulation. Student is able to demonstrate sounds and utterances in the speech therapy room, but is unable to transfer his abilities to other social and educational settings. Therefore, Student’s communication problems should be addressed in natural social and educational settings where he can learn to apply his abilities across the board. District did not offer specific intelligibility goals, but did offer several communication goals for requesting, reciprocal exchange, and pragmatic language which necessarily involve intelligibility. In addition, the IEP includes appropriate accommodations Student needs to help his intelligibility, such as providing visual or verbal cues to use intelligible sounds and more complex utterances, and creating opportunities to request item he needs to complete his assigned tasks.

50. To that end, the District IEP team members offered Student 30 minutes per week of direct collaboration therapy. Direct collaboration therapy is the same as direct therapy. The therapist works directly with the student. In addition, the therapist collaborates with the teacher and aides to ensure the student is receiving therapy that is integrated and incorporated in the educational setting. District established that the focus of the therapy is to improve Student’s overall ability to communicate in various educational settings outside the speech therapy room. The District IEP team also offered 30 minutes per week of consultation, where the therapist consults with the teacher and aides to ensure Student receives appropriate therapy incorporated in the classroom, to monitor student’s progress, receive feedback, and adjust the therapy if needed.

51. Ms. Rosa and Ms. Tetz (his current speech and language therapist), establish that this is the level of speech and language support Student needs to access his education. Ms. Tetz also established that she provides Student with 30 minutes of direct collaboration and 30 minutes of consultation service per week, and that Student is making progress. Student contends he needs more direct speech and language therapy, specifically to address articulation. Ms. Wage opined that Student’s articulation reduces his intelligibility and could impact his reading skills. Ms. Wage also felt that Student needed IEP goals for typing to improve his overall communication using email, and intelligibility. Ms. Wage first met Student in 2007, but last worked with him in 2010. She does not currently provide Student with speech and language therapy. Therefore, Ms. Wage’s testimony was afforded less weight. The weight of the evidence at hearing establishes that District’s IEP offers the appropriate speech and language therapy for Student’s needs and that District provides this level of service to Student and he is making progress.

Paraprofessionals

52. The IDEA permits the use of paraprofessionals who are appropriately trained and supervised in accordance with State law or policy. California law allows paraprofessionals, which includes instructional aides, to perform duties that, in the judgment of supervising certificated personnel, may be performed by a person not licensed as a classroom teacher. Both parties discuss whether District’s instructional aides meet the requirements in The No Child Left Behind Act of 2001, which provides that a paraprofessional may provide instructional service only under the direct supervision of a teacher. However, OAH has no jurisdiction to enforce that Act and there is no analysis under that Act in this decision.

53. Student contends that District’s April 2012 IEP denied him a FAPE because it did not offer him appropriately trained and supervised instructional aides. In addition, Student contends that the aides assisting Student in his general and special education program are not appropriately trained and supervised. District contends all of its instructional aides are thoroughly screened when hired to determine their suitability for specific students, and then are trained and supervised. District contends that its instructional aides assigned to Student were well-suited to Student’s needs and trained and supervised in the performance of their duties.

54. Student requires the assistance of an instructional aide when in the general education setting. The evidence established that Student is unable to participate in his general educational setting without a significant amount of prompting and facilitation from an instructional aide. The District’s April 2012 IEP team offered Student a dedicated instructional aide during his four periods of general education classes (two electives, lunch, and physical education). The IEP did not specify any particular level of training or knowledge for his aide.

55. District’s instructional aides are interviewed and screened to determine if they are a good fit for the students, and then receive a District instructional aide manual and a PowerPoint presentation. Aides may start working before reviewing the manual, but must review the instructional materials as soon as possible after starting their duties. It takes about two and a half hours to train an instructional aide. The general education teachers supervise the student’s instructional aides in their classes. The special education teacher trains and supervises the instructional aides throughout the school day in the performance of their duties and responsibilities.

56. The evidence established that Student’s aide for the 2012-2013 school year, Zachary Scott, was trained as a District instructional aide. ¹⁶ Judy Heidebrecht, Student’s SDC teacher for the 2012-2013 school year, screened, trained, and supervised Mr. Scott in the performance of his duties as Student’s aide for his general education periods. ¹⁷ Ms. Heidebrecht also trains and supervises the instructional aides assigned to her SDC (she currently has four). Student’s general education teachers, Jane Golling (drama), Paul Babcock (physical education), and Robert Louder (art), supervise the instructional aides in their classes, including Mr. Scott, and established that Mr. Scott adequately performed his duties when Student was in their respective classrooms.

57. Student requires aide support to help him communicate with his teachers and other students in classroom and social settings. Student also requires aides to help him understand his teachers’ directions, and help navigate his way to the bathroom and around campus. Student’s aides prompt (encourage) Student to ask questions if he doesn’t understand or if he needs something, to repeat himself if others cannot understand him, to redirect or focus his attention on assigned tasks, and to interact with his general education peers. Student’s aides address his needs relating to “chunking” (breaking information into smaller segments so Student can understand. Student’s aides are taught when to prompt Student, consistent with scaffolding, using verbal or visual cues such as diagrams. ¹⁹ Credible testimony from Mr. Scott, Mr. Kubo, Ms. Heidebrecht, Ms. Golling, and Mr. Louder, and Mr. Babcock established that Student’s aides in general and special education periods provided the level of services that Student required for accessing his education. Therefore, District’s instructional aides met Student’s unique needs.

Modified Curriculum

58. Student contends District failed to implement a modified curriculum designed to meet his unique needs. District argues that it adequately modified Student’s general education program, but that because of Student’s low functioning level the seventh grade core academic subjects cannot be modified to the extent he needs in order to participate.

59. An IEP must contain any modifications offered by a school district to a student so that he can advance toward attaining his annual goals and be involved and make progress in the regular education curriculum. It must also contain a statement of the accommodations, if any, are necessary to measure his academic achievement and functional performance. As long as a school district provides an appropriate education, the methodology is left up to the district’s discretion

60. The disputed IEP offers Student several accommodations to address his deficits, in addition to instructional aide support and steps to improve his communication intelligibility previously discussed. The IEP offers classwork accommodations that include multi-cueing (auditory instruction paired with visual models); visual schedule or day planner for organization; study guides for key concepts or written templates for written language activities; adult and peer modeling; chunking multi-step activities; modifying grade-level work; extra time for tasks; checking for understanding; prompts for capitalization and situation; and manipulatives for math. The IEP also offers testing that includes extra time; quiet instruction free workplace; and non-reading tests. In addition to accommodations in class, District also offered to modify grade-level work. In other words, District offered a modified curriculum.

61. The manner in which the District implemented the modification of Student’s curriculum sheds light on the nature of the IEP offer, although the offer may not be judged in hindsight. Student’s two general education electives are drama and art class. The teachers for both classes modified (changed) the curriculum so that Student could participate with general education students to help his social and communication development. In drama, Student received “A” grades that were not graded the same as general education students so that he would feel successful. For a five-paragraph essay assignment, Student would answer 10 questions instead. The class’s Greek drama and Japanese puppet exercises were changed so Student could participate. In art class, the concepts were too abstract for Student to participate without modification. For example, the class’s contour shading lesson was modified so Student was limited to doing only colors. Student participates in physical education and lunch assisted by his dedicated instructional aide to facilitate his social interaction and communication skills and does not require a modified curriculum for these periods.

62. The core seventh grade academic subjects are math, language, history, and science. Student was not offered or placed in these general education classes. Credible testimony from Ms. Heidebrecht, Ms. Carberry, Mr. Berglund, Ms. Golling, Mr. Lowder, and Ms. Castillo establish that these subjects could not be modified to the extent Student would need in order to participate in a general education setting given the level of his deficits. ²⁰ For example, Student functions at a first grade level and would not understand the abstract concepts that seventh grade students learn in a pre-algebra, algebra, or geometry class. He would essentially have to be given completely different work than his peers. The evidence establishes that Student’s curriculum in these core subjects would have to be so heavily modified that Student would be isolated from the rest of the class and consequently would not be meaningful inclusion in general education. In his SDC, Ms. Heidebrecht modified Student’s curriculum for reading, writing, and math so Student could participate in order to work on his goals.

63. Parents, Dr. Emily Nusbaum and Julie Maier opined that Student could take core seventh grade academic subjects. ²¹ Both experts gave credible testimony about their expertise in inclusion strategies, but given their limited or no interaction with Student and a lack of specifics indicating how the core curriculum could be modified for Student, their testimony was afforded less weight. The accommodations and modifications offered by District are consistent with Student’s unique needs as identified in the assessments and teacher observations in order for Student to receive meaningful educational benefit. District’s offer of a modified curriculum is therefore appropriate. In addition, the evidence fails to show that District did not modify these classes to the level Student would need to have meaningful educational benefit.

Placement

64. Student contends that he should be in seventh grade general education academics classes. Parent and Ms. Bustos-Ponce contend that Student functions at a higher level than what the District IEP team members believe. Student alleges the SDC is inappropriate because it has limited academic instruction, is not age-appropriate, and does not offer sufficient access to the general education curriculum. District claims that because of Student’s limited cognitive ability, he would not be successful in seventh grade general education classes and the classes cannot be modified to the level where he can meaningfully participate. While these areas of contention are also relevant to the LRE analysis below, they are evaluated separately here.

65. The District’s IEP offers Student instruction for the 2012-2013 school year beginning August 20, 2012. The IEP does not state an ending date, but is an annual IEP unless replaced by a subsequent IEP. The offered instruction at Alta Sierra Middle School includes three periods in the SDC for English language arts (two periods) and math (one period), two periods of general education electives, physical education, and lunch period. The IEP states that for the 2012-2013 school year, Student will spend 57 percent of his time in the general education, extracurricular activities, and nonacademic activities. Student will spend 43 percent of his time in the special education curriculum outside the general education extracurricular activities, and nonacademic activities.

66. Student’s SDC is taught by Ms. Heidebrecht. Ms. Heidebrecht is assisted by four instructional aides, sometime five. There are currently eight students in the class, including Student, with a variety of disabilities in ages ranging from 11 through 14 years old, in the seventh and eighth grades. Ms. Heidebrecht uses a variety of programs in the curriculum, including PCI reading (reading program for disabled students), SRA reading, touch math, and daily living skills. SDC students have access to use a desktop computer and iPad for reading, speech and language therapy, vocabulary, and math. Student uses the iPad for math and reading. SDC students, including Student, work on their individual goals in the class.

67. Bustos-Ponce’s report, Dr. Wells’ independent psychological assessment, Ms. Maier’s inclusion report, and teacher and staff input in order to determine his placement for the 2012-2013 school year. Student points to his higher functioning outside of the classroom as seen by his parents and tutors and evidenced by his school work consisting of simplistic repetition on subjects he does not need or already knows. Student also points out that the SDC classroom contains pictures and drawing of animals that indicate a classroom environment suitable to much younger students. Parents claim that Student is bored and does not want to attend school. However, their belief was not supported by the evidence and Student’s teachers were more persuasive because they worked with him every day in the school environment and did not see Student’s functioning level in the educational setting at the same level as his Parents, tutors, or consultants. The IEP team appropriately considered the information that was presented to them at the time of the IEP team meetings and reasonably concluded, based on the information that it had, that Student would not be successful in seventh grade general education academic classes and the classes could not be modified to the level where he can meaningfully participate, and that he would obtain educational benefit by spending 57 percent of his school day in a general education environment to address his social and communication deficits and 43 percent in a SDC to work on his academic subjects in English language and math.

68. Mr. Petersen established that although Student attended his sixth grade general education class in the previous school year for social studies and science, Student’s was unable to keep up with his peers and could participate only with extensive modifications to the lesson that effectively changed the curriculum. That Student was able to access his education in a general education setting when he was younger is not at issue. The offer for the 2012-2013 school year is analyzed based upon the information available to the school district at the time of the offer and not in hindsight. Reputed experts can disagree, as they did in this case, However, what is fundamental to this case is whether District offered Student an appropriate placement with information it had at the time of its offer. The preponderance of the evidence does not show that District failed to offer Student an appropriate placement.

69. Persuasive evidence established that Student needs more than one period in a SDC to work on his 17 IEP goals (eight goals in reading and spelling, five goals for math and numbers, four goals for social and communication). District’s placement offer is also consistent with Ms. Maier’s conclusion in her February 2012 inclusion report that the gap between Student’s academic ability with his typical peers is significant and will increase in future years. District’s placement is actually consistent with Dr. Well’s conclusion that Student can be extensively mainstreamed. Ms. Heidebrecht established that her SDC classroom environment is appropriate for middle school students. The 2012-2013 IEP addressed Student’s transition from elementary school, where students attend a single class, to a middle school curriculum, where students change classes with each period similar to high school, which is a significant change in the educational environment. District’s SDC placement met Student’s academic needs and its general education classes met Student’s social and communication needs.

LRE

70. Student contends that his SDC placement is not the LRE since he should be in general education seventh grade academic classes. District contends that Student would be unsuccessful in general education seventh grade academic classes and that his placement of 43 percent in the SDC for his academics and 57 percent in general education for social and communication development is the LRE for Student.

71. A special education student must be educated with non-disabled 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 education classes, with the use of supplementary aids and services, cannot be achieved satisfactorily. The environment is least restrictive when it maximizes a student’s opportunity to mix with typical peers while still obtaining educational benefit. Whether a student is placed in the LRE requires the consideration of four factors: (1) the educational benefits of placement full-time in a less restrictive setting; (2) the non-academic benefits of such placement; (3) the effect the student would have on the teacher and children in the less restrictive class, and (4) the costs of the less restrictive setting. ²² If a child cannot be educated in a general education environment, then the child must be mainstreamed to the maximum extent that is appropriate.

72. The evidence shows that Student would not make adequate educational progress in a full-time general education setting and cannot be educated in core academic subjects in a general education environment. The question therefore is whether District offered to mainstream him to the extent appropriate. The prior school year, when Student was in general education class for social science and science, he was unable to keep up with his peers without extensively modified lessons that effectively changed the curriculum. In developing the disputed IEP offer for seventh grade, District properly determined to have Student take two general education electives, plus physical education, and lunch period, as his general education classes to address his social interaction and communication deficits so he can make educational progress. In the SDC offered to Student, he would have the opportunity to work on the academic subjects and goals in his IEP. In addition, he would not have the time in a full general education setting to work on his IEP goals.

73. Credible testimony from Ms. Heidebrecht, Ms. Golling, Mr. Louder, Ms. Castillo, and Mr. Petersen established that Student does not belong in a full-time inclusion program in general education classes, but would derive social benefit from spending a portion of his school day in general education classes. Student requires the support of a SDC with its smaller, structured setting and focused attention to his unique needs and annual goals. His academic needs require significant repetition and modification from the standard curriculum. Student has significant cognitive delays in the intellectually disabled range and language deficits which makes him hard to understand. Student has difficulty grasping abstract concepts that typically functioning students in the same age range can.

74. District was persuasive that it would not be able to modify a general education seventh grade core curriculum to the level where Student could obtain educational benefit. Student cannot follow the pace of a general education seventh grade academic class as the pace is too fast and concepts too advanced. Seventh grade students are learning to think abstractly, making inferences, and understanding causes and effects. While the evidence showed Student made progress, by contrast, Student remains a concrete learner with limited comprehension and can only do simple tasks such as identifying coins, colors, and basic math calculations such as addition and subtraction. In addition, the gap between Student’s cognitive abilities and the abilities of his typical peers is significant and may become greater as time passes.

75. A full-time general education seventh grade academic program with a modified curriculum would change the material to such an extent that Student would no longer be a part of the classes. He would, in essence, be isolated from his classmates with an alternate curriculum so there would be no benefit having him in a full-time general education academic program with the modifications. Even with an aide, full-time general education academic inclusion would still have no benefit for Student if he required a separate class within the class. If in general education academic classes, Student and his aide would have to work separately from the rest of the class to access his education and this is not meaningful inclusion. In addition, Student requires specialized instruction, and an aide alone cannot control the learning environment to suit his needs, especially since a District’s general education classes have up to 35 students with one teacher.

76. The evidence showed that Student receives a social or nonacademic benefit from inclusion with general education students. During Student’s time in general education sixth grade class in elementary school and seventh grade general education drama, art, physical education, and lunch period, he has received a social benefit from inclusion with general education students. Student has seemed happy and the other students have accepted him and tried to include him in their activities or interact. Student is able to model general education student behavior and language used by typical peers.

77. The evidence shows that Student’s academic, social, and language deficits and behaviors would disrupt a full time general education academic setting and would deprive the other students of adequate education. Parents contend that Student shuts down because he is bored with the less challenging curriculum. However, the weight of the evidence, including observations from IEP team members and his teachers, establish that Student has a tendency to shut down, have a tantrum, or throw objects, when he is frustrated because he is unable to participate in a particular lesson or task because it is too difficult or he doesn’t understand the instructions. Student would also need a separate curriculum or sit at a separate table in the back of the room, the teacher would have to provide constant supervision and instruction separately from the rest of the class which would disrupt the flow and impede instruction for the rest of the class. On balance, the evidence shows that Student could not be satisfactorily educated in the general education environment to any significant degree more than the offered IEP proposed, and that he could be satisfactorily educated in the SDC, which is the least restrictive placement. Student continues to qualify for placement in a SDC due to his intellectual disability and communication deficits, along with opportunities to access a general education curriculum.

Failure to Implement IEP

78. Student contends that the implemented IEP denies him a FAPE because District failed to work on his goals, failed to provide adequately trained or supervised aides, and failed to provide the speech and language therapy and a modified curriculum. District contends that the IEP provisions have been appropriately implemented.

79. Districts must adhere to the procedural requirements of IDEA. A student eligible for special education and related services is legally entitled to a FAPE that consists of special education and related services that are available to the child at no charge to the parent, meet the state educational standards, and materially conform to the child’s IEP. A material failure to implement an IEP occurs when the services provided to the student fall significantly short of those required by his or her IEP or materially deviate from them.

80. Credible testimony from Ms. Heidebrecht, Ms. Golling, Mr. Louder, Ms. Castillo, Mr. Kubo, Mr. Scott, and Mr. Babcock, establish that Student is working on the annual goals in his IEP while in his general and special education classes, including lunch period. During lunch, Student is prompted to sit and interact with general education students. Ms. Maier testified that Student was not working on his IEP goals in class, but her testimony was afforded less weight due to the limited time and interaction she had with Student and staff. Student continues to disagree with his IEP goals, but the weight of the evidence shows that District implemented his IEP goals and that Student is making progress. In addition, Ms. Tetz confirmed that Student is working on his communication goals and is getting the level of speech and language therapy specified in the IEP. There is no credible evidence to the contrary.

81. As previously discussed in Factual Findings 52 through 57, the aides assigned to Student were screened and adequately trained and supervised to perform their duties. As discussed in Factual Findings 58 through 63, Student’s teachers modified his curriculum when needed in order for him to participate.

82. Student contends that District’s offer of placement in general education is not 57 percent but is actually 42 percent since lunch period should not be counted as a general education period since Student eats with his SDC group. The evidence establishes that Student is reminded and encouraged to sit with general education students during lunch, but that Student chooses to sit with his SDC group for lunch, and then interacts with other general education students afterwards.

83. As found above, Parents consented to District’s general education placement for 57 percent of his IEP program. The program consists of general education class, extracurricular activities, and nonacademic activities. The evidence shows that Student’s lunch period is with general education students and his aide facilitates his interaction with general education students. Student’s program has seven periods in each school day; four are general education periods (art, drama, physical education, and lunch period), and three SDC periods. District establishes that he is receiving four general education periods in his program. Four periods out of seven periods constitutes 57 percent of the school day in general education.

84. There is insufficient evidence to show that District failed to implement this IEP. Student did not sustain his burden of proof on this claim.

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 for the issues raised in this case.

Elements of a FAPE

2. 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).)

3. 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 local education agencies 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; J.L. v. Mercer Island School Dist. (9th Cir. 2010) 592 F.3d. 938, 949954.) Related services means transportation and such developmental, corrective, and other supportive services as are required to assist a child with a disability to benefit from special education, and includes speech-language pathology and audiology services, interpreting services, psychological services, physical and occupational therapy, recreation, including therapeutic recreation, early identification and assessment of disabilities in children, counseling services, including rehabilitation counseling, orientation and mobility services, and medical services for diagnostic or evaluation purposes. Related services also include school health services and school nurse services, social work services in schools, and parent counseling and training. (34 C.F.R. §300.34 (2012).)

4. There are two parts to the legal analysis of a school district’s compliance with the IDEA. First, there must be a determination whether a district has complied with the procedures set forth in the IDEA. (Rowley, supra, 458 U.S. 176, 206-207.) Second, there must be a determination of whether the IEP developed through those procedures was designed to meet the child’s unique needs, and was reasonably calculated to enable the child to receive educational benefit. (Ibid.) An IEP is not judged in hindsight; its reasonableness is evaluated in light of the information available at the time it was implemented. The Ninth Circuit has endorsed the “snapshot” rule, explaining that “ . . . an IEP must take into account what was, and what was not, objectively reasonable when the snapshot was taken, that is, at the time the IEP was drafted.” (JG v. Douglas County School Dist. (9th Cir. 2008) 552 F.3d 786, 801; Adams v. State of Oregon (9th Cir. 1999) 195 F.2d 1141, 1149 (citing Fuhrman v. East Hanover Bd. of Educ. (3d Cir. 1993) 993 F.2d 1031 (Fuhrman), 1041).)

5. To determine whether the District offered Student a FAPE, the analysis must focus on the adequacy of the District’s proposed program. If the school district’s program addresses a student’s unique educational needs, was reasonably calculated to provide him some educational benefit, and comported with his IEP, then that district provided a FAPE, even if student’s parent preferred another program that will result in greater educational benefit to the student. (Gregory K. v. Longview Sch. Dist. (9th Cir. 1987) 811 F.2d 1307, 1314; Student v. Manhattan Beach Unified School District (2007) Cal.Ofc.Admin.Hrngs. Case No. 2006010204.)

6. As long as a school district provides an appropriate education, the methodology is left up to the district’s discretion. (Rowley, supra, 458 U.S. at p. 208; see also, Adams, supra, 195 F.3d 1141; Pitchford v. Salem-Keizer School District (D. Ore. 2001) 155 F.Supp.2d 1213, 1230-1232; T. B. v. Warwick School Commission (1st Cir. 2004) 361 F.3d 80, 84. (T.B.).) As the First Circuit Court of Appeal noted, the Rowley standard recognizes that courts are ill-equipped to second-guess reasonable choices that school districts have made among appropriate instructional methods. (T.B., supra, 361 F.3d 80, 84 (citing Roland M., 910 F.2d at pp. 992-93).) “Beyond the broad questions of a student’s general capabilities and whether an educational plan identifies and addresses his or her basic needs, courts should be loath 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 (citing Rowley, 458 U.S. at p. 202).)

Paraprofessionals

7. Under the IDEA, states may develop standards that allow paraprofessionals to assist in the provision of special education and related services if they are “appropriately trained and supervised, in accordance with State law, regulation, or written policy …” (20 U.S.C. §1412(a)(14)(B)(iii).) In California, a paraprofessional may perform duties that, “in the judgment of the certificated personnel to whom the instructional aide is assigned, may be performed by a person not licensed as a classroom teacher.” (Ed. Code, § 45330, subd. (b).) A paraprofessional may work in any of the variety of positions described in Education Code section 44392, subdivision (e), including instructional aides.

8. Education Code section 56205(a)(13) requires each SELPA to establish personnel standards for education staff, including special education teachers and paraprofessionals, in conformance with the IDEA and state law, and Education Code section 56241(a) requires staff development programs to be provided for school staff and administrators, including paraprofessionals.

9. The No Child Left Behind Act of 2001provides that a paraprofessional may provide instructional service only “under the direct supervision of a teacher . . . .” (20 U.S.C. § 6319(g)(3)(A).) However, OAH has no jurisdiction to enforce that Act. (Student v. Menlo Park Elementary School Dist. (2010) Cal.Offc.Admin.Hrngs. Case No. 2010020281; Student v. Oxnard Elementary School Dist. (2009) Cal.Offc.Admin.Hrngs. Case No. 2007100205; Student v. Brea Orlinda Unified School Dist. (2008) Cal.Offc.Admin.Hrngs. Case No. 2008050301; Student v. Garden Grove Unified School Dist. (2006) Cal.Offc.Admin.Hrngs. Case No. N2005070363.) The jurisdiction of OAH is limited to claims under the IDEA. (Wyner v. Manhattan Beach Unified Sch. Dist. (9th Cir. 2000) 223 F.3d 1026, 1028-1029.)

Issue 1(a): Did the District’s proposed IEP for the 2012-2013 school year deny Student a FAPE in that it does not offer Student with annual goals reasonably calculated to meet his unique needs related to his disability?

10. 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.) An IEP is a written statement that includes 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 pupil 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).) It shall also include a statement of the program modifications or supports for school personnel that will be provided to the pupil to allow him or her to advance appropriately toward attaining the annual goals and be involved and make progress in the general education curriculum and to participate in extracurricular activities and other nonacademic activities. (34 C.F.R. § 300.320(a)(4)(i), (ii) (2006); Ed. Code, § 56345, subds. (a)(4)(A), (B).)

11. In accordance with Factual Findings 7 through 46 and Legal Conclusions 1 through 6, and 10, the evidence establishes that the annual goals in the April 16, 2012, IEP are measurable, are consistent with the CAPA standards, and designed to address Student’s identified areas of need related to his disability. Therefore, the goals meet Student’s educational needs. Parents disagree with the goals because they feel Student is more capable than what the District’s IEP team determined. However, the weight of the evidence, including videos of Student, establishes that District thoughtfully developed Student’s annual goals with knowledge of his baseline levels of performance and functioning and the goals are reasonably related to his skill levels and areas of need. The evidence does not establish District offered inadequate goals to meet Student’s educational needs.

Issue 1(b): Did District fail to offer appropriate supports and related services?

1) Communication and intelligibility, specifically, speech and language therapy for articulation deficiency

12. In accordance with Factual Findings 48 through 51 and Legal Conclusions 1 through 6, the evidence establishes Student’s communication deficits are his overall ability to be understood in social and educational settings. Student’s articulation is impacted by the physical structure of his oral cavity due to Down Syndrome. However, District persuasively established that Student does not have a significant problem in this area and does not need specific goals for articulation. Student’s communication problems should be addressed in natural settings that he can apply across the board in class and social settings. The IEP includes appropriate accommodations Student needs to help his intelligibility. The April 16, 2012 IEP offer provides Student with speech and language for 30 minutes per week of direct collaboration therapy and 30 minutes per week of consultation for total of 240 minute of speech and language therapy per month. This level of service is consistent with the evidence at hearing and the evidence establishes that Student benefitted from the speech and language therapy and made progress. Student did not sustain his burden to establish that District should have offered speech and language therapy in the area of articulation. Therefore, District’s speech and language therapy offer was not inappropriate and did not deny Student a FAPE.

2) Trained and supervised instructional aide support

13. In accordance with Factual Findings 52 through 57 and Legal Conclusions 7 through 9, the evidence established that District trained its instructional aides and credentialed teachers supervised them in their classes. The District offered Student instructional aide support in his IEP. District’s offer of aide services included an implied offer of a trained and supervised aide because District had an active program and policies for training and supervising its aides. District’s offer of aide services therefore did not deny student a FAPE. District’s aides assigned to Student met Student’s needs and there is insufficient evidence to establish the aides were not adequately trained or supervised.

Issue 1(c): Did District fail to offer an appropriate educational placement?

1) Limited academic instruction

2) Instruction in age-appropriate subjects

3) Access to the general education curriculum

14. Pursuant to Factual Findings 58 through 69 and Legal Conclusions 2 through 6 and 10, District appropriately considered and reasonably concluded with the information it had at the IEP team meetings that Student would obtain an educational benefit with 57 percent of his program in general education to help his social and communication and 43 percent in a SDC for academic subjects. Student could participate in general education academic classes only with extensive modifications to the lesson that would effectively change the curriculum. In addition, Student needs more than one SDC period to work on his goals. District’s placement offer is consistent with the increasing gap between Student’s ability and that of his non-disabled peers. District’s SDC classroom environment is appropriate for middle school students and the offered IEP addresses Student’s transition from elementary to middle school, where students change classes with each period similar to high school, which is a significant change in his educational environment. District’s SDC placement met Student’s academic needs and his ability to access general education.

4) Education in the LRE

15. 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 education 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 light of this preference, and in order to determine whether a child can be placed in a general education setting, the Ninth Circuit, in Sacramento City Unified Sch. Dist. v. Rachel H. (1994) 14 F.3d 1398 (Rachel H.), 1403, adopted a balancing test that requires the consideration of four factors: (1) the educational benefits of placement full-time in a less restrictive class; (2) the non-academic benefits of such placement; (3) the effect the student would have on the teacher and children in the less restrictive class; and (4) the costs of mainstreaming the student. However, if it is determined that a child cannot be educated in a general education environment, then the 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 Bd. of Ed. (9th Cir. 1989) 874 F.2d 1036, 1050)

16. Pursuant to Factual Findings 62, 63, and 70 through 77, and Legal Conclusions 2 through 6, 10, and 15, District appropriately determined that Student would not make adequate educational progress in a full-time general education setting. Student is unable to keep up with his general education peers in seventh grade academics subject and does not belong in a full-time inclusion general education class because his cognitive deficits would require an extensively modified program that would isolate him from his peers. He would not be meaningfully included, even with the assistance of an aide.

17. According to Factual Findings 73 and 76, and Legal Conclusions 15 through 16, the evidence was clear, nevertheless, that Student does and would continue to derive social benefit from spending a portion of his school day in general education classes. Student has seemed happy and the other students have accepted him and tried to include him in their activities or interact. Student is able to model general education student behavior and language used by typical peers. Student could not be satisfactorily educated in the general education environment any more than the offered IEP proposed, and the SDC is the least restrictive placement.

Issue 2: Did District’s IEP implemented for the 2012-2013 school year deny Student a FAPE?

18. A failure to implement a student’s IEP will constitute a violation of the student’s right to a FAPE only if the failure was material. There is no statutory requirement that a district must perfectly adhere to an IEP, and, therefore, minor implementation failures will not be deemed a denial of FAPE. A material failure to implement an IEP occurs when the services a school district provides to a student with a disability fall significantly short of the services required by the student’s IEP. (Van Duyn, et al. v. Baker School District 5J (9th Cir. 2007) 481 F.3d 770.) A party challenging the implementation of an IEP must show more than a de minimis failure to implement all elements of that IEP, and instead, must demonstrate that the school board or other authorities failed to implement substantial and significant provisions of the IEP. (Ibid.)

19. The materiality test does not include a requirement that prejudice must be shown. “[T]he materiality standard does not require that the child suffer demonstrable educational harm in order to prevail.” (Van Duyn, supra, at p. 822.) The child’s educational progress, or lack thereof, may be probative of whether there was more than a minor shortfall in services. A shortfall in services and a shortfall in the child’s achievement in that area tend to show that the failure to implement the IEP was material. The Van Duyn court emphasized that IEPs are clearly binding under the IDEA, and the proper course for a school that wishes to make material changes to an IEP is to reconvene the IEP team pursuant to the statute, and “not to decide on its own no longer to implement part or all of the IEP.” (Ibid.)

Annual goals

20. According to Factual Findings 78 through 80 and Legal Conclusions 18 through 19, the evidence establish that Student is working on the annual goals in his IEP while in his general and special education classes. The weight of the evidence fails to show that District did not implement Student’s IEP relating to his goals such that it denied Student a FAPE.

Speech and language therapy

21. According to Factual Findings 78 through 80 and Legal Conclusions 12, 18, 19, and 21, Student is working on his communication goals and is getting the level of speech and language therapy specified in the IEP. Student is making progress on his communication goals. The weight of the evidence fails to show that District did not implement his IEP relating to speech and language therapy such that it denied Student a FAPE.

Instructional aides

22. According to Factual Findings 22, 23, 52 through 57, and 81, and Legal Conclusions 13, 18, and 19, the aides assigned to Student in general and special education classes were adequately trained to perform their duties. Student’s special and general education teacher appropriately supervised the aides to help deliver instruction so Student could access his education. The aides met Student’s needs. The weight of the evidence fails to show that District did not implement his IEP relating to his instructional aides such that it denied Student a FAPE.

Modified curriculum

23. As determined in Factual Findings 58 through 63 and 81, and Legal Conclusions 18 and 19, Student’s teachers modified his general education electives and SDC curriculum when needed in order for him to participate, but that core seventh grade academic subjects (math, language, history, and science) could not be modified to the extent Student would need in order to participate with meaningful educational benefit. Therefore, Student did not establish that District’s modified curriculum for limited subjects denied Student a FAPE.

57 percent in general education

24. According to Factual Findings 6, 65, 82, and 83, and Legal Conclusions 18 and 19, Student’s educational program has seven periods, four are general education periods (art, drama, physical education, and lunch period), and three are SDC periods. Student is receiving four general education periods in his program. Four periods out of seven periods is 57 percent in general education. Therefore, there is insufficient evidence to show that District failed to ensure that Student attends 57 percent of his program in general education and Student was not denied a FAPE.

25. Overall, Parents did not like the educational program offered by District and continue to disagree with it. Parents may continue to feel District’s program is not the best for Student. Regardless, District is not legally required to provide the best program. District’s proposed educational placement may not be the best program for Student, but that is not the issue. What is fundamental to this case is whether District’s IEP of April 16, 2012 failed to meet the minimum legal requirements of offering Student a FAPE. Based on the foregoing, Student did not establish that District’s April 2012 IEP offer of educational placement and related services in the contested areas denied him a FAPE.

ORDER

All of Student’s requests for relief are denied.

PREVAILING PARTY

Education Code section 56507, subdivision (d), requires that the hearing decision indicate the extent to which each party has prevailed on each issue heard and decided. District prevailed on all issues.

RIGHT TO APPEAL THIS DECISION

This is a final administrative decision, and all parties are bound by this Decision. The parties to this case have the right to appeal this Decision to a court of competent jurisdiction. A party may also bring a civil action in the United States District Court. If an appeal is made, it must be made within 90 days of receipt of this Decision. (Ed. Code, § 56505, subd. (k).)

Dated: April 5, 2013

TROY K. TAIRA
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.
ANTELOPE VALLEY UNION HIGH SCHOOL DISTRICT.

OAH CASE NO. 2012080122

PARENT ON BEHALF OF STUDENT,
v.
ANTELOPE VALLEY UNION HIGH SCHOOL DISTRICT.

OAH CASE NO. 2012090246

DECISION

Elsa H. Jones, Administrative Law Judge, Office of Administrative Hearings (OAH), heard these consolidated matters on January 15-17, 2013, February 4, 2013, and February 6, 2013.

Student was represented by Father. Student did not attend the hearing. Mother attended the hearing on the morning of January 15, on January 17, and on the morning of February 4. Father and Mother are collectively referred to herein as Parents.

Antelope Valley Union High School District (District) was represented by Bridget L. Cook, Attorney at Law, general counsel for the District. Johan Mekel, the District’s Director of Special Education, attended all hearing days.

Student filed a request for due process hearing (First Complaint) on August 3, 2012, which was assigned OAH Case No. 2012080122. Student filed a second request for due process hearing (Second Complaint) on September 7, 2012, which was assigned OAH Case No. 2012090246. On October 18, 2012, on the motion of District, OAH consolidated the First Complaint and Second Complaint, and continued the hearing. OAH further ordered that the timelines would be controlled by the date of filing of the Second Complaint.

Sworn testimony and documentary evidence were received at the hearing. The parties were ordered to file written closing briefs by no later than March 4, 2013. The parties filed their written closing briefs on March 4, 2013, at which time the record was closed and the matter was submitted. ¹

ISSUES

1. Whether District denied Student a free appropriate public education (FAPE) by enrolling her in multiple District schools from August 3, 2010, through September 13, 2010, without consulting Parents.

2. Whether District denied Student a FAPE from September 7, 2010, through May 6, 2011, by failing to implement the level of supervision set forth in Student’s operative IEP’s. ²

3. Whether District denied Student a FAPE by failing to provide Student with required counseling services two times per month through May 6, 2011, as set forth in her IEP of October 4, 2010, and subsequent operative IEP’s. ³

4. Whether District denied Student a FAPE in September 2010, by discontinuing the bus transportation set forth in Student’s February 25, 2010, IEP.

FINDINGS OF FACT

Background and Jurisdictional Matters

1. Student is a 17-year-old girl, who, at the time of the hearing, attended Devereux School (Devereux), a residential, therapeutic nonpublic school located in Texas. District and the Los Angeles County Department of Mental Health (DMH) placed Student at Devereux at the beginning of the 2011-2012 school year. At all relevant times, Student has been eligible for special education as a student with severe emotional disturbance (ED). Student lived in foster care at various times during the 2010-2011 school year, but at all relevant times during that school year Student lived within the boundaries of the District. Parents have held educational rights at all relevant times.

February 25, 2010, IEP

2. On February 25, 2010, when Student was 14 years old and in eighth grade at Joe Walker Middle School (Joe Walker), Student and Mother attended an IEP meeting to transition Student to high school. A representative of District, a general education teacher, a special education teacher, and a school administrator also attended the meeting. The IEP team noted Student’s special education eligibility as ED, and that she had been diagnosed with depression, attention deficit hyperactivity disorder (ADHD) and post traumatic stress disorder (PTSD). She was taking Prozac at the time of the IEP. She had a history of physical and sexual abuse. She also had a history of eloping from the time she was nine years old. She had been hospitalized twice in August 2009, once for bizarre behaviors, and once for suspected drug abuse and an altered state of consciousness. No drugs were identified in the drug screening performed during the latter hospitalization. Parents expressed concern with Student’s safety due to her eloping from school and home. The team noted that Student had not demonstrated such behaviors since her placement at Joe Walker in December 2009, and that Parents and Student’s teacher were planning to mainstream her gradually with close attention to her monitoring. The team also noted Student was not in any mainstream classes, due to Parents’ concern for her safety.

3. The team set forth Student’s scores on the Woodcock-Johnson III (WJ-III), which District had administered to Student on September 10, 2009. Her standard scores ranged from a 160 on Writing Samples to a 92 in Math Fluency. The team concluded that Student’s academic skills and academic task fluency were within the high average range. Her ability to apply academic skills was superior. Her performance was “very superior” in written language and written expression, “high average” in reading and math calculation skills, and “average” in math. The team also noted that Student’s other psychoeducational assessment results revealed Student demonstrated average to above-average auditory processing skills and visual processing skills. She demonstrated superior skills with motor-reduced visual processing skills and low average skills with visual motor integration tasks.

4. The team also noted that the assessment results revealed that Student exhibited significant externalizing behaviors, including conduct problems. She was uncooperative or unresponsive when she perceived that an adult/authority figure was telling her what to do. She exhibited poor behavior regulation. Student’s inappropriate behavior impacted her vocational skills, and led her to not complete or turn in school work. Therefore, her grades were below the level of her assessed academic skills.

5. The team concluded that Student required special education due to her significant behaviors. The team decided Student did not require academic goals. The team adopted two goals, one of which addressed Student’s behavior and compliance with teacher direction, and one of which addressed Student’s completion of classwork and homework. The team recommended Student continue her placement in a special day class (SDC) with an ED program. The SDC used a six-step level system with a token economy and other behavioral management techniques. The team also offered designated instruction and services (DIS services) to consist of counseling services of 45 minutes per week, and transportation. Parents stated they wanted to have close communication with the classroom teacher and wanted to make certain that Student was monitored throughout the day. The team recommended modifications to include supervision during unstructured time. The team noted that Student was receiving counseling services through Valley Child Guidance. The team projected that Student would graduate high school with a diploma in May 2014.

6. The District representative gave information concerning the behavior management program of the SDC ED in high school. The team completed a form entitled “Transfer to Antelope Valley Union High School District,” which was attached to the IEP. The form stated that the team agreed that upon entering the District, she would be placed in the SDC-ED class for six periods daily.

7. Also attached to the IEP was a District Special Education Bus Service Request form (BSR), bearing the date of the IEP, signed by Mother and Student. The form specified Parent’s home address as Student’s address, and listed the school of attendance as Quartz Hill High School (Quartz Hill). Quartz Hill was a public high school that served the area in which Parents resided. Mother consented to the IEP.

Enrollment in the District

8. On March 9, 2010, while Student was living with Parents, and still in middle school, Mother signed a Student Registration or Information Change (SRIC) form to enroll Student in Quartz Hill, Student’s school of residence, located in the District for the 2010-2011 school years. The form set forth Parents’ home and mailing addresses as the home and mailing addresses for Student, and noted that Student was a special education student with an IEP. ⁴

9. In April 2010, while Student was still in middle school, Student was placed in foster care, and the Los Angeles Superior Court appointed a Court Appointed Special Advocate (CASA) for Student. The CASA had authority to assist and advise regarding Student’s educational planning. At all relevant times, Student’s CASA was Toska Garner. From April 2010, when Student was in middle school, until March 1, 2011, when Student was in ninth grade and attending Quartz Hill, Student had a series of foster placements and other out-ofhome placements.

10. Student graduated from middle school at the end of the 2009-2010 school year, when she was 14 years old. District’s first day of school for the 2010-2011 school year was August 9, 2010. Parents assumed that Student would attend Quartz Hill, based on the enrollment form Mother had signed and submitted when Student was still in middle school. District’s computerized enrollment records reflect that Student was enrolled at Quartz Hill from August 9, 2010 through August 11, 2010. ⁵ Yet, there was no evidence that Student attended Quartz Hill at the beginning of the 2010-2011 school year, even though the District had arranged bus transportation for Student, to begin on August 9, 2010. Rather, District’s PowerSchool records show that Student was enrolled in William J. Pete Knight High School (Pete Knight) from August 12 through August 15, 2010, and that it was her school of residence. During this period of time, Ms. Dobson was Student’s foster parent. ⁶ The PowerSchool records reflect that Student was enrolled in general education classes at Pete Knight, that she was present at Pete Knight on August 12 and August 13, 2010, and that her homeroom teacher was Dale Hobart. Mr. Hobart, who testified at hearing, had no recollection of Student. Pete Knight personnel could locate no records of Student. However, the uncontradicted testimony of Mr. Mekel, established that Student’s middle school records would have been sent to Quartz Hill pursuant to her transition IEP of February 25, 2010. Therefore, personnel at Pete Knight would not have had immediate access to Student’s middle school records so as to learn that Student was a special education student and had an IEP. If the person who enrolled Student, such as Student’s foster parent, did not reveal Student’s special education status at the time of enrollment, Pete Knight had no ready method of discovering Student’s status so as to place her in an appropriate special education program.

11. District did not advise Parents that Student was attending Pete Knight, and Parents did not know that Student was enrolled in and attending Pete Knight at the time she was enrolled in and attending school there. There was no evidence that Parents ever advised Ms. Dobson or Ms. Garner, Student’s CASA, that they wanted Student to attend Quartz Hill and not Pete Knight.

12. Student was removed from Ms. Dobson’s care at some point between August 13, 2010, and August 16, 2010, and on or about August 16, 2010, Stevette Brothers became Student’s new foster parent. ⁷ Ms. Brothers remained Student’s foster parent until March 1, 2011, when Student returned home to live with Parents.

13. On or about August 13, 2010, when Student was still enrolled at Pete Knight, Mother again signed and submitted to the District an SRIC form to enroll Student at Quartz Hill. ⁸ The form listed Parents’ home address as Student’s address, and incorrectly stated that Student was not in a foster home. At hearing, Mother testified that she believed that Ms. Garner, the CASA, was with her when she completed and signed the enrollment forms, and Ms. Garner advised the District that Student was in foster care.

14. Also on August 13, 2010, Teri Meeks, a special education transportation clerk for the District, received a call from Ms. Garner, Student’s CASA. Ms. Meeks understood from Ms. Garner that Student was in court-ordered temporary foster care, and that Ms. Brothers would be Student’s foster parent. Ms. Garner advised Ms. Meeks that Student would remain at Quartz Hill and would need transportation between Ms. Brothers’s address and Quartz Hill from August 16, 2010, until September 1, 2010, while Student was in temporary foster care. Ms. Meeks further understood from her conversation with Ms. Garner that on September 1, 2010, Student would return to live with Parents. Accordingly, on August 13, 2010, Ms. Meeks filled out and e-mailed to Antelope Valley Schools Transportation Agency (the District’s bus service) a typed BSR form, which contained much of the same information as did the handwritten BSR form attached to Student’s February 25, 2010, IEP. Ms. Meeks included a typed notation on the form that, as of August 16, 2010, until September 1, 2010, Student should be picked up and dropped off at Ms. Brother’s residence and transported to Quartz Hill. The form noted that Ms. Brothers was Student’s foster parent, that Parents were Student’s parents, and that Student was in court-ordered temporary foster care. The form also reflected that, as of September 1, 2010, the pick-up and drop-off location would be Parents’ residence address. Subsequently, on August 24, 2010, Ms. Meeks had another conversation with Ms. Garner, during which Ms. Garner advised Ms. Meeks that there was a court hearing on September 1, 2010, and Student would need transportation from Parents’ home to Quartz Hill starting September 2, 2010. During this conversation, Ms. Garner advised Ms. Meeks that Student was enrolled at Eastside High School. Ms. Meeks documented these conversations with Ms. Garner, and the steps Ms. Meeks followed pursuant to these conversations, in an e-mail dated September 3, 2010, to Verlinda Ginn, a social worker with the Department of Children and Family Services (DCFS). Ms. Meeks’s e-mail also advised Ms. Ginn that Ms. Meeks could only arrange this bus transportation on a temporary basis, since Student’s foster home was in the Eastside residence area, not the Quartz Hill residence area. Ms. Meeks’s e-mail noted that if such transportation were needed on a permanent basis, the District special education program specialist would have to approve it. In this regard, all of the BSR forms Mother filled out stated that Student was eligible for transportation from “home to school.” To the best of Ms. Meeks’s recollection, the program specialist ultimately did not approve ongoing transportation between Ms. Brothers’s residence and Quartz Hill, but no documentation of this decision was presented at hearing, and there was no evidence that Parents were notified of this decision.

15. On August 16, 2010, without the Parents’ knowledge, Ms. Brothers signed an SRIC enrolling Student at Eastside High School (Eastside), also located in the District. Eastside was the high school of residence based upon Ms. Brothers’ address; Quartz Hill was Student’s home high school based upon Parents’ address. The SRIC contained Ms. Brothers’ address, and stated that Student was in a foster home. The SRIC did not state that Student was a special education student. District placed Student in the ED class at Eastside, where her teacher was Mark Cook. Mr. Cook holds a B.A. in behavioral science from California Polytechnic University, Pomona (Cal. Poly Pomona). He has been a special education teacher for 25 years. He holds a Learning Handicapped credential and a Resource Specialist credential, both from Cal Poly Pomona. He also often takes classes regarding special education topics at the University of La Verne to enhance his knowledge and to advance in his employment.

16. While at Eastside, District enrolled Student exclusively in special education classes. ⁹ Student attended Eastside from August 16, 2010, until September 7, 2010, when Mother enrolled Student at Quartz Hill, as described below. District did not notify Parents that Student was enrolled at Eastside.

17. At some point while Student was attending Eastside, Student requested Mr. Cook write a letter stating she had made progress, so that Student could show it to her social worker. Mr. Cook wrote the letter as Student had requested. The letter, which was undated, was not written on school stationery, because Mr. Cook considered the letter a personal recommendation, and not an official letter authorized by the school. The letter was addressed, “To Whom it May Concern,” and stated that Student was thriving in her Emotionally Disturbed program at Eastside, that she has not exhibited violent, abusive, and non-compliant behaviors while in this program, that she was beginning to become successful, and that she had a 4.0 grade average. Mr. Cook’s letter also noted that Student was active and an officer in a school club. Mr. Cook concluded his letter by stating that in view of Student’s involvement in positive areas in school he would hate to see her move to another school.

18. Also at some point while Student was attending Eastside, Student advised Mother that she was attending Eastside, despite Mother having previously enrolled Student at Quartz Hill. At or about the same time as Student imparted this information to Mother, she also told Mother that, when the school bus first appeared in mid-August at Ms. Brother’s house to pick-up Student and take her to Quartz Hill, Ms. Brothers told the bus driver that Student did not require transportation as she was not attending Quartz Hill, and sent the bus away. Mother did not recall when Student imparted any of this information to her. Mother did not recall notifying either Eastside or Quartz Hill, upon learning of Student’s attendance at Eastside, that Parents wanted Student to attend Quartz Hill. Mother only recalled that, upon learning Student was attending Eastside, she notified Student’s social worker, Student’s CASA, and Parents’ court-appointed counsel that Student was attending Eastside, and that Parents wanted Student to attend Quartz Hill.

19. After Ms. Brothers refused the bus transportation to Quartz Hill, there was no evidence that a school bus ever again appeared at Ms. Brothers’s residence to take Student to any school, whether Eastside or Quartz Hill. The undisputed testimony at hearing of Mr. Mekel established that if Ms. Brothers had told the bus driver she did not want transportation, the District would have cancelled transportation. Mr. Mekel also testified that the court orders described below would have been included in Student’s transportation file and cumulative file.

20. Student’s education was an issue in the dependency proceedings regarding Student in the Los Angeles Superior Court Juvenile Court (Superior Court). The Superior Court held a hearing which involved Student’s education on September 1, 2010. In a minute order of that date, the Superior Court confirmed that Parents held the Student’s educational rights. The Superior Court minute order also ordered that Student be enrolled in Quartz Hill, and that the DCFS provide funds for Student to be transported between her foster home and Quartz Hill. Contrary to Ms. Meeks’s understanding from Ms. Garner that Student was to be returned to Parents from foster care on September 1, the Superior Court did not change Student’s foster care status. At a subsequent hearing held on September 13, 2010, at which Parents and their counsel appeared, the Superior Court reaffirmed that Parents held Student’s educational rights, and ordered Student to remain at Quartz Hill, and to remain in foster care. The Superior Court specified that Parents were to transport Student to and from school, and they were to have unmonitored visitation for this purpose. The Superior Court vacated its previous order that DCFS provide funds for Student to be transported back and forth to Quartz Hill from the foster parent’s home, and specified that DCFS was to provide Parents with transportation funds. ¹⁰ Father testified at hearing that the Superior Court rendered this transportation order because the social workers had advised the court that Ms. Brothers, Student’s foster mother, refused to provide transportation to and from Quartz Hill, and that the District would not provide transportation for Student from Ms. Brothers’s address. There was no evidence as to the basis for the social workers’ representation to the court that the District would not provide transportation for Student. Father testified that Parents then advised the court that they would agree to transport Student to and from school.

21. On September 7, 2010, Mother executed and submitted a form withdrawing Student from Eastside, and stating that Student was transferring to Quartz Hill. Handwriting on the form stated the reason for withdrawal as “New foster Placement.” At hearing, Mother was unable to identify that handwriting. In fact, Student’s foster placement had not changed at that time, but remained as it was on August 16, 2010, when Ms. Brothers, Student’s foster parent, enrolled her at Eastside. Also on September 7, 2010, Mother executed another BSR. The BSR listed Ms. Brothers’s address as the pick-up and drop-off address, but Mother did not believe she had filled out Ms. Brothers’s address on the BSR. As is further discussed below, District did not provide bus transportation to Student pursuant to that BSR. After September 7, 2010, District never received another request from Parents for bus transportation.

22. On an unspecified date, Father became aware of the undated letter Mr. Cook had written, and thought that it was an attempt by the District to influence the Superior Court to allow Student to attend Eastside. On October 6, 2010, when Student had been enrolled at Quartz Hill for almost a month, Father personally met with Eastside’s vice-principal, Kathryn Stanley, to express his concerns about Mr. Cook’s letter. In Mr. Father’s presence, and with his approval, Ms. Stanley wrote a letter on that day addressed “To Whom it May Concern,” in which she stated that Mr. Cook “took it upon himself to elaborate certain facts which, upon my investigation, were not completely true.” Neither at hearing nor in her letter did she specify as to what facts were not “completely true.” Her letter also stated, “In her [Student’s] short time here at Eastside High School, she showed good grades and progress.” Ms. Stanley gave the letter to Father.

23. Mr. Cook denied that he had submitted his letter to the Superior Court, and there was no evidence that either Mr. Cook’s letter or Ms. Stanley’s letter was submitted to Superior Court. The District did not appear at the Superior Court hearings that occurred on September 1 and September 13, 2010, and there was no evidence that anyone from the District provided any documentation or information to the Superior Court with respect to these two hearings. ¹¹ There was no evidence that the Superior Court held any other hearings pertaining to Student’s education.

Student’s Attendance at Quartz Hill

24. As a result of the September 1, 2010, minute order, and pursuant to the enrollment forms Mother provided on September 7, 2010, Student enrolled in Quartz Hill on September 7, 2010. District did not provide bus transportation for her after she enrolled at Quartz Hill on September 7, 2010. Rather, pursuant to the Superior Court minute orders, Parents transported Student to and from Quartz Hill. They picked her up in the morning from a site near Student’s foster home and drove her to school. Student was not met by any school personnel upon her arrival at school; she simply walked onto campus. Parents transported Student from school back to a site near Student’s foster home at the end of the school day. Student was not escorted to Parents’ car by school personnel at the end of the school day. Parents received reimbursement from DCFS for transporting Student to and from school, pursuant to the Superior Court’s minute order.

25. At Quartz Hill, District placed Student in an SDC ED class taught by Tim Sanchez. Mr. Sanchez has been a special education teacher since 1992, and almost all of his special education teaching experience has been in ED classrooms. He holds a B.A. in history from California State University, Northridge (CSUN), from which he also received a special education severe credential in 1995.

26. Student’s SDC ED class at Quartz Hill was a small, behaviorally-focused class for students with an ED eligibility. Behavioral interventions were an integral part of the class, along with academics. Primary behavioral management tools in Student’s SDC ED class were a token economy and a “level system.” The level system was a four-tiered system, under which students received more privileges and rewards, including less monitoring and supervision, the better they behaved and performed academically. Level 1 of the level system involved the highest level of monitoring, under which the child could not leave the classroom without an escort, and the child’s lunch and snack would be brought into the classroom. The monitoring and supervision decreased as the levels increased, such that at level 4 a child could, in general, move about the campus as would typical children, and was free to go to snack and lunch. The level a child earned would be determined at the end of each week, and it could go up or down at that time, unless the student’s behavior was so poor that it warranted an immediate or automatic level drop before the week ended. As the school year progressed, Student was able to achieve levels 3 and 4. If Student walked out of class without permission, Mr. Sanchez would send an assistant to follow her. If Student did not appear at class, but other students had told him she was at school, he would attempt to locate her in a variety of ways, such as by calling security, calling other teachers, and/or alerting the school psychologist or the vice-principal. Mr. Sanchez recalled that it was not common for Student to miss class. When Student was at the lower levels of the level system, Mr. Sanchez advised all teachers to have Student escorted to the bathroom. In his class, if she requested to go to the bathroom, he would have an aide escort her to and from the bathroom. If no aide was available, Mr. Sanchez would call security and have security escort her to and from the bathroom. Student would also be escorted between classes. When Student was at the higher range of the level system, Student would be able to go to the bathroom with a pass, but without an escort, and she would not be escorted between classes. Mr. Sanchez stated that it was his practice to let the parents know if a student was being allowed to go to the bathroom without an escort. At hearing, Parents denied that they received any such notification, and stated that they would not have permitted Student to go to the bathroom without an escort. In addition to her classes in the SDC ED, Student was placed in a general education ceramics class, and, at least initially, in a general education English class.

October 4, 2010, IEP

27. On October 4, 2010, the District convened a 30-day IEP to review Student’s program and placement. The IEP team included Parents, Ms. Garner (Student’s CASA), Mr. Sanchez (Student’s special education teacher), Mr. Dilbeck (Student’s general education English teacher), and a District administrator.

28. The team noted that Student was a very bright student with much potential. Student’s behavioral issues were impacting her ability to function in a general education class. Parents were highly concerned with Student’s safety due to her running away from school and home. The IEP described Student’s SDC ED program, and stated that a point and level system, behavior modification, and a token economy were used to facilitate Student’s access to the general education curriculum. The team noted she was making excellent progress, and was on level 1 in the 4-step level system. At one point she had earned level 3. The team noted that in middle school she would leave campus during the school day on a daily or weekly basis, although that conduct had not manifested itself since the previous December. The team also decided that the special education teacher would be in contact with Student’s teachers in other classrooms so that they might make sure that Student was escorted to the restroom during class to prevent previous problems of leaving school during the day. The IEP team noted Parents’ comments that they wanted to have close communication with the classroom teacher, and would like to make certain that Student was monitored throughout the day. The only mechanisms the IEP specified for monitoring and supervising Student were the level system and the escort to and from the bathroom when Student was excused during class.

29. The English teacher was unable to report any progress for Student because Student had numerous absences since the short period of time she was in his class. Student was behind in math class, and current in science. In both of those classes, she would work when she wanted to. When she was not working, she was not disruptive. Student’s grades at the time were: D-in Health; F in Physical Education (P.E.); C+ in Algebra 1A and in Life Sciences; F in English; and F in Ceramics. The team listed the scores she received on the WJ-III in September 2009, and reiterated her psychoeducational assessment results as reflected in the IEP dated February 25, 2010. The team noted that since starting at Quartz Hill, Student had been disciplined twice. The first disciplinary action was for using her cell phone. The second disciplinary event involved a three-day in-school suspension for slapping another student. The team did not note that on September 21, 2010, Student ran off-campus. This event was documented on a school form which recorded Student’s suspension for the slapping incident. The form included a handwritten comment which stated, in part, “Student ran off campus. Parent Contact @ 11:18.” Student’s eloping on September 21 was also recorded on the log in PowerSchool.

30. The team noted that Parents provided documentation from the previous school psychologist and other mental health care providers to the Quartz Hill school psychologist. The IEP team found that Student’s behavior impeded the learning of herself or others. As a behavior strategy, the team offered that Student should immediately be granted a break when she requested one, and should be praised for using her language. Similarly, Student should immediately be given attention or help when she requested it, and praised for using her language. Praise would also be given for Student’s use of learned and modeled phrases. Student would also be able to escape a non-preferred task/environment, and work in another area. Accommodations were offered to include preferential /assigned seating, use of an assignment notebook planner, and supervision during unstructured time (recess, lunch, and passing time between classes.)

31. The team determined that Student did not require academic goals. The team developed one goal in the area of work completion, and one goal in the area of behavior. The behavior goal recorded as a baseline that Student had difficulty with teacher direction, and provided that when angry, bothered or upset, Student would follow teacher directive to move to a designated area and remain there 100 percent of the time, as measured by observation and daily points. The team developed three short-term objectives related to the goal. The IEP did not specify the designated area where Student would be moved, however, the evidence revealed that Student would be moved to the school psychologist’s office, where she would receive counseling. There was no evidence that formal records were kept regarding the number of times that this counseling occurred.

32. The team agreed to place Student in the SDC ED program, with counseling to occur 30 minutes per session, two sessions per month. The team offered transportation. Parents did not bring to the IEP team’s attention any concern regarding the fact that the District was not providing transportation. The team did not offer Extended School Year services (ESY). The team noted that Student was also receiving counseling services, outside of school, from Valley Child Guidance. The team agreed to refer Student for mental health services. The team projected that Student would complete high school on May 28, 2014, with a diploma.

33. District sent Parents a copy of the IEP and a form for Parents to sign their consent to the IEP. Mother noted on the form that she disagreed with the IEP and wished to have another IEP meeting, and she did not check the box on the form consenting to the IEP. Mother did not specify her reasons for disagreement with the IEP, noting on the form only that she agreed with the IEP except for “omissions and important concerns.”

Student’s Suspension for Alcohol Use, November 9, 2010

34. Between the October 4, 2010, IEP meeting, and November 9, 2010, Student’s behavior included a variety of defiant and disobedient conduct, such as walking out of PE class without permission, not following directions, refusing to go outside, using profanity, disrespecting teachers, and refusing to dress for P.E. This conduct affected Student’s level in the level system, and resulted in in-school suspensions.

35. On November 9, 2010, Mr. Stanford, one of Quartz Hill’s vice-principals, suspended Student for five days off-campus because she used alcohol on campus. Student’s alcohol use was discovered by Chris Niemeyer, a school security guard. On that day, at approximately 11:05 a.m., which was during Student’s lunch period, Mr. Niemeyer observed Student with several other students on the “200” quad. As they walked by, Mr. Niemeyer smelled alcohol. He singled out one of Student’s companions to stand before him and breathe to ascertain if her breath was the source of the alcohol odor, but he was not able to ascertain that Student’s companion had been drinking alcohol, so he let her go. A few minutes later, he noticed that Student’s group had been joined on the quad by two other students. Since the group was staring at him, Mr. Niemeyer went to the security office to watch the group on camera. While in the security office, he observed the group walk into the female restroom. He then called the female custodian to check the restroom to make sure the group was not conducting any illegal activity in the restroom. As the custodian walked on to the quad, the group dispersed in opposite directions. Mr. Niemeyer walked into the quad to talk to the female custodian, who had not observed any illegal activity. As Mr. Niemeyer was talking to the custodian, a vice-principal appeared, and reported to Mr. Niemeyer that she had seen the group converge on the “100” quad. He advised that she might want to check the restroom on that part of campus. The vice-principal called Mr. Niemeyer on the radio, and asked him to come by the “100” quad.” When he arrived, he could smell alcohol as he approached the group. In response to his inquiries, Student confessed that she had some alcohol in her purse, and eventually confessed that she had been drinking alcohol in the school bathroom. In addition to suspending Student for this incident, Mr. Stanford required Student to sign an Alcohol/Drug Offense Contract (Contract) by which she was to complete the District’s Alcohol/Drug Diversion program, which consisted of two four-hour Saturday sessions. Student and Mr. Stanford signed the Contract on November 9, 2010; Father signed it on November 15, 2010. At hearing, Father contended that the fact that he did not sign the Contract for six days indicated dilatory conduct by the District in notifying Parents of this incident. However, according to the school calendar, there was no school on November 11, 2010, as it was Veterans’ Day, a legal holiday, and no school on November 12, 2010, as it was a “local holiday,” pursuant to Education Code section 37220. School was not in session on November 13, 2010, and November 14, 2010, as those dates were Saturday and Sunday, respectively. Therefore, Father signed the Contract on the Monday after the incident occurred, which was the third school day from the date of the incident.

December 1, 2010, IEP

36. District convened an IEP on December 1, 2010, not only to serve as an annual IEP, but also in response to Parents’ request for an IEP meeting to discuss their concerns with the October 4, 2010, IEP. The IEP team included Parents, Student, the school psychologist, Latisha Sampson (Student’s school-based counselor), Ms. Brooks (Student’s ceramics teacher), Mr. Sanchez (Student’s special education teacher), Ms. Garner (Student’s CASA), and a District administrator.

37. The IEP was largely the same as the IEP of October 4, 2010, but there were several updates and additions. Ms. Brooks reported that Student was not passing her ceramics class, although she could pass the class if she made up the work. Student’s absences due to suspension and other unexcused absences had affected her grade. The team also noted that Student was not passing PE, which was primarily due to Student not participating or dressing for class. Student’s other grades were Health “D” (64 percent); Algebra 1A “C+” (79 percent); Life Science “B-” (82 percent); and English “A” (93 percent). The team commented that Student had been on level 1 in the level system for the “past several weeks,” and was currently mainstreamed only in Ceramics. The team added a transition plan and a transition goal. The team further explained and commented upon some of the accommodations. The team noted that Student’s preferential seating should be where there was the least amount of distractions. With respect to the “supervision during unstructured time” accommodation, the team also referenced supervision on levels 1 and 2 of the level program. The only mechanism the IEP specified for monitoring and supervising Student was the level system.

38. The team broadened the behavior goal with respect to teacher direction, to include “adult directives,” and set dates on which the benchmarks should be obtained. As the baseline for the goal, the team noted Student had a problem following directions when she was upset or in a high emotional state, and that she only followed such directives approximately 60 percent of the time, regardless of her emotional state. The team also modified the goal of completing homework.

39. The IEP notes reflect Parents’ concerns that Student would engage in truancy behaviors as she had in the past at middle school, and they therefore wanted her attendance in mainstream classes to be closely monitored. Parents also advised the team that they wanted to have close communication with the school, and would like to make certain that Student was monitored throughout the day. They wanted to be notified when there was a concern.

40. The team did not change Student’s placement from the SDC ED, and maintained counseling at 30 minutes, twice per month. The IEP offered transportation. The team also added counseling pertaining to college awareness for 15 minutes per month, services pertaining to vocational assessment, counseling, guidance, and career assessment for 15 minutes per month, other transition services for 15 minutes per month, and ESY. The team again agreed to submit referral paperwork for mental health services. Parents signed their consent to the IEP, while noting their disagreement that Student was doing well, as she remained at level 1, was failing two classes, and had eloped on September 21, 2010. Parents did not advise the IEP team of any concern that District was not providing transportation to Student and that Parents wanted District to provide it.

Student’s Use of Marijuana, December 2010

41. On an unspecified date in December 2010, Student reported to her social worker that she had smoked marijuana in the bathroom at Quartz Hill. There was no evidence as to the date that this incident occurred. Nobody at Quartz Hill knew about the incident at the time it happened, rather, Father reported it to Quartz Hill on an unspecified date in December 2010. There was no evidence that the school disciplined Student regarding this incident.

Student’s Lip Piercing, January-February 2011

42. While driving home from school on January 25, 2011, Mother noticed that Student’s lip was pierced and swollen. In response to Mother’s queries, Student stated she had pierced her lip in the school bathroom. By letter dated February 2, 2011, to Ms. Kreitz, the principal of Quartz Hill, Parents requested that the school investigate the incident and provide a written report of the investigation. Specifically, the letter stated, “…today we informed Mr. Stanford that on Monday, January 25, our daughter came from school with her lip or chin pierced, and she claimed she had done the piercing at school in the bathroom bleeding all over the place during 6th period.” The letter also mentioned that Student’s IEP required that she be “closely watched” while at school.

43. At hearing, Father testified that the lip piercing incident had happened on or about January 17, 2011, and that he reported it to the school on or about January 18, 2011. Father denied that the February 2, 2011, letter was dated on the day it was delivered to the school. He testified that it was written on an unknown date before February 2, 2011, such that the reference in the letter to “today” was not February 2, 2011. His testimony contradicted Mother’s testimony, however. Based upon Mother’s review of the February 2, 2011, letter to Ms. Kreitz, Mother testified she had learned of the lip piercing on January 25, 2011. Moreover, Father’s testimony was not necessarily consistent with the school calendar, which revealed that January 17, 2011, was the Martin Luther King holiday and school was closed. Father conceded that he did not pay much attention to the school calendar.

44. Mr. Stanford completed his investigation of the lip-piercing incident, and reported his results to Father on February 7, 2011. Student told Mr. Stanford that she had gone to the bathroom with a pass on a Monday approximately two weeks previous to February 7, 2011, and had pierced her lip in the bathroom. Mr. Stanford and school security could find no evidence that the incident had happened in the school bathroom or on school property. Mr. Stanford received no information that there was blood in the bathroom or that any teachers had noticed that Student came to class with her lip newly pierced. Mr. Sanchez, Student’s homeroom teacher, had not noticed that Student’s lip was pierced. PowerSchool records also reflect that on February 7, 2011, a vice-principal had spoken with Father about Student’s refusal to follow the level system, and Father advised that he would speak with Student to support the level system program.

February 22, 2011, IEP

45. On February 22, 2011, the District convened another IEP meeting. The team included Parents, Ms. Garner (Student’s CASA), Mr. Stanford, Mr. Sanchez, Ms. Brooks, the school psychologist, and Ms. Sampson (Student’s school-based counselor). The IEP stated that the IEP was being held at Parents’ request due to a possible change of placement. The team reiterated the background and assessment information from the previous IEP’s, including Parents’ concerns about Student running away from school and home. The team noted Parents’ report that Student was creative, artistic, bright, social, and good with kids.

46. The team updated Student’s grades: Health 1 (96 percent); P.E. “F” (59 percent); Algebra 1A “B-” (82 percent); Life Science “B-” (82 percent); English “D” (63 percent); and Ceramics “A” (95 percent). The team noted that Student was receiving counseling outside of school through Valley Child Guidance. Her ceramics teacher reported that Student had a positive attitude. Her PE teacher reported that Student had improved her PE participation, and her grade should therefore improve. Her English grade had been diminished by not turning in a civil rights essay. Since the start of the semester, Student had earned level 4 three times, and levels 3, 2, and 1, once each. The accommodations with respect to supervision during unstructured time reiterated that the level program provided supervision on levels 1 and 2. The only mechanism the IEP specified for monitoring and supervising Student was the level system.

47. The team noted that Student had timely met the first benchmark for her behavioral goal to follow adult directives to move to a designated area and remain there when she was in an emotional state. The team also reported that Student had timely reached the first benchmark for her work completion goal. With respect to her transition goal, the team noted that Student had taken some interest inventories but had not completed the first benchmark of taking a specified survey.

48. The team reiterated and did not change Student’s placement and services. The team again offered transportation, and there was no notation or any other evidence that Parents advised the team that they wanted transportation and the District was not providing it. The team commented that Student was responsive to strategies to de-escalate her emotions. The team noted that Student was integrated into two academic classes in other SDC classrooms, and was mainstreamed for one class. She was on level 4 in the 4-step level system. The team noted that Student had engaged in numerous incidents of defiance to authority during the first semester, some of which resulted in suspension. Further, low grades and refusal to participate and attend classes resulted in Student losing credit in three of her academic classes. The IEP notes stated that, in the current semester, Student was making consistent academic progress. She had improved her class attendance and participation, which improved her grades. The team commented that Student had also significantly improved with respect to obeying authority, and had no suspensions in the current semester. The team also noted that Parents remained concerned that Student may revert to negative behaviors. Parents requested that staff closely supervise Student, and that any proposed changes to successful classes should be made cautiously and Student’s progress should be carefully monitored. Parents stated they wanted to have close communication with the school. They also wanted to make certain that Student was monitored throughout the day and that they be notified when there was a concern. There was no evidence that Parents mentioned the lip piercing incident at this IEP meeting.

49. The team noted that the mental health services assessment was in progress. The team determined that Student had earned only 20 credits during the previous semester, but that she could make up credits by attending summer school or with supplemental instruction. Parents reported that Student would be returning home from her foster placement on March 1. The IEP was sent home for Parents to review, and Mother signed her consent to the IEP, without comment, on March 19, 2011.

50. On March 17, 2011, the Sheriff’s Department had Student admitted to Gateway Hospital, a mental health facility in Los Angeles, for approximately one week for an evaluation. Student returned to Quartz Hill thereafter.

April 25, 2011, IEP

51. On April 25, 2011, the District convened another IEP meeting, to review the results of the mental health services evaluation. The team included Parents, Student, Ms. Brooks, Mr. Sanchez, a District administrator, the school psychologist, and the psychologist from DMH. The IEP contained much of the same information as did previous IEP’s. The team noted that Student had been in level 4 of the level program for the past several weeks. The team also noted that Student had met the first and second benchmarks in a timely fashion for the behavioral goal of following adult directives when in an emotional state and moving to and remaining in a designated area. The team noted that Student had also timely met the first and second benchmarks for the work completion goal. Student had not made further progress on her transition goal of completing a career assessment. The team agreed upon four DMH goals, which addressed identifying emotions, executive functioning, social behavior, and substance abuse. The team also developed a behavior support plan (BSP) to address Student’s oppositional and eloping behaviors. The environmental factors section of the BSP provided that Student should sit in close proximity to the teacher, and if she needed to leave the classroom due to escalating behaviors she should be escorted to the office and placed in an area where she would be supervised and would not be in close proximity to an exit. Placement and services remained the same, except that DMH services were added. DMH would provide 250 minutes per month of counseling services at Valley Child Guidance, where Student had already been receiving services, one time per week, for 50 minutes per session, not to exceed 250 minutes per month. DMH recommendations also included family therapy, once every two weeks, not to exceed 150 minutes per month, a medication evaluation of Student, and follow-up by a psychiatrist if medications were prescribed. DMH also proposed that Student’s therapist was to maintain regular contact with Student’s classroom teacher to coordinate treatment, monitor progress, and maintain continuity of care.

52. The IEP again provided for transportation, and the IEP did not mention that the team discussed any transportation issues. There was no evidence that Parents mentioned to the team that District was not providing transportation.

53. The team discussed Student’s progress. Student’s general education art teacher reported that Student was doing well and had a grade of “B” in Ceramics. The special education teacher reported that Student was making excellent progress. Student’s PE teacher reported that Student was improving her participation. Student’s English score was diminished by not turning in an essay. She was earning a “B” in Science, and her Math grade had declined to a “C,” as more difficult topics were introduced. The team reiterated that “all participants” agreed that Student had made consistent academic progress during the semester. She had improved her class attendance and participation, and the number of times she defied authority had significantly decreased. She had no suspensions during the semester.

54. Parents asked about residential treatment, and the DMH representative explained the circumstances under which that would be suitable. Parents stated they wanted to have close communication with the school. Parents also wanted to make certain that Student was monitored throughout the day and that they be notified when there was a concern. Parents remained concerned that Student’s negative behaviors may start again, and they requested staff supervise Student closely.

55. Parents consented to the IEP, with some corrections. They noted that Quartz Hill was Student’s school of residence, since she was no longer in foster care, in contrast to a reference in the IEP to Student living in foster care and attending a non-residence school. Parents also noted that Student had received new eyeglasses, contrary to the outdated statement in the health section of the IEP.

Student Eloped, May 6, 2011

56. Father testified that he drove Student to school on the morning of May 6, 2011. Father also testified that when he arrived at school in the afternoon of May 6, 2011, to take her back to her foster home after school, Student did not appear at their regular pick-up spot nearby the gate. Father testified that he went to the school attendance office, and was told by a person whose name he did not know that Student had been in school for a few periods in the morning, and did not know where Student was after that time. Father filed a report with the Sheriff’s Department, and Student was located approximately six weeks later. Father did not recall the date Student was located. Student was located at a former foster home. Father learned that while she was gone, Student had stayed with a variety of people, including former foster parents and her biological mother and grandmother.

57. Father was the next-to-last witness to testify at hearing, and he was the only witness who testified as to any specific facts relating to this event. Mother was not asked to testify to this event. Mr. Stanford was the only District employee of whom Parents inquired during the hearing regarding this event, and he stated only that he was aware that Father had stated that Student had not come home from school and that Father thought that Student had run away from school. Parents produced no documentation as to this event, such as the report of the Sheriff’s investigation.

58. After Student was located, she was hospitalized and did not return to Quartz Hill. Ultimately, as a result of an August 29, 2011, IEP meeting, District and DMH placed Student in a therapeutic residential placement at Devereux. Student has remained at Devereux through the time of the hearing.

Student’s DIS Counseling Sessions

59. At some point after Student ceased attending Quartz Hill, Student told Parents that she had not received her school-based counseling sessions. Student did not receive the sessions at a set time, rather, Ms. Sampson, Student’s DIS counselor at Quartz Hill, would schedule each individual session to conform to Student’s schedule. District records reflected that Ms. Sampson provided Student four sessions in November 2010, one session in December 2010, two sessions in January 2011, one session in February 2011, and one session in March 2011. Ms. Sampson also believed that she had occasionally failed to record a session. Parents first raised this issue at the August 29, 2011, IEP meeting, when Student was hospitalized. At that time, Mr. Le Bat, the District’s coordinator of psychological services, offered to provide compensatory counseling services to Student when she returned to school. Mr. Le Bat made this offer to appease Parents and to attempt to avoid conflicts. He believed that Student was not actually owed any counseling services, because she met with a school psychologist every time she became emotionally elevated and was directed to go to the school psychologist’s office pursuant to the goal in her IEP. District did not keep a log of these visits. Subsequently, Mr. Mekel calculated that Student had missed three hours of DIS counseling sessions, based upon the counseling logs, the school calendar, and Student’s attendance. Mr. Mekel offered to provide seven hours of compensatory counseling services to Student. Parents have never accepted these offers. At hearing, Father’s testimony as to these offers and his reasons for not accepting the offers varied. During Father’s direct testimony, he testified that Parents did not want compensatory counseling services when Mr. Le Bat offered them or thereafter, because Parents were not sure that Student needed compensatory counseling services. Rather, she had needed counseling services during the 2010-2011 school year, when District was supposed to have provided them. On cross-examination, he disputed that he had denied the offer of services by Mr. Le Bat, rather, he stated that he did not consider Mr. Le Bat to have made any offer of counseling services because Mr. Le Bat had not specified a particular number of hours. Father also disputed that he had declined Mr. Mekel’s subsequent offer of seven hours of compensatory services, because the offer was not in writing and Father had not responded to it in writing. However, Father conceded that he wondered what benefit Student would receive from compensatory counseling services.

CONCLUSIONS OF LAW

Burden of Proof

1. The petitioner in a special education due process hearing has the burden of proving his or her contentions at the hearing. (Schaffer v. Weast (2005) 546 U.S. 49, 56-57 [126 S.Ct. 528].) As the petitioning party, Student has the burden of persuasion in this case.

Contentions

2. Student contends that District denied Student a FAPE during the 2010-2011 school year by enrolling Student in Pete Knight High School and in Eastside High School without consulting Parents, who held educational rights at all relevant times. Student also contends that District denied Student a FAPE by failing to implement Student’s operative IEP’s during the 2010-2011 school year, so as to provide her supervision and monitoring, and transportation. Student further contends that District failed to provide all of the DIS counseling required by the October 4, 2010, IEP and subsequent IEP’s during the 2010-2011 school year. The relief Student seeks for these alleged violations are orders that the District comply with the law and her IEP’s in the future. Student does not seek any compensatory education, and she provided no evidence that she required any compensatory education.

3. District contends that it acted properly in enrolling Student in the schools selected by Student’s foster parents, pursuant to its statutory obligation to enroll foster children in schools, and that Student suffered no educational harm by reason of being enrolled in these schools. District contends that Student’s foster mother refused bus transportation to Quartz Hill, and that Parents did not pursue the issue with District, but rather followed the Superior Court’s order to transport Student and received reimbursement from DCFS for providing the transportation. District contends that it properly monitored Student in accordance with her IEP. District further contends that it offered make-up counseling sessions, but Parents refused them. District contends that none of the alleged procedural violations caused harm to Student, and that it did not materially fail to implement the IEP’s.

FAPE

4. Pursuant to California special education law and the Individuals with Disabilities in Education Act (IDEA), as amended effective July 1, 2005, 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 student at no charge to the parent or guardian, meet the state educational standards, include an appropriate school education in the state involved, and conform to the child’s IEP. (20 U.S.C. § 1401(9).) “Special education” is defined as specially designed instruction, at no cost to parents, to meet the unique needs of the student. (20 U.S.C. § 1401(29).) Similarly, 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 may be referred to as designated instruction and services (DIS). (Ed. Code, § 56363, subd. (a).)

5. States must establish and maintain certain procedural safeguards to ensure that each student with a disability receives the FAPE to which the student is entitled, and that parents are involved in the formulation of the student’s educational program. (W.G., et al. v. Board of Trustees of Target Range School Dist., etc. (9th Cir. 1992) 960 F.2d 1479, 1483.) Citing Board of Educ. of the Hendrick Hudson Central School Dist. v. Rowley (1982) 458 U.S. 176, 200 [102 S.Ct. 3034] (Rowley), the court also recognized the importance of adherence to the procedural requirements of the IDEA, but determined that procedural flaws do not automatically require a finding of a denial of a FAPE. (Id. at 1484.) This principle was subsequently codified in the IDEA and Education Code, both of which provide that a procedural violation only constitutes a denial of FAPE if the violation (1) impeded the child’s right to a FAPE; (2) significantly impeded the parent’s opportunity to participate in the decision making process regarding the provision of a FAPE to the child; or (3) caused a deprivation of educational benefits. (20 U.S.C. § 1415 (f)(3)(E)(ii); Ed. Code, § 56505, subd. (f)(2).)

6. 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)(1) & (b).) ¹²

7. With respect to parental participation, the IDEA and California law state that the parents of a child with a disability must be afforded an opportunity to participate in IEP meetings with respect to the identification, evaluation, and educational placement of the child, and the provision of a FAPE to the child. (34 C.F.R. § 300.501(b), (c); Ed. Code, § 56341. Written notice must be given to the parents of a child with a disability a reasonable time before a public agency proposes 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.)

8. In Rowley, supra, 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. (Rowley, supra, at 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 201.) In J.L. v. Mercer Island School Dist. (9th Cir. 2010) 592 F.3d 938, the court acknowledged that there had been confusion in the Ninth Circuit regarding whether the IDEA required school district to provide special education students with “educational benefit,” “some educational benefit” or a “meaningful educational benefit.” The court found that, under Rowley, all three phrases referred to the same standard. “School districts must, to ‘make access meaningful,’ confer at least ‘some educational benefit’ on disabled students.” (J.L. v. Mercer Island School Dist., supra, 592 F.3d at p. 951, fn. 10.) In County of San Diego v. California Special Education Hearing Office, et al. (1996) 93 F.3d 1458, 1467, the court specified that educational benefit is not limited to academic needs, but includes the social and emotional needs that affect academic progress, school behavior, and socialization.

IEP

9. The IEP is a written document for each child who needs special education and related services. The contents of the IEP are mandated by the IDEA, and the IEP must include a statement of the special education and related services to be provided to the child, and the anticipated frequency, location, and duration of those services. (20 U.S.C. § 1414(d)(1)(A); 34 C.F.R. § 300.320; Ed. Code, § 56345, subd. (a)(7).)

10. Minor failures by a school district in implementing an IEP should not automatically be treated as violations of the IDEA. (Van Duyn v. Baker School Dist. (9th Cir. 2007) 502 F. 3d 811, 821.) Rather, only a material failure to implement an IEP violates the IDEA. (Id. at p. 822.) “A material failure occurs when there is more than a minor discrepancy between the services a school provides to a disabled child and the services required by the child’s IEP.” (Ibid.) This standard does not require that the child suffer demonstrable educational harm for there to be a finding of a material failure. (Ibid.) However, the child’s educational progress, or lack of it, may be probative of whether there has been more than a minor shortfall in the services provided. (Ibid.)

School Enrollment of Foster Children

11. Assembly Bill (AB) 490, passed by the California legislature in 2003, added new provisions to the California Education Code pertaining to the education of foster children, including Education Code section 48853.5. Section 48853.5, as it existed in 2010, which is the relevant time period in this matter, provided for the enrollment of foster children in school. Education Code Section 48853.5, subdivision (b)(1), provided that each local educational agency, including a school district or SELPA, designate a staff person as the educational liaison for foster children, who was to assist in the proper educational placement and school enrollment of foster children. If the liaison, in consultation with the foster child and the person holding the right to make educational decisions for the foster child, agreed that the best interests of the foster child would best be served by his or her transfer to a school other than the “school of origin,” the foster child was to immediately be enrolled in the new school. (Ed. Code, § 48853.5, subd. (d)(4)(A).) “School of origin” was defined as the school that the foster child attended when permanently housed or the school in which the child was last enrolled. (Ed. Code, § 48853.5, subd. (e).) The new school was to immediately enroll the foster child, even if the foster child was unable to produce records normally required for enrollment, such as previous academic records, medical records, proof of residency, or other documentation. (Ed. Code §48853.5, subd. (d)(4)(B).) In May 2006, the California Foster Youth Education Task Force (Task Force) which included as members a variety of children’s and educational organizations, including the California Department of Education, published a document entitled “Frequently Asked Questions and Answers About AB 490” (hereinafter, Questions and Answers). The Task Force specified that the fact that a foster child received special education services did not change a new school’s obligation to immediately enroll the child. (Id. at p. 11.) Questions and Answers interprets Education Code section 48853.5, subdivision. (d)(4)(B) to mean that when a foster child changes schools, her new school must immediately enroll her, even if the child does not have the items usually required for enrollment, such as proof of residency, immunization records, and such. (Id. at pp. 5 and 11.) Immediate enrollment is interpreted to mean that the child is immediately registered and allowed to attend classes. (Id. at p.11.) These discussions in Questions and Answers of the requirement that a new school must immediately enroll a foster child do not specify that such a requirement is predicated upon a determination by the educational liaison and the holder of educational rights that the foster child should be enrolled in a new school, as prescribed by Education Code section 48853.5, subdivision (d)(4)(A).

Analysis

Issue 1: Enrollment at Pete Knight and Eastside

Pete Knight

12. Parents’ contention regarding Student’s enrollment in, and attendance at, Pete Knight has two aspects. First, whether District’s enrollment of Student at Pete Knight constituted a procedural denial of a FAPE because District acted without parental participation. Second, whether District denied Student a FAPE because District enrolled her in Pete Knight and placed her in general education classes, such that her IEP of February 25, 2010, was not implemented. Under either aspect, Student failed to demonstrate that District denied Student a FAPE by enrolling her in Pete Knight.

13. As was stated in Conclusion of Law 7, decisions concerning the placement of a child receiving special education should include the parents. As was stated in Conclusion of Law 5, procedural violations are only actionable if they 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. As was stated in Conclusion of Law 10, a failure to implement the IEP is only actionable if the failure is material. A material failure to implement the IEP occurs when there is more than a minor discrepancy between the services a school provides to a special education student and the services required by the child’s IEP.

14. Circumstantial evidence reflected that Student’s foster mother, Ms. Dobson, enrolled Student at Pete Knight. Therefore, District considered itself legally obligated to enroll Student in Pete Knight under the provisions of Education Code section 48853.5, subdivision (d)(4)(B), as interpreted by Questions and Answers, supra. Since there was no evidence that District involved an educational liaison and the holder of educational rights in the decision to enroll Student in a new school, pursuant to Education Code section 48853.3, subdivision (d)(4)(A), it is not clear that District’s position is correct. Further, under the IDEA’s procedural safeguards, Parents would normally have been required to consent to a change in placement following an IEP team meeting. However, District did not deprive Student of a FAPE by enrolling her at Pete Knight without parental consent. The evidence was undisputed that the enrollment was not initiated by District, but by Student’s foster parent during a time when Student was no longer physically residing with Parents and no longer physically residing in the same part of the District as Parents did. District did not know, and had no reason to know, that the enrollment was not authorized by Parents, and that Parents were not involved in the change of placement. Accordingly, Student did not demonstrate that District deprived Student and Parents of their procedural rights under the IDEA. To the contrary, the undisputed evidence showed that once the Superior Court issued appropriate orders to clarify where Student should attend school, District fully complied with those orders. Student’s brief status as a pupil at Pete Knight did not significantly impede Parents’ opportunity to participate in the decision making process regarding the provision of a FAPE.

15. Further, Student’s enrollment in and attendance at Pete Knight occurred for such a minimal amount of time that Student’s right to a FAPE was not impeded, and Student was not deprived of any educational benefits. In this regard, Student’s IEP of February 25, 2010, contained no academic goals; rather, the goals and counseling services agreed upon by the IEP team were directed at Student’s behaviors. There was no evidence that Student had any behavioral issues whatsoever while at Pete Knight for two days. Rather, the evidence reflected the opposite. One would expect that, had Student misbehaved while at Pete Knight, her homeroom teacher would have remembered her, but he did not. She behaved so much as did her typical peers at Pete Knight that she was not noticed.

16. Similarly, Student’s brief enrollment and attendance in the general education program at Pete Knight, without reference to her IEP, was not a material failure to implement her IEP. As a practical matter, particularly at the very beginning of the school year, it is not uncommon for a pupil’s IEP not to be fully implemented for a brief period of time, even when the school district is aware that the child is a special education student and has an IEP, because the school must schedule and arrange the appropriate services, transportation, and placement. In this case, the failure to implement Student’s IEP for two days at the beginning of the 2010-2011 school year was not material.

17. Based upon Findings of Fact 1-23, and Conclusions of Law 1-16, Student was not deprived of a FAPE on either procedural or substantive grounds by reason of her enrollment at Pete Knight.

Enrollment at Eastside

18. Student’s enrollment in, and attendance at Eastside on August 16, 2010, at Ms. Brothers’s request, raises the same two sub-issues as did her enrollment at Pete Knight. First, District enrolled Student at Eastside at Ms. Brothers’s request, which raises the issue of a procedural denial of a FAPE. Second, Student’s enrollment at Eastside raises the issues of whether her IEP was implemented so that she received a substantive FAPE. Conclusions of Law 5, 7, and 10, regarding parental participation and procedural and substantive denials of FAPE, and which were discussed above with respect to Student’s enrollment at Pete Knight, are incorporated here by reference.

19. As with Student’s enrollment at Pete Knight, District’s reliance on Education Code section 48853.5, subdivision (d)(4)(B) as justification for enrolling Student at Eastside at Ms. Brothers’s request may not be correct. There was no evidence that District involved an educational liaison and the holder of educational rights in the decision to enroll Student at Eastside, pursuant to Education Code section 48853.5. However, District did not deprive Student of either a procedural or substantive FAPE by reason of enrolling her at Eastside on August 16, 2010. District did not notify Parents of Student’s enrollment at Eastside, and Parents did not remember when they first learned that Student was attending Eastside. However, when Student advised Mother that Student was attending Eastside, Mother did not notify the District that she did not want Student to attend Eastside. Rather, Mother immediately called Ms. Garner, Student’s CASA, and Parents’ lawyers, among other people, and reported that Student was attending Eastside, and that Parents wanted Student to attend Quartz Hill. Ms. Meeks, in her e-mail correspondence with Student’s social worker, documented that on August 13, 2010, Ms. Garner advised Ms. Meeks that Student would be attending Quartz Hill, and that on August 24, 2010, Ms. Garner advised Ms. Meeks that Student was attending Eastside. Therefore, based upon Ms. Garner’s conversations with Ms. Meeks, the evidence reflects that Parents knew by no later than August 24, 2010, that Student was attending Eastside. August 24, 2010, is only six school days from August 16, 2010, the day District enrolled Student at Eastside. There was no evidence that Parents’ lack of knowledge of Student’s enrollment at Eastside for this short period of time impeded Student’s right to a FAPE, significantly impeded the Parents’ opportunity to participate in the decision making process regarding the provision of a FAPE to Student, or caused a deprivation of educational benefits to Student.

20. Additionally, as with Student’s enrollment at Pete Knight, Student’s enrollment at Eastside was not initiated by District, but by a foster parent who lived with Student in a different part of the District than Parents did. There was no evidence that District knew, or should have known, that Parents had not authorized or initiated the change of placement. Indeed, even when Parents learned of Student’s enrollment at Eastside, they did not notify the District that Mr. Brothers had acted without Parents’ knowledge or consent. Consequently, the District’s enrollment of Student at Eastside at Ms. Brothers’s request did not constitute a procedural denial of a FAPE. Rather, the undisputed evidence showed that when the Superior Court issued orders to clarify where Student should attend school, District fully complied with those orders.

21. Furthermore, there was no evidence that District materially failed to implement Student’s IEP by enrolling her at Eastside. Student was enrolled at Eastside for approximately three weeks. During that time, she was placed in a special class for ED students, and was enrolled in special education classes, all as called for in her February 25, 2010, IEP, to which Parents consented. There was no evidence that these classes were unsuitable for Student. Finally, both Mr. Cook, Student’s teacher, and Eastside’s viceprincipal, Ms. Stanley, asserted in writing that Student had made progress while at Eastside. Indeed, Father personally approved the wording of Ms. Stanley’s letter to this effect.

22. Based upon Findings of Fact 1-23, and Conclusions of Law 1-21, Student did not demonstrate that District deprived Student of a FAPE by reason of Student enrolling in, and attending, Pete Knight and Eastside

Issue 2: Monitoring and Supervision

23. District did not materially fail to implement Student’s IEP with respect to monitoring and supervision of Student so as to deny Student a FAPE.

24. As was stated in Conclusion of Law 10, a failure to implement the IEP is only actionable if the failure is material. A material failure to implement the IEP occurs when there is more than a minor discrepancy between the services a school provides to a special education student and the services required by the child’s IEP.

25. Quartz Hill was a general education high school campus. District was aware of Student’s propensity to elope, and Parents had consistently advised the District of Student’s propensity to elope and of their desire that Student be closely monitored. However, the IEP did not provide that Student would have a one-to-one aide, and Parents never requested such assistance. Nor did the IEP require the District to monitor Student’s conduct while she was in the bathroom. Moreover, the IEP provided that Student would participate in the level system as part of Student’s SDC-ED placement. The level system as applied in Student’s SDC ED at Quartz Hill was discussed at each IEP from October 4, 2010 onward. The level system was designed to encourage Student to improve her behavior so that she could rise to higher levels and obtain more privileges, such as less monitoring and supervision during unstructured times. The level system was the primary mechanism specified in every IEP during the 2010-2011 school year by which Student was to be monitored and supervised. In this regard, the IEP’s of December 1, 2010, and February 22, 2011, specified that supervision and monitoring were components of levels 1 and 2.

26. The October 4, 2010, IEP included some additional monitoring, by providing for an escort to and from the bathroom when Student was excused from class to go to the bathroom. The April 25, 2011, IEP also included some additional monitoring as part of the BSP that the team developed. The BSP specified that if Student needed to leave the classroom due to escalated behaviors, she would be escorted to the office and placed in an area where she was supervised and was not in proximity to an exit.

27. Parents consented to every IEP relevant to this matter. There was no evidence that Parents had ever asked any questions about the operation of the level system. Moreover, Parents never advised the IEP team that they did not wish Student to participate in the level system, even after the various behavioral incidents of September 2010, November 2010, December 2010, and February 2011, occurred. To the contrary, Parents viewed Student’s attainment of higher levels as a marker of progress. This is reflected in their comment to the IEP of December 1, 2010, that they disagreed with the IEP team conclusion that Student was making progress, as she was only at level 1 in the level system. A PowerSchool log entry on February 7, 2011, reflected that Father and Quartz Hill’s vice-principal had discussed Student’s refusal to follow the level system, and Father had responded that he would speak with Student to help support the level system program.

28. At hearing, Parents testified that they thought that Student would still be accompanied to the bathroom, and between classes, and during other unstructured times whenever she was on campus on a one-to-one basis, regardless of the level she had attained in the level system. In view of the circumstances described in Conclusions of Law 25 through 27, this belief was not reasonable. Moreover, their testimony on this issue was not persuasive. First, Parents did not offer any specific evidence to support their belief that Student would be so constantly supervised and monitored. Parents did not identify any District personnel, or any specific conversation, during which District had advised Parents that the freedoms which marked levels 3 and 4 of the level system would not apply to Student. Parents did not identify any date on which they were so advised, or any documentation of any such advice. Second, Parents’ testimony and conduct on many matters did not enhance their credibility, or reflected that they did not have a clear recollection of events. For example, often Parents were unable to remember dates on which material events occurred, or when they learned of material events. Further, Mother’s testimony regarding her reason for enrolling Student at Quartz Hill on August 13, 2010, made no sense when compared to the documented chronology of events. Additionally, Mother submitted an enrollment form to Quartz Hill on August 13, 2010, which untruthfully stated that Parents’ address was Student’s address and that Student was not in foster care. As for Father, he denied that Parents had learned of the lip-piercing on January 25, 2011, although the letter Parents wrote to Ms. Kreitz dated February 2, 2011, specifically stated that Parents learned of the incident on January 25, 2011. Father also accused the District of involving itself in the Superior Court proceedings so as to keep Student at Eastside, but there was no evidence whatsoever to support his position.

29. Under all of these circumstances, Parents’ interpretation of the monitoring and supervision that the IEP’s provided is not reasonable. Moreover, their testimony as to a subjective belief that they held two years ago regarding the IEP’s monitoring and supervision provisions is not persuasive.

30. Additionally, Student did not demonstrate that any of the incidents of which she complains were due to a material failure of the District to implement the monitoring and supervision provisions of Student’s IEP.

31. With respect to the alcohol incident of November 9, 2010, the weight of the evidence demonstrated that the alcohol use occurred in the bathroom. Student’s IEP’s did not provide for monitoring or supervision while Student was in the bathroom. Indeed, the alcohol incident demonstrated that District was actually closely supervising and monitoring Student during unstructured time. Student’s possession of alcohol was only discovered by Mr. Niemeyer’s close observation of the behavior of Student and her peers on campus during their lunch period, both in person and by means of a surveillance camera. Further, upon first observing the suspicious activity of Student and her peers, Mr. Niemeyer not only personally intervened in an attempt to stop any misbehavior before it occurred, but he also alerted other school personnel to the unfolding situation, and requested that they also observe Student and her peers. That Student was nevertheless able to thwart the District’s close monitoring and supervision on that day and violate school rules illustrates that even close monitoring and supervision cannot guarantee that a teenager on a general education high school campus will avoid trouble.

32. Student did not demonstrate that her alleged use of marijuana in the school bathroom in December 2010 occurred due to a failure of the District to implement Student’s IEP. First, the sole evidence that the marijuana incident occurred at Quartz Hill was Student’s statement to her social worker, and neither Student nor her social worker testified at hearing. Also, Student stated that the event happened in the bathroom. Student’s IEP’s did not state that Student would be supervised or monitored in the school bathroom.

33. Student did not demonstrate that Student’s piercing her lip in the school bathroom in January 2011 occurred due to a failure of the District to implement the monitoring and supervision aspects of Student’s IEP. As with the alleged marijuana incident, Student’s statements outside of the hearing were the only evidence that Student pierced her lip at school. There was no evidence that she had been bleeding, and no evidence that any school personnel noticed that she had pierced her lip. Further, according to Student, she pierced her lip in the bathroom, and Student’s IEP’s did not state that she would be supervised or monitored in the bathroom.

34. Finally, Student did not demonstrate that Student’s eloping from school occurred due to a material failure, or any failure, of the District to monitor and supervise Student. This issue involves but two incidents during the approximately nine-month period that Student attended Quartz Hill. The first incident occurred on September 21, 2010, and the evidence only demonstrated that Student ran off campus. There was no evidence as to how Student managed to elope, where she went, and how and when she was located. There was no evidence that the Student’s eloping occurred as a consequence of any failure to monitor or supervise Student.

35. The second incident occurred on May 6, 2011, when Father arrived at school to pick-up Student at the end of the school day and Student did not appear. Father was the only witness who testified to this event. Despite the fact that law enforcement was involved in investigating this event and in searching for Student, Parents presented no evidence as to why Student did not meet Father after school on that day for the ride home. There was no evidence that Student’s failure to meet Father after school on that day was due to any failure of the District to monitor or supervise Student.

36. Based upon Findings of Fact 1-58, and Conclusions of Law 1-10, and 23-35, Student did not meet her burden of persuasion that District materially failed to implement her IEP’s during the 2010-2011 school year with respect to monitoring and supervision, so as to deprive Student of a FAPE.

Issue 3: Counseling Services

37. District did not materially fail to implement Student’s IEP of October 4, 2010, and subsequent IEP’s during the 2010-2011 school year with respect to DIS counseling so as to deprive Student of a FAPE.

38. As was stated in Conclusion of Law 10, a failure to implement the IEP is only actionable if the failure is material. A material failure to implement the IEP occurs when there is more than a minor discrepancy between the services a school provides to a special education student and the services required by the child’s IEP. A child’s progress may be probative of whether there has been a material failure to implement the IEP.

39. District conceded that Student missed three hours of DIS counseling sessions, based upon the counseling logs, and the school calendar. The District offered to make-up counseling sessions on at least two occasions, which Parents refused. Father’s testimony as to why he did not accept the offer of make-up counseling sessions was contradictory and not persuasive, but he did express the belief that Student needed them during the 2010-2011 school year and did not need them as make-up sessions. Student did not seek compensatory education as part of her Complaints, rather, she only desired findings that, as to the various issues presented, District denied Student a FAPE and an order that District obey the law and Student’s IEP’s.

40. The evidence demonstrated that the District’s failure to provide three hours of DIS counseling was not a material failure to implement Student’s IEP’s, because Student’s IEP’s were focused to a large degree on Student’s behavioral issues, and behavioral supports were inherent in Student’s program. In this regard, Student had no academic goals. Student was placed in an SDC-ED which focused on behaviors and employed behavioral strategies such as a level system and a token economy. One of Student’s behavioral goals involved Student obtaining counseling from the school psychologist when her behaviors escalated, separate from any DIS counseling she received. Further, it is significant that Student’s overall behavior at school improved as the school year progressed. She had no suspensions in the second semester, she obtained higher levels in the level system, her grades improved, and she made progress on her goals. Finally, there was no evidence that the District’s failure to provide the counseling sessions caused Student any harm, or that had Student received the counseling sessions she would not have engaged in the various undesireable behaviors at school.

41. Based upon Findings of Fact 1-10, and 24-59, and Conclusions of Law 1-10, and 37-40, Student did not demonstrate that District materially failed to implement the subject IEP’s so as to deprive her of a FAPE with respect to DIS counseling services.

Issue 4: Transportation

42. District did not fail to materially implement the provisions in Student’s IEP’s that District would provide transportation so as to deny Student a FAPE.

43. As was stated in Conclusion of Law 10, a failure to implement the IEP is only actionable if the failure is material. A material failure to implement the IEP occurs when there is more than a minor discrepancy between the services a school provides to a special education student and the services required by the child’s IEP.

44. The District attempted to provide transportation, at least on a temporary basis, to Quartz Hill, and Ms. Brothers refused it, since she had enrolled Student at Eastside. Ms. Brothers’s conduct with respect to Student’s high school enrollment conflicted with Parents’ wishes, thereby requiring Superior Court intervention with respect to where Student would attend school. Based upon representations made at the hearings on September 1, 2010, and September 13, 2010, which District did not attend, the Superior Court at first ordered DCFS to provide funding for Student to be transported between Student’s foster home and Quartz Hill, and then, at the hearing on September 13, 2010, the Superior Court ordered DCFS to pay Parents to transport Student to and from Quartz Hill. Additionally, the Superior Court ordered that Parents would have unmonitored visitation for that purpose.

45. District was aware of these Superior Court orders, and Parents and DCFS obeyed them. Thus, Parents undertook to transport Student to and from Quartz Hill, and DCFS provided funds to Parents for their efforts. District did not provide transportation to Student when she finally enrolled in and began to attend Quartz Hill. With the exception of the BSR form that Mother filled out on September 7, 2010, when she enrolled Student at Quartz Hill for the final time, Parents made no request of the District to provide transportation to Student once Student finally enrolled in and began attending Quartz Hill. Parents attended every IEP meeting held after September 7, 2010, and never advised the team that the transportation was not being provided, or requested the IEP team to provide the transportation that was offered in the IEP’s.

46. There was no clear evidence as to why the District did not provide transportation to Student as a result of the September 7, 2010, BSR form. Ms. Meeks recalled that the District’s program director had not approved transportation between Ms. Brothers’s home and Quartz Hill, but no documentation of the program manager’s determination was offered at hearing, and there was no evidence that Parents had been notified of any such determination. Additionally, there was evidence that District ceased transporting Student because Ms. Brothers had previously refused such transportation, and also that the District had knowledge of the Superior Court orders regarding transportation. As a practical matter, if District had provided transportation pursuant to the September 7, 2010, BSR form, there was no evidence that Ms. Brothers would have cooperated and put Student on the bus. In any event, in view of the Superior Court’s orders both prior to and subsequent to September 7, 2010, and the conduct of Parents in transporting Student to and from school and accepting DCFS funds to do so, there was no reason for the District to provide transportation pursuant to the BSR form that Mother submitted on September 7, 2010, or pursuant to any previous BSR form Mother submitted. Therefore, the issue as to District providing transportation was mooted by the Superior Court orders of September 1, 2010, and September 13, 2010; by Parents’ providing transportation and receiving DCFS reimbursement for doing so; and by Parents’ never raising the transportation issue with the IEP team.

47. Based upon Findings of Fact 1-10, 12-16, 18-21, 24-33, 36-40, 42-43, 45-56, and Conclusions of Law 1-10, and 42-46, Student was not deprived of a FAPE by reason of any conduct of the District regarding Student’s transportation.

ORDER

All of the relief sought by Student in her Complaints is denied.

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. District has prevailed on each issue heard and decided in this matter.

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 ninety (90) days of receipt.

Dated: March 29, 2013

ELSA H. JONES
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.
JULIAN CHARTER SCHOOL BY AND THROUGH THE JULIAN UNION ELEMENTARY SCHOOL DISTRICT.

OAH CASE NO. 2012100933

DECISION

Administrative Law Judge (ALJ) Susan Ruff, Office of Administrative Hearings (OAH), State of California, heard this matter on January 22, 23, and 24, 2013, and February 7, 2013, in San Diego, California.

Tania Whiteleather, Esq., represented Student and Student’s parents (Student). Ms. Whiteleather was assisted by Amy Langerman, Esq. ¹ and Nydia Celina Viloria. Student’s parents were present during most of the hearing. Student was not present.

Deborah Cesario, Esq., represented the Julian Charter School and the Julian Union Elementary School District. Ms. Cesario was assisted by Karin Anderson, Esq. Roxie Jackson and Claire Roush appeared at various times on behalf of the Julian Charter School. Dana Belcher appeared on behalf of the Julian Union Elementary School District. ²

On October 1, 2012, the District filed with OAH a due process hearing request naming Student in case number 2012100043. On October 24, 2012, Student filed his due process hearing request naming the District, in OAH case number 2012100933. On October 30, 2012, OAH consolidated the two cases and ordered that Student’s case would be the primary case for determining the timeline for the decision. At the same time, OAH granted the District’s request to continue the hearing dates in the primary case. The District thereafter withdrew its portion of the case, leaving Student’s case (case number 2012100933) as the sole matter to be heard. At the close of the hearing, the parties requested and received time to file written closing argument. The matter was taken under submission upon receipt of the parties’ written closing argument on February 19, 2013. ³

ISSUES

The issues for hearing are as follows:

a) Did the District violate Student’s procedural and/or substantive rights to a free and appropriate public education (FAPE) through its August 14, 2012 Individualized Education Program (IEP) when it recommended a change in placement from an inclusive general education placement to a restrictive self-contained class without first assessing Student’s needs and considering whether modifications, additions, changes could be made to Student’s current general education environment/services to enable Student to continue to make educational progress in the least restrictive environment (LRE)?

b) Did the April 11, 2011 IEP appropriately document Student’s need for aide support?

PROCEDURAL MATTERS

On the day the parties’ written closing arguments were due, February 19, 2013, the District filed a Request for Official Notice, requesting that the ALJ take official notice of some pages from an internet website listing information from the California Commission on Teacher Credentialing. The District contends these pages show the credentials of Allan Roth (one of Student’s witnesses) have expired. The District believes this evidence is relevant to Mr. Roth’s credibility.

On February 21, 2013, Student filed an opposition to that request. On February 22, 2013, the District filed a reply. ⁴

The ALJ denies the District’s request and declines to take official notice of these website pages. The request is not timely. The District had notice that Mr. Roth would be a witness prior to this hearing. Mr. Roth was the first person who testified at the hearing on January 22, 2013, and the hearing ended on February 7, more than two weeks after his testimony. The District had plenty of time to check his credentials before or after his testimony. There is no excuse for the District waiting until long after the close of evidence to request official notice, when Student had no opportunity to rebut this information.

CONTENTIONS OF THE PARTIES

This case asks the question: Can a child make so much educational progress in a general education, full-inclusion setting that he must then be moved to a special education classroom with limited mainstreaming?

Student is a child with Down Syndrome who attends a charter school which is chartered by the Julian Union Elementary School District. During the times at issue in this case, Student had been included in a general education classroom at the charter school with a full-time aide provided by a particular non-public agency (NPA) provider referred to as The Autism Group, Inc. The Autism Group aides are trained to use a methodology known as Relationship Development Intervention with children. Student gained academic, social and behavioral benefit in that setting.

Student contends that the District denied Student a FAPE in the August 14, 2012 IEP by offering placement in a special day class (SDC) that was not the LRE for Student and by making the offer without first assessing Student to see if there were modifications or services that could have enabled Student to stay in the general education setting.

The District contends that its offer of an SDC class with mainstreaming opportunities was the LRE appropriate for Student because Student’s August 2012 IEP, unlike his prior IEP, contained academic goals that required Student to be placed in a special education classroom so he could engage with peers who were at his same academic level.

This Decision finds that the District’s proposed August 2012 IEP did not offer Student a FAPE in the LRE. Student had been gaining educational benefit in his general education inclusion setting. As of August 2012, it was objectively reasonable to conclude that he would continue to gain educational benefit if the District continued the services and supports that had been successful during the previous year. The District should not have attempted to place him in a more restrictive setting.

Student also contends that the District’s April 11, 2011 IEP should have specified that Student was receiving aide services by an NPA aide trained in Relationship Development Intervention. Student contends the parties agreed to that at the IEP meeting. The District contends that its IEP properly listed an instructional aide in the IEP and that it was not necessary to specify an NPA provider or training in a particular methodology in the IEP.

For the reasons discussed in the Legal Conclusions below, this Decision finds that the District did not violate special education law by failing to specify in the April 2011 IEP that Student required an NPA aide who was trained in Relationship Development Intervention.

FACTUAL FINDINGS

1. Student is a 10-year-old boy who is eligible for special education and related services due to an intellectual disability resulting from Down Syndrome. During the times relevant to the issues in this case, Student has attended the Julian Charter School campus located in Encinitas, California, known as the Innovation Center Encinitas (or ICE). ⁵ Julian Union Elementary School District is the local educational agency (LEA) which chartered the Julian Charter School.

2. At the time of the April 11, 2011 IEP meeting, Student’s family resided in or near Encinitas, where ICE was located. In approximately April 2012, the family moved to a location near Julian. The parties do not dispute that Student’s family still resided within the jurisdiction of the Julian Charter School after his family moved.

3. In approximately August or September 2010, about eight months before the first IEP meeting at issue in this case, the District agreed to retain an NPA known as The Autism Group, Inc. (TAG) to provide services for Student.

4. Brooke Wagner, the owner and director of TAG, described TAG during the hearing. TAG provides comprehensive support services for children in the home, the school and the community, including academic support, aide support, and training for school staff.

5. TAG specializes in a methodology known as Relationship Development Intervention (RDI). That methodology focuses upon developing a mentor-apprentice relationship between an adult and a child. The RDI mentor encourages the child to problem solve and make discoveries on his or her own. The hope is that the positive memory of the successful problem-solving experience will lead the child to want similar positive experiences and seek out the mentor. Unlike Applied Behavior Analysis (ABA), RDI does not rely upon external rewards such as candy or food to encourage a child to provide an expected outcome. RDI emphasizes internal rewards as a result of the child’s success at problem solving under the mentor’s guidance. TAG employs five out of six of the certified RDI consultants in San Diego County. There is one other company in San Diego County that employs a certified RDI consultant besides TAG, but that company provides counseling, not school-based RDI support.

6. Ms. Wagner is not a credentialed teacher. She participated in an intensive training program regarding the use of RDI. It took about two years to complete her training. She had experience working with children using ABA prior to her training in RDI. In Wagner’s opinion, there is less “aide dependence” for a child being instructed using RDI than a child being instructed with ABA, because any prompting done by the RDI aide is indirect to encourage the child to come to the answer on his or her own, rather than the direct prompting used in ABA.

7. At the time the District first retained TAG, TAG was also providing home services to Student through the Regional Center separate from the school-based services provided by the District. The parties dispute why the District agreed to the TAG services.

8. Allan Roth, an educational consultant who served as an advocate for Student’s family, testified about the choice of TAG for Student. Roth has an extensive background in education. He has been credentialed as a teacher for both special education and general education pupils. He has worked as an aide, a teacher, a school principal and a school district director of special education. More recently, for the past 12 years, he has worked as a private educational consultant for parents of special education children. He has attended hundreds of IEP meetings, has taught college classes, and has viewed educational placements on behalf of parents. ⁶

9. Mr. Roth explained that he approached Ms. Wagner to learn about RDI because ABA was not working for Student. He had heard that RDI was a program which might assist pupils who had plateaued on ABA. He spoke with Claire Roush, who was at that time the Assistant Director of Special Education for the Julian Charter School, about TAG. He testified that Ms. Roush was eager to find an alternative program to help Student with his classroom behavior. Student’s mother also confirmed during her testimony that ABA had not been successful for Student.

10. Ms. Roush told a different version of the story during her testimony. Ms. Roush holds, among other things, a special education mild-moderate credential and an administrative services credential. She has worked as an instructional aide, taught as a special education teacher in both an SDC and resource room, and has been a special education administrator. She has known Student for four and one-half years and served as his instructional aide prior to the time that the charter school hired an aide for him.

11. Ms. Roush testified that the decision to obtain TAG services had nothing to do with any failure of ABA. In her opinion, ABA strategies had been successful for Student. She explained that she was approached by Student’s mother or Mr. Roth who told her that Student would be beginning RDI at home through the Regional Center and Student wanted to have those services at school as well. According to Ms. Roush, she was told that Student could not have those RDI services at home if they were not also provided at school. The RDI system of relying on internal rather than external rewards was in line with the Julian Charter School’s educational philosophy and Ms. Roush did not see any significant difference between ABA and RDI, so she agreed to the family’s request.

12. Student’s mother denied that she told Ms. Roush that Student could not get RDI at home if it was not also being used at school. She explained that Ms. Roush had been happy to attempt RDI with Student because Ms. Roush had been seeing the same lack of progress by Student that Student’s mother had been seeing.

13. Student’s witnesses were more persuasive on this issue. Mr. Roth and Student’s mother were highly credible witnesses. The evidence supports their testimony that the change to RDI was made because Student was not adequately progressing under ABA. If Student had been making adequate progress, it is unlikely those two would have sought a new program and it is even less likely that the District would have changed to such a program. There was never a later suggestion by the District staff to return to ABA, even when the District began to pay for TAG-employed aides to work with Student after April 2011 (as discussed in the Factual Findings below).

14. Ms. Roush’s testimony is weakened by comments she made to the August 2012 IEP team that “we switched providers for behavior support because we wanted to try something new, because we felt like he wasn’t making progress, and now he’s made huge progress….” The parental request and the philosophy of the Charter School undoubtedly were factors in the District’s decision to change to RDI – but the evidence supported Student’s position that lack of adequate progress under ABA was the primary factor.

15. Student began using RDI in his home program through the Regional Center in August 2010. He began his school-based RDI in September 2010. Initially, the District hired TAG to provide consultation and training to District aides regarding the RDI methodology. Ms. Wagner went into Student’s classroom on a weekly basis to consult and to provide support and modeling for the aides. Ms. Wagner also began attending Student’s IEP meetings beginning in approximately September 2010.

16. According to Mr. Roth, the RDI training and consultation was not successful at that time because the District aides were too embedded in the use of ABA methodology. They could not make the shift to RDI. Ms. Wagner also believed that the District aides were inconsistent in applying RDI principles when working with Student. Student exhibited behavioral problems during that time, including aggressive behaviors that required him to be removed from the general education classroom.

17. Ms. Roush agreed that there were problems with the District’s aide who worked with Student during the early part of 2011. She said the District had been planning to let the aide go, but the aide learned of it and quit shortly after the April 2011 IEP meeting.

18. On April 11, 2011, Student’s IEP team met for his annual review. At the time, his present levels of performance indicated that he could engage in a non-preferred task for up to 10 minutes and had trouble transitioning to new activities. He was able to participate with his peers in a general education setting for about 10 minutes with adult prompting, though the time could be as high as 45 minutes for a preferred activity.

19. The IEP noted Student’s problem behavior: “Defiance and off-task behavior impede [Student’s] learning and learning of other students.” The IEP called for behavioral goals and a behavior support plan. It also contained a list of interventions, strategies and supports, including, but not limited to: rewards/incentives, frequent scheduled breaks, a visual system of classroom rules and verbal praise.

20. The IEP called for Student to receive 480 minutes per month of speech-language services, 360 minutes per month of adapted physical education (APE), and 480 minutes per month of behavior intervention services, as well as extended school year services during the summer. Student’s parents would provide transportation to the charter school.

21. The “aids, services, program accommodations/modifications and/or supports,” section of the IEP called for, among other things, Student to have an “instructional aide” for 14.25 hours per week, collaboration between special education providers, and consultation with the instructional aide by the special education teacher. The notes to the IEP stated, in part: “The team determined that for [Student] to continue to progress with his behavioral supports he needs an instructional aide that has more training.”

22. The April 2011 IEP did not state that a TAG or NPA aide would serve as the instructional aide for Student and did not mention RDI methodology or RDI training. Ms. Roush testified that the District would never name a particular NPA provider in an IEP or list specific instructional strategies or methodologies.

23. The IEP language was somewhat confusing with respect to Student’s classroom placement. However, the evidence at hearing showed that Student was included in a general education classroom for four days a week with one-to-one aide support and consultation by the special education teacher with the aide. Part of Student’s instruction occurred in a one-to-one setting outside the classroom in what came to be referred to as his “man-cave” (described in Factual Finding 36 below). Part of his instruction occurred in the general education classroom with typical peers. For one day a week, all the children at the charter school (including Student) were home schooled on independent study.

24. Student’s mother consented to the IEP goals on the day of the meeting and other parts of the IEP subsequent to the meeting. After the April 11, 2011 IEP meeting, the District paid for an aide employed by TAG to work with Student rather than relying on a District-employed aide. Since that time, the District has continued to pay TAG to provide RDI-trained aides for Student. The parties disagree about why the change to a TAG aide occurred.

25. Mr. Roth, who did not attend the April 2011 IEP meeting, testified that the change was made because the District aides were not properly employing the RDI methodology with Student. Ms. Wagner also testified that the District agreed to provide a more highly-skilled TAG aide because the District aides were inconsistent in their use of RDI, as a result of which the methodology was not working. Student’s mother testified that the IEP team determined that Student needed a more highly trained aide to work with Student, and TAG had the ability to supply such an aide.

26. Ms. Roush, on the other hand, testified that it was not the District’s intention to hire a TAG aide permanently for Student – they just hired a TAG aide because April was too near the end of the school year to train a new District aide and the District knew that TAG had aides who were available. The District already had an existing contract with TAG, and they did not want to delay Student’s services. Ms. Roush did not believe that Student needed a TAG aide trained in RDI methodology at the time of the April 2011 IEP meeting in order to make progress. She also did not believe that RDI was the only methodology that enabled Student to gain benefit.

27. There is evidence to support the District’s position. The notes to the April 2011 IEP reflected that Student met 18 out of his 31 goals and made progress on nine others. This supports Ms. Roush’s testimony that, despite any problems with the District aide, Student was gaining educational benefit from that program.

28. In an email that Ms. Wagner sent to Ms. Roush on April 18, 2011 (after the IEP meeting) she discussed providing an aide for the rest of the school year and then stated: “If he continues to need support next year we would provide a permanent aide at that time.” Ms. Wagner attended the IEP meeting and knew what was discussed. If the District had agreed to switch to a TAG aide permanently during that meeting, it is unlikely that Ms. Wagner would have used that language in her email. Her email also discussed the difficulty of offering “an aide the hours for such a short time.” Once again, this language implies that the IEP team did not agree to a permanent switch to TAG-employed aides.

29. The very language of the IEP itself supports the District – the IEP team could have, but did not specify that an NPA aide would be used. According to the documents in evidence, Student’s mother did not sign agreement to the IEP services until August 2011, but the TAG aide was hired in April 2011 – if the change to a TAG aide had been a permanent change in Student’s program that required IEP team action and IEP documentation, the District could not have implemented that change until Student’s mother agreed.

30. On the other hand, there is also evidence to support Student’s position – the District continued to use TAG employees as aides during the following school year (Student’s second grade year). According to Ms. Roush, the District continued to use TAG aides because Student’s family had indicated they might be moving to the Julian area. Because the District did not know if Student would be at the charter school for only a few months, it did not make sense for the District to hire a new individual to work as his aide.

31. Ms. Roush admitted that the District never raised the subject of changing back to District aides at any IEP meeting after April 11, 2011. Even after the difficult situation with Tiffany (which will be discussed below), the District did not suggest going back to a District-employed aide. Likewise, at no time during the 2011-2012 school year did the District discuss abandoning the RDI methodology. Ms. Roush also admitted that Student needed a behavioral aide at that time, not an instructional aide as stated in the IEP.

32. The weight of the evidence supports the District’s position regarding the NPA aides. Student had been making progress under a District-employed aide and the emails from Ms. Wagner indicate that the use of a TAG aide was not agreed-upon as a permanent solution at the IEP meeting. Student has the burden with respect to this issue and did not bring in sufficient evidence to show that the April 2011 IEP team agreed to switch permanently to a TAG-employed aide during the April 2011 IEP meeting.

33. The evidence does support Student’s contention that the parties agreed that the aide – whether employed by the District or NPA – would be trained in and use RDI methodology with Student. RDI was a necessary component of Student’s program as of April 2011. The April 2011 IEP stated that the team agreed to have an aide with more training work with Student. The extra training referred to in that IEP clearly involved the use of RDI.

34. However, this does not resolve the legal question of how the aide support should have been documented in the IEP and whether the failure to describe the aide as an RDI-trained aide constituted a procedural violation of special education law. That issue will be discussed in the Legal Conclusions below.

Events After the April 2011 IEP Meeting

35. The first aide provided by TAG was named Michelle. She was a TAG consultant who had just returned from maternity leave. Ms. Wagner explained that, because there were only six weeks left of the school year after the April 2011 IEP meeting, there was no time for TAG to hire and train an aide specific to Student, so Michelle provided the aide services.

36. Student’s behavior began to improve while working with Michelle. Michelle set up structural supports for Student including an area outside the classroom called the “man-cave” where Student could work when he needed a break from the main classroom. His problem behaviors decreased during that time and he began to integrate into the general classroom more. Student began to exhibit a desire to integrate more into the main classroom. Michelle was not able to continue with Student during the next school year because she had to go back to her case load and could not be a full-time aide.

37. For the start of Student’s second grade year in September 2011, TAG hired an aide named Tiffany. However, Tiffany did not work out and TAG eventually let her go. Ms. Wagner explained that Tiffany could not implement the RDI protocols and engaged in improper behavior such as texting during work. Ms. Roush testified that Tiffany was very passive and on one occasion even left Student alone. Student’s behavior grew worse during that time. Ms. Roush described one incident in which Student picked up a brick and was waving it around. It took a lot of coaxing to get Student to put it down.

38. In approximately December 2011, TAG hired a new aide named Chris to work with Student. Chris was an outstanding aide and Student’s behavior began to improve rapidly after Chris began working with Student. TAG’s initial goal was to integrate Student for 30 minutes into the classroom, but by the end of May 2011, Student’s behaviors had improved so dramatically that Student was in the classroom for most of his school day, except when pulled out for special education services such as speech and language.

39. In February 2012, TAG prepared a progress report for Student discussing the progress he had made on his IEP goals both academically and behaviorally. Ms. Belcher sent Ms. Wagner an email instructing TAG to report only on the progress on behavioral goals, not academic goals. TAG’s subsequent reports focused solely on the progress Student made toward his behavioral goals. Even though TAG was not reporting on academic goals, Ms. Wagner testified that RDI was being used with Student successfully on his academic goals during this time. Student gained academic, behavioral and social benefit during that time, and continued to do so through the end of the school year.

40. Because Student’s behavior had been so bad during the fall of 2011 when Tiffany was Student’s aide, the District prepared a plan to assess Student. When Student started to improve after Chris became Student’s aide, the District staff was concerned that Student might be exhibiting a “honeymoon” period of good behavior which would eventually grow worse again, so the District still wanted to assess Student. The District subsequently also offered an assessment in the area of assistive technology (AT).

41. Student’s mother did not agree to the assessment plans. At first, she did not have time to consider the plans because of disruptions in her life caused by her father’s unexpected death. Later, she wanted more information on which assessments would be conducted. After unsuccessful attempts to schedule IEP meetings to discuss the proposed assessment plans, the parties met for an IEP meeting on June 4, 2012.

42. In the meantime, Student continued to make academic, behavioral, and social progress. According to Mr. Roth, Student had made a year’s worth of academic and behavioral growth in a half year.

43. During his testimony, Kevin Girod, Student’s second grade general education teacher, described the different ways that Student would participate in the class. For example, Student participated with his typical peers during the time when the typical pupils sat on a rug for group activities. Student had a different curriculum than the typical Students, but after his behavior improved, he could work on his own worksheets during math instruction time. The worksheets involved things such as writing his name and writing numbers. As the year went on, Student became more independent in using the worksheets. When the typical children in class used blocks to learn fractions, Student could use those same blocks to learn to follow directions and work with peers in a cooperative activity.

44. At times, the typical children in class engaged in a learning center activity in which a child would listen to an audio recording of a book and follow along with the physical book. Although Student could not read, he could share this activity with a typical peer who could listen at the same time Student was listening and show Student when to turn the page in the book. Mr. Girod and Chris were also able to modify general education activities to include Student, such as having Student participate in counting hearts on Valentine’s Day to include in the bar graphs the class was preparing.

45. Ms. Roush agreed that Student had made educational progress in the full inclusion setting and had benefitted socially. By June 2012, Student had met 10 out of his 22 goals, including some of his academic goals, and had made progress on most of his other goals. Student’s IEP no longer stated that Student’s behavior impeded his learning.

46. During the hearing, Ms. Wagner explained that by June 2012, Student had progressed to the point where he was beginning to notice when he made a mistake and erase it on his own. He was receptive toward feedback and actively participated in his learning. He was also developing a measure of independence from his aide. For example, on one occasion in May 2012 when Chris was not present, Student went to his “man-cave” by himself (where he usually started the day) and began to work on his own.

47. While both parties agree that Student made progress between December 2011 and June 2012, they disagree about the reason for that progress. The District witnesses believed that Student’s progress was due to the ability of Chris as an aide. Dana Belcher, the District special education teacher who worked with Student, described Chris as an exceptional aide who went above and beyond any aide she had seen in her life. She said he was motivated, attentive and a self-starter, and that he used a variety of methodologies with Student, depending on the situation. Both Ms. Belcher and Ms. Roush testified that Chris did not solely use RDI methodologies with Student, but instead also used strategies from ABA such as external rewards for good behavior and other non-RDI strategies. Ms. Belcher testified that Student benefitted from this eclectic approach used by Chris. Ms. Roush believed that Student benefitted from the use of RDI, but also benefitted from Chris’s use of other methodologies.

48. Student, however, contended that Student’s progress was due to Chris’ consistent use of RDI methodology with Student. Ms. Wagner testified that Chris was good, but was not exceptional as TAG aides go. She pointed out that another RDI aide (Keith) currently works successfully with Student when Chris is not available. Neither party called Chris to testify at the hearing, so all evidence regarding his instruction of Student came from other testimony and documentation.

49. The evidence supports both parties’ positions to some extent. The District is correct that Chris did not use exclusively RDI methodologies with Student. At times, he would use external reinforcements such as permitting Student to play video games if Student successfully completed assigned tasks. Chris also used cartoon characters called “Superflex” and “Rockbrain” to help explain appropriate behavior to Student. Neither external reinforcement nor the two cartoon characters were part of RDI methodology. Ms. Wagner testified that Chris may have used other methodologies at first because he was only learning the RDI program, but the District witnesses were persuasive in their testimony that Student gained benefit during the time that Chris used those other methodologies.

50. However, Student is correct that Chris’s RDI training and use of RDI techniques benefitted Student. Chris effectively developed the mentor-apprentice relationship with Student that is the foundation for the RDI approach, and he used that relationship to good effect. Both parties agree he is an excellent aide, but the evidence showed that Student also gained benefit under RDI-trained Michelle and has recently been successful with Keith, another TAG aide. Student was not successful under Tiffany, but the evidence showed that Tiffany had problems unrelated to any methodology she was taught. While Chris may not have used exclusively RDI methodologies, RDI was a necessary component of Student’s program. It was also a necessary part of what enabled Student to gain benefit in the general education classroom.

51. In approximately April 2012, after Student’s family had moved, Student’s mother attempted to enroll Student in her school of residence located in a very small school district near Julian. ⁷ That small district is within the same special education local plan area (SELPA) as Julian Union Elementary School District. It is in a sparsely populated region and the school Student would have attended has very few children. Ms. Roush described the school as a three-room school house, with about 25 to 30 pupils. That small district relies upon its neighbor, Julian Union Elementary School District, to provide special education services. Anne Hensel, the Special Education Director for Julian Union Elementary School District, also provides special education administrative support for the small district, and the two districts use the services of the same legal counsel.

52. When Student’s mother approached the small school district, that district reviewed Student’s April 2011 IEP. On May 11, 2012, the small district sent Student’s mother a letter which stated, in part, that the district was unable to provide comparable IEP services and was offering to implement the IEP in a program at Julian Elementary School. The letter went on to state, in part:

The April 11, 2011 IEP also indicates that [Student] spends 42% of his time outside of the regular class, and 58% of the time in the regular class. We have confirmed with Julian Charter School that the above information is correct. Given [the district’s] small size and limited resources, we currently only offer general education classes on-site and are unable to provide the transition between the general education and special education settings required by [Student’s] IEP.

53. The letter went on to note that Student would not have an RDI aide and that his IEP “does not specify any particular methodology that the aide must use or be trained in, or that it must be employed by a particular non-public agency.”

54. Student’s mother did not believe that the SDC placement offered by the small district was appropriate for Student. She did not want Student moved from his full inclusion setting into a special education classroom. Student’s siblings attended school at their home school in the small district, but Student continued to attend Julian Charter School in Encinitas.

55. Student’s IEP team met on June 4, 2012. The team members agreed that Student had been making excellent progress since December 2011. Ms. Roush told the team that formal assessments were no longer necessary for Student. Instead, the District recommended informal assessments to establish baselines for some of Student’s new academic goals.

56. Because Student’s behaviors had improved so much, Student’s June IEP team discussed increasing the academic focus of his goals. The District educators believed that Student had the capability to learn to read. The June 4, 2012 IEP document indicated that Student’s behavior was no longer impeding Student learning or that of others. Instead, the IEP noted: “In the past defiance and off-task behavior have been areas of concern. Team needs to continue with proactive strategies and monitor their effectiveness.”

57. Student’s IEP team met again on June 12, 2012, and on August 14, 2012, to continue drafting Student’s IEP. ⁸ Student’s mother and Student’s advocate Mr. Roth anticipated that, in light of Student’s excellent progress, the District would continue his general education, full-inclusion setting. It was also anticipated that the IEP document would reflect that inclusion setting and the RDI-trained, NPA aide, so that Student’s mother could seek that same program at Student’s new home school in the small school district.

58. Contrary to the expectations of Student’s mother, the District IEP team members did not recommend that Student stay in the same general education, full-inclusion setting. Instead, the District recommended that Student receive most of his education in a special education classroom in Julian, with a small amount of mainstreaming in the general education class at a public school in Julian. The District’s rationale for that change and the parties dispute over whether that change amounted to FAPE in the LRE will be discussed in Factual Findings 67 – 83 below.

59. The District witnesses testified that, at the time of the August 2012 IEP meeting, they did not know what special education classrooms would be available in Julian so they could not give specific information about them during the IEP meeting. After the meeting, the District team members learned more about the Julian special education classes and Student’s mother had an opportunity to visit the proposed class. The District wrote a follow-up letter with a final offer and revised the IEP document to include that offer.

60. The final version of the proposed IEP noted:

The team considered full time in general education with additional adult supervision with DIS services as well as pull out for specialized academic instruction. Because [Student] requires direct instruction in a small group with peers who have similar goals/skills he requires pull out for a portion of his day to progress in his goals.

61. The IEP contained similar modifications and accommodations to the April 2011 IEP, including an “instructional aide” in the regular classroom for 11 hours per week. The proposed IEP called for 900 minutes of specialized academic instruction in a location identified as a “separate class in public integr facility.” The IEP also called for 45 minutes per week of group speech and language services in a separate class, 45 minutes per month of individual speech and language services in a separate class, 30 minutes of individual occupational therapy per week in a separate class, and extended school year services, as well as consultation and collaboration by various individuals. The IEP stated that Student would be outside the regular class for 52 percent of his time and in the regular class for 48 percent of his time.

62. The IEP notes stated that the offer of FAPE was three hours per day of specialized academic instruction outside of the general education classroom. The notes went on to state that: “School staff does not feel [Student] requires an instructional aide in the separate classroom. In general education for inclusion he does require an instructional aide. The team also feels [Student] will need additional adult support transitioning to the new site in unstructured time. Team recommended 3 weeks for this additional support and then the need can be reassessed.”

63. The follow-up IEP sent to Student’s mother after the August 2012 meeting and after her site visit contained further notes. The new notes provided, in part:

[Student’s mother] and Allan indicated that [Student] should remain included in a general education setting with an aide, in part because he made a lot of progress in a similar setting last year. Staff agrees that [Student] made a lot of progress in his program last year and as a result is ready to be challenged more academically.

Staff also agrees that [Student] should remain in general education with aide support to work on his goals and generalize skills he learns outside of the classroom. However, in order to provide [Student] with an educational benefit in the least restrictive environment he requires systematic, specialized instruction with repetition, a modified curriculum and access to different methodologies.

64. The IEP went on to state that: “The type of program [Student] needs does not exist at Julian Charter School, but Julian Elementary School.” The notes also indicated that Student would be grouped in his special education class “with students with similar abilities.”

65. Student parents ultimately consented to portions of the August 2012 IEP offer, including the goals, the occupational therapy services and some of the modifications/ accommodations. They did not consent to the proposed placement or the removal of Student from his full-inclusion setting.

66. Because of the pendency of this proceeding and the legal requirement that a district maintain a child’s placement during a due process proceeding (Ed. Code, § 56505, subd. (d)), Student has continued to be educated in a full inclusion setting in the Julian Charter School with TAG aides who are trained in RDI methodologies up to and including the time of the hearing. He has continued to make progress and gain educational benefit in that setting and his goals are being implemented in that setting. ⁹

The Factual Dispute Over the Appropriateness of the August 2012 IEP Offer and LRE

67. The main factual disagreement between the parties involves the appropriateness of the placement offered in the August 2012 IEP. The witnesses on both sides dispute what constituted the LRE appropriate for Student as of August 2012.

68. Mr. Roth and Student’s mother both believed that Student should have continued in his full-inclusion, general education setting with a TAG-employed, RDI aide, because he was making progress in that setting. Student’s mother testified to the social benefits Student gained from his full-inclusion placement. He interacted with his peers during class and was invited to parties and other after school events with his classmates. In her experience, Student responds well to typical peers, but does not respond well to other disabled children. Mr. Roth testified that Student had friends in the general education class and was successful there.

69. Ms. Wagner agreed with their testimony. In her opinion, Student was gaining academic and social benefit in the general education setting in August 2012, and he was not disruptive to the class. She felt Student could continue to gain educational benefit in a general education inclusion setting with a TAG aide. She believed Student’s goals, including his academic goals, could be worked on in a general education setting.

70. Ms. Wagner also raised concerns about the classroom setting that the District proposed in Julian. She had visited the proposed SDC classroom and did not believe it would offer Student a FAPE because it was ABA-based. She was informed that the classroom teacher was not interested in employing RDI strategies. In Ms. Wagner’s opinion, the use of ABA strategies with Student, including external reinforcement, would be inconsistent with Student’s use of RDI. Ms. Wagner believed that Student needs an RDItrained aide to receive an appropriate education.

71. Student also relied upon the testimony of Sharon Lerner-Baron, Ph.D., a licensed clinical psychologist who specializes in the inclusion of pupils with typical peers. Dr. Lerner-Baron was previously the Program Director of Kids Included Together (KIT), a non-profit organization that supports recreational sites to include disabled children in recreational activities with typical peers. She no longer works for KIT, but she continues to consult on the subject of inclusion of disabled children with their typical peers. She is a frequent speaker at trainings around the country and consults with school districts.

72. Dr. Lerner-Baron observed Student in his full inclusion placement at ICE in October 2012, and prepared a report. She opined that Student was gaining educational benefit in that setting. Her report concluded that Student was able to benefit both academically and socially in his current full-inclusion placement. She also testified regarding different techniques, training and methodologies that could be used to support Student in that full-inclusion setting.

73. She explained that the SDC class with some mainstreaming offered by the District in the August 2012 IEP was not the same as the full-inclusion placement that Student had at ICE. In an inclusion setting, the child is a member of the regular education class and only leaves class when necessary. With mainstreaming, the child is only a visitor in the general education class for part of the time. In her opinion, it was objectively reasonable as of August 2012 for the IEP team to conclude that Student could continue to be successful in the general education environment with accommodations. He was not disruptive, and in her opinion he could gain academic and social benefit in that setting.

74. The District witnesses, on the other hand, believed that Student needed to be in an SDC setting to gain educational benefit. Ms. Roush explained that Student had made so much progress in the few months before August 2012, that the District team members felt he could learn to read. To accomplish that, he needed systematic instruction conducted by a special education teacher in a class with other peers who were also learning those same prereading skills so he could engage with those peers. She also believed that a placement in Julian would be appropriate because it was closer to Student’s parents’ new home.

75. In Ms. Roush’s opinion, Student would not gain any academic benefit in a general education class. Student’s modified curriculum would be so different from typical third graders that he would have no classmates to engage with academically, so he would not benefit academically from interaction with typical peers.

76. Ms. Roush admitted that Student could gain social benefit from a general education placement and that he would not be disruptive to the class. In addition, she believed it would be more expensive for the District to place Student at Julian Elementary School than the inclusion class at the charter school. However, she felt that Student could not learn academics by coaching from his TAG aide; instead he needed to be taught by a special education teacher. If he received that instruction from the special education teacher in a one-to-one setting, in her opinion, that would be more restrictive because he would not be learning in a classroom with peers.

77. Mr. Girod also felt that Student needed to be with peers who were working on the same level of material. He believed Student’s IEP goals should be implemented outside the general education classroom so Student could master the skills before practicing them in the classroom. The pupils in the typical class would be working on far different learning objectives than Student.

78. Ms. Belcher did not believe that Student could gain academic benefit in a fullinclusion, general education inclusion setting as of August 2012. Ms. Belcher has been an educator for many years and received her master’s degree in special education in 1995. She holds special education credentials and a CLAD (cross-cultural language acquisition and development) credential. She has attended trainings on ABA and been involved with inclusion of pupils with disabilities into the general education setting. She provided special education instruction and consultation while Student was at ICE.

79. In her opinion, Student needed to have books and instruction designed to move him from a non-reader to proficient in reading. He also needed the instruction of a special education teacher to help guide him past mistakes. She felt that one-to-one instruction from a TAG aide would not be sufficient to teach him to read. Ms. Belcher explained that RDI was a behavioral strategy, not an instructional strategy. In her opinion, behavior might be changed through indirect RDI methods, but you cannot teach a new academic skill indirectly. Likewise, she felt that trying to modify the third grade curriculum materials would be too haphazard a method to use to teach Student reading. She opined that Student needs to be moving around and active during the learning process; filling out worksheets in a third grade general education classroom would not be engaging for him.

80. During the hearing, she pointed out that Student had only made about five percent progress on his sight reading goal. In her opinion, that was de minimus benefit. Even though he had not made progress on that goal, Student had met other academic goals, as noted in Factual Finding 45 above. The District IEP team members felt that, with the right kind of education, he could learn to read.

81. Ms. Belcher admitted that, if a credentialed special education teacher pulled Student out of the general education classroom for systematic and direct instruction one-onone, Student could learn. In her opinion, however, that one-on-one instruction would place Student in a more isolated setting than an SDC class. She believed that such a one-to-one setting was not the LRE for Student.

82. The District witnesses concluded that the District’s August 2012 proposed IEP offered a FAPE in the LRE and that Student would not gain any academic benefit in his fullinclusion setting with a TAG-supplied aide. They felt his new IEP goals were more academically challenging than those of the prior year. Given those goals, he would not gain academic benefit from inclusion.

83. The legal standards for what constitutes the LRE and whether the District’s offer met those standards will be discussed in the Legal Conclusions below. ¹⁰

Factual Findings Regarding Remedy

84. The parties disagree about whether Student or his family suffered any harm, even if there was a denial of FAPE by the District. Because of the stay put doctrine, Student has remained in the full-inclusion general education classroom with a TAG-employed, RDItrained aide since August 2012. Student has continued to gain educational benefit.

85. During the hearing, Student raised three areas in which he contends that Student and his family suffered harm due to the District’s actions.

86. First, Student’s family had to hire an attorney to represent them. The District’s initial due process request (case number 2012100043) included a clause stating that the TAG aide was not part of Student’s IEP and that the District could replace that individual with a District aide at any time. At that point, Student’s mother grew very concerned that the District might change the aide, leading Student to regress. She felt that she had no choice but to hire an attorney to protect Student.

87. Second, after the August 2012 IEP meeting, Student’s parents hired Dr. Lerner-Baron to provide guidance to Student’s parents and the IEP team about methods that could be used to modify the third grade classroom curriculum to enable Student to stay in the general education inclusion setting with typical peers while still gaining academic benefit. Dr. Lerner-Baron charged Student’s parents $1,980.00 for her services.

88. According to Ms. Belcher’s testimony, the District has already agreed to reimburse Student’s parents for Dr. Lerner-Baron’s services. At that time of the hearing, a check had been processed, but had not yet been received by Student’s parents. Student’s written closing argument indicated that the money has now been received.

89. Third, Student contends that Student has been unable to attend his home school in the small school district because the District’s April 2011 IEP and August 2012 IEP do not reflect his inclusion placement with an NPA aide trained in RDI methodologies. Instead, Student has continued to attend the Charter School many miles from his new home.

LEGAL CONCLUSIONS

1. The party filing a due process case has the burden of proof. (Schaffer v. Weast (2005) 546 U.S. 49 [126 S.Ct. 528].) In the instant case, Student has the burden of proof. The District previously withdrew its portion of the case.

2. Under the Individuals with Disabilities Education Act (IDEA) and corresponding state law, pupils 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 pupil at no cost to the parents, that meet the state educational standards, and that conform to the pupil’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 pupil’s IEP to determine if it was reasonably calculated to enable the pupil 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 (Gregory K.).) A school district is not required to place a pupil in a program preferred by a parent, even if that program will result in greater educational benefit to the pupil. (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. Not every procedural violation of IDEA results in a substantive denial of FAPE. (W.G. v. Board of Trustees of Target Range School District (9th Cir. 1992) 960 F.2d 1479, 1484 (Target Range).) According to Education Code section 56505, subdivision (f)(2), a procedural violation may constitute a substantive denial of FAPE only if it:

1. Impeded the child’s right to a free appropriate public education;
2. Significantly impeded the parents’ opportunity to participate in the decision-making process regarding the provision of a free appropriate public education to the parents’ child; or
3. Caused a deprivation of educational benefits.

Did the August 2012 IEP Offer Student a FAPE in the LRE?

7. Student’s first issue alleges both procedural and substantive violations. Typically in a due process decision the procedural violations are addressed first. However, in the instant case in which the resolution of the substantive issue is clear, it makes sense to address that issue first, rather than take the time to go through a full procedural analysis. Even if the District was correct in all its procedures, if the offered placement was not in the appropriate LRE, then the District denied Student a FAPE.

8. One of the key policy motivations behind the enactment of special education laws was to move special needs children out of segregated programs. In Rowley, the Supreme Court noted the intent of the Education of the Handicapped Act (the predecessor to IDEA) was “to open the door of public education to handicapped children on appropriate terms….” (Rowley, supra, 458 U.S. at p. 192.)

9. Both federal and California special education laws emphasize the importance of keeping special education pupils with their typically developing peers. For example, California Education Code Section 56000, subdivision (b), provides that:

The Legislature further finds and declares that special education is an integral part of the total public education system and provides education in a manner that promotes maximum interaction between children or youth with disabilities and children or youth who are not disabled, in a manner that is appropriate to the needs of both. (Italics added.)

10. For this reason, the law mandates that disabled children remain in the general education setting whenever appropriate. Under Title 20 U.S.C. § 1412(a)(5)(A), a state must ensure that:

To the maximum extent appropriate, 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 or severity of the disability of a child is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily. (Italics added.)

(See also Ed. Code, § 56040.1; 34 C.F.R. § 300.114 (2006).)

11. The classic Ninth Circuit case involving LRE is Sacramento City Unified School District v. Rachel H. (1994) 14 F.3d 1398 (Rachel H.). While that case is usually cited for the four-part balancing test developed by the court (which will be discussed below), Rachel H. is also relevant because it is very similar factually to the instant case. In Rachel H., the child had an intellectual disability and the parents disagreed with the school district about whether the child could be appropriately placed in the general education setting. The court described the dispute between the parties as follows:

As the district court noted, the District and the Hollands have conflicting educational philosophies and perceptions of the District’s mainstreaming obligation. The District has consistently taken the view that a child with Rachel’s IQ is too severely disabled to benefit from full-time placement in a regular class, while the Hollands maintain that Rachel learns both social and academic skills in a regular class and would not benefit from being in a special education class.

(Rachel H., supra, 14 F.3d at p. 1403.)

12. The Rachel H. court noted the preference by Congress for educating children with disabilities in regular classrooms with their peers. The court then considered four factors to be examined in determining the appropriate LRE for the child: 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 would have on the teacher and children in the regular class; and 4) the costs of mainstreaming the child. (Rachel H., supra, 14 F.3d at p. 1404.)

13. The Rachel H. court upheld the lower court’s conclusion that the appropriate placement for Rachel “was full-time in a regular second grade classroom with some supplemental services….” (Rachel H., supra, 14 F.3d at p. 1399.) The services provided to Rachel included aide support.

14. In the instant case, as in Rachel H., the four factors weigh in favor of a general education inclusion placement. All witnesses agreed that Student gained non-academic benefit in the general education classroom. As set forth in Factual Findings 67 – 83, above, Student had friends in the general education class, was invited to parties by his typical peers, participated with the typical peers in class activities, and enjoyed being with his peers.

15. The third factor also weighs in favor of inclusion. As set forth in Factual Findings 38 – 50, 55 – 57, and 67 – 83 above, by May 2012, Student was no longer disruptive in the classroom, and his August 2012 proposed IEP noted that his behavior no longer interfered with his learning or that of others. The testimony of Mr. Girod demonstrated the benefits to Student and the other children in the class from his participation. The other children were able to assist Student and he learned from them.

16. Although the fourth factor – cost – is not usually discussed in modern cases regarding LRE, the only evidence at the hearing regarding cost weighed in Student’s favor. As set forth in Factual Finding 76 above, Ms. Roush testified that it would actually be less expensive for the District to educate Student in the general education classroom at the charter school than the SDC placement proposed in Julian. Unlike Rachel H., in which the school district complained about the high cost of educating Rachel in the general education classroom, the District’s own witness admitted that it would be less expensive for the District to educate Student in the general education classroom.

17. The real dispute between the parties in this case involves, as it did in Rachel H., the academic benefits that Student would gain in the general education setting. As set forth in Factual Findings 35 -83 above, the evidence showed that Student gained academic benefit in the general education inclusion setting with Student’s one-to-one, TAG-employed, RDI-trained aide. Student continued to gain meaningful educational benefit in the general education setting after the date of the August 2012 IEP offer, while Student was in a “stay put” placement.

18. Given Student’s tremendous progress in the months before the IEP meeting, it was objectively reasonable as of August 2012 for the District to conclude that Student, if given the same supports and services, would continue to gain academic benefit in the fullinclusion, general education setting.

19. The District raises two main arguments to dispute this. First, the District contends that Student’s IEP goals were more rigorous in the August 2012 IEP than they had been previously, so Student needed an SDC placement with instruction by a special education teacher to make progress on these new academic goals. The District points out that Student did not make progress on Student’s sight-word reading goal prior to the August 2012 IEP. Because the new goals related to pre-reading skills, the District staff believed Student would also not gain benefit in those skills in a full-inclusion setting, even with a oneto-one TAG aide.

20. Second, while the District witnesses admitted that, if Student received one-toone instruction from a special education teacher for part of the school day in the fullinclusion setting, Student might make academic progress, the District witnesses believed that the one-to-one instruction would be more restrictive than a placement in an SDC. The District educators felt very strongly that Student needed peers at his same academic level in order to benefit from his academic instruction in the LRE.

21. Neither of these arguments is persuasive. As set forth in Factual Findings 45 and 80 – 81 above, while Student may only have made a small amount of progress on one or two of his academic goals prior to August 2012, he made progress on other academic goals in the full-inclusion setting with the one-to-one TAG aide. It was objectively reasonable to conclude that he would continue to gain meaningful educational benefit and make progress on his IEP goals in the full-inclusion setting with his TAG aide, just as he had the year before. Even Ms. Belcher admitted that Student could gain educational benefit if assisted by a special education teacher in connection with that full-inclusion setting.

22. The District’s second argument – that Student needed to be in a special education class with peers of the same academic level (i.e. other intellectually disabled children) is contrary to the policies behind LRE. The purpose behind IDEA was to get children out of special education classrooms and back into the general education classroom whenever possible. Only when a general education setting is not appropriate (when a child will not gain educational benefit) can a child be removed from that setting. While it is certainly true that any time Student would spend in a one-to-one setting outside the general education classroom would be restrictive, that would not make the full-inclusion setting restrictive. Student would still be a member of the full-inclusion class, and would only be pulled out when necessary. Under the District’s proposed placement, unlike the inclusion setting, Student would be in a classroom with typical peers for only a small fraction of his educational day.

23. The District witnesses were sincere in their belief that Student needed an SDC classroom to gain academic benefit. They may be correct that Student would gain greater academic benefit by being in an SDC than he would in the full-inclusion class with his RDI aide. But that belief, however sincerely held, is contrary to the wishes of the Congress and the California legislature. The Congress could have enacted IDEA to maximize a child’s academic potential by placing every disabled child in a very small, special education setting. But that was not the policy choice made by Congress. Instead, the policy behind IDEA is to give special education children a basic floor of educational opportunity that places them back in the general education setting as much as possible.

24. The case authority and OAH decisions relied upon by the District in its written closing argument do not change this. The Michigan case relied upon by the District, Dick-Friedman v. Board of Education (E.D. Mich. 2006) 427 F.Supp.2d 768 (Dick-Friedman), is distinguishable both factually and legally. That dispute involved full inclusion of a middle school pupil, not an elementary school pupil as in the instant case. In the Dick-Friedman case, the pupil had been in a full-inclusion setting during elementary school. (Id. at p. 772.) In addition, the case relied upon the Sixth Circuit test for determining LRE which is different from the Ninth Circuit Rachel H. standard. (Id. at 782.)

25. The OAH decisions cited by the District involved children who were not gaining academic benefit in the general education setting or who had never demonstrated the ability to progress in the general education setting. In the instant case, by contrast, Student had gained benefit in every area – academically, socially, and behaviorally – in his full inclusion setting as of the August 2012 IEP meeting. As Ms. Roush so aptly stated during that IEP meeting, Student had made “huge” progress. Those prior OAH decisions do not justify the District’s decision to change Student’s placement to a more restrictive setting.

26. As stated at the opening of this Decision, the instant case asks whether a child can do so well in the general education setting that the child must then be moved to an SDC. The Congress, the California Legislature, and the Ninth Circuit have all answered that question with an emphatic, “No.”

27. Because the District’s August 2012 IEP proposal did not offer Student a FAPE in the LRE, it is not necessary to examine the procedural issue regarding whether the District was required to assess Student before recommending the change in placement.

Did the April 11, 2011 IEP Appropriately Document Student’s Need for Aide Support?

28. The more difficult question in this case involves Student’s second issue. As set forth in Factual Findings 1 – 34, Student did not meet his burden to show that the April 2011 IEP agreed to provide an NPA aide to Student. There was no denial of FAPE based on the failure to include language regarding the NPA aide in the April 2011 IEP.

29. As set forth in Factual Findings 1 – 34, Student met his burden to show that the IEP team agreed that Student should have an aide who was trained in and used RDI methodology. That was what the IEP team agreed to and that was, in fact, what the District provided before and after April 2011. From a factual point of view, Student is correct.

30. The difficulty arises because of the nature of Student’s second issue. It does not involve the substantive question of whether an RDI-trained aide was a necessary part of Student’s program. Student instead alleges a technical issue – was Student denied a FAPE because the language of the IEP did not state that Student’s aide had to be trained in RDI methodology? In other words, did the District commit a procedural violation of special education law by failing to specify the aide’s RDI training in the IEP, even though the District, in fact, provided such an aide and Student substantively received a FAPE?

31. As a general rule, an IEP team is not required to include methodology in a proposed IEP. For example, in the discussion regarding the 2006 amendments to the federal regulations, the federal regulators noted that:

There is nothing in the Act that requires an IEP to include specific instructional methodologies. Therefore, consistent with section 614 (d)(1)(A)(ii)(I) of the Act, we cannot interpret section 614 of the Act to require that all elements of a program provided to a child be included in an IEP. The Department’s long-standing position on including instructional methodologies in a child’s IEP is that it is an IEP Team’s decision.Therefore, if an IEP Team determines that specific instructional methods are necessary
for the child to receive FAPE, the instructional methods may be addressed in the IEP.

(71 Fed. Reg. § 46665, August 14, 2006, italics added.)

32. Case law has also supported the interpretation that, as a general rule, an IEP is not required to state specific methodologies. (See, e.g., S.M. v. Hawaii Department of Education (D. Hawaii 2011) 808 F.Supp.2d 1269, 1279.) OAH decisions have also followed that general rule. (See, e.g., Parents on Behalf of Student v. Fountain Valley School District (2012) OAH case no. 2011110163/2011120931; Student v. Hacienda La Puente Unified School District (2007) OAH case no. N2007050041.)

33. Student relies upon the comments to the 1999 amendments to the federal regulations which describe when it is appropriate for an IEP to include methodology. When discussing amendments to 34 Code of Federal Regulations part 300.26 ¹¹ and the definition of “specially-designed instruction,” the comments note, in part:

In light of the legislative history and case law, it is clear that in developing an individualized education there are circumstances in which the particular teaching methodology that will be used is an integral part of what is “individualized” about a student’s education and, in those circumstances will need to be discussed at the IEP meeting and incorporated into the student’s IEP. For example, for a child with a learning disability who has not learned to read using traditional instructional methods, an appropriate education may require some other instructional strategy.

Other students’ IEPs may not need to address the instructional method to be used because specificity about methodology is not necessary to enable those students to receive an appropriate education. There is nothing in the definition of “specially designed instruction” that would require instructional methodology to be addressed in the IEPs of students who do not need a particular instructional methodology in order to receive educational benefit. In all cases, whether methodology would be addressed in an IEP would be an IEP team decision.

(64 Fed. Reg. 12552, March 12, 1999, italics added.)

34. The consistent element in both the 1999 and 2006 comments is deference to the IEP team’s decision. If an IEP team chooses to list a particular methodology or NPA provider in the IEP document, the team may do so and the school district must follow that decision. If the team chooses to draft an IEP which is less specific, a district has more leeway, but any methodology or methodologies chosen by a district must still meet the child’s unique needs and provide the child with a FAPE in the LRE. A district which changes a successful methodology to a different methodology does so at its own peril. (See J.L. v Mercer Island School District (2010) 592 F.3d 938, 952, in which the Ninth Circuit cited the 1999 federal comments and found that a district did not deny FAPE by failing to specify methodology in an IEP because the child’s teachers needed flexibility and “because there was not a single methodology that would always be effective.”)

35. Student spends much of his written closing argument arguing that the April 2011 IEP team agreed that Student needed RDI services as part of his educational program. However, that is not the issue – this case does not involve a substantive dispute over the merits of RDI for Student. Indeed, the evidence was clear that between April 2011 and August 2012, Student’s aides used RDI methodology along with other methodologies for Student.

36. The issue, instead, is whether the IEP team (which included Student’s mother who agreed to the IEP) violated special education law by failing to specify in the IEP document that Student’s aide would be trained in RDI methodology. Student has cited to no authority requiring an IEP document to specify a methodology, particularly when Student admits in his closing argument that other methodologies were also used with Student.

37. Most of the federal cases cited by Student involve substantive disputes over methodology between parents and school districts. (See, e.g., Lachman v. Illinois State Board of Education (7th Cir. 1988) 852 F.2d 290; Visco v. School District of Pittsburgh (W.D. Penn. 1988) 684 F.Supp. 1310.) None of the cases required the use of particular language in an IEP document or held that an IEP team violated special education law by failing to use particular language when the program was appropriate substantively.

38. The case of Joshua A. v. Rocklin Unified School District (E.D. Cal. 2007) 2007 WL 2389868 (Rocklin), cited by Student, is also not relevant to the procedural issue. Rocklin involved the determination of what constituted “stay put” based, in part, on what was written in the IEP document. Stay put is not an issue in the instant case – Student has continued to receive his current services (including his TAG-employed, RDI-trained aide) as part of stay put.

39. For a similar reason, Student’s reliance on cases such as Union School District v. Smith (9th Cir. 1994) 15 F.3d 1519 (Union), is not well taken. Union involved a school district’s failure to make a written IEP offer to the parents. Later cases and OAH decisions following Union have criticized IEP’s which were so vague and contradictory that a parent was unable to decide whether to agree to the IEP or not. (See, e.g., Parents on Behalf of Student v. Natomas Unified School District (2012) OAH case number 2012070797.)

40. In the instant case, the District’s April 2011 IEP was not so vague with respect to the aide support that Student’s parents did not know what was offered. To the contrary, Student’s mother agreed to the IEP and Student received the agreed-upon services. When a non-signatory school district did not understand the IEP, Student’s mother went back to the District seeking to have the IEP clarified. It was after that point that the District tried to revise Student’s program. The District’s actions in and after August 2012 were the problem, not the IEP offered in April 2011.

41. Citing a 1994 hearing officer decision from Georgia (DeKalb County School District (1994) 21 IDELR 426), Student contends that this issue can be resolved according to breach of contract principles. Student is incorrect – state contract law does not apply to IEP’s. (Van Duyn v. Baker School District (9th Cir. 2007) 502 F.3d 811, 819.) However, even if contract principles were applicable, they would not avail Student in this case – Student received the services agreed to under the April 2011 IEP. Student’s parents could have insisted on other “contract” terms, but they did not. They got the “benefit of their bargain.” There was no breach of contract.

42. In summary, the law makes it clear that the language used in an IEP is an IEP team decision – the IEP team decides how much or little specificity is necessary in the IEP document. In the instant case, the IEP team (including Student’s mother, who agreed to the IEP) opted for more general language regarding Student’s aide support.

43. Could Student’s IEP team have chosen to use more specific language in the April 2011 IEP? Absolutely. The comments to the 1999 amendments to the federal regulations are clear on that issue. Should Student’s IEP team have used more specific language? Probably. Specificity might have avoided future litigation. But did Student’s IEP team violate special education procedural law by failing to use more specific language? No, the team did not. Student’s parents knew what was offered, agreed to what was offered, and received the offered educational services for their son.

44.Any other holding would interfere with the discretion vested in the IEP team to choose the language of the IEP. The comments to the federal regulations make it clear that the law intended to allow an IEP team to decide whether and when to specify methodology in the IEP document. If a parent believes a district’s offer is too vague, the parent can refuse to sign the IEP document.

The Appropriate Remedy

45. As set forth in Factual Findings 66 and 84 above, the District has continued to provide Student with an appropriate education in the general education environment with a TAG-employed, RDI aide as “stay put” during the pendency of this matter. Student has continued to gain educational benefit with that placement and those services. Therefore, there is no need for an award of compensatory education for Student.

46. Likewise, the District has now paid for Dr. Lerner-Baron’s assessment, so there is no need to order reimbursement for that expense.

47. However, Student is entitled to prevailing party status in this case. Student prevailed in the key issue of this case – the LRE appropriate for Student. The District’s proposed August 2012 IEP did not offer Student a FAPE in the LRE. Until such time as the parties agree to a new IEP or Student no longer attends school in the District, the District shall continue to provide Student with his “stay put” placement and services, just as it has been doing.

ORDER

1. The District’s August 14, 2012 IEP did not offer Student a FAPE in the least restrictive environment and the District may not implement that IEP, except for those portions to which Student’s parents have consented.

2. Student’s other 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 Student prevailed on the main issue in this case (the first issue) and the District prevailed on the second issue.

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 26, 2013

SUSAN RUFF
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.
ANAHEIM UNION HIGH SCHOOL DISTRICT.

OAH CASE NO. 2012031076

NON-EXPEDITED DECISION

Administrative Law Judge (ALJ) Darrell Lepkowsky of the Office of Administrative Hearings (OAH), State of California, heard the non-expedited portion of this matter in Anaheim, California, on January 14, 15, 16, and 17, 2013, and February 4, 5, and 6, 2013.

Tania Whiteleather, Esq., represented Student and his parents (Student). Advocate Dr. Susan Burnett also appeared on behalf of Student and his parents. Ms. Whiteleather was also assisted by Antoinette Penton on a few hearing days. Student’s mother (Mother) was present for the entire hearing. She was assisted by Student’s older brother the first day of the hearing. Student was not present during any of the hearing.

Jeffrey Riel, Esq., represented the Anaheim Union High School District (District). Brad Jackson, the District’s Director of Special Youth Services, also appeared on behalf of the District.

Student filed his due process request (complaint) on March 26, 2012. On March 29, 2012, OAH issued a scheduling order setting this case for dual hearing dates based upon the fact that some of the allegations in Student’s complaint, by statute, required an expedited hearing. The expedited portion of Student’s complaint was heard in April, 2012. The undersigned ALJ issued her Decision on the expedited issues on May 9, 2012, in which she found that the District had a “basis of knowledge” that Student was a child with a disability prior to the conduct leading to a recommendation for expulsion.

With regard to the non-expedited portion of this case, OAH granted the parties’ various requests for continuance. At the close of the hearing, the ALJ granted the parties’ request for a continuance in order to file written closing briefs in lieu of oral closing arguments. Both parties timely filed their briefs on February 25, 2013, at which time the ALJ closed the record and deemed the matter submitted.

PROCEDURAL ISSUES IN THIS CASE

Motion to Dismiss

At the beginning of the first day of hearing on January 14, 2013, the District made a motion to dismiss the non-expedited issues in this case. The District’s motion was based upon its September 28, 2012 written offer to Student, pursuant to title 20 United States Code section 1415 (i)(3)(D)(i), to settle all remaining issues in the case. The District offered to provide Student with 80 hours of individual tutoring and 20 hours of counseling services, as compensatory education. The District also agreed to reimburse Student’s parents for the cost of the psycho-educational assessment administered by Dr. Perry Passaro, and to reimburse Student’s parents for reasonable attorney’s fees.

The District made an offer of proof that Student had agreed that the substantive terms of the offer were appropriate to settle this matter. The District’s motion to dismiss was therefore predicated on its position that since Student agreed that the substantive terms of the District’s offer were sufficient to compensate him for any alleged misconduct of the District, the matter was moot. Student opposed the District’s motion to dismiss based on the fact that the matter had not been resolved since no settlement agreement had been executed by the parties. Upon questioning from the ALJ, the District acknowledged that Student had not entered into a final settlement based upon the District’s offer and that the District had not implemented any portions of its offer.

Under the doctrine of mootness, a court may refuse to hear a case because it does not present an existing controversy by the time of decision. (Wilson v. Los Angeles County Civil Service Com. (1952) 112 Cal.App.2d 450, 453.) However, mootness is not a jurisdictional defect. (Plymouth v. Superior Court (1970) 8 Cal.App.3d 454, 460.) A case may be moot when the court cannot provide the parties with effectual relief. (MHC Operating Ltd. Partnership v. City of San Jose (2003) 106 Cal.App.4th 204, 214.)

In this case, although Student may have been in agreement theoretically with the District’s offer, no settlement agreement had been entered into by the parties nor had the District actually implemented any portion of its offer. The ALJ therefore found that the issues in the case were not moot, and denied the District’s motion to dismiss.

Motion to Strike Testimony of Dr. Perry Passaro

During the final prehearing conference in this matter, held on January 7, 2013, the undersigned ALJ granted the parties’ motion for her to take administrative notice of the official transcript of the expedited portion of the hearing and, therefore, official notice of all witness testimony at that hearing. The purpose was to avoid having all witnesses repeat the testimony they had given in April 2012 during the expedited hearing. Both parties agreed to this procedure. At the beginning of the instant non-expedited hearing, the ALJ marked the transcript as Joint Exhibit 1, and admitted it into evidence.

As his first witness at the instant non-expedited hearing, Student called Dr. Perry Passaro, who Student had designated as an expert witness. Early in Student’s questioning of Dr. Passaro, it became clear that Student had provided Dr. Passaro with a copy of Joint Exhibit 1 to review in preparation for his testimony. The District then made an oral motion to disqualify Dr. Passaro from any further testimony, and to strike any testimony already presented, based upon its position that it was improper to permit Dr. Passaro to review testimony from a hearing that had been closed to the public. Student orally objected to the District’s motion.

The ALJ tentatively denied the District’s motion, and permitted Dr. Passaro to continue testifying. The ALJ directed the District to file a written motion with supporting authority, and gave Student an opportunity to file a response. The ALJ indicated that she would review the authorities presented in the parties’ written briefs and, if she reconsidered her tentative ruling, she would thereafter strike Dr. Passaro’s testimony.

The parties timely filed briefing on this issue. However, none of the authorities cited by the District supported its contention that it was impermissible for a party to have an expert witness review a transcript of a prior related proceeding, even where the prior proceeding had been closed to the public. Further weakening the District’s argument was the fact that the ALJ had already indicated at the prehearing conference in this matter that she would admit as evidence the transcript of the non-expedited hearing. The District does not contend, nor would such a contention be supportable, that it is impermissible for an expert witness at a hearing to review exhibits in the case in order to come to an expert opinion concerning the issues presented. After reviewing the authorities cited by the District in its written motion, the ALJ confirmed her tentative ruling denying the District’s motion to strike Dr. Passaro’s testimony. ¹

ISSUES ²

1) Whether the District has failed to comply with its child find obligations as to Student during the past two years by failing to assess Student and identify his unique educational needs?

2) Whether the District has violated Student’s rights by denying him a free appropriate public education to address his unique educational needs during the past two years?

As remedies for these alleged violations, Student requested that the ALJ order the District to provide him with compensatory education and counseling services, as supplemented by his witnesses at hearing.

CONTENTIONS OF THE PARTIES

Student is presently an 11th grade student. In early February 2012, when Student was in 10th grade, he was accused of attempting to buy marijuana at school. Based upon this incident, the District instituted disciplinary procedures against Student and removed him from Kennedy High School (Kennedy), where he attended school. The District placed Student at one of its community day schools. In late February 2012, Student’s parents requested that the District assess Student to determine if Student qualified for special education and related services. The District assessed Student pursuant to this request and determined, based upon the assessment, that Student qualified under the categories of emotional disturbance (sometimes referred to below as ED), and other health impaired (OHI) based on Student’s diagnosis of anxiety and attention deficit disorder (ADD). ³

Student, however, contends in this case that the District violated its child find obligations to him. Student contends that the District should have initiated an assessment of him and found him eligible for special education as far back as March 2010 and, in any case, at some point prior to March 2012. Student contends that a totality of the evidence available to the District during the two years in question regarding Student’s problems with attention and focus in school and inability to complete his schoolwork, coupled with later knowledge by the District of Student’s anxiety and mental health issues, including an attempted suicide and resulting psychiatric hospitalization, should have propelled the District to assess Student long before Student’s parents requested the assessment. Student contends that the failure to assess him and thereafter find him eligible for special education during the two years between March 2010 and March 2012, denied him a free appropriate public education (FAPE).

The District disagrees. It maintains that it had no reason to suspect that Student might be eligible for special education before Student’s parents requested he be assessed. The District contends the evidence demonstrates that although Student had difficulties completing class work and homework, he successfully passed his classes because his teachers were in constant communication with Mother and provided accommodations and modifications in the general education environment to ensure Student’s success. The District contends that upon Mother’s request in September 2011, it formulated a plan for Student under Section 504 of the Rehabilitation Act of 1973 (504 plan) that successfully addressed Student’s ADD and anxiety, and that there was therefore no reason to assess Student for eligibility under OHI before Student’s parents requested the assessment in February 2012. The District further contends that it did not have sufficient notice that Student might be emotionally disturbed to warrant an assessment in that area prior to the time it conducted its assessment in spring 2012.

This Decision finds unpersuasive Student’s argument that the District had notice that Student might be a child with a disability from the time period March 2010 to September 2011. Although Student struggled at times to complete school assignments, his general education teachers were responsive to his needs and instituted a variety of accommodations to ensure that Student passed his classes. Student’s grades and scores on state-wide testing were commensurate with or higher than his cognitive levels.

This Decision does find that the District should have initiated an assessment of Student immediately after it held the initial 504 plan meeting for Student on September 22, 2011. By that time, the District was aware of Student’s diagnosis of anxiety and ADD, that Student was leaving class due to anxiety, that he was depressed, suffered mood disorder, was being treated by a psychologist and psychiatrist, and that Student was on medication for ADD, anxiety, and moods. Significantly, the District also had knowledge that Student had attempted suicide the month before the 504 plan meeting, and that he had been hospitalized due to the attempt. The totality of the circumstances in this case therefore put the District on notice that it should have initiated its assessment of Student approximately six months before it did so.

FACTUAL FINDINGS

2009-2010 School Year: Student’s Eighth Grade Year ⁴

1. Student is presently 17 years old. He lives with his mother and stepfather within the boundaries of the District. Student has an older brother who attends an Ivy League college. In approximately May 2012, the District held an individualized education plan meeting for Student at which it determined that Student was eligible for special education and related services under the categories emotional disturbance and OHI.

2. Student’s transition from elementary school to junior high school was a struggle for him. He found it difficult to juggle seven classes. Student had a tendency to be very talkative in class and was often reprimanded for that. However, even with those difficulties, Student was able to attain a cumulative grade point average (GPA) of 3.07 at the end of seventh grade.

3. The 2009-2010 school year, when Student was in eighth grade, proved a bit more challenging for him. Mother is, and was, a very involved parent. She maintained consistent but very amicable communications by email and telephone with Student’s teachers in order to keep abreast of class requirements, assignments, upcoming tests, and how best to ensure Student’s success at school.

4. One of Student’s primary academic struggles was in mathematics; as far back as sixth grade, he only scored “basic” in math on statewide standardized testing. In order for Student to concentrate on learning eighth grade math in preparation for the California High School Exit Exam, Mother worked with the District to rearrange Student’s class schedule for eighth grade so that he would be more focused in his sixth period Algebra class.

5. Mother communicated with Student’s teachers consistently during the first semester of Student’s eighth grade. When Student demonstrated a lack of attention in class, his teachers moved his seat to the front of the room in order to focus him more. Mother informed Student’s teachers that she would sit with Student while he did his homework to ensure that Student completed it. Mother also informed the teachers that she would go over each step of work to make sure Student understood it and that she would review Student’s answers to confirm that they were correct. Mother never informed any of Student’s teachers or other District staff that she actually completed any of the assignments for Student because he was unable to do them himself.

6. The District maintained an online internet software program called “Zangle” where each teacher could update class assignments, input test results and other grades, and indicate any assignments or tests a student was missing. Mother reviewed Zangle frequently to stay current on Student’s progress in school. If she saw that Student missed assignments, had failed to turn assignments, or if she realized that Student’s grades were dropping, Mother would contact the appropriate teacher to determine how Student could make up work or improve his grades. Student’s teachers were always responsive to Mother’s inquiries.

7. Student has always had poor penmanship. His writing is not legible when he writes fast, which he has a tendency to do. In order to address some of these issues with Student’s writing, Mother hired one of the District’s special education teachers, named Christy Hutchings, to tutor Student before and after school to help Student develop better writing skills and habits. Student’s writing improved through this assistance.

8. Student also attended a math tutoring lab at school to address his continued struggles with math. With Mother’s consistent monitoring of Student’s work, assistance from his teachers, and Student’s efforts, Student was able to bring his Algebra grade from a low “D” at the beginning of the school year to a “C” by the end of the first semester of eighth grade. Student’s grades in all academic subjects ranged from “C’s” to “B’s.” Student’s GPA at the end of this semester was 2.57.

9. In an email to Mother in February 2010, Ms. Hutchings broached the idea of requesting a 504 plan for Student to provide classroom accommodations that might give him more time to complete work. Ms. Hutchings also expressed her hope that Student’s teachers would realize that they could implement accommodations as part of the general education curriculum. However, no one pursued the idea of a 504 plan at any time during the 20092010 school year.

10. Student continued to be talkative in class and to waste time rather than concentrating on the work he was supposed to do in class. However, while there were numerous email communications between Mother and Student’s teachers for the first twothirds of the 2009-2010 school year, there was only one communication between late March 2010 and the end of the school year, which pertained to one of Student’s assignments for his year book class. There is no evidence that Student had any significant issues at school during most of his second semester of eighth grade. By the end of the second semester, Student had brought his grade in Algebra up to a “C+.” His science grade went from a “C” the first semester to a “B” the second semester. Student’s overall GPA for the second semester of eighth grade was 2.71, slightly higher than his 2.57 GPA from the previous semester.

11. As an eighth grader, Student also participated in California’s Standardized Testing and Reporting assessments in spring 2010. This test, which is also known as the “STAR” assessment, measures eighth grade children’s achievements in English language arts, algebra I, history-social science, and science. Student’s English language arts score of 391 placed him in the high “proficient” range, just four points behind the beginning of the “advanced” range. Student’s score of 351 placed Student at the beginning of the “proficient” range in algebra I. This was an increase in Student’s STAR scores in the area of math. When last tested in sixth grade, Student’s score in math had been at the “basic” level. Student scored a 427 in history-social science, well into the “advanced” range for that area of academics. In science, Student scored 325, which placed him in the mid “basic” range.

12. Student’s report card and his STAR testing achievements for eighth grade therefore gave the District no indication that Student had any significant issues with regard to his ability to access his education.

13. Student’s junior high school, like Kennedy High School, has a health office. Student left class a number of times during the 2009-2010 school year to go to the office. However, there is no evidence in the record nor was there testimony at hearing regarding whether the reasons Student left class were due to anxiety or panic attacks during this school year. There is also no evidence in the documentary record or from testimony at hearing that Student suffered from anxiety during this school year and thus no basis for the District having knowledge during this school year of Student suffering from any condition related to anxiety.

2010-2011 School Year: Student’s Ninth Grade Year

Student’s Difficulties with Algebra I

14. Student started high school in school year 2010-2011, Student’s ninth grade year. Prior to Student’s first day at school, Mother contacted school counselor Helen Yee ⁵ to discuss Student’s issues with her. Mother had been president of the Parent-Teacher-Student Association (PTSA) for a few years and has a long history of involvement in school and community issues. Mother had been very aware that Student’s difficulties at school increased as he grew older and as school in general became more challenging for him, as it did for all students. Student’s brother, who had recently graduated from Kennedy, is academically gifted and had been school valedictorian. Mother wanted Ms. Yee and staff at Kennedy to be aware that Student did not share his brother’s academic talents. Mother informed Ms. Yee that Student was nervous and anxious, and struggled in school.

15. Student’s academic difficulties during his freshman year at Kennedy were primarily in mathematics. Student was enrolled in an Algebra I class which was taught by a student teacher but supervised by mathematics teacher Terence Rollerson during the first semester and taught by Mr. Rollerson during the second semester. Mr. Rollerson testified at both hearings in this case.

16. This was the second time Student took Algebra I. Student did not demonstrate any misbehavior in Mr. Rollerson’s class. However, he had difficulty learning the material and completing his class assignments and homework. At the beginning of the school year, Mr. Rollerson emailed Mother to let her know that Student was turning in his assignments, but was doing poorly on tests and quizzes. Mr. Rollerson provided Student with access to an online computer math program that Student became familiar with and appeared to like. During the course of the school year, Mr. Rollerson also provided Student with numerous accommodations such as re-taking tests, turning in assignments late, and giving Student extra time to finish tests. Mr. Rollerson also provided accommodations to other pupils in his classes. Student sometimes failed to take advantage of these because he would not acknowledge to Mr. Rollerson that he had not finished an assignment. Mr. Rollerson worked with Mother to get Student to speak up if he needed assistance or wanted to take advantage of any of these accommodations.

17. Mr. Rollerson continued corresponding with Mother about Student’s difficulties in Algebra. He also spoke with some of the school counselors about Student’s difficulties. The consensus was that Student would benefit from tutoring. Student began receiving assistance from a math tutor toward the end of his first semester of ninth grade. At one point, this tutoring was increased to four times a week. Yousef Nasouf, who is now a school Principal at another District school, was an Assistant Principal at Kennedy at the time Student was in ninth grade. Mr. Nasouf worked with Mother, Mr. Rollerson, and Student to facilitate the tutoring and to convince Student that four hours a week were warranted and necessary. Mr. Nasouf also arranged to meet with Student a couple of times a month to give him encouragement. Mr. Nasouf testified at both hearings in this case.

18. Difficulties in scheduling the tutoring arose when Student had conflicts with after school sports activities in which he wanted to participate. Mr. Yousef worked with Mother to rearrange Student’s scheduling so that he could continue to participate in the sports, get credit for physical education class, and receive the necessary tutoring. However, due to these conflicts, as well as conflicts the tutor had in her schedule, Student was not always able to do four hours a week of tutoring throughout his second semester of ninth grade.

19. In spite of the tutoring and other accommodations and assistance, Student’s grade for the second semester of Algebra was a “D-”. However, Mr. Rollerson explained at hearing that many students have difficulty with Algebra. The average grade for Student’s classmates was also in the “D-” range. Therefore, Mr. Rollerson had no reason to suspect that Student’s problems in math were attributable to anything other than the general difficulty many students have in comprehending higher mathematics and in making the transition from junior high school to high school.

20. At the end of ninth grade, Student again took the STAR assessment. His score on the algebra I test plummeted from the “proficient” range to the “far below basic” range. However, because this test was administered in the spring of 2011, at the end of Student’s ninth grade year, neither Student’s parents nor the District were aware during the 2010-2011 school year that Student’s ability to retain math knowledge and concepts had dropped so dramatically.

21. Although Mother informed Mr. Rollerson that she was reviewing Student’s homework, reviewing his assignments to see if Student was turning them in, and reviewing tests to see if Student should retake them, Mother never informed Mr. Rollerson that she actually did any of Student’s work for him.

Student’s Difficulties in English Class

22. Student’s teacher for ninth grade English was Lisa Holley. Ms. Holley testified at hearing for the instant non-expedited portion of this case but was not called by either party to testify in the first, expedited hearing.

23. Ms. Holley has a master’s degree in education curriculum and instruction. She is a credentialed English teacher with over 20 years of experience. She has worked at Kennedy since 1996.

24. Ms. Holley remembered Student as a playful young man who was not very excited about studying English. He was never a behavior problem in her class, was fairly quiet in class, but would work well with others when required to do so.

25. Mother did not start corresponding with Ms. Holley until the beginning of January, 2011, toward the end of Student’s first semester of ninth grade. This was just after the District’s winter break. Student had been ill for a week prior to the break and had missed a week of school. Mother began corresponding with Ms. Holley when Student received a grade of “D” on an essay assignment. Ms. Holley permitted her class to re-write the assignment, and Student did the re-write in order to improve his grade. Mother informed Ms. Holley of the supervision and assistance she was giving to Student and how she was attempting to help him catch up with missing assignments. Ms. Holley readily agreed to accept the late assignments. She also commented that she sometimes has to redirect Student back to the class activities because he sometimes “went somewhere else in his mind.” However, Ms. Holley was able to redirect Student without issue. Mother also informed Ms. Holley that although adjusting to high school had caused Student some real anxiety he had let Mother know that he felt very comfortable in Ms. Holley’s class.

26. Ms. Holley readily provided accommodations to Student throughout the school year so that he could make up assignments. She seated Student in the front of the class so that she could redirect him easily. Ms. Holley would touch Student’s desk to get his attention. She even agreed to change scheduling for make-up work to accommodate scheduling conflicts with Student’s after-school sports activities.

27. It was Ms. Holley’s experience after over 20 years of teaching that high school freshmen often had difficulty transitioning from junior high school because expectations of them in high school were so much higher. Student’s difficulties with completing assignments and turning in completed work were indicative of other boys in her class. Student’s nervousness at doing in-class writing assignments was something shown by many other of Ms. Holley’s students, including those in her honor’s classes. Student did not really demonstrate any anxiety or panic in class that was remarkable to her. Student therefore did not stand out as unique or problematical to Ms. Holley.

28. Mother continued to actively review Student’s work in Ms. Holley’s class and sit with him while he did assignments so that she could confirm that they were completed. Mother notified Ms. Holley that she would keep Student “on track” with his reading even if she had to read with him. Mother also informed Ms. Holley that it was math that had emerged as Student’s most difficult subject.

29. Ms. Holley continued giving Student opportunities to do make-up work and extra credit, as she did generally for all her students. She also permitted Student to type work rather than do it in longhand. Student earned a “C+” in ninth grade English the first semester and a “C” the second semester.

30. In her communications with Ms. Holley, Mother never elaborated on the level of assistance she was providing to Student with regard to his English assignments. There was nothing in the work Student produced or in emails from Mother during the majority of the 2010-2011 school year that would have or should have alerted Ms. Holley that Student was too anxious to do his work or that Mother was actually doing it for him. There was no reason for Ms. Holley to believe that Student was a child with a disability and that an assessment for special education was warranted.

Student’s Difficulties in Spanish Class

31. Mary Jespersen was Student’s teacher for Spanish in ninth grade. She was called to testify only for the instant, non-expedited hearing in this case.

32. Ms. Jespersen has taught for a total of approximately nine years. She holds a master’s degree in cross-cultural education and is a credentialed teacher. She has taught at Kennedy since 2006.

33. Student was in Ms. Jespersen’s Spanish I class. She recalls him as being a typical freshman boy. At times he was focused in class, at times he was not. Like many freshmen, Student appeared to have a hard time transitioning to high school and the higher level of accountability expected of high school students.

34. One of Student’s problems in Ms. Jespersen’s class was the illegibility of some of his writing assignments. When Student took his time, however, his writing became much more legible. Ms. Jespersen provided Student with accommodations such as extended time to finish assignments and permitting him to type rather than handwrite his assignments.

35. There is no evidence that Student had any significant difficulties in his Spanish class for the majority of his first semester of ninth grade. Mother did not begin corresponding with Ms. Jespersen until early January 2011, toward the end of the first semester. As she had with Ms. Holley, Mother emailed Ms. Jespersen to determine if Student could make up work he missed before winter break when he was ill for a week. As had Ms. Holley, Ms. Jespersen readily agreed to permit Student to make up the lost work.

36. Mother and Ms. Jespersen continued their open lines of communication regarding Student’s progress in Spanish class for the remainder of the school year. Ms. Jespersen would inform Mother if Student was failing to pay attention in class and Mother would then discuss it with Student at home. Ms. Jespersen also continued to notify Mother if Student failed to turn in or fully complete assignments. Ms. Jespersen continued to permit Student additional time to complete assignments he had failed to turn in. She also permitted Student to type some of his work. As with her other Students, Ms. Jespersen provided Student with many opportunities for extra credit so that he could improve his overall grade.

37. Mother continued to be very involved in monitoring Student’s completion of assignments. She informed Ms. Jespersen that she would review Student’s assignments with him and would have Student redo the work if it was not correct or if it was not legible. However, Mother never gave any indication to Ms. Jespersen that Student was not capable of completing his assignments with the accommodations Ms. Jespersen was providing to him. Nor did Mother ever indicate that Student was not completing the work himself.

38. Student earned a grade of “C” in Spanish in the first semester of ninth grade and a grade of “C+” by the end of the second semester. Student presented as a typical freshman boy to Ms. Jespersen for the majority of the school year. He was not a behavior problem. He sometimes had difficulty attending but was easily re-directed. He had difficulty finishing assignments but was able to maintain a satisfactory grade through monitoring of his work by both Ms. Jespersen and Mother. Until the incident that occurred at the end of the school year, as discussed below, none of Student’s behaviors in Ms. Jespersen’s class gave her any reason to believe that Student might be a child with a disability who should be referred for a special education assessment.

Student’s Declining Mental Health

39. Although Student had anxiety about school in ninth grade, particularly in Algebra, there were few manifestations of it at school during the first half of the school year. Nor is there evidence that Mother had oral or email discussion with District staff concerning issues Student may have had relating to anxiety or panic attacks, or other health issues during that time.

40. Student’s emotional state began to deteriorate in spring 2011. His emotions were up and down. He was reacting poorly at home if something negative or bad happened either at home or at school. He was apparently having emotional breakdowns at home. Mother, who testified at both hearings in this matter, described Student as “emotionally raw.” However, Mother did not discuss with Student’s teachers or other District staff any of the issues Student may have been having at home. Nor is there any evidence that Student shared this information with District staff. There is no reason that the District would have had any notice of the severity of Student’s mental health at the time.

41. In late March 2011, Amber Houston, ⁶ Student’s teacher for AVID ⁷ emailed Mother that Student was “disengaged” in class. Mother replied that Student had been “off” for a week or so, and attributed Student’s disengagement to his ongoing struggles with math. In a reply email, Ms. Houston commented that Student previously never had been much of a problem in her class, but that lately it appeared as if he was angry with something. Ms. Houston had inquired of other students in the class if they were aware of any issues with Student, but no one knew why he appeared so aggressive and “shut off.” Student also appeared annoyed and mad at everyone. Ms. Houston thought it perhaps was just a fluke. There was no subsequent correspondence between Mother and Ms. Houston regarding Student and no indication that Ms. Houston had any other concerns about Student. Student’s grade in AVID at the end of the second semester of ninth grade was a “B.” Further, there was no other communications between Mother and any other of Student’s teachers during this time addressing Student’s mental health issues either at home or at school.

42. However, on June 6, 2011, Student suffered a significant anxiety attack or panic attack in Ms. Jespersen’s class. Ms. Jespersen gave him permission to leave class and go to the health office. It looked to Ms. Jespersen that Student was about to cry. Ms. Jespersen thought that Student may have been upset because she had separated him in class from a girl with whom he was friends, but Student had never mentioned anything to her about the relationship.

43. When Student arrived at the office, he told health clerk Dona Hackworth that he did not feel well and wanted to go home. Ms. Hackworth asked Student what was wrong as he appeared quite anxious. Student, who was almost 16 years old at the time, then burst out crying. Ms. Hackworth had Student wait for the rest of that school period, and then she had Student return to his next class.

44. Kennedy’s health office is not staffed by a nurse or other personnel with formal medical training. Rather, Kennedy’s health office is staffed by a health technician. Dona Hackworth has been a health technician for approximately eight years, the last three and a half of which have been at Kennedy. Ms. Hackworth testified at the instant hearing. It was obvious that she is dedicated to her job and, most importantly, to the students she assists. However, Ms. Hackworth, who is a high school graduate with some community college coursework completed, has no formal medical training other than a CPR certificate, some first aide training, and some training in medical terminology. The District has not provided her with specific training on how to recognize or treat any type of illnesses, including anxiety or panic attacks.

45. The health technician is supposed to use the District’s Zangle program to indicate that a student has gone to the health office. For each student, the program has a field to list immunizations. It also has another field to list office visits. The program contains a field to put in the date of the office visit. There is a field to list any “services” provided to the student. There is also a field to list “disposition,” such as whether the student returned to class, was released to his or her parents, or was sent home.

46. There is also a field to indicate the description of the basis for the student’s office visit, but this is based on selecting a descriptor from a drop down box. “Anxiety” and “panic attacks” are not listed. Therefore, if any student presents at the office with those issues, the only appropriate descriptor in the drop down list is “other.” There is no specific District protocol for when the health technician is supposed to describe the reasons a student has gone to that office. Over the years Ms. Hackworth has been at Kennedy, she sometimes wrote down a description of Student’s problems in a field on the Zangle program called “health visits.” Often, neither she nor her predecessors would write anything down. For example, on June 6, 2011, when Student left Ms. Jespersen’s class to go to the health office, burst out crying when he arrived there, and was sent back to class by Ms. Hackworth, there is no note in the health notes field describing the incident.

47. The District has not given Ms. Hackworth any specific training, directives, or District protocols in what to do when students present at the office with mental health issues such as anxiety attacks. There is no procedure on how to address a situation where a student shows a pattern of leaving class for any reason to access the health office. There is no procedure for the health technician to inform any school counselor or school administrator of these issues. Nor is there any specific protocol for the health technician to implement in determining how to respond to any mental health issues with which a student might present at the health office.

48. Ms. Hackworth did call Mother to let her know what had happened and that she had sent Student back to his next class. She also told Mother that her own son had had a very “anxious, depressed” period when he was in college and that she recognized the same in Student’s face. Ms. Hackworth let Mother know that Student could go to the health office anytime he needed to “decompress.” However, since there was no protocol for doing so, Ms. Hackworth did not tell anyone at the District about Student’s June 6, 2011 breakdown in her office or her conversations with Mother.

49. Mother emailed Ms. Jespersen the day after the June 6, 2011 incident. Mother informed her that Student was going to miss school on June 8 because she was taking him to see a therapist in order to figure out what was going on with him. Mother told Ms. Jespersen that she had made the appointment two weeks previously because Student was “unraveling.” Mother also told Ms. Jespersen that she did not want to ask Student too many questions because lately he had been “spooking” so easily when Mother questioned him.

50. Ms. Jespersen replied to Mother’s email expressing her concern that Student had been sent back to class after bursting out crying in the health office. Ms. Jespersen also expressed her concern that Student’s “I don’t care behavior” lately at school was really a defense mechanism of some sort. Ms. Jespersen made herself available to Mother to help with Student in any way.

51. Student attended all classes at school on June 7, 2011. He did not leave any to go to the health office and, at least in Ms. Jespersen’s class, “appeared fine.”

52. Student saw adolescent psychiatrist Dr. Jeffrey Litzinger on June 8, 2011, as planned. Student later also began clinical counseling treatments with Dr. Matthew Polachek, who works with Dr. Litzinger. ⁸ The next day, Mother emailed Ms. Jespersen that the doctor had diagnosed Student with anxiety and panic disorder and had prescribed medication to address those illnesses. Mother also stated that the doctor believed Student suffered from ADD, which Mother had not anticipated. The doctor was going to further examine Student the following week for an ADD. The doctor had explained to Mother that ADD was comorbid with anxiety and anger issues. He also explained that sometimes ADD did not become apparent in children until high school because instruction becomes more difficult and the children become unable to cope with the level of difficulty. Mother also informed Ms. Jespersen that family therapy was going to be part of the treatment to address Student’s issues.

53. Mother further informed Ms. Jespersen that she was going to go to the school and request a 504 plan for Student.

54. Ms. Jespersen replied to Mother the same day that she did not see the “hyperactivity” portion of ADHD on Student’s part in her class, although she could possibly see the “attention deficit” portion of the disorder. She also could see the coping issues because ninth grade could be very difficult. Ms. Jespersen advised Mother to inform all of Student’s teachers that he was going to be taking medications. Ms. Jespersen agreed that getting the 504 plan was important, particularly for the following school year, to address Student’s issues, including his difficulties with writing.

55. Mother then emailed Ms. Jespersen to let her know that she had contacted Ms. Hackworth to inform her that Student would be taking medication. Mother also confirmed to Ms. Jespersen that the doctor also felt that Student did not have any hyperactivity, but rather that he suffered from attention deficit disorder.

56. Mother also emailed Ms. Holley on June 9, 2011, to inform her of Student’s visit to the psychiatrist due to Student’s anxiety and anger issues and the possibility of an ADD diagnosis. Mother also mentioned that Student himself had been telling her since he had started high school that he felt he had ADHD. This was the first time Mother had stated this to anyone at the District. Mother also informed Ms. Holley that the doctor was going to test Student the following week for ADD and, if necessary, add medication to address that disorder in addition to the anxiety medications already prescribed for Student.

57. Mother informed Ms. Holley that she was going to talk to the school’s counseling office about instituting a 504 plan for Student. Ms. Holley replied that she had obtained a 504 plan for her own son and that she felt that such a plan would be beneficial for Student as well.

58. On June 10, 2011, Mother wrote to Mr. Rollerson to let him know the course of events that week with Student. Mother informed him about Student’s anxiety attack the previous Monday (June 6), Student’s visit with the psychiatrist on June 8, and the diagnoses of anxiety disorder and possible ADD. As Mother had with Ms. Holley and Ms. Jespersen, Mother profusely thanked Mr. Rollerson for his help with Student that school year.

59. On June 14, 2011, the Tuesday of the last week of the 2010-2011 school year, Mother emailed Ms. Jespersen that the anti-anxiety medication that Student was taking was showing positive results. Mother informed Ms. Jespersen that they had a weekend without a major fight or emotional breakdown at home. Mother also mentioned that she had informed the school counseling office that she would be seeking a 504 plan for Student the next school year.

60. The District 2010-2011 school year ended the week of June 14, 2011.

61. Unbeknownst to the District at the time, Student had a tense summer at home. Although he was seeing either Dr. Litzinger or Dr. Polachek once a week, Student continued to have panic attacks and anxiety attacks.

62. On August 3, 2011, Student had an emotional breakdown at home. The overt impetus for the breakdown was prompted by an argument at home concerning Student’s refusal to attend a judo class that was part of his training for the wrestling team. When Student refused to go, his biological father, who has been divorced from Mother for many years, telephoned and threatened basically to beat Student into submission. Student lost control, snapped, and lost connection to reality. He began to believe that his father was going to come and kill him. Student was screaming and yelling. He then pepper sprayed the living room because he thought his father was coming to kill him. This caused the family dogs to start choking and barking. Student began opening and closing windows, saying that he was going to jump off a balcony and kill himself before his father could do so. Student’s stepfather then telephoned, based on prompting from Mother, and tried to calm Student. Student did not calm down. Instead, he grabbed a knife and said that he was going to kill himself. Student also grabbed his brother’s martial arts belt and said that he was going to kill himself with that. Eventually, Student’s stepfather called the police to report what was happening. An ambulance was sent to Student’s home. Student was removed by the ambulance and taken to College Hospital where he was admitted for psychiatric observation and treatment.

63. Student was released from College Hospital on August 9, 2011. The discharge papers state that the hospital was releasing Student to return to school without any restrictions.

Beginning of Student’s 10th Grade Year: School Year 2011-2012

64. As stated above, Mother has been president of the PTSA for a few years. She has also always been extremely involved with school activities, programs, and her sons’ schooling. As president of the PTSA and because of her involvement in other school and community activities, Mother was aware that there were children in the District who had been found eligible for special education. She also was given a Parent-Student Handbook at the beginning of each school year when enrolling Student at school that contains a series of important notifications to parents. One of the notifications is identified under a section of the Handbook entitled “Educational Programs and Services.” The subheading is entitled “Special Education Programs.” This subsection references pertinent special education provisions of the Education Code, 504 plans, and the IDEA. The subsection informs parents of the existence of available programs and advises parents to contact school administrators for more information. During the first hearing in this matter, Mother acknowledged receiving the Handbook at the beginning of the 2011-2012 school year. However, she explained at that hearing that she never read the Handbook notification in detail and never believed that Student had a disability that would qualify him for special education. Mother also reviewed a pamphlet distributed by Kennedy addressing student interventions and accommodations, but it is not clear when she first saw it. ⁹

65. Mother worked at the PTSA table during school registration in late August 2011, before the 2011-2012 school year began. Student had been home from his psychiatric hospitalization for about two weeks at that point.

66. Mother saw Student’s counselor, Helen Yee, and Kennedy Assistant Principal Nasouf, during the Kennedy school registration period which was just prior to the start of the school year. In each case, she told them that Student had attempted to commit suicide and had been psychiatrically hospitalized as a result. Neither Ms. Yee nor Mr. Nasouf discussed with Mother or each other the possibility of referring Student for a special education assessment after being told this information.

67. When Mother filled out Student’s enrollment papers for 10th grade at the beginning of the 2011-2012 school year, she did not mention his suicide attempt, his hospitalization, or identify his medications. Mother was concerned that this information would be seen by non-District personnel and therefore Student’s private information would not remain confidential.

68. Based upon her discussions with Ms. Holley and Ms. Jespersen during the end of the spring 2011 school semester, and what Student’s treating mental health professionals had told her, Mother determined to request a 504 plan for Student. Student’s psychiatrist, Dr. Jeffrey Litzinger, wrote a letter on September 2, 2011, addressed to “whom it may concern,” explaining that Student suffered from anxiety and ADHD. Dr. Litzinger stated that Student would benefit from a 504 plan. He suggested numerous classroom accommodations that he believed would assist Student. Dr. Litzinger also stated that Student should be provided “any other special programs that the school offers to meet [Student’s] needs.”

69. By this time, Dr. Litzinger and/or Dr. Polachek had diagnosed Student with depression, obsessive compulsive disorder, and, around September 2011, with intermittant explosive disorder and some type of bipolar disorder with manic outbursts. Their treatment goals for Student were to stabilize his moods, enable Student to cope with his anxiety and depression, prevent Student from harming himself, and find medications that would be effective for him. However, Dr. Litzinger did not specifically raise any issues other than anxiety and attention deficit in his September 2, 2011 letter.

70. Mother faxed a copy of Dr. Litzinger’s letter to Ms. Yee on September 8, 2011, shortly after the start of the 2011-2012 school year, along with a letter of her own. In her letter, Mother requested a 504 plan for Student because she believed that Student was at risk of failure without a clear plan in place to address his disabilities. Ms. Yee immediately began preparations to convene the 504 plan meeting for Student, including coordinating a date that would be convenient to Mother. The 504 meeting was ultimately scheduled for September 22, 2011.

71. Student continued to experience severe anxiety in the three weeks between the time school started and the day the District held his 504 plan meeting. Marlene Wu, Student’s English teacher, emailed Ms. Yee to let her know that Student was leaving class frequently, ostensibly to use the restroom, and that he would be gone for extended amounts of time.

72. From the start of the school year in late August 2011, until his 504 plan meeting on September 22, 2011, Student also left class five times to go to the health office due to anxiety, with one incident occurring just three days before the 504 plan meeting took place. In each case, Ms. Hackworth entered information into the health notes field of Student’s Zangle records that Student had experienced anxiety. In four of the five situations, Ms. Hackworth gave Student a pass and directed him to go walk around the track to calm down, and then had Student return to class. Ms. Hackworth notified Mother of this on a couple of these occasions. She did not notify any District teacher or administrator of the fact that Student had gone to the health office five times over less than three weeks or of the fact that she was having Student walk around the track as a calming mechanism.

73. On September 21, 2011, the day before Student’s 504 plan meeting, Mother sent an email to Student’s teachers for the fall 2011 semester, with a copy to Mr. Nousef, to give them some background on Student. She informed them of Student’s increasing difficulties in school the year before and that he had started to suffer severe anxiety and panic attacks. Mother told them that Student was on medication for anxiety and ADHD. Instead of informing the teachers of Student’s loss of reality and suicide attempt in early August, Mother stated that Student’s medications had not worked and that one of the medications had caused him to have a severe psychological reaction for which Student was hospitalized. However, by the time Mother sent this email, she had informed both Mr. Nasouf and Ms. Yee of Student’s suicide attempt and resulting hospitalization.

74. In her email, Mother also stated that Student had been placed on three medications to stabilize both his anxiety and his moods, as well as to increase his ability to focus. Mother also informed that Student continued to see both a psychiatrist and a psychologist. Mother was concerned again that the information concerning Student’s mental health problems might become public, and she requested the teachers to keep the information confidential.

Student’s 504 Plan Meeting

75. Ms. Yee was present at the 504 plan meeting and took the meeting notes. Assistant Principal Yousef Nasouf attended as the administrative representative. Four of Student’s teachers also attended: Colin Cornforth, Student’s history teacher; David Wiskus, Student’s Algebra I-Plus teacher; Cynthia Esparza, Student’s Three-D art teacher; and Marlene Wu, Student’s English teacher. All these District attendees testified at both hearings in this matter with the exception of Ms. Esparza, who only testified at the first proceeding. Their testimony was consistent at both hearings. Mother and Student attended the meeting as well. Ms. Yee gave an introduction to the meeting and explained to the participants that they were there to create a 504 plan for Student based on his diagnosis of ADHD and anxiety by his treating psychiatrist.

76. Each of the teachers present at the meeting discussed Student’s performance and behavior in their respective classrooms. Mr. Cornforth noted that Student had been anxious in his class and that the medications Student was taking for his ADHD and anxiety were making him drowsy in class. Student also frequently requested permission to leave class and use the restroom. He would be gone 10 to 15 minutes. Student also asked to go to the health office occasionally.

77. David Wiskus, Student’s Algebra I-Plus teacher, discussed Student’s struggles with math and the daily problems Student had remaining focused in class. He discussed that Student was lethargic and was not using class time wisely. Mr. Wiskus had spoken to Mr. Nasouf before the 504 meeting about Student’s difficulties and discussed the possibility of reducing Student’s homework problems.

78. Cynthia Esparza, Student’s art teacher, discussed that Student was restless in her class and needed to take many breaks. Although school had only been in session a few weeks at the time of the 504 meeting, Student had already used up his allotted hall passes for the semester in Ms. Esparza’s class.

79. Ms. Wu discussed the fact that Student had great difficulty concentrating in her class. He could not sit still and frequently would ask for restroom breaks. Student’s writing was sloppy. He had difficulties with attention and could not focus on his work. Student did not misbehave in class but he seemed anxious. At times he would discuss his feelings of anxiety with Ms. Wu but was unable to articulate why he felt anxious. Ms. Wu also informed the 504 team that Student had organizational issues. He was unable to keep his notebook in order and had problems completing homework on time.

80. All teachers present at the 504 meeting reported on Student’s problems in their respective classes. Some left immediately after their presentations to return to their classes. The remaining people present at the meeting, including Mother, Student, Ms. Yee and Mr. Nasouf, then turned the discussion to Student’s diagnosis of ADHD and anxiety, and Student’s psychiatric hospitalization the previous summer. During his testimony, Mr. Nasouf recalled that there was a discussion that Student was suffering some type of depression, but the 504 team did not focus on that during the meeting. Rather, the team discussed that Student’s anxiety was negatively impacting his ability to focus in class and was therefore impeding his ability to learn. The team also discussed that Student was taking prescribed medication for anxiety, for his ADHD, and for his moods, and that the medication could be negatively affecting Student’s focus in class. However, it is clear that the team, and specifically Mr. Nasouf and Ms. Yee, were aware that Student had attempted suicide. They also were aware that he suffered from depression, and that of his three prescribed medications, one of them was specifically prescribed to treat Student’s moods.

81. Ms. Yee stated at hearing that the District was fairly certain Student would qualify for a 504 plan even before the meeting convened based upon Dr. Litzinger’s letter. At the meeting, all 504 team members agreed that Student was eligible for a 504 plan based on his anxiety and ADHD. All team members agreed that Student required accommodations because his ability to learn was impaired due to his anxiety and ADHD. The team developed 14 accommodations for Student, including the accommodations recommended by Dr. Litzinger in his letter of September 2, 2011. The accommodations consisted of preferential classroom seating; extended time for assignments when necessary; copies of notes to be emailed to Mother; the use of a daily planner to be checked by Mother; alternative environments in which to take tests as needed; teacher monitoring of Student’s needs; before and after school support from Student’s teachers; permission for Student to take small breaks as needed when he felt anxious; permission for Student to email assignments to his teachers; permission to work with another student in class to review class work; creation of “to do” and “due” folders to organize class assignments; oral exams rather than written exams in History and English; reduced number of problems in math, to be increased as Student progressed; and ongoing advance communication with Mother regarding Student’s upcoming class assignments.

82. Mother did not request a special education assessment ¹⁰ for Student at this meeting and did not express any concerns that the 504 plan was inadequate. None of Student’s teachers, Ms. Yee, or Mr. Nasouf discussed the possibility of a special education assessment for Student or that Student qualified or might qualify for special education interventions. All District staff present at the meeting signed the 504 plan. Mother and Student did so as well.

Events Subsequent to the 504 Plan Meeting

83. All of Student’s teachers implemented his 504 plan. However, the parties dispute whether the 504 plan accommodations for Student were successful. While the testimony of Student’s teachers did indicate that Student improved somewhat, each teacher acknowledged that Student continued to have problems after the 504 plan was effectuated. Student continued to take breaks while in Mr. Cornforth’s by going to the restroom or to the health office. Student continued to “zone out” frequently in Mr. Cornforth’s class and neglected to do his homework. Student’s grades hovered near failing in Mr. Cornforth’s class for the first part of the semester. Through considerable effort on Mother’s part as well as implementation of the 504 plan, Student managed to pull the grade from failing midsemester to a “C-” by the end of the semester. Mr. Cornforth acknowledged that Student did not earn the grade on his own.

84. Mr. Wiskus also implemented Student’s 504 plan. However, he stated at hearing that the plan only partially addressed Student’s inattentive behavior. Student continued to struggle to use his class time wisely in Mr. Wiskus’s class. He continued to have trouble with organization and Mr. Wiskus was aware that Mother was helping Student complete work. Student also continued to leave class daily to go to the restroom, although Mr. Wiskus would often see Student talking with friends outside the classroom rather than going to the bathroom. Although Student’s lethargy improved, he was still lethargic in class. Mr. Wiskus was uncertain of the causes of the lethargy. Mr. Wiskus thought that the lethargy could even be related to illicit drug use, based on similar behavior he had seen in other pupils. However, he did not think it was significant enough to discuss with school administrators.

85. Ms. Wu believes that Student’s attention and focus improved in her class after she began implementing his 504 plan and that he decreased the amount of times he left class to take breaks in the restroom. However, she acknowledged that Student still had difficulty turning in assignments, that Mother was giving Student considerable assistance in organizing his work, and that Student continued to leave class to take breaks. In an email to Mother in early December 2011, Ms. Wu stated that Student was leaving class about three times a week to take breaks even though Student was in her class right after lunch. Ms. Wu indicated that the breaks were interfering with Student’s class time. She asked Mother to work with Student to get him to take his breaks during lunch.

86. Student continued to have some problems in his non-academic art class even after Ms. Esparza implemented his 504 plan. He still had problems keeping motivated and staying on task. However, by the beginning of the second semester of 10th grade, Student showed some improvement. Although he would sometimes forget instructions, he would listen to them. Ms. Esparza found it helpful to repeat the instructions for Student or change the way she gave him directions. She acknowledged that Student continued to take breaks and leave the classroom for a few minutes on a daily basis.

87. None of Student’s 10th grade teachers at Kennedy believe that Student should have been referred for special education assessment. They all agree that he did not misbehave in their classes and that the 504 plan with its wealth of accommodations was meeting his educational needs. However, they all acknowledged at hearing that in varying degrees, the 504 plan had not resolved all of Student’s anxiety and inattention issues.

Testimony of Experts at the Instant Hearing

Dr. Perry Passaro

88. Dr. Perry Passaro is licensed in California as both a psychologist and an educational psychologist. He has worked as a school psychologist for school districts and the Orange County Office of Education. He has also worked as a program specialist, as an assistant principal, as a principal, and as a special education director in another state. Additionally, Dr. Passaro has taught school psychology at the university level, courses which included assessment practices for school psychologists. During part of his career, Dr. Passaro was responsible for supervising other school psychologists. Dr. Passaro has a master’s degree in education and a doctorate in educational psychology.

89. Student’s parents contracted with Dr. Passaro to assess Student in April 2012. This was subsequent to Student’s removal from Kennedy due to his acknowledged purchase of marijuana from a fellow student. Dr. Passaro assessed Student between April 14 and April 17, 2012, immediately before District school psychologist Aeri Kwak began her assessment of Student pursuant to his parents request for a special education assessment.

90. Dr. Passaro conducted a complete assessment of Student, including the administration of standardized tests, interviews with Student’s Mother and teachers from Kennedy and the District community day school at which Student had been placed, and a review of Student’s records. Dr. Passaro also obtained information from Dr. Litzinger and Dr. Polachek. The results of Dr. Passaro’s assessment are not at issue in this case.

91. Based on his assessment, Dr. Passaro concluded that Student had average to low average cognitive abilities. Student’s academic achievement was basically in the average range. Dr. Passaro therefore found that Student did not present with indications that he has a specific learning disability. There is no disagreement between the parties as to this point.

92. As one of the many testing instruments administered to Student, Dr. Passaro used the Minnesota Multiphasic Personality Inventory-Adolescent Version (MMPI-A). On this test, Student reported many symptoms of anxiety, tension, and worry. He reported that life was a strain for him that he possibly felt that his problems were insurmountable. Student indicated a pervasive feeling of dread, and worrying beyond reason over trivial matters. Student reported having physical symptoms such as gastrointestinal problems, neurological problems, pain, and sensory problems, because of his emotional deterioration. Student reported signs of depression as well.

93. In his report, Dr. Passaro found that Student met the clinical criteria for depressive disorder not otherwise specified, ADHD, anxiety disorder not otherwise specified, and obsessive compulsive disorder. Dr. Passaro also found that Student’s primary eligibility for special education and related services was best explained under the category of emotional disturbance. He found that Student presented a general pervasive mood of unhappiness or depression, with symptoms accounted for by a mood disorder, which had existed for an extended period of time and was not the result of a temporary situation or event. Dr. Passaro further found that Student qualified as ED because he had demonstrated inappropriate types of behaviors or feelings under normal circumstances exhibited in several situations.

94. Significantly, Dr. Passaro found that the District should have undertaken a comprehensive psycho-educational assessment, including input from Student’s treating mental health providers, at the time the District first became aware of Student’s psychiatric hospitalization.

95. During his testimony at this hearing, Dr. Passaro reiterated his position that the District should have taken a more proactive approach to Student’s needs once it became aware that Student had attempted suicide and been hospitalized as a result. Dr. Passaro opined that once Mother informed District staff of Student’s attempted suicide, reiterating the information at Student’s 504 plan meeting on September 22, 2011, District staff should have immediately requested Mother’s permission to contact Student’s mental health providers. Had they done so, Dr. Litzinger and Dr. Polachek would have provided sufficient information to warrant an immediate referral by the District of an assessment for Student.

96. Interestingly, Dr. Passaro did not believe that Student’s grades in and of themselves were red flags for the District because Student had been progressing from year to year with relatively similar grades. Dr. Passaro also believed that the 504 plan developed by the District for Student would have been adequate had Student only been suffering from ADD and even anxiety. Dr. Passaro opined that having Student leave class to work through his anxiety was not inappropriate. However, he also stated that having Student leave class was not appropriate given the fact that Student was actually depressed and suicidal in addition to suffering from anxiety. Under the latter circumstances, Dr. Passaro believed that it was not appropriate to permit a child suffering those type of mental health issues to leave class unmonitored when feeling anxious or depressed.

97. Ultimately, Dr. Passaro stated that Student required both individual and family therapy to address his significant mental health needs.

School Psychologist Aeri Kwak

98. School psychologist Aeri Kwak testified as an expert for the District at the instant hearing. Ms. Kwak has held a pupil personnel services credential for over 10 years, which qualifies her to work as a school psychologist. Her duties are to provide individual and group counseling services to students, administer assessments, attend 504 team meetings and individualized educational plan meetings, and to consult with teachers about students’ needs. She is assigned to one other school in addition to Kennedy.

99. Ms. Kwak was assigned to conduct the assessment of Student after his parents requested the assessment and thereafter signed an assessment plan on March 7, 2012. She administered her assessment between April 18 and April 26, 2012, beginning it just one day after Dr. Passaro finished his assessment. Ms. Kwak observed Student at the community day school, his then school placement, on April 18, 2012, the day after Dr. Passaro had observed him there.

100. Like Dr. Passaro, Ms. Kwak did a full assessment of Student that included standardized tests and a review of Student’s records. She interviewed Student, one of his present teachers, and Student’s mother, and also observed Student in his classroom at the community day school. However, in the course of her assessment she did not become aware of Student’s anxiety attack in Ms. Jespersen’s class in June 2011, and did not become aware of the fact that Student was leaving class in September 2011 to go to the health office because of his anxiety.

101. Ms. Kwak administered the Behavior Assessment System for Children (BASC) as part of her assessment. The BASC consists of rating scales filled out by various respondents. The BASC contains 12 clinical scales and four adaptive scales. Generally speaking, the scales and scores measure maladjustment. For the clinical scales, scores between 60 and 69 indicate a child is “at risk,” signifying either that the problem is not yet severe enough to require formal treatment, or that a problem has a possibility of developing and thus may require monitoring. Scores of 70 or above are in the “clinically significant” range, suggesting that the child has a high area of maladjustment in that area. The adaptive scales measure coping skills. A lower score indicates poor adaptive behavior skills.

102. Ms. Kwak had Student, Mother, and four of Student’s former teachers at Kennedy (Ms. Wu, Mr. Wiskus, Mr. Cornforth, and a Business Systems and Technology teacher with the last name of Sibley, who did not testify at either hearing in this matter) fill out the BASC.

103. Student self-rated himself as clinically significant on eight of 12 areas on the BASC clinical scales, and at risk on three more. He rated himself as clinically significant on the self-esteem and self-reliance areas of the BASC adaptive scales. Mother likewise rated Student in the at-risk or clinically significant range in a number of areas as well.

104. Student’s teachers based their rating scale responses on recollections of Student from months earlier since he had ceased attending classes at Kennedy more than two months before the testing. Their recollections, however, indicated that Student was elevated in a number of areas.

105. Ms. Wu, Student’s former English teacher, found Student to be at risk for hyperactivity, adaptive skills, conduct problems, and learning problems. She rated Student clinically significant in the areas of anxiety, somatization, ¹¹ attention problems, and functional communications.

106. Mr. Wiskus, Student’s former Algebra teacher, rated Student at risk in the areas of hyperactivity, somatization, social skills, leadership skills, functional communication, and adaptive skills. He rated Student clinically significant in the areas of attention problems, conduct problems, learning problems, and study skills.

107. Mr. Cornforth, Student’s former history teacher, rated Student as at risk in the areas of learning problems, social skills, leadership skills, functional communication, and adaptive skills. Mr. Cornforth only rated Student clinically significant in the areas of attention problems and somatization.

108. Finally, Sibley, Student’s former Business Systems and Technology teacher, rated Student at risk in the areas of anxiety, attention problems, social skills, leadership skills, and adaptive skills. Sibley did not rate Student as clinically significant in any area.

109. The teachers’ ratings indicated that two of them found Student relatively high for behaviors associated with general anxiety disorder. Two other teachers rated Student high for behaviors associated with conduct disorder.

110. Ms. Kwak also administered a test called the Scale for Assessing Emotional Disturbance (SAED) by giving the scales to Mother and four of Student’s teachers: two from his alternative placement at the community day school, and two from Kennedy. The two teachers who completed the SAED from Kennedy were Ms. Wu and Mr. Wiskus.

111. The SAED is used to identify the likelihood of a student having an emotional disturbance. The test generates a standard score and a percentile rank. The test looks at the five areas associated with emotional disturbance under educational criteria: inability to learn, relationship problems, inappropriate behavior, unhappiness/depression, and physical symptoms/fears. A likelihood of emotional disturbance is found when a standard score of 14 and above is generated.

112. Not surprisingly, Mother scored Student at 18, and thus highly indicative of ED, in the area of inability to learn. She also scored Student at 18 in the areas of unhappiness/ depression, and at 20 in the area of physical symptoms/fears, also both highly indicative of ED.

113. The scoring by Student’s teachers was unexpected. None of the scores by Student’s present teachers at the community day school were indicative of ED in any of the five areas. Conversely, Ms. Wu’s score for Student in the area of inability to learn was a 14, indicative of ED. She also scored Student at 16 in the area of physical symptoms/fears, which also was indicative of ED. Ms. Wu indicated on this test that Student had difficulty paying attention, could not independently complete schoolwork, became distracted, and showed nervous habits, such as biting his nails. Ms. Wu considered these behaviors to be severe.

114. Mr. Wiskus scored Student at 14 in the area of inability to learn, which was indicative of ED. Mr. Wiskus also indicated that Student’s homework skills were poor, Student did not pay attention, was distracted, and lacked interest, motivation, or a positive attitude toward school.

115. Ms. Kwak’s assessment results were similar to those obtained by Dr. Passaro. She found Student’s overall intelligence quotient to be in the same range. She also found that Student did not qualify for special education and related services under the category of specific learning disability. Like Dr. Passaro, Ms. Kwak found that Student qualified under the category of OHI based upon his ADHD diagnoses. Ms. Kwak also found that Student appeared to meet eligibility under ED as well. Like Dr. Passaro, Ms. Kwak found that Student presented a general pervasive mood of unhappiness or depression. Unlike Dr. Passaro, Ms. Kwak did not find Student demonstrated inappropriate types of behavior or feelings under normal circumstances; it is unclear why Ms. Kwak discounted Student’s suicide attempt and hospitalization when making this finding. However, Ms. Kwak also found that Student would additionally qualify as ED as he demonstrated a tendency to develop physical symptoms or fears associated with personal or school problems.

116. The District held an individualized educational plan (IEP) meeting for Student after Ms. Kwak and Dr. Passaro completed their assessments. Student’s IEP team found him eligible for special education at that time. As part of Student’s IEP, the District offered to provide Student with counseling sessions two times a month for 30 minutes a session, as well as to refer Student to the Orange County Health Care Agency. Student’s parents accepted this offer of mental health services.

117. At hearing, Ms. Kwak opined that there was no reason for the District to suspect that Student might be a child with a disability before his parents requested he be assessed in late February 2012. She believed that the District’s provision of a 504 plan adequately met Student’s needs at the time. Additionally, Ms. Kwak did not believe that Student would have qualified for special education prior to her assessment. She stated it was Student’s removal from Kennedy and transfer to the community day school that was the catalyst for the mental deterioration behind her ultimate finding that Student was emotionally disturbed as of late spring 2012. Ms. Kwak does not believe that Student’s suicide attempt and resulting hospitalization were serious enough incidents by themselves to be signs of possible emotional disturbance in a student.

The District’s Child Find Policies and Procedures

118. The District presented the testimony of Dr. Frank Donavan to explain district child find practices and procedures. Dr. Donavan is the Director of the Greater Anaheim Special Education Local Plan Area (SELPA). He has held that position for three and a half years. His role is to ensure that fiscal, procedural, and legal matters are being followed under the various statutes and regulations that govern the provision of special education by school districts who are members of the SELPA. Dr. Donavan holds a master’s degree in special education, another master’s degree in education administration, and a doctorate in education. He was previously a Director of a special education department at a school district, has taught emotionally disturbed children, and has taught students at juvenile hall. Dr. Donovan does not know Student and has not been part of any decisions concerning him.

119. Dr. Donavan explained that the SELPA and the District systematically seek out children who may require special education services. Their obligation is to ensure that the SELPA and its member school districts have policies and procedures in place to locate children who truly have a suspected disability. Annually, the SELPA publishes an explanation of what child find is in all local newspapers. The SELPA also meets with local private schools twice a year to explain special education rights. The SELPA child find policy is posted in libraries and at the school districts’ offices. It is also included in each student’s school enrollment packets.

120. Additionally, SELPA directors meet monthly to discuss matters such as child find. The SELPA has two full-time program specialists assigned to the District whose duties include assisting with child find issues. Dr. Donavan indicated that the first tier of intervention is to exhaust all general education support for a child before going to the more intensive tier of assessing for special education needs. Student study teams and 504 plans are part of the lower level tier of general education supports.

121. The District presented sufficient evidence that it has in place substantial child find policies and procedures as a whole. Student does not contend otherwise. Mother acknowledged receiving the child find information in her sons’ enrollment packets and of being aware of child find generally. In her case, she simply did not believe that Student’s issues came within the purview of special education support. However, the issue here is not whether the District per se failed to adequately address its child find obligations globally, or whether Mother failed to receive information regarding the District’s child find policies. Rather, the issue is whether the District should have assessed Student at a time prior to when it did, and if it had, whether Student would have been found eligible for special education at that time. As discussed below, the answer to both those questions is in the affirmative.

Remedies

122. ALJ’s have broad latitude in fashioning equitable remedies for the denial of a FAPE, including but not limited to ordering compensatory education and additional services for a student. An award to compensate for past violations must be based on a fact-specific assessment of the consequences of the district’s violation, and must be such that the aggrieved student receives the educational benefit he or she would have received, had the school district complied with the law. An award of compensatory education may, but need not, provide day-for-day compensation.

123. At the last prehearing conference in the instant case, convened on January 7, 2013, the undersigned ALJ reminded Student that it was his burden to prove at hearing any remedies he wished the ALJ to order should he prevail at hearing. In her Order Following Prehearing Conference of January 7, 2013, the ALJ included the following admonition:

10. Compensatory Education/Reimbursement. It is Student’s burden to present admissible evidence during his case in chief of any expenditure that he contends the District should be ordered to reimburse. It is also Student’s burden to provide evidence of the type, amount, duration, and need for any requested compensatory education, or the need for any other remedy requested.

124. During the hearing in this matter, the District introduced into evidence its letter to Student, dated September 28, 2012, written pursuant to section title 20 United States Code section 1415 (i)(3)(D), where it offered to settle this matter by providing Student with 80 hours of compensatory tutoring by a credentialed teacher, providing Student with 20 hours of counseling services in addition to the counseling he was receiving pursuant to his IEP, to pay for the cost of Dr. Passaro’s assessment, and to pay Student’s reasonable attorney’s fees. Student never accepted this offer.

125. During questioning of Mother at the instant hearing, the District asked her if she believed its offer was sufficient to compensate Student. Mother indicated that she believed it was.

126. Mother is not an educator, therapist, or medical professional of any kind.

127. Student offered no other oral testimony or written evidence at hearing in support of any remedy he had requested in his complaint or in his prehearing conference statement, or requested in his written closing argument. Student did not ask any witness, including his only expert Dr. Passaro, any question regarding appropriate remedies in this case. Student did not ask Dr. Passaro what type of compensatory education or services, if any, Student might require if the ALJ found that Student would have qualified for special education earlier than the District so found. Nor did Student put into evidence the rational for his parents’ decision to contract with Dr. Passaro for an evaluation or why that evaluation was necessary. Dr. Passaro never described his fees for the assessment and Student has not put Dr. Passaro’s invoice into evidence. In his written closing argument, Student briefly states that since Mother acknowledged the appropriateness of the District’s offer in compromise, the terms of that offer should be ordered by the ALJ if she finds in Student’s favor. Student offered no authority in support of his contention that Mother’s acquiescence to an offer in compromise equated to meeting his burden of proof to demonstrate by a preponderance of the evidence that he was entitled to any of the remedies he requested.

LEGAL CONCLUSIONS

Burden of Proof

1. In a special education administrative proceeding, the party seeking relief has the burden of proof. (Schaffer v. Weast (2005) 546 U.S. 49 [126 S.Ct. 528, 163 L.Ed.2d 387] (Schaffer).) Here, Student has brought the complaint and has the burden of proof.

Free Appropriate Public Education

2. Special education law derives from the Individuals with Disabilities Education Act (IDEA or Act). (20 U.S.C. § 1400 et seq.) The IDEA is a comprehensive educational scheme that confers upon the disabled child a substantive right to public education. (Honig v. Doe (1988) 484 U.S. 305, 310 [108 S.Ct. 592, 98 L.Ed.2d 686].) The primary goal of the IDEA is to “ensure that all children with disabilities have available to them a free appropriate public education that emphasizes public education and related services.” (20 U.S.C. § 1400(d)(a)(A); see J.L. v. Mercer Island School Dist. (9th Cir. 2010) 592 F.3d 938, 947.)

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. Psychological services and counseling services are considered related services. (Ed. Code, § 56363, subd. (a).)

A School District’s Child Find Obligations

4. A school district is required to actively and systematically seek out, identify, locate, and evaluate all children with disabilities, including homeless children, wards of the state, and children attending private schools, who are in need of special education and related services, regardless of the severity of the disability, including those individuals advancing from grade to grade. (20 U.S.C. §1412(a)(3)(A); Ed. Code, §§ 56171, 56301, subds. (a) and (b).) This duty to seek and serve children with disabilities is known as “child find.” “The purpose of the child-find evaluation is to provide access to special education.” (Fitzgerald v. Camdenton R-III School District (8th Cir. 2006) 439 F.3d 773, 776.) A district’s child find obligation toward a specific child is triggered when there is reason to suspect a disability and reason to suspect that special education services may be needed to address that disability. (Dept. of Education, State of Hawaii v. Cari Rae S. (D. Hawaii 2001) 158 F.Supp.2d 1190, 1194. (Cari Rae).) The threshold for suspecting that a child has a disability is relatively low. (Id. at p. 1195.) A district’s appropriate inquiry is whether the child should be referred for an evaluation, not whether the child actually qualifies for services. (Ibid.) The actions of a school district with respect to whether it had knowledge of, or reason to suspect a disability, must be evaluated in light of information that the district knew, or had reason to know, at the relevant time. It is not based upon hindsight. (Adams v. State of Oregon (9th Cir. 1999) 195 F.3d at p. 1149 (citing Fuhrmann v. East Hanover Bd. of Educ. (3rd Cir. 1993) 993 F.2d 1031).) However, later evidence, such as assessments, may be used to supplement the record if the evidence is relevant, non-cumulative, and otherwise admissible. (E.M. v. Pajaro Valley Unified School District (9th Cir. 2011) 652 F. 3d 999, 1005.)

5. California law specifically incorporates child find in Education Code section 56301, subdivision (a). The IDEA and the California Education Code do not specify which activities are sufficient to meet a school district’s child find obligation, and there is no requirement that a school district directly notify every household within its boundaries about child find. However, California law obligates the SELPA to establish written policies and procedures for use by its constituent local agencies for a continuous child find policy. (Ed. Code, § 56301, subd.(d)(1).)

6. The school district’s child find duty is not dependent on any request by the parent for special education testing or services (Reid ex rel. Reid v. Dist. of Columbia (D.C. Cir. 2005) 401 F.3d 516, 518 (Reid) and is not dependent on any action or inaction by parents. (34 C.F.R 300.111(a); Ed. Code, § 56301). ¹²

7. The child-find obligations apply to children who are suspected of having a disability and being in need of special education, even if they are advancing from grade to grade. (34 C.F.R. § 300.125(a)(2)(ii).) Concomitantly, failing grades alone do not necessarily establish that a district has failed in its child find obligation or that it failed to provide an educational benefit to a student. (See Sherman v. Mamaroneck Union Free Sch. Dist. (2nd Cir. 2003) 340 F.3d 87, 93; Mather v. Hartford Sch. Dist. (D. Vt. 1996) 928 F.Supp. 437, 446; Las Virgenes Unified School District v. Student (2004) SEHO Case No. SN-01160.)

8. Federal law, as well as California law, defines an individual with exceptional needs as one, who, because of a disability requires instruction and services which cannot be provided with the modification of the regular school program in order to ensure that the child is provided a FAPE. (Ed. Code, § 56026, subd. (b).) However, a school district is required to refer a student with a disability for special education and related services only after the resources of the regular education program have been considered, and where appropriate, utilized. (Ed. Code, § 56303.) Therefore, when determined on a case-by-case basis, a school district may utilize the resources of general education before referring a child for a special education assessment.

9. Nonetheless, a school district’s pursuit of general education interventions may not be used to unreasonably delay the special education assessment process. (Johnson v. Upland Unified School Dist. (2002) 26 Fed.Appx. 689, 690-691 [nonpub. opn.].) A school district may still violate its child find duties by continuing to provide unsuccessful interventions rather than evaluating the child’s need for special education and related services.

Determination of Issue One: Did the District Fail in its Child Find Obligations to Student in the Two Years Prior to his Filing his Complaint on March 26, 2012?

A. The District did not Fail to Meet its Child Find Obligations to Student between March 2010 and the beginning of the 2011-2012 school year

10. Student first contends that the District should have assessed him at some time after March 26, 2010 (two years prior to the time Student filed his complaint in this case) but in any case no later than just after holding its 504 plan meeting for Student on September 22, 2011. The District contends that it had no notice up until it assessed Student in spring 2012 that Student might qualify for special education and thus had no reason to assess him before that time.

11. As indicated in Factual Findings 2-38, prior to the start of the 2011-2012 school year, the District had no reason to believe that an assessment was warranted for Student. While Student had some difficulty focusing in class and completing his homework, there was nothing with regard to Student’s behavior in class or his grades that was unusual for a child his age or cognitive level. Student’s grades were satisfactory, his standardized test scores were satisfactory, and neither showed any abrupt decreases from testing period to testing period. Mother did not inform District staff of any unique efforts she was making to assist Student. Her communications with District staff indicated an involved parent who monitored her son’s schoolwork and who strove to assure that he would be on task. There was no indication that Mother actually had to complete Student’s assignments. There was no indication that he had unique issues with attention. There was no indication that Student was demonstrating anxiety about any issues at home or in class. (Legal Conclusions 1-9.)

12. Although Student posits that his attention deficit issues were evident enough to warrant assessment during this time period, the evidence does not support his contention. During the second half of Student’s eighth grade and during his ninth grade, each of Student’s teachers responded positively to Mother’s request for assistance. Student presented as did many of his male peers. He was sometimes off-task and distracted, but could be focused with minor interventions by his teachers. Each teacher made accommodations for Student in the classroom and/or with regard to his submission of school work. The interventions succeeded in most cases. The only exception was in Algebra in ninth grade, which Student almost failed. However, Student had had significant difficulty with Algebra and math in general for many years. Moreover, as stated by Student’s ninth grade Algebra teacher Mr. Rollerson, the majority of the pupils in Student’s class that year had the same difficulties. Student’s final grade of a “D-” was in line with the class average. Student presented no evidence to contradict Mr. Rollerson’s testimony or support a contention that he would have achieved higher grades had he had special education interventions. (Factual Findings 2-38; Legal Conclusions 1-12.)

13. Student’s emphasis at hearing that his tutor Ms. Hutchings had initially intended to recommend a 504 plan for Student in eighth grade but then failed to follow through with it is misplaced. OAH has no jurisdiction over 504 plans. Therefore, whether Ms. Hutchings or the District should have referred Student for a 504 assessment is irrelevant to the instant proceedings.

14. Nor did Student present sufficient evidence that the District should have assessed him during this period due to his anxiety. The first interchange between the District and Mother with regard to any issue concerning Student’s possible anxiety was in late March 2011. At that time, Amber Houston, Student’s teacher for AVID, began an email exchange with Mother concerning Student’s disengagement in class and the fact that he had begun to appear angry without reason. Mother told Ms. Houston that she thought Student’s disengagement was due to his continued struggles with math. Mother made no specific mention of anxiety. Nor is there any evidence that Student mentioned to any District staff member that he felt anxious about anything. Student successfully completed his AVID class with a “B” for the semester. There was no evidence presented that Student or Mother discussed any possible manifestations of anxiety by Student with any other District personnel during this time. (Factual Findings 2-41; Legal Conclusions 1-14.)

15. Student apparently had been having emotional outbursts at home during his ninth grade year, but these were not communicated to anyone at the District until early June 2011, after Student had an anxiety attack in his Spanish class. It was only after this incident that Mother informed Ms. Jespersen and Ms. Holley that she had already made an appointment for Student to see an adolescent psychologist. By the time Mother communicated with Student’s teachers that the psychologist had diagnosed Student with anxiety and possible ADD, the school year was within a week of concluding. There was no time or reason for the District to have initiated an assessment in the short period before the semester ended. In any case, Student has not provided authority for his contention that a diagnosis of anxiety, without more, is sufficient basis for finding that a school district should have assessed a child. Student has therefore failed to meet his burden of proof that the District should have assessed him prior to the end of the 2010-2011 school year. (Factual Findings 1-60; Legal Conclusions 1-15.)

B. The District Should Have Assessed Student Shortly After Holding Student’s 504 Plan Meeting on September 22, 2011

16. Student had a complete emotional breakdown, or manic break, on August 3, 2011, during which he attempted to commit suicide. As a result, Student required a psychiatric hospitalization. The District became aware of this when Mother discussed what had occurred with Ms. Yee and Mr. Nasouf right before the beginning of the 2011-2012 school year. Although Mother and Student’s mental health providers did not give any further specifics of Student’s deteriorating mental health, Mother did discuss with the 504 team the fact that Student had attempted suicide and the fact that one of his prescribed medications was directed at controlling his moods. Unfortunately, the 504 team focused not on the information regarding Student’s suicide and possible mental health needs but on his anxiety and ADD.

17. Both Dr. Passaro and Ms. Kwak later concluded at almost the same point in time that Student suffered from an emotional disturbance for which he required special education intervention. Where they differ, and what is at the heart of the instant hearing, is whether Student should have been referred for an assessment around the time the District held his 504 plan meeting, and, if so, whether Student would have been found emotionally disturbed had he been assessed at the time.

18. As detailed above, Dr. Passaro believes that the District should have started the assessment process for Student after his 504 plan meeting. That process would have included discussions with Student’s mental health providers. The information Dr. Litzinger and Dr. Polachek would have provided would have prompted the District to initiate a full assessment of Student and determining that he qualified for special education under the category of emotionally disturbed.

19. Ms. Kwak disagrees. She opined at hearing that Student’s suicide attempt and resulting hospitalization were not events that should have triggered a referral for assessment. In this, Dr. Passaro’s position is the more persuasive. First, Ms. Kwak was not aware of the extent of Student’s history of anxiety the year before or of his leaving class due to anxiety in the weeks leading up to his 504 plan meeting. Her opinion was therefore made in the vacuum of only considering the suicide attempt and Student’s subsequent hospitalization. When Student’s history of anxiety, later suicide attempt and hospitalization, and continued manifestations of anxiety at school only weeks after being released from the hospital are viewed as a continuum, the conclusion can only be that the District, by the time the 504 plan meeting concluded, had enough information to suspect that Student might have a disability. As stated in Legal Conclusion 4, the threshold for determining whether a student should be assessed is a low one. The facts of this case, viewed in the continuum of events from June 2011 to the September 22, 2011 504 meeting, meet the minimal threshold described in Cari Rae, supra, 158 F.Supp.2d at p. 1194. (Factual Findings 39-82; Legal Conclusions 14-19.)

20. Ms. Kwak’s suggestion at hearing that Student’s suicide attempt and resulting hospitalization were not significant events is also not persuasive. The facts of the instant case are somewhat similar, though not as egregious, as the facts in N.G. v. District of Columbia (D.C.C. 2008) 556 F.Supp.2d 11 (N.G.). In N.G., the student had attempted suicide once in ninth grade. In 10th grade, after continuing to do poorly in school, N.G.’s parents had her evaluated by a psychologist who did not make any specific diagnoses, but did report symptoms of ADHD. The school district did not act on the report. N.G.’s parents then had her re-evaluated by a clinical psychologist who diagnosed N.G. with ADHD and major depression. N.G. then began treatments with the psychologist and later a psychiatrist who diagnosed N.G. also with mood disorder. The psychiatrist also began prescribing medications for N.G. Later, during a therapy session, N.G. voiced suicidal intent. Her psychologist immediately recommended N.G. be hospitalized. Upon discharging N.G., the hospital doctors recommended that she be given accommodations at school. N.G.’s father then requested that the school initiate a 504 plan for her, as later did N.G.’s treating psychologist. When the District failed to implement a 504 plan, N.G.’s parents unilaterally placed her at a private school. They later requested their school district to assess N.G. for special education. The district finally assessed N.G., but found her ineligible for services. N.G.’s parents filed for due process. After the hearing officer found in favor of the school district, N.G. appealed the hearing officer’s decision to the district court.

21. The district court overturned the hearing officer’s decision. The court found that the school district had been put on notice that N.G. might be a child with a disability because it had been informed of N.G.’s diagnoses of ADHD and major depression. The court stated “it goes without saying that attempted suicide is “inappropriate behavior.” (N.G., supra, 556 F.Supp.2d. at p. 27.) The court found that it was N.G.’s ADHD, depression, and hospitalization for suicidal ideation that put the school district on notice that it should have assessed N.G. at the time it received the information form N.G’s psychologist and from her parents.

22. The court also rejected the school district’s argument that N.G.’s doctor and parents had only requested that the district provide N.G. with a 504 plan and that, therefore, the school district was not on notice that it should have assessed N.G. for purposes of special education. The court cited to the case of Scott v. District of Columbia (D.C.C. 2006) 2006 WL 1102839, which had found that a parent’s acceptance of the use of alternative strategies did not relieve a school district of its obligations to comply with child find. The court in N.G. stated:

This argument is absurd and completely undermines the purpose of Child Find. Under Defendants’ interpretation, a school district could excuse itself from the obligation to evaluate students merely because parents or therapists had suggested additional, alternative ways to accommodate the child. This is clearly not what Congress intended by imposing an affirmative obligation upon school districts to identify, evaluate, and place potentially disabled students . . . .

(N.G., supra, 556 F.Supp.2d at p. 29.)

23. For these reasons, the ALJ finds Ms. Kwak’s position unpersuasive. Rather, the ALJ finds Dr. Passaro’s conclusions persuasive that the totality of the circumstances, including the District’s knowledge of Student’s history of anxiety at school, diagnosis of ADHD, anxiety, and mood disorder, prescribed medications for mood disorder and anxiety, his continued need to leave class during the weeks before his 504 meeting, coupled with his suicide attempt and resulting psychiatric hospitalization, put the District on sufficient notice that Student might have a disability. Student has met his burden of proof that the District should have initiated an assessment of him at or shortly after Student’s 504 plan meeting on September 22, 2011. (Factual Findings 1-82; Legal Conclusions 1-23.)

Determination of Issue 2: The District Denied Student a FAPE because it Failed to Begin to Assess him after Student’s 504 Meeting. Had the District Assessed Student, it Would Have Found him Eligible for Special Education under the Category of Emotionally Disturbed

24. The Supreme Court established a two-part test to determine whether an educational agency has provided a FAPE for a disabled child. “First, has the State complied with the procedures set forth in the Act? And, second, is the individualized education program [IEP] developed through the Act’s procedures reasonably calculated to enable the child to receive educational benefits?” (Board of Educ. of the Hendrick Hudson Central School Dist. v. Rowley (1982) 458 U.S. 176, 206-207 [102 S.Ct. 3034, 73 L.Ed.2d 690]) “If these requirements are met, the State has complied with the obligations imposed by Congress and the courts can require no more.” (Id. at p. 207.)

25. However, “Procedural flaws in the IEP process do not always amount to the denial of FAPE.” (L.M. v. Capistrano Unified School Dist. (9th Cir. 2009) 556 F.3d 900, 909.) A violation of procedure amounts to a denial of FAPE only when the oversight (1) impeded the child’s right to a FAPE, (2) significantly impeded the parent’s opportunity to participate in the decision-making process regarding the provision of a FAPE, or (3) caused a deprivation of educational benefit. (20 U.S.C. § 1415(f)(3)(E); 34 C.F.R. § 300.513(a)(2); Ed. Code, § 56505, subd. (f)(2).) Violations of child find, and of the obligation to assess a student, are procedural violations of the IDEA and the Education Code. (Cari Rae, supra, 158 F.Supp. 2d at p. 1196; Park v. Anaheim Union High School District (9th Cir. 2006) 464 F.3d 1025, 1031.)

26. A student may be eligible for special education and related services under the disability category of ED if the following conditions are met. Because of ED, a pupil must exhibit one or more of the following characteristics over a long period of time, and to a marked degree, which adversely affect educational performance. (Ed. Code, § 56026, subds. (a) & (b); Cal. Code Regs., tit. 5, § 3030, subd. (i).)

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; or
5. A tendency to develop physical symptoms or fears associated with
   personal or school problems.

27. Special education law does not define the emotional disturbance limitations of “a long period of time,” ¹³ or “to a marked degree.” ¹⁴ The Office of Special Education Programs (OSEP) has stated that “a long period of time” within the meaning of the definition is a range of time from two to nine months. OSEP has also stated that “to a marked degree” generally refers to the frequency, duration or intensity of a student’s emotionally disturbed behavior in comparison to the behavior of his peers and/or school and community norms. (Letter to Anonymous, 213 IDELR 247, 213 LRP 9338 (OSEP 1989).)

28. The inquiry in this case therefore does not end with the finding that the District should have assessed Student shortly after September 22, 2011. The issue is whether the District would have found Student eligible for special education had it assessed him some six months before it did. Dr. Passaro believes that although the District’s 504 plan would have addressed Student’s needs if those needs were confined to attention and anxiety issues, the plan was not adequate to address Student’s mental health needs. Dr. Passaro believes that once the District started the assessment process by contacting Student’s mental health providers, the District would have found Student eligible for special education at least as an emotionally disturbed student, based on Student’s breakdown and attempted suicide on August 3, 2011, along with information that the District would have obtained from Student’s doctors. (Factual Findings 88-97.)

29. Ms. Kwak disagrees. She contends that it was only Student’s removal from Kennedy and placement at the community day school which acted as the impetus for Student’s mental health to deteriorate to a point where he qualified as ED. However, Ms. Kwak’s assessment itself does not support her position. (Factual Findings 98-117.)

30. In late April 2012, Ms. Kwak determined that Student met the criteria for ED. However, the information upon which she based her determination that Student met the criteria for ED eligibility was gathered primarily from teachers who had only instructed Student during the fall semester of the 2011-2012 school year. In fact, Ms. Kwak only gave the BASC scales to Student’s teachers from Kennedy; none of the community day teachers were apparently asked to complete it. The information from the Kennedy teachers indicated that in the months before Student was removed from Kennedy, he displayed maladaptive behaviors that were in the clinically significant range. The testimony at hearing from these teachers (aside from Sibley, who did not testify at either hearing) was that all of the areas which they saw as clinically significant or at risk were present during the first few months of the 2011-2012 school year, during which time the District would have been assessing Student had it initiated the process at or shortly after the 504 plan meeting. (Factual Findings 98-117; Legal Conclusions 24-30.)

31. Ms. Kwak additionally had Student’s teachers complete the scales for the SAED assessment. As discussed above, only Student’s former teachers at Kennedy indicated that they found him indicative of emotional disturbance in any of the five statutory areas; Student’s present teachers found none of Student’s behaviors indicative of ED. Therefore, the logical extrapolation is that Student’s teachers at Kennedy would have also found that Student displayed characteristics indicative of ED had they completed the SAED six months before they were asked to do so since they were not instructing him at the time of Ms. Kwak’s assessment. (Factual Findings 98-117.)

32. Ms. Kwak found that Student qualified for ED because he displayed a general pervasive mood of unhappiness or depression. She based this finding on the fact that Student had been hospitalized for suicidal ideation, that he had been diagnosed with ADHD, major depressive disorder, anxiety disorder not otherwise specified, and intermittent explosive disorder. She indicated that behaviors associated with depression had been observed both at home and at school. She indicated that Student was taking prescription medications. In each case, the information regarding these factors had either been made available to the District by September 22, 2011, or would have been made available to it during the assessment process.

33. Ms. Kwak’s position is further weakened by the fact that she did not base her assessment recommendation that Student qualified for ED on the fact that his mental health had deteriorated solely because he had been removed from Kennedy due to his attempted drug purchase. Certainly, if Student’s removal from Kennedy had the significance Ms. Kwak attributed to it at hearing, it would have figured more prominently in her report as the basis for her finding of Student’s eligibility under the ED category.

34. The District argues that Student would not have met the criteria for ED because as of September 2011, the symptoms of his depression had not existed for a long period of time and to a marked degree. The District contends that the symptoms must have existed for at least six months. Even had the District’s assessment taken a full two months to complete, the District posits that as of early December, Student would have only been exhibiting signs of depression for some four months. However, as stated above, the District’s position is not supported by OSEP or the California Department of Education, both of which have found that much shorter time periods apply to children, like Student here, who have experienced depression or other significant mood disorders. (Factual Findings 42-117; Legal Conclusions 24-34.)

35. Student has therefore met his burden of persuasion that the District would have found him eligible for special education at least as an emotionally disturbed student, had the District initiated an assessment of Student shortly after his 504 plan meeting on September 22, 2011. Because the ALJ finds that Student would have been found eligible under ED, it is unnecessary to determine if the District would also have found him eligible under OHI. (Factual Findings 42-117; Legal Conclusions 24-35.)

Remedies

36. School districts may be ordered to provide compensatory education or additional services to a student who has been denied a free appropriate public education. (Student W. v. Puyallup School District (9th Cir. 1994) 31 F.3d 1489, 1496.) The conduct of both parties must be reviewed and considered to determine whether relief is appropriate. (Ibid.) These are equitable remedies that courts may employ to craft “appropriate relief” for a party. An award of compensatory education 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, supra, 401 F.3d at p. 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.)

37. In her Order Following Prehearing Conference of January 7, 2013, the undersigned ALJ reiterated to Student that it was his burden to provide evidence of the type, amount, duration, and need for any requested compensatory education, or the need for any other remedy requested. In his closing brief, Student requests that the ALJ order the District to provide Student with 80 hours of compensatory education in the form of tutoring (it is unclear for what subjects); 20 hours of additional counseling sessions, and that the ALJ order the District to reimburse Student’s parents for the cost of Dr. Passaro’s assessment. The only basis for Student’s request is the District’s offer of compromise made prior to the initiation of this hearing. The District’s offer, however, is not evidence of whether Student requires compensatory education and, if so, what the type, duration, or frequency should be. Nor does Mother’s agreement that the District’s offer is adequate provide any basis for the remedies requested. (Factual Findings 122-127; Legal Conclusions 36-37.)

38. Student failed at hearing to put on any testimony of what type of remedy he should be awarded if he prevailed at hearing. Student did not ask any witness, let alone his expert, Dr. Passaro, what the remedy should be and the basis for any such award. Nor has Student provided any documentary evidence in support of his request for remedy. It is somewhat contradictory for Student to have opposed the District’s motion to dismiss on the grounds that he had not accepted the District’s offer, and then argue that he is entitled to a remedy merely because the District made the offer in compromise in order to settle the matter and avoid the necessity of a hearing. (Factual Findings 122-127.)

39. The ALJ is mindful of the fact that a failure to assess a student who would have been found eligible for special education generally means that the student was denied a FAPE because that student was prevented from receiving necessary instruction and/or services by the failure to find him or her eligible. (Legal Conclusions 24-25.) The question here is how to devise a remedy given Student’s failure to provide a concrete basis for one. The ALJ has reviewed the testimony at both hearings; none of the witnesses provided a basis for an award of compensatory education. A review of Dr. Passaro’s assessment report, however, provides some basis for finding that Student is entitled to compensatory counseling services. Dr. Passaro’s assessment finds that Student required therapeutic interventions in the form of counseling. The District ultimately assessed Student, found him eligible for special education as emotionally disturbed and under the category of OHI, and offered Student counseling sessions two times a month for 30 minutes a session. ¹⁵ Mother accepted the offer of counseling. This is the only evidence of the extent to which Student required intervention to address his ED. Therefore, had Student been assessed and found eligible for special education six months prior to the date Ms. Kwak started her assessment, it is logical to extrapolate that the District would have offered the same type and amount of counseling services. Based on applying equitable principles to this case, it is appropriate to order the District to provide Student with six hours of compensatory counseling services by a school psychologist either before or after school, or during Student’s lunch period, to compensate Student for the loss of services he would have received had he been assessed during or shortly after his 504 plan meeting on September 22, 2011.

40. Ms. Kwak did not make any recommendations for services for Student in her assessment although she found that he qualified for special education under ED and OHI. Therefore, it is likely that Dr. Passaro’s assessment aided Student’s IEP team in reaching its determination that Student qualified for special education as emotionally disturbed and needed therapeutic counseling intervention. Given the breadth of Dr. Passaro’s assessment, it is logical to find that his in-depth report also assisted the IEP team in determining that Student should be referred to the Orange County Health Care Agency for further testing and/or services. The ALJ shall therefore order that the District reimburse Student’s parents for the cost of Dr. Passaro’s assessment. (Factual Findings 88-117; Legal Conclusions 3640.)

41. However, there is simply no basis in the record for Student’s request for 80 hours of compensatory education in unidentified subject areas. Student passed all of his courses in ninth grade. He passed all of his courses the first semester of 10th grade. Student’s schooling for the second semester of 10th grade (spring of the 2011-2012 school year) is not at issue in the present matter. Dr. Passaro does not address the need for any compensatory education in his assessment report. Dr. Passaro did not believe that Student’s placement at the community day school was appropriate. He gave recommendations as to what type of instruction he believed was appropriate for Student. However, Dr. Passaro was addressing a school placement not at issue in the instant case. Further, Dr. Passaro does not state in his report and did not state at hearing that Student requires compensatory education in order to remedy the District’s failure to find Student eligible for special education in the fall of 2011. Significantly, Dr. Passaro testified that he did not believe that Student’s grades were an issue in his determination that Student should have been assessed earlier. Rather, Dr. Passaro reiterated frequently during his testimony that it was Student’s mental health issues and need for mental health interventions that prompted his disagreement with the District’s decision that Student only required a 504 plan during the first half of the 20112012 school year. Student has therefore failed to meet his burden of persuasion that he is entitled to 80 hours of compensatory education in the form of after school tutoring to remedy the District’s failure to assess him and find him eligible for special education in the fall of 2011. (Factual Findings 1-127; Legal Conclusions 24-41.)

42. In conclusion, Student has met his burden of persuasion that the District failed in its child find obligations to him. The District should have assessed Student for special education eligibility shortly after September 22, 2011, when the District held its 504 plan meeting for Student. Had the District assessed Student at that time, it would have found Student eligible at least under the category of emotional disturbance. For its failure to assess Student and find him eligible six months before it did so find, the District will be ordered to provide Student with six hours of counseling services in addition to those hours already provided to Student under his IEP or under any other auspices. The District will also be ordered to reimburse Student’s parents for the costs of Dr. Passaro’s assessment. (Factual Findings 1-127; Legal Conclusions 1-42.)

ORDER

1. The District shall provide Student with six hours of individual counseling by a school psychologist or other credentialed mental health professional in addition to any counseling that Student is already receiving through his IEP, or through other agencies or his private mental health providers. The District shall provide the hours either before or after school, or during Student’s lunch hour or study hall period, at Student’s election. Student may elect to receive the sessions either in 30 minute or 60 minute increments. The District shall provide the hours over a period of time not to exceed six months from the date of this Order, excluding the District’s summer break.
2. Within 45 days of the date of this Order, the District shall reimburse Student’s parents for the cost of Dr. Passaro’s assessment.
3. All other relief requested by Student 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: Student prevailed on both issues heard and decided in the non-expedited portion of this case.

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 in accordance with Education Code section 56505, subdivision (k).

Dated: March 20, 2013

DARRELL LEPKOWSKY
Administrative Law Judge
Office of Administrative Hearings

BEFORE THE
OFFICE OF ADMINISTRATIVE HEARINGS
STATE OF CALIFORNIA

In the Matter of:
CUCAMONGA SCHOOL DISTRICT,
v.
PARENT ON BEHALF OF STUDENT.

OAH CASE NO. 2012100561

DECISION

Carla L. Garrett, Administrative Law Judge (ALJ), Office of Administrative Hearings (OAH), heard this matter on December 5, 2012, in Rancho Cucamonga, California.

Karen Gilyard, Attorney at Law from the law firm of Atkinson, Andelson, Loya, Rudd & Romo (Atkinson), represented the Cucamonga School District (District). District representative, Richard Dahlin, Director of Personnel and Pupil Services, attended the hearing, as well as Amy Foody, Program Manager of the West End Special Education Local Plan Area (SELPA). In addition, Kristin Myers, Attorney at Law from Atkinson, attended the hearing for observational purposes only.

Student’s mother (Mother) attended the hearing and represented Student. Student’s grandmother also attended the hearing.

District filed its request for due process hearing (complaint) on October 12, 2012. On October 26, 2012, for good cause shown, OAH granted the parties’ joint request for continuance.

On December 5, 2012, at the close of the hearing, the parties were granted an additional continuance to file written closing arguments by December 19, 2012. Upon the timely receipt of District’s written closing argument, the record was closed and the matter was submitted. Mother failed to file a written closing argument on Student’s behalf.

ISSUE

Does District have the right to perform triennial assessments of Student, pursuant to an August 29, 2012 assessment plan, to determine Student’s educational program, including related services, without parental consent?

FACTUAL FINDINGS

Jurisdiction and Background Information

1. Student is an African-American nine-year-old boy, who, at all relevant times, resided within the boundaries of the District. Student is eligible for special education under the primary eligibility category of autistic-like behaviors, and the secondary category of speech or language impairment. Student currently attends the Ontario Center School (Ontario Center) in District and is in the third grade. He spends the majority of his school day in a general education setting and receives resource support, as well as speech and language therapy.

2. On October 29, 2009, when Student was in kindergarten, District conducted formal assessments of Student, which his individualized educational program (IEP) team used to determine his placement and related services. Student was due to be assessed again in three years (i.e., triennial assessment), by October 29, 2012.

3. On August 21, 2012, Student’s resource specialist teacher, Lisa Baltierra, placed in Student’s backpack an assessment plan prepared by District’s school psychologist, Andria Leahy. The purpose of the assessment plan was to set forth areas designated for Student’s triennial assessment. Specifically, the assessment plan proposed that District’s special education teacher would assess Student in the area of academic/pre-academic achievement, and explained that the assessments would measure basic reading and comprehension, written expression, math calculation and reasoning, oral expression and/or listening comprehension. The plan also provided that the speech and language pathologist would assess in the area of language, speech, and communication development. The plan explained the tests would measure Student’s ability to understand, relate to, and use language and speech clearly and appropriately, and would measure auditory processing skills. In addition, the plan provided the nurse would assess in the areas of health, vision, and hearing. The plan noted the tests would measure vision, low vision, hearing, health, developmental history, medial history, and would include a review of medical records. Finally, the plan proposed that the school psychologist would assess in the areas of psycho-motor development, social-emotional functioning, self-help, career, and vocational abilities. The plan explained that in the area of psycho-motor development, the school psychologist would measure Student’s ability to coordinate body movements in both small and large activities, as well as visual perceptual skills. In the area of social-emotional functioning, the plan explained the school psychologist would measure Student’s ability to build and maintain satisfactory relationships and demonstrate appropriate behavior across situations. In the area of self-help, career, and vocational abilities, the plan described that the school psychologist would measure Student’s daily living skills and adaptive functioning across different settings, as well as measure Student’s interest and abilities relative to levels of skill development, work readiness, and/or occupational preparation. The plan also stated that parents’ consent was necessary to assess Student.

4. In addition to the assessment plan, Ms. Baltierra included in Student’s backpack a notice of procedural safeguards, as well as forms for Mother to complete. Specifically, she included a parent interview form, a developmental history form, a nurse’s health and developmental history form, a parent form for the Childhood Autism Rating Scale (CARS), a parent rating scale for the Behavior Assessment System for Children, Second Edition (BASC-2), and a parent form for the Adaptive Behavior Assessment System, Second Edition (ABAS-II).

5. On the same day, Ms. Baltierra sent Mother an email advising that Student’s backpack contained the assessment plan, and requested that Mother sign it and return it to school.

6. School psychologist, Andria Leahy, testified at hearing. Ms. Leahy has been employed with District since July 2012 as the coordinator of special education, as well as a school psychologist. Ms. Leahy received her associate’s degree in fine arts from Citrus College in 1995, her bachelor’s degree in liberal studies from California State Polytechnic University in 1997, and her multiple subject credential from California State University at Long Beach in 1998. Ms. Leahy earned her master’s degree in educational psychology from Azusa Pacific University in 2002, and her pupil personnel credential in 2010. She also has a Cross-cultural Language and Academic Development (CLAD) certificate, authorizing her to teach students of multicultural backgrounds. She has worked as a school psychologist since 2009, and from 2010 to 2012 she worked as a clinical case supervisor for an applied behavior agency. From 1997-2009, prior to working as a school psychologist she was a general education teacher.

7. District requested Ms. Leahy to assess Student in the areas of psychomotor development, social-emotional functioning, self-help, career, and vocational abilities for his 2012 triennial assessment. She had planned to use a number of instruments to assess Student. Specifically, she had planned to administer the Wide Range Assessment of Memory and Learning, Second Edition (WRAML-2), the Test of Auditory Processing Skills, Third Edition (TAPS-3), the Beery-Buktenica Developmental Test of Visual-Motor Integration, Sixth Edition (Beery VMI-6), the BASC-2, the CARS, and the ABAS-II. She also planned to review Student’s work samples, classroom work, and planned to conduct observations in the classroom and during physical education class. During the course of her career as a school psychologist, Ms. Leahy has assessed 200 to 300 children, including 25 to 50 African-American children. In addition, she has administered the WRAML-2 50 to 75 times, the TAPS-3 approximately 200 times, the Beery VMI-6 200 to 250 times, the BASC2 75 to 100 times, and the CARS and the ABAS-II approximately 50 times each. None of these tests was designed to measure intellectual ability, intelligence, aptitude, mental age, cognition, or was designed to correlate with an intelligence quotient (I.Q.) test. In addition, these tests were not on the prohibitive or caution lists distributed by the California Association of School Psychologists, which identified tests that measured, used, or could potentially use I.Q. data when calculating assessment results.

8. Ms. Baltierra testified at hearing. She has been employed by District for 15 years, five of those years a resource specialist, and the balance as a general education teacher. Ms. Baltierra received her associate’s degree from Fullerton College in theatre arts in 1990, her bachelor’s degree in social sciences from Chapman University in 1996, and her master’s degree in education from Chapman University in 2005. She earned a multiple subject teaching credential, as well as her special education teaching credential. District requested Ms. Baltierra to assess Student’s academic achievement for his triennial assessment. Ms. Baltierra planned to administer the Woodcock Johnson III Tests of Achievement (WJ-III), which was a test designed to test all core areas of academics. The WJ-III was designed to compare one student’s achievement against the achievement of other students of the same grade and subject matter. The test was normed for all students, including African-Americans, and was not used to measure I.Q.. Ms. Baltierra has administered the WJ-III in excess of 100 times.

9. Language, speech, and hearing specialist Kathleen Coles testified at hearing. Ms. Coles has been employed with District for seven years, the first three of those years as a sixth grade teacher, and from August 2008 to May 2012 as a language, speech, and hearing specialist. She earned her bachelor’s degree in liberal studies from the University of La Verne in 1994, and her master’s degree in education from Azusa Pacific University in 1997. She earned her teaching credential in 2000 from Chapman University. She also obtained a master’s degree in communication disorders from California State University at Northridge in 2012. She received her preliminary credential in speech and language in July 2012, and previously held a waiver credential from August 2008 through July 2012.

10. Ms. Coles had provided speech and languages services for Student for the past two years, and had been requested by District to conduct a speech assessment of Student for his 2012 triennial assessment. Student had not had his language skills formally assessed for over three years, and Ms. Coles believed District needed more current and relevant data. She had planned to administer the Diagnostic Evaluation of Language Variance (DELV), which she had administered 10 times over the course of her career, the Listening Comprehension Test (Second Edition), which she had administered five to 10 times, and the Test of Problem Solving (Third Edition), which she has administered four times. She also planned to use informal measures, such as classroom observations, language samples, and the Slosson Articulation Language Test (SALT), which was a software program that measured various aspects of language (i.e., the number of words per second a person used, the degree of variation, and the degree of reformulation). All of the proposed measures were normed for all children, including African-American children, and none of the proposed measures were culturally biased, designed to measure mental ability, or were associated with any tests related to I.Q.. Ms. Coles believed the DELV was especially appropriate for Student, because the DELV specifically addressed children with language variations, including those found in some African-American children. As such, she planned to look at the results of the assessment to determine whether the results accurately reflected Student’s ability, or whether any language variation was due to his cultural background. She has assessed approximately seven other African American children, and has conducted at least 100 speech and language assessments over the course of her career.

11. District nurse, Victoria Whisler, testified at hearing. Ms. Whisler has been a registered nurse since 1979, and has been a nurse with District for nine years. Ms. Whisler earned her associate’s degree in nursing from Chaffey College, and her bachelor’s degree in health care management from the University of La Verne in 2003. She received her registered nurse license and her school nurse credential in 2007. In her capacity as a District nurse, she has conducted health assessments of more than 1,000 students, at a rate of approximately 130 students per year. District requested Ms. Whisler to conduct a health assessment of Student in connection with his 2012 triennial evaluation. In that regard, Ms. Whisler had planned to test Student’s vision, hearing, blood pressure, fine motor skills, gross motor skills, height, and weight. In addition, Ms. Whisler planned to update Student’s medical history by using information Mother was to provide on the health and developmental history form included with the August 21, 2012 proposed assessment plan.

12. On August 27, 2012, Mother returned the assessment plan to District unsigned. Instead, Mother wrote a note on the assessment plan requesting that District prepare a new assessment plan without any language indicating that a special education teacher would assess Student’s academic achievement, because Student was “not in a special education class.” Mother completed and returned the parent interview form, most of the nurse’s health and developmental history, the parent form of the ABAS-II, and the parent form of the CARS.

13. On August 29, 2012, Ms. Leahy, to appease Mother, sent her an amended assessment plan that indicated that District’s resource specialist would assess Student’s academic achievement, instead of a special education teacher, even though they were one and the same. Ms. Leahy felt Mother would feel more comfortable if a resource specialist were listed on the assessment plan, because Student had been receiving resource support services as part of his educational program. All other areas of the proposed assessment plan remained the same. Ms. Leahy also included a notice of procedural safeguards with the amended assessment plan.

14. On September 20, 2012, Student’s IEP team convened to discuss Mother’s concerns regarding Student’s program for the school year, specifically in the areas of classroom materials, homework, and assessments. The attendees included Mother; Student’s grandmother; Ms. Leahy; Ms. Baltierra; Ms. Coles; the principal of the Ontario Center; Student’s general education teacher; and the director and the case supervisor of Autism Behavior Consultants.

15. At the IEP meeting, District members provided Mother with a list of proposed assessments District intended to use for Student’s 2012 triennial assessment. District members asked Mother regarding the status of her signing the assessment plan, to which Mother responded that she required additional time to review the assessments that would be used. To assist Mother with the decision-making process, Ms. Leahy and Ms. Coles agreed to give Mother the assessment instruments District used to assess Student three years prior, as well as the current assessment tests and/or protocols Ms. Leahy and Ms. Coles planned to use for his 2012 triennial assessments. District members requested that Mother advise Ms. Leahy by September 24, 2012 of her decision regarding the proposed assessment plan.

16. On September 25, 2012, at a parent-teacher conference, Mother advised Ms. Baltierra that she was not going to sign the assessment plan for Student’s triennial evaluation.

17. On September 27, 2012, Richard Dahlin, District’s Director of Personnel and Pupil Services, sent Mother a letter concerning the triennial evaluation. The letter advised that Student’s triennial assessments, which required Mother’s consent, were due on October 29, 2012. Mr. Dahlin also advised that District, pursuant to the Code of Federal Regulations, could seek to override the consent requirement, should Mother refuse to consent to the triennial assessment. Mr. Dahlin requested Mother to notify him by October 1, 2012 whether she would sign the assessment plan provided to her on August 29, 2012, and which was discussed at the September 20, 2012 IEP meeting. Mr. Dahlin’s letter also included a copy of District’s procedural safeguards notice.

18. Mother did not provide Mr. Dahlin with her consent to the assessment plan by October 1, 2012, as he had requested.

19. On October 4, 2012, Mother sent Mr. Dahlin an email advising she did not receive his September 27, 2012 letter until October 2, 2012, and would need time to respond to it. Mother stated she would have an answer to Mr. Dahlin by October 8, 2012.

20. On October 4, 2012, Ms. Leahy sent Mother a letter via U.S. and certified mail, return receipt requested, concerning the parent forms Mother completed and returned on August 27, 2012. Specifically, Ms. Leahy requested Mother to advise her in writing by October 10, 2012 whether she would consent to Ms. Leahy’s review and consideration of the information contained in the parent forms for Student’s triennial IEP meeting, to be held in October 2012. Ms. Leahy advised that if Mother failed to provide a written response concerning the content of the completed forms, District would consider Mother’s non-response as her nonconsent to the review and consideration of the information at Student’s triennial meeting. Ms. Leahy’s letter included a copy of procedural safeguards.

21. On October 9, 2012, Mother sent Mr. Dahlin a letter in response to his September 27, 2012 letter, stating that she decided to opt Student out of “taking further STAR ¹ /Assessment testing,” because Mother believed Student had not received testing accommodations in accordance with his IEP. STAR testing was not an area of testing set forth on the proposed assessment plan. Mother’s letter did not address the assessment plan concerning Student’s triennial evaluation, or any of the proposed testing instruments Ms. Leahy and Ms. Coles had previously provided Mother, and Mother never addressed these issues prior to the filing of District’s complaint. Mother never responded to Ms. Leahy’s letter.

22. Mr. Dahlin testified at hearing. Mr. Dahlin interpreted Mother’s October 9, 2010 letter as a refusal to sign the assessment plan. Mother never signed the assessment plan.

LEGAL CONCLUSIONS

1. District contends it has the right to perform a triennial assessment of Student, pursuant to its August 29, 2012 assessment plan, as it has not conducted any assessments of Student since October 29, 2009. District further contends that its assessment plan was appropriate, and that the assessments were necessary to provide Student with an appropriate placement and related services, as the 2009 assessment data were out of date. Mother disagrees, and contends that the assessment tools proposed by District violated the injunction issued in Larry P. v. Riles (Larry P.) (9th Cir. 1974) 502 F.2d 973, and were, therefore, inappropriate. ² Specifically, Mother argues that all of the proposed tests District intended to administer to Student involved I.Q. testing, which the Larry P. injunction prohibited with respect to African-American students.

Burden of Proof

2. As the petitioning party, District has the burden of persuasion on the issue alleged in District’s complaint. (Schaffer v. Weast (2005) 546 U.S. 49, 56-62 [126 S.Ct. 528, 163 L.Ed.2d 387].)

FAPE

3. Under the IDEA, eligible children with disabilities are entitled to a FAPE, which 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 individualized education program. (See 20 U.S.C. §§ 1400(d), 1401(3), 1401(9), 1401(29), 1412(a); Ed. Code, §§ 56001, 56026, 56040.) “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” (also known as designated instruction and 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).)

Triennial Assessments

4. The IDEA provides for periodic reevaluations to be conducted not more frequently than once a year unless the parents and District agree otherwise, but at least once every three years unless the parent and District agree that a reevaluation is not necessary. (20 U.S.C. § 1414(a)(2)(B); Ed. Code, § 56381, subd. (a)(2).) A reassessment may also be performed if warranted by the child’s educational or related services needs. (20 U.S.C. §1414(a)(2)(A)(i); Ed. Code, § 56381, subd. (a)(1).)

5. Reassessments require parental consent. (20 U.S.C. § 1414(c)(3); Ed. Code, §56381, subd. (f)(1).) In order to start the process of obtaining parental consent for a reassessment, the school district must provide proper notice to the student and his parents. (20 U.S.C. §§ 1414(b)(1), 1415(b)(3) & (c)(1); Ed. Code, §§ 56321, subd. (a), 56381, subd. (a).) The notice consists of the proposed assessment plan and a copy of parental procedural rights under the IDEA and companion state law. (20 U.S.C. §§ 1414(b)(1), 1415(c)(1); Ed. Code, § 56321, subd. (a).) The assessment plan must: appear in a language easily understood by the public and the native language of the student; explain the assessments that the district proposes to conduct; and provide that the district will not implement an IEP without the consent of the parent. (Ed. Code, § 56321, subd. (b)(1)-(4).) The district must give the parents and/or pupil 15 days to review, sign and return the proposed assessment plan. (Ed. Code, § 56321, subd. (a).)

6. 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(a)(3)(i), (c)(ii)(2006); Ed. Code, §§ 56381, subd. (f)(3), 56501, subd. (a)(3).)

7. Parents who want their children to receive special education services must allow reassessment by the district. (Gregory K. v. Longview Sch. Dist. (9thCir. 1987) 811 F.2d 1307, 1315; Dubois v. Conn. State Bd. of Ed. (2d Cir.1984) 727 F.2d 44, 48.)

8. The assessment must be conducted in a way that: 1) uses a variety of assessment tools and strategies to gather relevant functional, developmental, and academic information, including information provided by the parent; 2) does not use any single measure or assessment as the sole criterion for determining whether a child is a child with a disability; and 3) uses technically sound instruments that may assess the relative contribution of cognitive and behavioral factors, in addition to physical or developmental factors. The assessments used must be: 1) selected and administered so as not to be discriminatory on a racial or cultural basis; 2) provided in a language and form most likely to yield accurate information on what the child knows and can do academically, developmentally, and functionally; 3) used for purposes for which the assessments are valid and reliable; 4) administered by trained and knowledgeable personnel; and 5) administered in accordance with any instructions provided by the producer of such assessments. (20 U.S.C. §§ 1414(b) & (c)(5); Ed. Code, §§ 56320, subds. (a) & (b), 56381, subd. (h).) The determination of what tests are required is made based on information known at the time. (See Vasheresse v. Laguna Salada Union School District (N.D. Cal. 2001) 211 F.Supp.2d 1150, 1157-1158 [assessment adequate despite not including speech/language testing where concern prompting assessment was deficit in reading skills].) No single measure, such as a single intelligence quotient, shall be used to determine eligibility or services. (Ed. Code, § 56320, subds. (c) & (e).)

9. Triennial assessments, like initial assessments, must be conducted by individuals who are both “knowledgeable of the student’s disability” and “competent to perform the assessment, as determined by the school district, county office, or special education local plan area.” (Ed. Code, §§ 56320, subd. (g), and 56322; see 20 U.S.C. § 1414(b)(3)(B)(ii).) A psychological assessment must be performed by a credentialed school psychologist. (Ed. Code, § 56324.) A health assessment shall be conducted by a credentialed school nurse or physician who is trained and prepared to assess cultural and ethnic factors appropriate to the pupil being assessed. (Ed. Code, § 56325, subd. (b).)

Larry P. Injunction

10. In Larry P. supra, the Ninth Circuit Court of Appeals enjoined California schools from using standardized intelligence tests for the purpose of identifying African-American students for special education and services. (Larry P. v. Riles (9th Cir. 1974) 502 F.2d 963.) The rationale behind the prohibition was that school districts were finding a disproportionate number of African-American students eligible for special education services under the eligibility category of mental retardation based on intelligence testing.

11. The California Department of Education has also issued a legal advisory prohibiting intelligence or I.Q. testing of African-American students. In 1984, the court expanded the original Larry P. injunction, where the parties stipulated to a settlement which provided a complete ban on the use of I.Q. testing on African-American students for any purpose. (Larry P. v. Riles (9th Cir. 1984) 793 F.2d 969, 984.) Thereafter, in Crawford v. Honig (9th Cir. 1994) 37 F.3d 485, the court held that the Larry P. injunction would not prevent the use of I.Q. testing for purposes other than the identification of African-American students as special education students, particularly where the parent consents to I.Q. testing. Furthermore, regardless of Larry P., the IDEA and the Education Code prohibit the use of discriminatory testing and evaluation materials. (34 C.F.R. § 300.532(a)(1)(i); Ed. Code, § 56320, subd. (a).)

Analysis

12. As was stated in Legal Conclusion 4, District must assess Student every three years, unless an assessment is waived by both District and Student. To override the parental consent requirement for triennial assessments, District must prove that it met all of the statutory requirements of notice to parents and must prove that the proposed assessment plan was appropriate.

13. Here, Student had not been assessed since 2009, when he was a kindergartener, as Mother has refused to provide her consent for District to conduct triennial assessments. The evidence showed that District provided Mother an assessment plan on August 29, 2012 for Student’s triennial assessment due by October 29, 2012, which included an explanation of the proposed assessment areas, as well as identified the District staff who would be administering the assessments. In addition, the August 29, 2012 proposed assessment plan included a copy of Parents’ procedural rights, explained that Mother’s consent was necessary to assess Student, and explained that the District would not implement an IEP without the parent’s consent. However, despite District’s reasonable efforts to obtain it, Mother declined to provide her consent. Specifically, District amended the assessment plan pursuant to Mother’s request, provided her with test protocols and past assessments, wrote her multiple letters, and waited patiently for Mother to provide her consent, namely, six weeks subsequent to its August 29, 2012 assessment plan, before filing its due process complaint.

14. While Mother contends that the tests that District staff had planned to administer to Student, an African-American, violated the Larry P. injunction because the tests purported to involve I.Q. testing, Mother presented no evidence to support this contention. In fact, the evidence showed, through the credible and uncontradicted testimony of Ms. Leahy, Ms. Baltierra, and Ms. Coles, that the tests they proposed to administer were not normed against African-American children, were not culturally biased, were not designed to measure mental ability, were not designed to measure intelligence, and were not associated with any tests related to I.Q.

15. In sum, District was required at a minimum to assess Student every three years. Not only was Student due for a triennial assessment, but the evidence showed, through the credible, uncontradicted testimony of Ms. Leahy, Ms. Coles, and Ms. Whisler, that the assessment was necessary given District’s outdated information. The evidence showed that the District complied with all procedural requirements of the IDEA to conduct the assessments. Thus, District met its burden by a preponderance of the evidence that it is entitled to assess Student under the August 29, 2012 assessment plan without parental consent. (Factual Findings 1 -22; Legal Conclusions 1 -15.)

ORDER

1. The District may assess Student pursuant to the August 29, 2012 assessment plan without parental consent.

2. District shall deliver to Mother by certified mail at her last known address, notice of the dates, times, and locations of the assessments set forth in the August 29, 2012 assessment plan. Mother shall present Student for the assessments on the dates, times, and at the locations set by District.

3. If Mother fails to present Student for the various assessments set forth in the August 29, 2012, assessment plan, District is relieved of its obligation to provide Student a FAPE, and shall not be obligated to provide a FAPE until Mother requests an assessment, consents to the assessment plan the District provides in response to her request, and presents Student for the assessment as set forth in such assessment plan.

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, District prevailed on all issues heard and decided in this matter.

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: January 17, 2013

CARLA L. GARRETT
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.
HOLLISTER SCHOOL DISTRICT,

OAH CASE NO. 2012080366

DECISION

Administrative Law Judge (ALJ) Troy Taira, from the Office of Administrative Hearings (OAH), heard this matter in Hollister, California, on November 27-29, 2012.

Natashe Washington, Attorney at Law, appeared on behalf of Student. Ms. Washington was assisted by Hee J. Kim, Attorney at Law. Student’s mother (Parent) was present during the morning sessions on November 27 and 28, 2012, and was present on November 29, 2012.

Daniel Osher, Attorney at Law, appeared on behalf of Hollister School District (District). Karen Lopes, Special Education Director, was present on behalf of District.

Student filed her due process hearing request (complaint) on August 14, 2012, naming District. OAH granted a continuance on September 25, 2012. At the close of the hearing on November 29, 2012, the matter was continued to December 17, 2012, at the request of the parties for the submission of closing briefs. The parties submitted their closing briefs on December 17, 2012, and the matter submitted for decision. ¹

ISSUES ²

a) Did the District deny Student a FAPE by failing to have a general education teacher at the IEP team meetings on September 16, 2011, and May 22 and July 19, 2012?

b) Does the District’s offer of placement at the May 22 and July 19, 2012 individualized education program (IEP) team meetings provide Student a free appropriate public education (FAPE) in the least restrictive environment (LRE)? ³

c) Did the District deny Student a FAPE from August 2010 to July 2011 and from August 2012 to the present by failing to provide her adequate occupational therapy (OT) services?

PROPOSED RESOLUTIONS

Student requests that District provide Student with a full inclusion placement with appropriate supplementary aids and services, including an independent inclusion specialist experienced in working with students with Down Syndrome; provide Student with a full-time one-to-one aide year round; and provide compensatory education in all areas of need by a non-public agency.

PRELIMINARY MATTERS

At the start of the due process hearing, District stipulated that it did not provide a general education teacher at Student’s IEP team meetings on May 22 and July 19, 2012. District further stipulated that the absence of a general education teacher significantly impeded Parent’s right to participate the decision making process and denied Student a FAPE for the May 22 and July 19, 2012 IEPs.

CONTENTIONS OF THE PARTIES

Student contends that District’s offer of placement for kindergarten in the 2012-2013 school year in a moderate-to-severe special day class (SDC) failed to offer her a FAPE. Student alleges that she obtained satisfactory educational benefit during her preschool in a general education full inclusion program. Student states that with appropriate aides, supports, and services, she can obtain satisfactory educational benefit in a full-time general education setting. Student further contends that District provided OT as a consultation service, instead of direct therapy, and this was inadequate to address her needs. Finally, Student states that District did not have a general education teacher at the IEP team meetings on September 16, 2011, and May 22 and July 19, 2012, which denied Student a FAPE because Parents could not meaningfully participate in Student’s educational decision-making process.

District contends that it offered Student a placement that balances the non-academic benefits of mainstreaming with general education students with her need for intensive academic support. District asserts that Student’s deficits are so severe that a general education curriculum would have extensive modifications, as well as requiring continual and extensive assistance from an aide, to such an extent that she cannot obtain meaningful educational benefit from placement in a full-time general education inclusion setting. District asserts that its moderate-to-severe SDC meets Student’s needs so she can obtain meaningful educational benefit. District contends that it provided appropriate OT services and that its general education teachers, with two exceptions, attended Student’s IEP team meetings, and Parents meaningfully participated in the education decision-making process.

FACTUAL FINDINGS

Jurisdictional and Background

1. Student is a five-year-old girl who lives with Parents within the District’s geographical boundaries. Student attended a District pre-kindergarten SDC at the Early Childhood Education Center (ECE) during the 2011-2012 school year. ⁴ For the 2012-2013 school year, Student attends District’s moderate-to-severe SDC for kindergarten and first grade students. Student has Down Syndrome and is eligible for special education and related services under the category of intellectual disability (ID).

2. Student attended the ECE and participated in both Early Start and Head Start programs during the 2011-2012 school year. Through the ECE, COE operates the Early Start program, a special education preschool program. COE also operates the Head Start program, a comprehensive preschool and social services program for low-income families. Early Start and Head Start are co-located at the ECE. ⁵

3. District’s 2012-2013 school year began August 20, 2012. Student did not attend school until September 4, 2012. She missed approximately two weeks of school and returned to her placement in a moderate-to-severe SDC due to stay put because Parent did not consent to District’s July 19, 2012 placement offer and was uncertain where Student would attend school because of her pending request for a due process hearing. Therefore, Student is not receiving any general education inclusion at this time. Student currently attends a kindergarten through first grade moderate-to-severe SDC. Student’s SDC has seven students with four adults including the teacher. ⁶

4. District scheduled and held an IEP team meeting on September 25, 2012. Parent received notice of the meeting and Ms. Selsor personally invited her to attend. Parent declined to attend because of her pending request for a due process hearing in this matter. Parent did not request or otherwise attempt to reschedule the meeting. The IEP team meeting held on September 25, 2012, included a general education teacher. Parent did not attend the meeting. ⁷

Attendance of a Regular Education Teacher

5. Parents of a child with a disability must have an opportunity to participate in meetings with respect to the identification, assessment, educational placement, and provision of a FAPE to their child. A school district is required to conduct an IEP team meeting that is meaningful. A parent has meaningfully participated in the development of an IEP when the parent is informed of the child’s problems, attends the IEP team meeting, expresses agreement or disagreement regarding the IEP team’s conclusions, and school district considers any request to revise the IEP. Procedural violations result in a denial of FAPE if the violation: (1) impeded the child’s right to a FAPE; (2) significantly impeded the parent’s opportunity to participate in the decision-making process; or (3) caused a deprivation of educational benefit.

6. An IEP team must include a regular education teacher of the child if the child is, or may be, participating in the regular education environment. The attendance of required IEP team members is excused if the parent and the school district consent in writing, and the IEP team member provides input in writing to the IEP team prior to the meeting.

7. District stipulated that it did not provide a general education teacher at Student’s IEP team meetings on May 22, and July 19, 2012. District further stipulated that the absence of a general education teacher significantly impeded Parent’s right to participate the decision making process and denied Student a FAPE for the May 22 and July 19, 2012 IEPs. Therefore, District failed to offer Student a FAPE for the May 22 and July 19, 2012 IEP’s for the 2012-2013 school year, and further analysis is unnecessary. The remaining issue addressing the lack of attendance of a general education teacher is for the September 16, 2011, IEP team meeting.

September 16, 2011 IEP Team Meeting

8. Student began the 2011-2012 school year in an Early Start preschool class taught by Ms. Vicki Wanken. ⁸ Ms. Wanken taught Student for a total of 19 days, in August and September 2011. Ms. Wanken’s class was in the morning with a total of seven students and two part time aides. Student subsequently transferred to an afternoon Early Start class that was a smaller class size to address the staff’s concerns over Student’s behaviors and to make it easier to coordinate Student’s attendance at the Head Start program, which was also in the afternoon.

9. Student was excitable, accidently hitting others. She lacked the manual dexterity and control to use scissors to cut a straight line. Student also needed the assistance of an adult play partner to assist minimizing or controlling her movements on the playground so that she did not throw sand or otherwise injure other students. ⁹ Student could mimic peers and work with teaching aids, such as Play-Doh, for up to 15 minutes.

10. Starting in August 23, 2011, Student attended Ms. Margaret Pavese’s afternoon Head Start class. ¹⁰ Student attended the afternoon session from 3:00 p.m. to 4:30 p.m. There were 17 students in the class, 16 were general education students. Student was the only student with special needs. Their ages ranged from three to five years old. Ms. Pavese had one TA.

11. Student needed significant redirection due to her short attention span. Ms. Pavese tried to include Student in small group activity with three or four students. Student continued to show a short attention span. Student also showed a lack of self-control or selfregulation. Student would squeeze and push other students, mimicking at preschool the rough play she had with her brothers at home. Her classmates did not like the rough play and Ms. Pavese felt this was a safety concern. Student showed limited interaction with her classmates. She could say “hi” to others and actively joined in class activities, but tended to engage in parallel play without responding or interacting to the other students.

12. Student’s vocabulary was limited to simple words, such as “yes,” “no,” or “please.” Student used one-word sentences. Student needed help buttoning and unbuttoning clothing. Student could hold a pencil. She also required assisted bathroom visits and liked to play in the toilet.

13. Student required, but did not have, an individual aide in the Head Start class, although Mother came occasionally to act as an aide. Ms. Pavese visited Student’s home as part of the Head Start program and saw Parent when she picked up Student from class. Ms. Pavese also reviewed and developed Student’s goals with Parent in the areas of cooperative play, friendship, and keeping hands to herself.

14. Student did benefit from attending Ms. Pavese’s Head Start class. The other children accepted her and tried to include her in their activities. Student was happy and smiled, and enjoyed doing finger plays. ¹¹

15. On or about September 16 or 17, 2011, Ms. Wanken and Ms. Pavese, met with other Head Start and COE staff to discuss their concerns over Student’s progress and behavior. This was not an IEP team meeting. The Early Start teachers thought Student might be better served if attending a smaller class to address her impulsiveness, lack of selfcontrol and regulation, and distractibility. Student required lots of redirection. Student was excitable (would hit accidentally), and had unwelcomed contact with younger children (would wipe their noses, etc.).

16. The group considered moving Student to the afternoon Early Start class taught by Ms. Maria Filis from 12:30 p.m. to 3:00 p.m. Subsequently, Ms. Filis volunteered to assist Student transition to Head Start from 3:00 p.m. to 3:30 p.m. Ms. Filis would assist Student as an aide for three weeks to facilitate Student’s inclusion at Head Start, then fade out and increase her Head Start time.

17. On September 16, 2011, the IEP team met to discuss Student’s progress and placement in Head Start and Early Start. The team meeting notes show that Lorna Gilbert (COE special education director), Ms. Filis (special education teacher), Margarita Carrillo-Gaitan (Head Start supervisor), ¹² the speech and language therapist, and Parent attended the meeting. Credible testimony from Ms. Carrillo-Gaitan and Ms. Pavese established that Ms. Pavese attended the IEP team meeting as a general education teacher. Ms. Carrillo-Gaitan excused Ms. Pavese to return to her class before the team signed the meeting notes so the notes do not reflect her signature. Ms. Wanken does not recall if she attended the IEP team meeting and she also did not sign the IEP, but credible testimony from Ms. Pavese established that Ms. Wanken was also present during the meeting.

18. Ms. Pavese reported that the she and her aide were doing lots of redirection and supervision and that Ms. Pavese felt as though she functioned as Student’s individual aide. Ms. Pavese communicated her observations of Student’s parallel play and use of simple one-word communications. Ms. Pavese opined that Student would do better coming to Head Start during their free choice period so Student could choose which activity to do since she had difficulty with more structured activities like story time.

19. The IEP team discussed placing Student in a smaller class, with more supervision, such as Ms. Filis’s class. There was no discussion specifically about an individual aide or behavior plan, but Ms. Filis volunteered to act as a temporary aide to assist Student’s inclusion with the general education Head Start program.

20. The team placed Student in Ms. Filis’s afternoon Early Start class from 12:30 p.m. to 3:00 p.m. and in the Head Start program from 3:00 p.m. to 3:30 p.m. (accompanied by Ms. Filis). Student’s participation in Head Start was reduced to 30 minutes, from oneand-a-half hours, with the intent that Ms. Filis’s assistance would fade as Student’s time in Head Start increased. Student attended class from Tuesday through Friday. Parent participated in the IEP team meeting and agreed with the placement.

21. With regard to the September 16, 2011 IEP team meeting, the evidence discussed above established that Ms. Pavese attended the meeting as a general education teacher and provided sufficient input to the IEP team so that Parent meaningfully participated in the decision making process. Accordingly, District did not commit a procedural violation of the IDEA and Parent was not denied the right to meaningfully participate in the development of Student’s educational program.

May 22 and July 19, 2012 IEP Team Meetings

22. The May 22, 2012 IEP team meeting was held to discuss Student’s transition to kindergarten and placement in extended school year (ESY). ESY ran from June 6, 2012 to July 3, 2012. The July 19, 2012 IEP team meeting was held to discuss Student’s placement for the 2012 -2013 school year.

23. In Issue a), Student contends that the District denied Student a FAPE by failing to have a general education teacher at the IEP team meetings on May 22 and July 19, 2012. In light of District’s stipulation and the factual finding that District denied Student a FAPE because District did not provide a general education teacher at Student’s IEP team meetings on May 22, and July 19, 2012, and that the absence of a general education teacher significantly impeded Parent’s right to participate the decision making process, this Decision need not reach the issue of whether the District’s offers were substantively appropriate.

Determination of LRE

24. Student contends that District’s offer of placement at the May 22 and July 19, 2012 IEP team meetings failed to provide Student a FAPE in the LRE. Because the prior factual findings establish that the May 22 and July 19, 2012 IEP’s denied Student a FAPE, this Decision need not reach the issue of whether the District’s offers from these IEP’s were substantively appropriate. Therefore, further analysis of these IEP’s and the LRE is unnecessary.

OT Services

25. Student’s motor skills are delayed due to Down Syndrome. Her gross motor skills are close to grade level and she has good strength to be able to walk on a balance beam, for example. Student has deficits in her fine motor skills in areas such as cutting with scissors, pencil grasp, and tracing.

OT services from August 2010 through July 2011

26. The IEP team met on May 17, 2010, and offered Student group OT consultation for 30 minutes per week. Parent participated in the IEP team meeting, but did not consent to the OT services. The IEP team met again on September 27, 2010, to discuss Parent’s request for individual OT in addition to the group OT consultation. Parent agreed to group OT consultation for 30 minutes per week. This is the level of OT service provided to Student to date. District contends that based on Student’s needs and her progress, its offer of OT service met Student’s needs to make meaningful educational progress. Student contends that District offered group OT in addition to consultation. Credible testimony and the evidence established that the level of OT service offered and provided to Student has been on a consultation model.

27. Karen Yinger, District occupational therapist, attended the May 17, 2010 IEP team meeting and recommended the OT as part of the in class consultation. ¹³ Ms. Yinger did not recommend pullout direct occupational therapy, but recommended consulting in a small group setting as part of the class activity for 30 minutes a week. Consultation means that OT is done as a demonstration (or modeling) with the teacher, aides, and students, so teacher and aides can incorporate into the school activities or provide later. Student’s consultation started at 30 minutes, but Ms. Yinger can do more if needed, but not less. Student does not need less OT. If the teacher needs to talk to Ms. Yinger, she still provides services for 30 minutes.

28. Ms. Kishimura, occupational therapist at Children’s Therapy Center, opined that Student should receive three 50-minute individual OT sessions per week. ¹⁴ Ms. Kishimura’s testimony was also credible. Ms. Kishimura provided Student direct individual OT twice a week for 50 minutes each from January to March 2012. However, District’s more credible evidence established that Student did not need direct OT services since the preschool program incorporated development of fine motor skills. Developing fine motor skills are incorporated into the preschool program and it is undesirable for Student to miss more class time with pull out direct OT. The consultation OT was provided in small groups of three to four students, using the TA’s to assist working with students. Student does not need direct OT to progress and Student did much better with her peers when the OT was a class activity and the OT was more effective when the teacher and aides were present. Examples of activities where consultation OT is done in a class setting include rolling on the blanket, walking a balance beam, cutting, drawing, and painting.

29. The evidence established that District’s educationally focused OT enables Student to access her education. In other words, District’s OT specifically addresses helping students access their education. Outside of school, OT applies in a broader purpose. Clinical or medical-based OT is much broader, with more goals. Student attempted to demonstrate that the clinical or medical-based OT model shows her true OT needs to access her education. However, the clinical model may not be the most appropriate for a school environment. Educationally focused OT is tailored for a student to access her education. Educational OT focuses on what Student is doing in natural setting to accomplish tasks in school. Clinical or medical-based OT addresses symptoms and done with direct, individual OT to address muscle strength and tone in relation to the specific medical symptoms. School-based education OT is more collaborative, using strategies and roles for teachers and aides, done in a more natural setting such as a classroom, with practical classroom applications.

30. Student did not establish that she did not make meaningful progress nor failed to meet her OT goals with consultation delivery model. Student could hold scissors correctly, cutting forward when she could not do this before. Student made significant progress holding markers because of her stubby fingers. The evidence showed that Student is making progress with her OT services. Therefore, Student did not prove that the District’s OT offer denied her a FAPE.

OT Services from August 2012 to the Present

31. This period is covered by the May 22, 2012 and July 19, 2012 IEP’s that denied Student a FAPE. Because the prior factual findings establish that these IEP’s denied Student a FAPE, this Decision need not reach the issue of whether the District’s offers for OT services during this period were substantively appropriate. Therefore, further analysis of OT during this period is unnecessary.

Remedies

32. ALJs have broad latitude to fashion equitable remedies appropriate for the denial of a FAPE. Appropriate equitable relief, including compensatory education, can be awarded in a due process hearing based on the individual student’s needs.

33. Student requests that District provide Student with a full inclusion placement with appropriate supplementary aids and services and compensatory education, including individual intensive instruction in core academic areas. District contends that the period of FAPE denial caused by the lack of a general education teacher is from the time Student reported to school on September 4, 2012 until the IEP team meeting on September 25, 2012, or 16 school days. District contends that the attendance of a general education teacher at the September 25, 2012 IEP team meeting cured the procedural defect that began with the May 22 and July 19, 2012 IEP’s.

34. However, the evidence shows that the FAPE denial from the May 22, 2012 IEP also includes District’s offer of ESY from June 6, 2012 to July 3, 2012, or 20 school days. The FAPE denial from the July 19, 2012 IEP team meeting ran from the time school started on August 20, 2012 until the IEP team meeting on September 25, 2012, which cured the procedural defect. The period for the FAPE denial from August 20, 2012 to September 25, 2012 is approximately five weeks, or 26 school days. Therefore, the total period covered by the denial of FAPE from the May 22 and July 19, 2012 IEP’s is 46 school days.

Full-Time Inclusion in General Education

35. Credible testimony from Maria Filis, ¹⁵ Karen Lopes, ¹⁶ Ms. Selsor, and Kristine Damn ¹⁷ established that Student does not belong in a full-time inclusion general education class, but would derive social benefit from spending a portion of her school day in a general education class. Student requires the support of a SDC. Her academic needs require significant repetition of instructions and considerable adaptation of text. Student’s language deficits include delayed articulation, making her hard to understand. Her IQ is 62, in the intellectually disabled range, and her cognitive abilities are significantly delayed. Student has difficulty grasping concepts that three to five-year-old children can, and fails to recognize physical boundaries. District knew Student had attended a private general education preschool summer session, but determined full-time placement in general education was not appropriate for Student. ¹⁸

36. District would not be able to modify a general education kindergarten curriculum to the level where Student could obtain a benefit. District could not alter the curriculum, for example, from three or four word sentences to two or three word sentences so she can keep pace. Student cannot follow the pace of a regular kindergarten general education class as the pace is too fast. Kindergarten students have already started to read and perform basic addition and subtraction. They know sight words. By contrast, Student is unable to recognize all the letters in her name, and can only do simple shapes and numbers.

37. A full-time general education kindergarten class with a modified curriculum changes to such an extent that Student would no longer be a part of the class. She would, in essence, be isolated from her classmate with an alternate curriculum so there would be no benefit having her in a full-time general education class with the modifications. Even with an aide, full-time general education inclusion would still have no benefit for Student if she required a separate class within the class. Student’s progress also does not depend on an individual aide. Student needs require a visual and auditory environment that is quiet, decreasing visual and auditory stimuli. If in a general education class, 100 percent of the day, Student and her aide would have to work separately from the rest of the class to access her education and this is not meaningful inclusion. Student requires specialized instruction, and an aide alone cannot control the learning environment to suit her needs, especially since District’s general kindergarten class has 30 students with one teacher.

38. The evidence showed that Student would receive a social or non-academic benefit from inclusion with general education students. During Student’s time at the ECE, she did receive a social benefit from inclusion with general education Head Start students. Student seemed happy and the other students accepted her and tried to include her in their activities. Student is very social in class and on the playground with general education students. Student would be able to model general education student behavior and language used by typical peers. District’s evidence estimated that compensatory education for missing a general education teacher at the IEP team meeting would be met with one hour per day of social skills or extracurricular activity. Therefore, District will provide Student with 46 hours (one hour for each impacted school day) of social skills or extracurricular activities as compensatory education for missing a general education teacher at the IEP team meetings.

OT Services from August 2012 to the Present

39. The period from August 2012 to the present falls within the scope of the July 19, 2012 IEP which denied Student a FAPE. However, the evidence shows that District’s OT during this period addressed Student’s fine motor needs and Student is not entitled to a remedy in the areas of OT. From August 2012 to the present, District continued to offer and provide Student with group OT consultation for 30 minutes per week. Student’s current occupational therapist is Ms. Alma Nunez. ¹⁹ Ms. Nunez credibly established that Student continues to receive OT on a consultation model where she answers staff questions, makes recommendations, give tips, and modify tasks. Ms. Nunez identified Student’s deficits in fine motor skills and sensory self-regulation.

40. Student met her scissoring goal for fine motor skills, but the OT continues to keep challenging her. Before she could not snip, attempt single shapes. She is at the prewriting stage as she can trace vertically and horizontally. While she can trace her name, she cannot do a circle. Her strengthening exercises work on pinching, grasping. Before she could only pincher grasp a writing instrument, now she can do a three-finger grasp and her coloring has improved. Student can hold a pencil and is working on tracing her name. Student has scattered skills in the 28 through 58 month age range, averaging one year behind her peers. Student can access and navigate the playground, alternate steps on the balance beam without assistance, and jump and play.

41. Student has made progress in cutting, grasping, coloring, fine motor tracing control; sitting in a chair, tabletop tasks. She can do tabletop tasks, use playground equipment, climb stairs, and sit. The evidence established that the strategies used by the staff in consultation with the OT addressed Student’s fine motor needs and Student is not entitled to a remedy in the areas of OT.

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 for the issues raised in this case. .

Elements of a FAPE

2. 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).)

3. 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 local education agencies 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; J.L. v. Mercer Island School Dist. (9th Cir. 2010) 592 F.3d. 938, 949954.)

4. There are two parts to the legal analysis of a school district’s compliance with the IDEA. First, there must be a determination of whether a district has complied with the procedures set forth in the IDEA. (Rowley, supra, 458 U.S. 176, 206-207.) Second, there must be a determination of whether the IEP developed through those procedures was designed to meet the child’s unique needs, and was reasonably calculated to enable the child to receive educational benefit. (Ibid.) An IEP is not judged in hindsight; its reasonableness is evaluated in light of the information available at the time it was implemented. The Ninth Circuit has endorsed the “snapshot” rule, explaining that “ . . . an IEP must take into account what was, and what was not, objectively reasonable when the snapshot was taken, that is, at the time the IEP was drafted.” (JG v. Douglas County School Dist. (9th Cir. 2008) 552 F.3d 786, 801; Adams v. State of Oregon (9th Cir. 1999) 195 F.2d 1141, 1149 (citing Fuhrman v. East Hanover Bd. of Educ. (3d Cir. 1993) 993 F.2d 1031 (Fuhrman), 1041).)

5. To determine whether the District offered Student a FAPE, the analysis must focus on the adequacy of the District’s proposed program. If the school district’s program was designed to address student’s unique educational needs, was reasonably calculated to provide him some educational benefit, and comported with his IEP, then that district provided a FAPE, even if student’s parent preferred another program. (Gregory K. v. Longview Sch. Dist. (9th Cir. 1987) 811 F.2d 1307, 1314; Student v. Manhattan Beach Unified School District (2007) Cal.Ofc.Admin.Hrngs. Case No. 2006010204.)

Consequences of Procedural Violations

6. In Rowley, the Supreme Court recognized the importance of adherence to the procedural requirements of the IDEA. (Rowley, supra, 458 U.S. 176, 205-206.) However, a procedural error does not automatically require a finding of a FAPE denial. A procedural violation results in the denial of a 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 child, or causes a deprivation of educational benefits. (20 U.S.C. § 1415(f)(3)(E)(ii); (W.G. v. Board of Trustees of Target Range School Dist. No. 23 (9th Cir. 1992) 960 F.2d 1479 (Target Range), 1484.)

Required Members of an IEP Team

7. An IEP team must include at least one parent; a representative of the local educational agency; a regular education teacher of the child if the child is, or may be, participating in the regular education environment; a special education teacher or provider of the child; an individual who can interpret the instructional implications of assessment results, and other individuals who have knowledge or special expertise regarding the pupil, as invited at the discretion of the district, the parent, and when appropriate, the student. (20 U.S.C. § 1414(d)(1)(B)(i), (iv-vi); Ed. Code, § 56341, subds. (b)(1), (5-6).)

8. The regular education teacher shall, “to the extent appropriate,” participate in the development, review, and revision of the pupil’s IEP, including assisting in the determination of appropriate positive behavioral interventions and strategies for the pupil, and supplementary aids and services and program modifications or supports. (20 U.S.C. § 1414(d)(2)(C).)

9. The attendance of required IEP team members is excused if the parent and the school district consent in writing, and the IEP team member submit input in writing to the IEP team prior to the meeting. (20 U.S.C. § 1414(d)(1)(C).)

Parents’ Right to Participate in the Educational Decision-Making Process

10. Federal and state law require that 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. (20 U.S.C. § 1414(d)(1)(B)(i); Ed. Code, §§ 56304, 56342.5.) A district must ensure that the parent of a student who is eligible for special education and related services is a member of any group that makes decisions on the educational placement of the student. (Ed. Code, § 56342.5.) 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. v. Clark County Sch. Dist. (9th Cir. 2001) 267 F.3d 877, 882.)

11. A school district is required to conduct, not just an IEP team meeting, but also a meaningful IEP team meeting. (Target Range, supra, 960 F.2d 1479, 1484.); Fuhrman supra, 993 F.2d 1031, 1036.) A parent has meaningfully participated in the development of an IEP when she is informed of her child’s problems, attends the IEP team 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; Fuhrman, supra, at p. 1036.)

Did the District deny Student a FAPE by failing to have a general education teacher at the IEP team meetings on September 16, 2011, and May 22 and July 19, 2012?

12. In accordance with Factual Findings 8 through 21 and Legal Conclusions 7 through 11, the evidence established that a general education teacher attended and provided sufficient input at the September 16, 2011 IEP team meeting. Accordingly, Student was not denied a FAPE with regard to the September 16, 2011 IEP team meeting. With regard to the May 22 and July 19, 2012 IEP team meeting, Factual Finding 7 and Legal Conclusions 1 through 11 establish that District committed a procedural violation that denied Student a FAPE by significantly impeding upon Parents’ opportunity to participate in the decision making process when it failed to include a general education teacher at the May 22 and July 19, 2012 IEP team meetings. The lack of a general education teacher on the IEP team meant that the team did not adequately consider a general education placement, which meant the team was unable fully to consider placing Student in a general education setting with services and supports.

Does the District’s offer of placement at the May 22 and July 19, 2012 IEP team meetings provide Student a FAPE in the LRE?

13. Pursuant to Factual Findings 7, 22, 23, and 24, and Legal Conclusions 2 through 6, District denied Parent participation in the decision making process by failing to have a general education teacher attend the IEP’s. As previously discussed, District’s offer of placement following the May 22 and July 19, 2012 IEP team meetings failed to provide Student a FAPE and the issue of LRE is not addressed.

Did the District deny Student a FAPE from August 2010 to July 2011 and from August 2012 to the present by failing to provide her adequate OT services?

OT from August 2010 to July 2011

14. In accordance with Factual Findings 25 through 30, District’s May 27, 2010 IEP offered Student group OT consultation for 30 minutes a week. Parent agreed to the group OT consultation for 30 minutes per week. The evidence established that the level of OT offered and provided to Student has been on a consultation model and not a direct service. In accordance with Legal Conclusions 2 through 5, District’s OT consultation was sufficient for Student to access her education and make meaningful progress. Student failed to establish why the offered and provided OT did not meet her needs and denied her a FAPE.

OT from August 2012 to the Present

15. Pursuant to Factual Finding 31 and Legal Conclusion 13, the OT during this period is included in District offer of placement and services following the May 22 and July 19, 2012 IEP team meetings that denied Student a FAPE.

Relief

16. ALJs have broad latitude to fashion equitable remedies appropriate for the denial of a FAPE. (School Comm. of Burlington v. Department of Educ. (1985) 471 U.S. 359, 370 [85 L.Ed.2d 385]; Parents of Student W. v. Puyallup School Dist., No. 3 (9th Cir. 1994) 31 F.3d 1489, 1496 (Puyallup).)

17. Appropriate equitable relief, including compensatory education, can be awarded in a due process hearing. (Burlington, supra, 471 U.S. at p. 374; Puyallup, supra, 31 F.3d at p. 1496).) The right to compensatory education does not create an obligation to automatically provide day-for-day or session-for-session replacement for the opportunities missed. (Park, ex rel. Park v. Anaheim Union High School Dist. (9th Cir. 2006) 464 F.3d 1025, 1033 (Park) (citing Puyallup, supra., 31 F.3d at p. 1496).) An award to compensate for past violations must rely on an individualized analysis, 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.) The award may consist of additionally training for special education staff. (See Park, supra, 464 F.3d at p. 1034.)

18. District did not provide a general education teacher at Student’s IEP team meetings on May 22 and July 19, 2012. The absence of a general education teacher significantly impeded Parent’s right to participate the decision making process and denied Student a FAPE for the May 22 and July 19, 2012 IEPs. Therefore, District failed to offer Student a FAPE in the May 22 and July 19, 2012 IEP’s.

19. As indicated in Factual Findings 33 and 34, the period for the FAPE denial includes ESY from June 6 to July 3, 2012, or 20 school days. The period for the FAPE denial also runs from the time school began on August 20, 2012, until the next IEP team meeting on September 25, 2012, a period of approximately five weeks, or 26 school days. The total number of days impacted by the FAPE denial is 46 school days.

20. Student failed to attend school until September 4, 2012. However, Parent was reasonably uncertain where Student’s placement would be and kept Student out of school for this period. Factual Findings 38 through 38 and Legal Conclusion 19 show that it is appropriate that the relief for District’s failure to provide a FAPE address Student’s general education inclusion opportunities. Accordingly, 46 hours (one hour for each impacted school day) of social skills, or extracurricular activities, would be appropriate compensatory education.

ORDER

1. District shall provide Student with 46 hours of social skills training or extracurricular activities, whichever Student prefers. District shall provide Parents with a list of at least three individuals or agencies that have adequate experience and training providing such services, one of which may be a district employee, and Parents may choose from the list. Student may use the 46 hours during the 2012-2013 school year or the 2013-2014 school year.

2. All other requests for relief are denied.

PREVAILING PARTY

Education Code section 56507, subdivision (d), requires that the hearing decision indicate the extent to which each party has prevailed on each issue heard and decided. District prevailed on Issue a) with respect to the September 16, 2011 IEP team meeting. Student prevailed on Issue a) as to the May 22 and July 19, 2012 IEP team meetings. Neither party prevailed on Issue b) as this Decision need not address whether the District’s offers were substantively appropriate. District prevailed on Issue c) with respect to OT from August 2010 to July 2011. Student prevailed on Issue c) with respect to OT from August 2012 to the present.

RIGHT TO APPEAL THIS DECISION

This is a final administrative decision, and all parties are bound by 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: January 16, 2013

TROY K. TAIRA
Administrative Law Judge
Office of Administrative Hearings

BEFORE THE
OFFICE OF ADMINISTRATIVE HEARINGS
STATE OF CALIFORNIA

In the Consolidated Matters of: STUDENT,
v.
TEMECULA VALLEY UNIFIED SCHOOL DISTRICT,

OAH CASE NO. 2012020458 and 2012020005

———————————–

TEMECULA VALLEY UNIFIED SCHOOL DISTRICT,
v.
STUDENT.

OAH CASE NO. 2012090247

DECISION

Susan Ruff, Administrative Law Judge (ALJ), Office of Administrative Hearings (OAH), heard this matter on November 6, 7, 8, 13, 14, 15, 26, 27, 28 and 29, 2012, in Temecula, California.

Tania Whiteleather, Esq., represented Student. Student’s mother was present during most of the hearing. Student was not present. Student’s mother holds a power of attorney to represent Student (who is over 18 years old) in educational matters.

Peter Sansom, Esq., represented the Temecula Valley Unified School District (District). Kimberly Velez, Director of Special Education, and Melanie Hertig, Assistant Director of Special Education, also appeared at various times on behalf of the District.

Student’s initial request for a due process hearing was filed on January 31, 2012, in OAH case number 2012020005. On February 13, 2012, Student filed a second case, OAH case number 2012020458. On March 15, 2012, OAH granted the parties’ stipulated request to consolidate the two cases and to continue the hearing dates. OAH named case number 2012020458 as the primary case for determining the 45-day timeline for issuance of a decision. On June 5, 2012, OAH consolidated the two Student-filed cases with a Districtfiled case, OAH case number 2012050526. The District subsequently withdrew case number 2012050526 on August 29, 2012. On September 7, 2012, the District filed case number 2012090247. That case was consolidated with the two Student-filed cases on September 24, 2012. Case number 2012020458 remained the primary case for determining the 45-day timeline for issuance of a decision.

At the end of the hearing in November 2012, the parties requested and received permission to file written closing argument. The case was taken under submission upon receipt of the parties’ written closing argument on December 10, 2012. ¹

On December 10, 2012, Student made a motion to reopen the record to permit the filing of a declaration and attachments. On December 12, 2012, the District filed a response to the motion in which it did not object to Student’s motion, but requested that a declaration from District’s counsel and attachments also be added to the evidentiary record. Both requests were granted on December 20, 2012. Student’s moving papers, declaration and attachments were entered into evidence as Exhibit TT. The District’s responsive papers, declaration and attachments were entered into evidence as Exhibit 120. The record was then closed once more.

ISSUES

Student’s Issues:

a) Did the District fail to comply with state and federal special education law when it failed to provide Student with an independent educational evaluation (IEE) after her oral request for an IEE in August 2011 or her written request on September 19, 2011, or when it failed to file a request for a due process hearing to prove its assessment was appropriate?

b) Did the District deny Student a free appropriate public education (FAPE) when it failed to fully and timely assess Student in the spring of 2011?

c) Did the District deny Student a FAPE during the 2011 – 2012 school year by: 1) making an IEP offer based on inadequate assessment information; 2) failing to provide an appropriate transition plan from Student’s nonpublic school to the high school; and 3) failing to offer an appropriate placement? ²

District’s Issue:

d) Did the District’s IEP dated August 24, 2012, offer Student a FAPE in the least restrictive environment?

CONTENTIONS OF THE PARTIES

This is a consolidated case. It involves a young woman with a learning disability who attended a non-public school (NPS) for two years pursuant to settlement agreements with the District. In May 2011, near the end of those two years, the District assessed her and determined she was capable of gaining educational benefit at a public school with specialized academic instruction and other supports. In August 2011, the District made an IEP offer for placement in the public high school in a special day class for part of the day and general education classes for the rest. Although Student’s mother disagreed with the proposal, she signed the IEP in October 2011, permitting the District to implement it.

Student failed to get on the bus to attend public school, despite various transition activities attempted by the District. Student contends that Student’s anxiety and panic disorder made her unable to attend public school.

Further assessments were conducted by county mental health and the District. In April 2012, the District changed Student’s eligibility category to emotional disturbance (with her learning disability as a secondary category) and offered Student placement at an NPS with a strong therapeutic component to address Student’s mental health needs. Student’s mother did not sign that IEP. After an independent assessment confirmed Student’s emotional disturbance classification, the District offered the therapeutic NPS placement once again, in an IEP offer made in August 2012. Student’s mother objected to the placement, but signed the IEP allowing the District to implement the program. Student failed to take the bus to attend the NPS placement, despite therapy and other transition services offered by the District.

In Student’s part of this case, Student contends that the District failed to assess Student appropriately in May 2011 in the areas of mental health, social/emotional, and vision processing. Student contends that the insufficient assessment led to an improper IEP offer. Student also contends that the proposed placement at the public high school was inappropriate and that the District offered an insufficient transition plan to transition Student from her NPS placement to the high school. Student contends that Student’s mother made a request for an IEE in September 2011, which the District failed to act upon in a timely fashion.

In the District’s part of this case, the District contends that its August 2012 IEP offer for the therapeutic NPS was appropriate both procedurally and substantively.

This Decision finds that the District delayed too long in providing the requested IEE to Student after Student’s mother requested it in writing, thereby denying Student a FAPE. Aside from that, the District offered Student a FAPE both procedurally and substantively at all times at issue in this matter. The District is ordered to provide Student with psychotherapeutic services to remedy the denial of FAPE.

FACTUAL FINDINGS

1. Student is an 18-year-old woman who is currently eligible for special education and related services under the primary eligibility category of emotional disturbance (ED) and a secondary eligibility category of specific learning disability (SLD). Student’s mother holds a power of attorney to represent Student in educational matters.

2. The events at issue in this case began in approximately May 2011. However, to understand the ramifications of those events it is necessary to briefly review certain facts involving Student prior to that time.

3. Student attended school in the District during her middle school years. At that time, Student’s eligibility category was SLD. The parties dispute whether Student engaged in any conduct in middle school which might have caused the District to suspect that she was a child with ED. In particular, there was a dispute as to whether Student engaged in “cutting” behavior when she was in middle school.

4. Cutting behavior occurs when a child or teenager uses a sharp item to scratch or make superficial cuts on his or her skin as a way of expressing emotional difficulties such as pain or frustration.

5. In September 2008, Robert Gray, Ph.D., conducted a neuropsychological assessment of Student. At that time, Student was 14 years old and attending the eighth grade in a District public school. Her program consisted of a mix of special education and regular education classes. According to Dr. Gray’s report, Student’s mother “requested a pediatric neuropsychological evaluation due to ongoing concerns with her academic performance….” Dr. Gray’s report noted Student’s problems with academics, attention, executive functioning and organization.

6. Dr. Gray’s report contained no mention of any cutting behavior by Student, and made no mention of Student having any anxiety, panic attacks, school phobia, or panic disorder. The social/behavioral problems noted by Dr. Gray for Student involved Student’s self-esteem and her embarrassment about being a special education pupil. For example, the responses by Student’s mother to the Behavior Assessment System for Children –Second Edition (BASC), indicated that Student demonstrated “difficulties with social withdrawal (has trouble making new friends, is shy around other adolescents).” The teacher rating scales noted concerns regarding things such as poor social and leadership skills.

7. Dr. Gray concluded that Student “demonstrates intact social and emotional functioning overall, but as a result of her persistent struggles in school, she has become
increasingly aware of the discrepancy between her performance and that of her peers.” He recommended “that her parent, teachers and tutors continue to closely monitor her emotional functioning and seek out the assistance of an individual therapist if necessary.” Dr. Gray’s findings and recommendations were in accord with earlier teacher comments from January 2007 that noted self-esteem issues and possible depression for Student. For example, one teacher comment in sixth grade had noted concerns that Student seemed unsure of herself academically, pre-occupied, lethargic and distracted, and wondered if “something medical/psychological may be impeding [Student’] progress in school.”

8. Student’s mother testified that she suspected Student was engaging in cutting behavior during middle school, because she found towels with blood on them. She also testified that she told Student’s teachers and Student’s counselor Sharon Harvey about her concerns regarding Student’s possible cutting behavior. She testified that she raised the issue with the IEP team in June 2009.

9. Ms. Harvey, during her testimony, denied that Student’s mother ever told Ms. Harvey or the IEP team that Student was cutting herself. Ms. Harvey testified that she was contacted by one of Student’s teachers in January 2009, because the teacher noticed some “eraser burns” on Student’s hand caused by a pencil eraser. Ms. Harvey examined Student’s arms and saw no blood, scars, or scabs, other than that eraser mark. She asked Student about any stress she might be feeling, but Student told her that Student was just bored, not stressed. Ms. Harvey attempted to contact Student’s mother by telephone, but Student’s mother did not return her call regarding the incident.

10. On March 5, 2009, Student again had eraser marks on her hand. She also had a cut on her arm, which Student claimed had occurred when she was attempting to shave herself. During the hearing, Ms. Harvey described the cut as one scratch mark which was about 2 inches long. She inspected Student’s arms for other scratch marks but did not see any. Ms. Harvey spoke to Student’s mother who confirmed that Student had cut herself while shaving. Student’s mother told Ms. Harvey that they were going to buy a new razor. Ms. Harvey testified that the scratch was on the top of Student’s arm and there was no hair around the cut, so it appeared to Ms. Harvey that Student had, in fact, cut herself while shaving. Student’s mother told Ms. Harvey that she had spoken to Student about her eraser burns and informed Student that she had to stop doing that.

11. Student’s mother, on the other hand, testified that she did not think the cut could be from shaving and that she told Ms. Harvey she thought it was an excuse Student was giving.

12. Dana Connolly, one of Student’s eighth-grade teachers, and Sherri Miller, a program specialist who attended Student’s eighth grade IEP meetings, confirmed Ms. Harvey’s testimony that Student’s mother never told the IEP team about any cutting by Student during her eighth-grade year.

13. On June 9, 2009, Philip Moore, a marriage and family therapist who provided therapy to Student on and off during the time periods at issue in this case, wrote a letter to the District on Student’s behalf. In the letter, he complained about the District refusing to allow Student to participate in activities such as a school luau/dance, a class trip to Knott’s Berry Farm and similar end-of-the-year activities. ³ He thought such refusal would be considered punitive and “for a sensitive person like [Student], embarrassing and potentially emotionally and psychologically damaging.” His letter made no mention of cutting behavior, school phobia, anxiety, panic attacks, panic disorder or any similar conduct by Student.

14. The evidence does not support a finding that the District should have suspected Student was a child with ED or conducted further mental health assessments during middle school. Dr. Gray’s report found Student’s social and emotional behavior to be intact. He suggested monitoring of her self-esteem, not changing her eligibility category. Philip Moore’s June 2009 letter made no mention of any cutting behavior, phobia, anxiety or panic. While Student’s mother may have had suspicions about cutting, she either did not share her concerns with these two experts, or the experts chose not to share that information with the District. On the two occasions when the District discovered possible self-injurious behavior, there was a believable explanation for that behavior. On the second occasion, Student’s mother supported that explanation. Student’s mother’s testimony that she shared concerns about cutting with the District staff during Student’s eighth grade year was not supported by the rest of the evidence.

15. Student’s expert Mitchel Perlman, Ph.D., opined that the District should have assessed Student for ED when Student was in middle school. However, as will be discussed in more detail below, Dr. Perlman’s opinion was based heavily on what Student’s mother reported about the events in middle school. Dr. Perlman never spoke with Student’s middle school teachers. While Dr. Perlman was well-qualified and well-informed in other respects, his opinions regarding Student’s needs in middle school were not persuasive.

16. As a result of due process settlement agreements between Student’s mother and the District, the District paid for Student to attend an NPS called the Winston School (Winston) during Student’s freshman and sophomore years of high school.

17. Jeff Kozlowski, the Director of Special Education at Winston, testified during the hearing regarding Winston’s program. Mr. Kozlowski has a double master’s degree in special education and educational administration and undergraduate degrees in history, regular education and special education. He has worked for Winston for eight years in his current position. As Director of Special Education, he oversees cases, helps to prepare IEP’s, reviews and discusses goals, and considers appropriate placements for pupils. Prior to his current position, he was a full time teacher at Winston. He was Student’s English teacher during her two years at Winston and served as her case manager.

18. Winston is geared for pupils with special needs such as SLD. It has approximately 100 pupils, about half of whom are funded by school districts and half are privately placed by their parents. The average class size is seven to 10 pupils. In classes with 10 – 11 pupils, there is a teacher’s assistant in the class as well as the teacher. According to Mr. Kozlowski, Winston has a lot of pupils with school phobia, so the small class size helps prevent them from feeling overwhelmed. Winston has a credit recovery program for pupils beyond their senior year of high school.

19. Winston does not specialize in assisting pupils with ED or mental health issues, although it does provide counseling and will accept enrollment of pupils with an ED classification as long as Winston believes the school can meet those pupils’ needs. Student had an SLD classification, not an ED classification, at the time she attended Winston. There are currently two marriage and family therapists on staff at Winston, five interns, and a head psychologist. If a pupil has severe behavior, such as behaviors that require physical restraints, Winston looks for another placement for the pupil. According to Mr. Kozlowski, about every three to four years they have a pupil at Winston who needs physical restraints. Winston will occasionally take in pupils who have cutting behaviors, depending on the pupil. Usually there is a doctor’s recommendation that the pupil is ready.

20. Student did very well during her two years at Winston and enjoyed her time there very much. Her grades improved, she made friends, she became involved in school activities, and she had a boyfriend there. According to Mr. Kozlowski, when Student first started attending Winston she was introverted. She did not like school and did not think she could learn. Gradually she opened up and by May of 2011, she had even considered running for student government. Student began to talk about going to college.

21. There was no evidence that Student engaged in any cutting behavior while she attended Winston. According to Mr. Kozlowski, she exhibited anxiety and panic attacks regarding “high-stakes” tests, but there is no evidence that she avoided school at Winston due to her test anxiety or panic attacks. Mr. Kozlowski explained that when Student was given extra time, breaks, and supports during testing, her level of functioning was much higher. Student exhibited some emotional issues when the District staff conducted observations at Winston in 2010, but her more serious emotional issues began when the District staff conducted a triennial assessment of Student in May 2011. Her anxiety regarding the District’s observations and assessment were caused by her concern that she would be required to leave Winston to return to public school. Mr. Kozlowski testified that Student had felt her prior public school placement was for people who were “retarded” and low functioning, so it made her feel low functioning.

22. During her time at Winston, Student received counseling services from an intern. That intern is now a licensed marriage and family therapist. Student also relied upon Mr. Kozlowski for support. Student’s emotional needs at Winston escalated after the District began its May 2011 triennial assessment, and she began to see her counselor frequently, sometimes on a daily basis.

23. Winston is located in Del Mar, California, many miles from Temecula. For part of the time that Student attended Winston, her mother drove her to Del Mar. For part of the time, Student participated in a carpool with another family. For part of the time, Student and her mother took public transportation to travel to and from Winston.

24. That public transportation was a very long process. According to the testimony of Student’s mother, they had to get up at 3:00 a.m. and reach the bus stop by 4:00 a.m. They took a bus to the mall and then a commuter bus to Oceanside. From there, they took the train to Solana Beach, walked to the bus stop and took another bus to Winston. They spent about five hours traveling each day. There was no evidence that Student was unable to access this public transportation, to take the public train, or to take the public bus. There was no evidence that Student was afraid to leave her home during the time that she attended Winston. Mr. Kozlowski testified that Student had school phobia and school apathy when she came to Winston, but the rating scales he filled out for the District’s assessment in May 2011 did not indicate such problems. He told Student’s IEP team that her anxiety was related to the District’s IEP process.

The District’s May 2011 Triennial Assessment

25. Student’s three-year (triennial) assessment was conducted by the District in May 2011, while Student was still attending Winston, near the end of her sophomore year. The District assessors who conducted the May 2011 triennial assessment were school psychologist Coral French and special education teacher Christine Check. Ms. Check conducted academic achievement testing of Student over two occasions on May 12, 2011, and May 24, 2011. ⁴

26. Ms. French holds a pupil personnel services credential and is a board certified school neuropsychologist. She has been a school psychologist for over 20 years and has worked for the District as a school psychologist since 1999. She has experience assessing the social/emotional needs of pupils and has done hundreds of ED evaluations.

27. The tests and assessment instruments used by the District assessors included the Wechsler Intelligence Scale for Children, Fourth Edition (WISC-IV), the Wechsler Individual Achievement Test –Third Edition (WIAT-III), the Bender Visual-Motor Gestalt Test, Second Edition (Bender), the Test of Auditory Processing Skills, Third Edition (TAPS3), the Test of Visual-Perceptual Skills, Third Edition (TVPS-3), the Connors -Third Edition (Connors-3), the Piers-Harris Children’s Self-Concept Scale, Second Edition (Piers-Harris), and the BASC. The District assessors also reviewed records, including prior assessments done by the District and the assessments done by Dr. Gray, attempted to make observations of Student at Winston, and gathered information from Student’s teachers at Winston. The District also sent documents for Student’s mother to complete and return, including a parent survey, the parent rating scale portion of the Connors-3, and the parent rating scale portion of the BASC.

28. Student’s full-scale IQ score, according to the WISC-IV was 84, in the low average range. As a result of the discrepancy between Student’s cognitive ability and academic achievement in certain areas such as math calculations and math reasoning, Student met the eligibility criteria for SLD. The assessment concluded that Student had processing deficits and weaknesses in attention, visual processing, auditory processing, association, conceptualization, and expression. The assessment report noted that “With [Student’s] current academic functioning, and processing deficits, it would be very difficult for her to access the core curriculum without some support. The IEP team may wish to consider the following options for her: continued RSP support as a student with a specific learning disability (SLD).”

29. At the time of the assessment, Student believed that, as a result of the assessment, the District would require Student to return to a public school. Student did not want to leave Winston to return to a public high school. During the District’s assessment, Student began to exhibit a different type of anxiety than she had previously exhibited at Winston.

30. Ms. French testified that when she first began testing Student on May 4, 2011, Student appeared calm and was not anxious, although Ms. French did sense some opposition. About 10 minutes after Ms. French began testing, Student asked if she could use the restroom. She was away for about 40 minutes. Mr. Kozlowski came to the room during that time and informed Ms. French that Student had come to him and had been crying. He asked if he could sit in on the testing session and Ms. French agreed. Mr. Kozlowski sat in on the remainder of the testing session that day.

31. Once Mr. Kozlowski was in the room, Student was able to proceed with the testing. Ms. French could tell that Student had been crying, but Student did not cry during the assessment or appear anxious to Ms. French. At some point during the testing, Ms. French could tell that Student did not wish to continue the testing, so Ms. French ended the test and decided to complete the assessment on a different day.

32. On the second testing session, Ms. French gave Student a gift of a stuffed animal because she felt bad about Student’s reaction to the first day of testing. She said that Student seemed pleasantly surprised and thanked her for the gift. However, Ms. French later saw the gift on a table and was informed by Student’s mother that Student did not wish to have anything to do with the gift or with the District.

33. Ms. French attempted to observe Student in the classroom on May 11, 2011, but Student left the class after about seven minutes and did not return. The classroom teacher subsequently told Ms. French that she found Student in the restroom.

34. Student exhibited similar conduct with the academic portion of the assessment conducted by Chris Check. On the first testing date, May 12, 2011, Student was tested with her mother present and initially appeared anxious about the assessment. At one point during a break in the process, Student expressed concerns regarding the assessment and stated she did not want to return to public school. Student told Ms. Check that she knew the testing was being done to get her back into public school. Ms. Check discontinued the testing that day and resumed it again on May 24, 2011. After about 15 minutes on the second occasion, Student began expressing her unhappiness over being tested. She subsequently put down her pencil and said she was done testing. However, at that point she had (apparently unknowingly) completed the final subtest of the test so no further academic testing was necessary.

35. Mr. Kozlowski testified that Student required daily counseling for about a week after each time the District assessors were on the Winston campus, and then weekly counseling for a month after that. He said her panic reactions kept her out of class more, but that was not detrimental to her education at Winston, because Winston is good at getting a pupil to calm down and return to class. On the days she missed class, Winston made additional accommodations for her, such as extended time for assignments.

36. Student contends that the District’s assessment was not adequate in the areas of social/emotional functioning, mental health, and visual processing. Student believes that the District should have conducted additional assessments in those areas.

37. The District’s assessment included a social/emotional assessment of Student. The assessment was designed to see if there were any social/emotional areas that required further testing. It was not the in-depth type of assessment that a school district would use to determine whether a child is eligible for special education under the category of ED. Ms. French explained that Student’s eligibility category was SLD at the time of the assessment and Ms. French had no reason to believe that Student needed an in-depth assessment related to ED or further assessment in the area of social/emotional functioning.

38. To evaluate Student’s social emotional needs, Ms. French sent Student’s mother and two of Student’s teachers (Mr. Kozlowski and Ms. Phillips, Student’s geography teacher) the Connors-3, a rating scale designed to measure attention, conduct and attention deficit hyperactivity disorder. Student’s mother did not return the Connors-3 responses to the District, but the two teachers’ responses did not note any areas of concern except inattention, learning problems, and learning problems/executive functioning.

39. Ms. French also had Student complete the Piers-Harris. The Piers-Harris is a self-report questionnaire designed to assess how children and adolescents feel about themselves. According to the answers that Student gave on the Piers-Harris, Student was
feeling good about herself at that time and her scores were in the average range. Student did not testify at the hearing, but others reported that she completed the Piers Harris based on the way she felt while attending Winston, not the way she had felt in middle school.

40. As part of the social/emotional portion of the assessment, Ms. French also administered the BASC, which contains questions relevant to whether the child is experiencing anxiety, depression, and suicidal ideation (thoughts of suicide). Ms. French’s assessment report described the BASC as “an integrated system designed to facilitate the differential diagnosis and classification of a variety of emotional and behavioral disorders of children and adolescents.” According to Ms. French’s testimony, the BASC is a big factor in determining whether a person may meet the criteria for ED. She also administered the BASC to Ms. Phillips and Mr. Kozlowski. Ms. Phillips rated Student in the average range, while Mr. Kozlowski rated her as being clinically significant in anxiety, learning problems and school problems. Ms. French also gave the BASC to Student, who rated herself in the average range, except for hyperactivity.

41. The parties dispute whether Student’s mother received the BASC questions to complete as part of the assessment. The District maintains that the questions were sent to Student’s mother, and entered into evidence a cover letter with the BASC questions mailed to Student’s mother on April 26, 2011. Student’s mother told the August 2011 IEP team that she had not received the questions, so the District sent them again in August 2011. Student’s mother did not complete the BASC answers or the other parent forms at that time. She ultimately filled out the BASC in 2012, long after the District’s triennial assessment and August 2011 IEP offer.

42. As part of her assessment, Ms. French also asked Student’s teachers at Winston to fill out forms regarding Student’s functioning in their classes. Almost all the teacher reports Ms. French received from Winston reported that Student had good social skills and a positive attitude.

43. Mr. Kozlowski’s comments as Student’s English teacher noted that Student required “direct instruction and visualizing techniques to get the inferential or deeper meaning of a passage. Without the extra support she only gains the surface level and she loses interest.” He also noted that:

[Student] came to Winston and did not believe in herself. She thought she was stupid and could never learn complex information. Gradually, over time, she has taken appropriate educational risks and has begun to believe in her ability to learn –she still struggles when presented with challenging/unfamiliar material, (such as writing a sonnet), but with support she’s able to overcome the fear/anxiety/learned helplessness to gain grade level understanding.

44. Student’s other teachers at Winston noticed similar academic weaknesses such as problems with attention and work completion, but mentioned no social/emotional issues, aside from the lack of self-confidence.

45. Winston’s May 2011 progress report, also found no social/emotional issues aside from test anxiety and problems with the District’s assessment:

[Student] has made steady progress in her ability to make and maintain ageappropriate friendships. Her counselor reports [Student] has been exposed to various strategies to help her with test anxiety. In recent weeks, she has shown much anxiety when the district has tested her, and has required maximum intervention to help her through anxiety strategies. [Student] has begun to process her raw emotion regarding former placement within a counseling setting. However, she still has a lot of fear and anxiety over her former placement on 4 o 5 occasions [sic].

46. At the time of the assessment, Ms. French believed that Student’s counselor was Mr. Kozlowski, so she did not attempt to speak to the intern who was providing counseling to Student at Winston. As part of her social/emotional screening, Ms. French also relied upon the 2008 assessment done by Dr. Gray, in which the parent rating scales on the BASC showed social emotional scores in the average range, except for the score regarding withdrawal (which was just at the borderline of average).

47. During the hearing, Ms. French explained that, in order to meet the Education Code criteria for ED, a child’s problem behavior must be pervasive across environments and over time. A behavior that occurs only in one situation is not generally sufficient to meet the educational criteria for ED. In Ms. French’s opinion, if Student demonstrated anxiety during the District testing, but not during testing conducted by a non-District person, that would be situational behavior, not a pervasive condition indicating ED.

48. Based on all the information that Ms. French received in connection with her assessment – including the testing and rating scales she administered, the teacher comments, and her records review – Ms. French saw no need to make a referral for Student for further testing to determine if Student was a pupil with ED or for further social/emotional or mental health assessment. Nothing in any of the screening tests she gave indicated Student might have ED or require further assessment. At the time of her testing, Ms. French believed that any emotional difficulties Student exhibited were typical for a girl her age.

49. Student relies upon the testimony of Student’s expert Dr. Perlman to support Student’s contention that the social/emotional portion of the District’s triennial assessment was not sufficient. Dr. Perlman is a clinical psychologist with a postdoctoral master’s degree in clinical psychopharmacology. He interned as a school psychologist during his training. He is also a licensed marriage and family therapist and has worked with children placed in psychiatric hospitals and residential treatment centers. He has participated in professional publications and done presentations and lectures. He is qualified to provide evaluations in court regarding child custody and has given advice regarding schooling for minors. Most of his practice involves the educationally related needs of children. He has conducted many independent assessments on behalf of parents and school districts.

50. As will be discussed in Factual Findings 170 – 178 below, Dr. Perlman assessed Student in May 2012, about a year after the District’s May 2011 triennial assessment. Based on his testing, his review of Student’s records from middle school, and his interview of Student and her mother, he believed that Student definitely had social/emotional issues in May 2011. He believed the ED eligibility should have been investigated much earlier, even as early as middle school.

51. However, as set forth in Factual Findings 1 – 15 above, the evidence did not support Dr. Perlman’s opinion that Student should have been assessed for ED in middle school. Dr. Perlman’s assessment of Student was done in approximately May 2012, long after the events of middle school and long after the District’s triennial assessment. There were inconsistencies between what Dr. Perlman reported about the middle school events and other evidence regarding that time period. For example, Dr. Perlman’s report noted that:

By 7th grade, [Student] had already felt defeated. She began to cut on herself, as well. By 8th grade, [Student] had become extremely depressed and a social recluse. If allowed, [Student] would not go anywhere or do anything, and she would rarely leave her bedroom. Trying to get her out of her room to do something she would normally enjoy (going to a restaurant, to a mall, to a movie), even occasionally, took an exceptional amount of effort. Trying to get her out of house every day to go to school was near-impossible. (Emphasis in original.)

52. Contrary to Dr. Perlman’s opinion that Student had become a “social recluse” in eighth grade, according to Mr. Moore’s letter at the time, Student wanted to attend social events such as the luau/dance and the class trip to Knott’s Berry Farm.

53. During the hearing, Dr. Perlman explained that Student’s mother provided him with information that Student had middle school absences and tardiness due to Student waking up paralyzed with fear. However, that fear was not noted by either Dr. Gray or Mr. Moore at the time and it was not consistent with Student’s mother’s responses to the BASC at that time.

54. It was clear that Dr. Perlman relied heavily on what Student and Student’s mother told him about Student’s past during his assessment interview in May 2012. He admitted that the responses Student’s mother gave on the BASC in Dr. Gray’s report were inconsistent with the information Student’s mother provided to him about middle school.

55. Contrary to Dr. Perlman’s description of Student’s middle school events, Ms. Harvey reported that Student had friends during her eighth grade year. Ms. Harvey testified that Student was upset when she learned that her grade point average was not high enough to allow her to attend the end of the year social activities such as the Knott’s Berry Farm trip and the dance. Those actions were not consistent with the reports of a girl paralyzed with fear. Because Dr. Perlman relied heavily on the middle school situation in criticizing the District’s May 2011 assessment, his criticism of the District’s assessment is not persuasive.
Dr. Perlman admitted that, without past history, the results of the District’s May 2011 assessment alone would not have qualified Student as ED.

56. The District witnesses were consistent in their testimony that, prior to the August 2, 2011 IEP, the District saw no need for further social/emotional or mental health assessment for Student. Ms. French opined that the District’s May 2011 triennial assessment was comprehensive based on Student’s areas of suspected disability at the time and that no further assessments in the areas of social/emotional or mental health were warranted. Nothing in that assessment indicated that Student was engaging in self-harm behaviors.

57. Breck Smith, a District program specialist who chaired Student’s IEP meetings, testified that prior to the August 2011 IEP, neither Student’s mother nor Winston had asked for further testing in the mental health area. Ms. Smith holds a special education credential and has taught pupils with SLD and ED. Ms. Smith testified that the District was not aware of the extent of Student’s anxiety until Student’s mother reported about Student’s cutting and anxiety during the August 2011 meeting. The Winston school had seen no evidence of Student cutting herself. Ms. Smith understood Mr. Kozlowski as saying that Student’s anxiety was circumstantial based on the District’s assessment.

58. Ms. Check, who conducted the academic portion of Student’s May 2011 assessment, testified that the first she ever heard of Student engaging in cutting behavior was during the August 2011 IEP meeting. Even Mr. Kozlowski testified that his first knowledge of Student’s cutting behavior came during that August 2011 IEP meeting. He admitted during the hearing that he did not think Student would have shown the type of anxiety she did absent the District testing. In his opinion, her anxiety was related to the District.

59. The District employees’ testimony was supported by the District’s primary expert witness Terry Tibbetts. Dr. Tibbetts has extensive experience in the field of ED for adolescents. He received his Ph.D. in psychology in 1979 and his law degree in 1994. He has worked as a school psychologist, as a director of special education for various school districts, as Special Education Local Plan Area (SELPA) Director, as a Clinical/School Psychologist for the State Diagnostic Center, as a Mental Health Program Specialist for the State Department of Mental Health, and as a Senior Psychologist for the California Youth Authority. He is currently employed as a psychologist for the California Department of Corrections in the division of juvenile justice. He has worked with pupils with ED in the past and assisted the California Department of Education in the development of the special education category of ED. He led a task force in 1986 that published a handbook to assist in the determination of whether a pupil had ED. He also has experience in determining when it is appropriate to make a referral to county mental health for an assessment and worked with the people who were responsible for the legislation that set up the system of county mental health referrals by school districts. He has taught college courses related to assessment of children with social/emotional needs.

60. Although Dr. Tibbetts did not assess Student, based on a review of Student’s records, Dr. Tibbetts opined that Ms. French conducted a proper social/emotional evaluation.
In his opinion, there were no red flags during her testing to indicate a need for further assessment or any need for a referral to county mental health. There were no indicators that Student had the pervasive type of behavior that indicates ED. ⁵

61. The District witnesses were persuasive on the issue of the appropriateness of the May 2011 assessment with respect to social/emotional and mental health issues. Based on all the information possessed by the District at the time of the assessment, the social/emotional assessment conducted by Ms. French was sufficient to address Student’s areas of suspected disability. While Student exhibited anxiety during the District’s assessment, that was not enough to put the District on notice that she might be a pupil with ED or warrant a further mental health assessment. The rating scales, teacher questionnaires and other assessment evidence showed Student to be a well-adjusted and socially capable young woman. Her distress caused by the District assessments seemed to be related to a single situation and not a pervasive problem. There was no need for the District to conduct further social/emotional or mental health assessment at that time.

62. The parties also dispute whether the District should have made a referral in May 2011 for Student to have further assessment in the area of visual processing/vision therapy. Ms. French testified that, based on past assessment information, there was no need to refer Student for a visual processing/vision therapy assessment at the time she began her May 2011 triennial assessment.

63. In the 2011 triennial assessment, Ms. French administered the TVPS-3 to measure Student’s visual perceptual skills. The TVPS-3 is a non-motor test instrument designed to measure various aspects of visual perceptual skills, and visual perceptual strengths and weaknesses in pupils. On the TVPS-3, Student scored in the average range on all the subtests except visual discrimination, in which she was significantly below average. Visual discrimination involves being able to visually perceive differences in forms. Although Student exhibited a low score on this test, other tests Ms. French gave also involved visual processing, so Ms. French did not rely solely on that score in making her recommendations.

64. Ms. French also examined the motor component of Student’s visual motor skills by using the Bender. The Bender is a screening device for neurological impairment and development of visual-motor integration skills in children and adults. Ms. French found no evidence of significant visual perceptual impairment based on Student’s scores on the Bender, but did note weaknesses with Student’s visual memory skills. In Ms. French’s opinion, these test instruments provided a good way to measure Student’s visual processing needs in the spring of 2011.

65. Student relies upon the testimony of Dr. Stephen Huang to support the contention that further testing in the area of visual processing/vision therapy was necessary in May 2011. Dr. Huang is an optometrist who has done a lot of work in assessment and treatment of children with visual processing disorders.

66. In September 2012, more than a year after the District’s triennial assessment, Dr. Huang conducted a visual sensory assessment of Student. His assessment did not find any visual sensory processing problems for Student.

67. During the hearing, Dr. Huang explained that there is a distinction between visual sensory problems and visual perceptual problems. Visual sensory problems relate to way the brain obtains visual information. Visual perceptual problems relate to how the brain processes the information once it is received.

68. Dr. Huang did not conduct any visual perceptual testing of Student, because he was told there had been recent visual perceptual testing done. In discussing visual perceptual processing in his report, he relied on Dr. Perlman’s 2012 assessment, and made the following findings:

Upon reviewing [Student’s] past psycho-educational reports and Dr. Perlman’s comprehensive assessment, her learning difficulties have been longstanding and complicated. The results indicating visual perceptual deficits have been mixed. It does not appear that it is the primary problem but can be a contributing factor. There are computerized visual-perceptual programs (e.g. Perceptual Therapy System (PTS II) and Visual Information Processing Skills (VIPs) that can be used to help this area.

69. In his opinion, absent an event such as catastrophic brain injury, a pupil should not develop visual perceptual problems suddenly in 2012. On that basis, he testified that it is likely Student had a visual perceptual processing problem prior to Dr. Huang’s September 2012 testing. However, he acknowledged that test results in the past had been inconsistent as to visual processing issues.

70. Dr. Perlman opined that his 2012 IEE showed visual processing problems. However, he did not have the same opinion regarding the District’s prior testing. Instead, he testified that he did not see any visual processing deficits that surfaced consistently in Student’s testing in the past. In Dr. Perlman’s opinion, school psychologists and clinical psychologists can identify visual processing deficits without referring a child to an optometrist.

71. The District’s position is persuasive in this matter. As of May 2011, the District had no reason to conduct further assessment in the area of visual processing/vision therapy. Ms. French’s assessment was complete and sufficient to address Student’s needs in that area. Dr. Perlman did not testify to a need for a further visual processing assessment or a vision therapy assessment in May 2011 based on his review of the District’s triennial assessment. Even Dr. Huang’s opinion, based on an assessment done a year later, was ambiguous – his recommendation for the two computer programs indicated that the programs would be helpful for Student, not an educational necessity.

72. The District witnesses were persuasive in their testimony that the District’s May 2011 triennial assessment was comprehensive and sufficient to address all areas of suspected disability for Student at the time. There was no denial of FAPE.

The August 2011 IEP Meeting

73. After attempts at earlier scheduling, the IEP meeting to review the triennial assessment was ultimately held on August 2, 2011. ⁶ The people in attendance at the meeting included Student’s mother, the attorney for Student’s mother, the attorney for the District, Breck Smith (the District administrative designee), Ms. French, Ms. Check, a general education teacher, a special education teacher, and Mr. Kozlowski. Student was invited to the meeting, but did not attend. Student’s counselor from Winston did not attend the meeting, but was involved with preparing the present levels of performance and recommended draft goals that were presented to the IEP team.

74. Ms. French reviewed her assessment report during the meeting, and the IEP team discussed her findings. The team also discussed present levels of performance and goals. ⁷

75. During the meeting, there was a great deal of discussion regarding Student’s anxiety, particularly her anxiety about returning to public school. Student’s mother told the team that she believed Student had engaged in cutting behavior over the summer.

76. The present levels of performance regarding Student’s social/emotional and behavioral functioning in the IEP stated the following:

During the May 2011 assessment, [Student] appropriately expressed her frustration with being assessed. Her mother stated that she had been anxious over the process for weeks. Academic testing needed to be broken up in two sessions to accommodate for her anxiety.

The Winston School reports that [Student] has made steady progress in her ability to make and maintain age-appropriate friendships. The Winston School counselor reports that [Student] has been exposed to various strategies to help her with her test anxiety. The school site states that in recent weeks, she has shown much anxiety when the district has tested her, and has required maximum intervention to help her through her anxiety strategies. Winston School reports that [Student] has begun processing her raw emotions regarding her former placement within the counseling setting. However, she still has a lot of fear and anxiety over her former placement on 4 out of 5 occasions.

77. Based on the reports from Student’s mother during the meeting that Student had begun cutting herself over the summer, was exhibiting anxiety, and had even threatened suicide, the team discussed making a referral to county mental health for a mental health assessment of Student. As will be discussed below, a referral for a mental health assessment was ultimately made as a result of information discussed during the meeting.

78. There was an extensive discussion regarding placement during the meeting. Several different placement options were proposed and discussed. Student’s mother and Mr. Kozlowski provided input to the discussion. Student’s counsel was active during that discussion and during the rest of the meeting. The District team members were polite, professional and open to the comments and suggestions made by Student’s counsel, Student’s mother and Mr. Kozlowski throughout the meeting. Upon many occasions during the meeting, District staff solicited comments from Mr. Kozlowski and Student’s mother.

79. The proposed IEP recommended that Student be placed at Temecula Valley High School. The IEP called for her to be placed in a special education special day class (SDC) for her core curriculum classes (for four periods a day) and in general education for the remainder of the day, with special education consultation and collaboration. Student would also participate with non-disabled peers during recess, lunch, and extra-curricular activities. In total, Student would be outside the regular education environment for approximately half of her school time.

80. The District proposed the SDC classroom because Student had been working in a small classroom setting at Winston and because of the reports of her anxiety about returning to the public school. The District wanted to make certain she would be successful in her transition.

81. To address Student’s anxiety, the IEP called for 30 minutes of individual counseling for Student per week and 45 minutes of small group counseling per week. The IEP also contained a goal related to the use of coping skills to help overcome her anxiety
regarding her former District placement. According to Mr. Kozlowski’s testimony, Student’s counselor at Winston had recommended counseling once a week for Student if Student remained at Winston.

82. The IEP offered supplementary aids, services and supports to assist Student including, 1) visual aids to support instruction; 2) a mobility pass (which Student could use to leave class at any time to speak to a counselor or trusted staff member); 3) access to assistive technology for writing assignments; and 4) repeated directions.

83. The IEP also contained a special factors page which listed accommodations regarding Student’s anxiety including: “counseling, immediate access to counselor or trusted staff member, classroom support to refocus her practice of newly learned strategies.” The IEP called for Student to receive special education transportation to and from school with the rationale that Student’s “anxiety may impede her from traveling to school.”

84. The IEP contained two transition plans. It contained an individual transition plan (ITP) related to Student’s post-secondary school goals and a transition plan to help transition Student from her placement at Winston to a placement at the public school.

85. The IEP team had extensive discussions about both the post-secondary ITP and the plan to transition Student back to public school. With respect to the latter, Mr. Kozlowski recommended a dual enrollment for Student, in which Student would attend Winston for part of her day and the public school for part of the day. When the District staff asked Student’s mother her opinion about that proposal, she said she did not think she could get Student’s “buy in” to a dual enrollment. Because of the distance from Winston to Temecula Valley High School, Student would also lose educational time while riding on the bus. Student’s mother did not want Student to lose any of her social activity time at Winston so she objected to a plan that would place Student at Winston in the morning for core classes and then at the District in the afternoon for one elective class.

86. The team also discussed the possibility of reversing the dual-enrollment plan and placing Student at the District in the morning, and Winston in the afternoon, but Student’s mother complained that, “Now we’re talking about credit deficiency.” Student’s mother believed that Student would run away from the District campus if dual enrollment was in effect. Student’s mother wanted Student to stay at Winston full time. ⁸

87. The District ultimately proposed a transition plan that provided counseling and therapy to Student to smooth over any anxiety she might have about returning to public school, as well as meetings with school staff prior to attendance to familiarize her with the public school campus. The IEP notes described the transition plan as follows:

To support [Student’s] transition to TVHS, [Student] can meet with a school counselor prior to the commencement of the regular school year to discuss her schedule. [Student] can also meet with a school DIS counselor and school psychologist prior to the start of the school year to discuss concerns or anxiety related to attending TVHS. [Student] will receive a mobility pass to permit her to see a school counselor at any time during the school day. An IEP team meeting will be held 30 days after [Student] commences attendance at TVHS to discuss her transition and determine if any adjustments to the IEP are warranted.

88. The IEP meeting notes also indicated that Student’s mother requested, among other things, a vision therapy evaluation as well as a central auditory processing assessment. Student’s mother requested that the team make a referral for Student to have a county mental health assessment based on Student’s anxiety, and the team agreed to do so. Neither Student’s mother nor her attorney requested an IEE for a psychoeducational assessment during the meeting. ⁹

89. Student’s mother attached written comments to the District’s proposed IEP. Her comments noted, among other things:

It was reported that [Student] has recently begun cutting herself again. Her mother believes that she will not be able to get [Student] to the public school or to keep her there.

[Student’s mother] is concerned for her daughter’s safety and emotional well being should she be moved from Winston inappropriately.

90. During the meeting Student’s mother and Student’s counsel predicted that Student would refuse to attend public school if the IEP proposed that placement. Student’s mother reported to the team that Student got claustrophobic on a public bus.

91. Student raises three objections to the District’s August 2011 IEP offer. First, she contends that it was invalid because it was made without sufficient assessment information. In particular, Student believes that further mental health assessment should have been conducted before the offer was made. The evidence does not support Student’s contention.

92. As stated above in Factual Findings 25 – 72 above, the District May 2011 assessment was appropriate and comprehensive. There was no need for further mental health or visual processing assessment at that time. When Student’s mother raised new issues during the IEP team meeting about Student cutting herself over the summer, threats of suicide, and possible claustrophobia about taking a bus, the District reacted properly by agreeing to refer the matter for a mental health assessment.

93. However, nothing at that time required the District to wait for the new assessment before making an IEP offer. The information the District possessed at the time of the meeting indicated that Student’s only real mental health issues (besides some high-stakes test anxiety) involved her desire not to leave Winston to return to public school. Based on the information possessed during the meeting, the District could reasonably anticipate that, once the transition was made, Student’s anxiety would decrease with counseling and the other transition services.

94. The information the District possessed during the meeting did not indicate the degree of anxiety or panic that surfaced later. For example, Student’s mother talked to the IEP team about “buy-in” by Student. That type of language implied Student’s concerns were based on her preference for Winston, not immobilizing anxiety or panic attacks.

95. Ms. French testified that, at the time of the August 2011 IEP, she did not think Student would have difficulty leaving her house to attend the public high school. She acknowledged that Student’s mother had raised concerns during the IEP meeting, but those concerns were not consistent with the assessment data that Ms. French collected. Everything in her assessment report indicated that Student was resilient enough to make the change.

96. Student did not bring in sufficient evidence to meet her burden to show that the District’s August 2011 IEP offer was made without adequate assessment information. There was no denial of FAPE.

97. Student next contends that the offer for placement in the public school was inappropriate to meet Student’s needs. Student relies on the testimony of Dr. Perlman and Mr. Kozlowski in support of this contention.

98. Mr. Kozlowski testified that, at the time of the August 2011 IEP meeting, he believed the District’s offer of placement at the public high school was not appropriate for Student. During his testimony, he raised four objections to the placement: 1) Winston “wasn’t on the table” during the IEP meeting; 2) when he had discussed a dual enrollment at the meeting, he was “shot down;” 3) the fact that he and Student did not have an opportunity to visit the proposed placement; and 4) because other professionals in the room had discussed other possible placements, but Ms. Smith “overruled them and offered her version of the placement.” He believed that Student was not ready to return to public school and that she would have shut down there because her academics were tied to her emotions.

99. Student’s expert, Dr. Perlman, relied on Mr. Kozlowski’s opinion that Student was not ready to change placements as of August 2011. Dr. Perlman explained that his belief that the public school program was not appropriate was based solely on Student’s emotional needs, not her academic learning disabilities.

100. The District witnesses, on the other hand, believed at that time that Student could be successful in public school. Ms. French testified that, based on her assessment data, she believed Student could transition back to public school. Ms. Check believed that Student was too high functioning to be in a restrictive placement like Winston. She believed that Student’s academic needs could be met at the public high school.

101. Ms. Smith testified that, based on the information the District had as of August 2, 2011, the District believed Student’s needs could be met on a comprehensive District campus. Ms. Kubes, a special education teacher at the public high school, also testified that Student’s needs could be met at the high school as of August 2011. Ms. Kubes believed Student could have been successful on her IEP goals there.

102. Dr. Tibbetts agreed that the District’s offer of placement was appropriate at the time it was made. Based on Ms. French’s assessment, he felt there was no reason to believe that Student was emotionally disturbed or would need anything more restrictive than an SDC class in a public school setting. In his opinion, Student would have benefitted from a public high school placement, and it would have given her access to typical peers. He felt it was appropriate to offer Student an SDC class because she had previously been in a small class at Winston and there was discussion during the IEP meeting about anxiety. If she was able to make gains in that sheltered setting, they could increase her time in regular classes.

103. The District’s witnesses were persuasive on the issue of the offered placement. No one disputed that Student, from an academic point of view, was fully capable of making progress and gaining educational benefit at a public high school. Although she needed specialized academic instruction to address her learning disability, she did not need full-time placement in a small, restrictive SDC school such as Winston. At the public high school, she would have had access to typical peers.

104. While the IEP team had information to indicate that Student had emotional issues, anxiety, and panic attacks, particularly where the District was concerned, there was not sufficient evidence of pervasive emotional problems at the time of the August 2011 IEP meeting that would have kept her out of public school. It was objectively reasonable at that time for the District IEP team members to conclude that, with appropriate counseling and supports, Student would gain educational benefit both academically and emotionally in public school.

105. As will be discussed in the Legal Conclusions below, under these circumstances, the District was required to offer Student an education in the least restrictive environment (LRE) appropriate to meet her needs, and that LRE was the public school. The District’s proposed educational program offered her the small, structured SDC classes that
would mirror the support she received at Winston, but at the same time would enable her to interact with typical peers. There was no evidence at hearing that Winston had any general educational classes or typically developing pupils in their classes. There was no denial of FAPE based on the placement offered by the District in August 2011.

106. Finally, Student contends that the plan in the August 2011 IEP to transition Student from Winston back to the public school was inappropriate. Once again, Student relies on the testimony of Dr. Perlman and Mr. Kozlowski to support her position.

107. Mr. Kozlowski did not believe the transition services in the August 2011 IEP offer were appropriate for Student. He felt she was not ready to transition to a less restrictive setting, but if she was ready it should be done through a dual enrollment (at Winston and the public school) to see how she would do at the public school. Based on what he saw during the triennial assessment, he did not think Student could transition successfully. His recommendation would have been for Student to stay at Winston, and if her anxiety lessened during the year, they could consider a dual enrollment and then a return to public high school in her senior year. He also believed that transportation for Student from Winston to the public school would have been difficult because she would have been emotionally distraught over it.

108. In Mr. Kozlowski’s opinion, any transition plan should have included a visit to the proposed placement and a three to four month trial period in which a counselor checked with her daily to make sure the conduct they initially saw at Winston was not returning. He felt that if Student returned to the public high school, she would need daily counseling to help her deal with the forced movement. In his opinion, she would have needed one-to-one support to function in the public high school.

109. Dr. Perlman also felt the transition plan was not appropriate. He believed a dual enrollment might have been appropriate at that point, but he felt it was too much to expect Student to drop all support she had at Winston to return to the public school, even with supportive adults on the public school campus. In his opinion, the District’s proposed plan was doomed to failure.

110. Dr. Tibbetts, on the other hand, believed the transition plan was appropriate and adequate to meet Student’s needs. He felt the plan would enable Student to return to a regular school campus, but provide supports such as counseling and the mobility pass to seek out counseling when needed. In his opinion, a dual enrollment would not have been his first choice because of the logistical problems and because Student could lose school credit during the long driving time.

111. Donna Evelyn, a senior clinical psychologist with Riverside County Mental Health Department who assessed Student in December 2011 (as will be discussed below), agreed that the District’s offered transition plan was appropriate at the time it was made. She felt that Student had a lot of preconceptions about the District school. The transition plan would give Student an opportunity to get to know the place and discuss her fears with the
District counselors before hand. In Dr. Evelyn’s opinion, any adolescent will have a difficult time changing schools when she has friends at the old school. The District’s proposed transition plan could have addressed Student’s concerns about an SDC setting and how the class would be taught.

112. Ms. French felt the transition services offered by the District were appropriate for Student and were more than what Student would need. Ms. Kubes also testified that the transition plan was appropriate based on the information the District possessed at the time of the IEP meeting.

113. Based on the evidence the District had at the time of the August 2011 IEP meeting, it was objectively reasonable for the District to conclude that Student could successfully transition from Winston to the public school given the counseling, mobility pass, and other services offered in the August 2011 IEP transition plan. Student had shown no sign of serious anxiety or phobias while at Winston. According to Mr. Kozlowski, she participated in numerous activities while at Winston, including riding a bus to go to softball games and participating in a drama class. She had also taken five hours of public transportation a day to attend Winston during part of her time there.

114. While Dr. Perlman was well qualified, his opinion was not as persuasive as Dr. Tibbetts’s opinion, because Dr. Perlman relied heavily on the middle school information in forming his opinion regarding what the District should have known as of August 2011. He acknowledged that Student’s emotional needs had changed between the time of Ms. French’s May 2011 assessment and his own May 2012 assessment.

115. In Student’s written closing argument, Student objected to the post-secondary ITP in the August 2011 IEP. Student contends that it was not designed to meet Student’s unique needs. Student’s due process complaint did not allege a problem with the postsecondary ITP. Instead, the “transition plan” discussed in the complaint related to the transition from Winston back to the public school. It is questionable whether the District was given sufficient notice that Student would object to the post-secondary ITP. However, even if the issue had been raised, there was no denial of FAPE based on that post-secondary ITP.

116. The post-secondary ITP included activities such as assisting Student to complete college applications and sign up for college entrance testing. The IEP also contained transition-related goals and services designed to assist Student with seeking a parttime job, obtaining a driver’s license, and assisting her with independent living skills such as developing a personal budget and opening a checking account. Ms. Kubes was the District’s teacher for the transition program class and worked on transition goals with pupils. She testified that the IEP offered an appropriate ITP for Student. Her testimony was persuasive on that issue.

The Requests for Assessments and an IEE

117. On August 16, 2011, the District wrote to Student’s mother, agreeing to conduct (or make a referral for an outside provider to conduct), the requested assessments in the areas of vision therapy, non-verbal cognitive ability, central auditory processing disorder (CAPD) and mental health. The parties thereafter engaged in a dispute about the language of the assessment plan for the assessments. Student’s mother believed the plan was vague. She did not sign her agreement to the assessments (except for the referral to county mental health for assessment, which will be discussed below). The District claimed the plan was not vague and refused to revise it. Student’s mother ultimately signed the other assessment plans with written comments. During the hearing she testified that she had not signed her agreement earlier, because she was not aware she could comment on an assessment plan.

118. Student presented no evidence that the failure to conduct the vision assessment, non-verbal cognitive ability assessment or CAPD assessment sooner affected Student’s education or the District’s IEP offers. Student presented insufficient evidence that any of these three assessments were educationally necessary for Student. There was no denial of FAPE based on any delay in these assessments.

119. On September 3, 2011, the District prepared the packet for a referral for a mental health assessment of Student. Student’s mother signed the consent for the assessment and release form for exchange of information on August 29, 2011. The District sent that packet to the county mental health agency on September 7, 2011.

120. Because of a mix-up, the District staff sent the referral packet to the wrong government mental health agency. That agency forwarded the referral to the correct agency at some point after receiving it. Although the evidence did not show when the packet was forwarded to the correct agency, the mental health assessment was not begun until December 2011. The mental health assessors had difficulty getting information from Winston and Mr. Moore, so the assessment report was not finalized until February 2012.

121. On September 19, 2011, Student’s mother sent a letter to the District which stated, in part:

I am writing this letter to inquire as to the status of my request for an IEE for my daughter [Student]. On August 2, 2011 during my daughter [Student’s] IEP I requested a district funded Independent psycho-educational evaluation by a neuro-psychologist.

122. On October 5, 2011, the District responded to the September 19, 2011 letter from Student’s mother regarding her request for an IEE. The District’s response stated, in part:

Your letter requests that the District fund a “psycho-educational” IEE to be performed by a neuropsychologist. We do not have any recollection or record of you requesting an IEE for [Student] at the IEP team meeting held on August 2, 2011. If you are now requesting an IEE for [Student], please identify the District assessment(s) with which you disagree and for which you are seeking the psycho-educational IEE to be performed by a neuropsychologist. Please understand that we need to know which District assessment(s) you disagree with so that we can determine if we will fund the requested IEE or request a hearing to demonstrate the appropriateness of our assessment(s). Once we receive your written clarification on this issue we will respond in writing and inform you as to whether we will grant your request for an IEE.

123. Student’s mother never responded to this letter or answered the question posed in the letter. On January 10, 2012, Student’s counsel sent a letter inquiring about the status of the IEE. On February 6, 2012, after Student’s initial due process request had been filed in this case (OAH case number 2012020005), the District sent a letter agreeing to fund an IEE in the area of psychoeducation. The District ultimately agreed that Student’s proposed assessor, Dr. Perlman, would conduct the IEE.

124. The failure to conduct the county mental health assessment in a timely fashion, constituted a procedural violation of special education law. Dr. Tibbetts recognized that the District is ultimately responsible for the delay, even if the delay was caused by the county mental health agency. However, as will be discussed in the Legal Conclusions below, there was no substantive denial of FAPE based on that procedural violation. The county found that Student did not need mental health services and recommended no changes to the August 2011 IEP. Even if the assessment had been completed sooner, it would not have changed anything in this case.

125. The failure to respond to the IEE request in a timely fashion was a different matter. The September 2011 letter by Student’s mother was sufficient to put the District on notice that she objected to the District’s triennial assessment and requested an IEE based on that assessment. At the time, the parties were trying to determine why Student was failing to attend school. An earlier IEE might have provided the necessary insight and enabled the District to make its April 2012 offer for a therapeutic NPS at an earlier time. Under those circumstances, the procedural violation resulted in a substantive denial of FAPE. The extent of that FAPE denial and the appropriate remedy for that denial will be discussed in the Legal Conclusions below.

Events Between the August 2011 IEP Meeting and April 2012 IEP Meeting

126. After an initial disagreement about whether Student’s mother had provided sufficient proof of residency to the District, Student’s mother signed the District’s proposed
IEP on October 11, 2011. ¹⁰ She added a notation expressing her disagreement with the IEP, but explaining that she was willing to let the District try it.

127. Student’s mother came to the District to register Student on October 20, 2011. The District arranged for a bus to transport Student to and from school starting the next morning. The District informed Student’s mother that Student’s team would be assembled to meet Student on her first day at school as called for in the IEP. The team consisted of Ms. Kubes (Student’s special education teacher and case carrier), Michelle Galusha (Special Education Department Co-Chair), Jeremy Warren (School Psychologist), Cathy Olszewski (District Counselor), and Robert Huish (Assistant Principal).

128. Although the school bus arrived to pick up Student the next day as scheduled, Student did not get on the bus. Student’s mother informed the bus driver that Student would not be attending school that day. Ms. Kubes suggested that Student’s mother should bring Student to school for the first week to help alleviate some of Student’s anxiety. Student’s mother did not agree to do so. She told Ms. Kubes that she wanted to leave things the way they were and that she wanted Student to ride the bus.

129. Student did not board the bus on the next day or any subsequent day. Student’s mother told Ms. Kubes that Student had too much anxiety to get on the bus. She told the District staff that Student started crying uncontrollably, had a stomach ache, and threw up. During her testimony, Student’s mother affirmed that she tried to do everything she could think of to get Student to attend school, but nothing worked.

130. On October 26, 2011, the District proposed that three District staff members –Ms. Kubes, Mr. Warren, and Ms. Olszewski –meet with Student at her home to talk about going to school and boarding the bus to be transported to school. The purpose for sending the employees to the home was to build a relationship with Student and support her in attending school. The parties attempted this transition service, but it was not successful in convincing Student to go to school. Despite multiple visits by various District staff members, Student still failed to take the bus or go to school.

131. On November 11, 2011, the District once again sent the parent rating scales from the BASC and the parent survey/information form to Student’s mother. The letter also included an additional assessment rating scale targeting areas related to ED. Student’s mother did not fill out the forms or return them to the District at that time. The District noticed a new IEP meeting for Student to discuss concerns about Student’s continuing failure to attend school.

132. On December 5, 2011, Dr. Evelyn met with Student and Student’s mother as part of the requested county mental health assessment. Because of delays in getting documents from Winston and Mr. Moore, the county’s assessment report was not completed until 2012. The District did not have that report as of December 2011.

133. Student’s IEP team met on December 13, 2011. According to the IEP notes, Student’s mother had received the November 11, 2011 letter with the rating scales, but had not yet completed or returned them to the District. Student’s mother stated that she had not received an assessment plan. The District provided Student mother with the release of information to speak to Student’s counselor to gain further information.

134. The District IEP team members believed that additional information and assessment results were needed to determine the appropriate placement for Student, so no changes were made to Student’s IEP at that December 2011 meeting. Dr. Tibbetts testified that, in his opinion, it was appropriate for the District to wait until the county mental health assessment was completed. He believed that the District had acted properly in making the county referral and had no reason to change the IEP until that assessment was complete.

135. At some point in late 2011, the District began School Attendance Review Board (SARB) proceedings regarding Student’s continuing failure to attend school. The SARB hearing was noticed for January 24, 2012. According to Student’s mother, the SARB Board ultimately met and determined Student’s conduct was not defiance. They dismissed the SARB proceeding and said it was an IEP matter.

136. Student’s IEP team met again on February 6, 2012, to discuss Student’s continuing failure to attend school. Dr. Evelyn presented the county mental health assessment. Ms. French had begun a new social/emotional assessment of Student on behalf of the District but had not yet been able to meet with Student and had not completed her report. Because of concerns that Student would have anxiety if Ms. French assessed Student in Student’s home, the IEP team arranged that Ms. French would meet with Student at Mr. Moore’s office to assess Student. ¹¹

137. The February 2012 IEP team received conflicting reports about the cause of Student’s failure to attend school. Student’s mother believed that Student’s anxiety and panic disorder made Student unable to get on the bus. Student’s mother had finally returned her responses to the BASC rating scales to the District. Her responses indicated that Student might be eligible for special education under the category of ED.

138. Student’s private therapist Mr. Moore participated in the February 2012 IEP meeting and provided input to the team. He told the team that he believed Student had a diagnosis of panic disorder and anxiety around large groups of people. He did not make any recommendation for placement or services for Student during the meeting.

139. The parties dispute part of what Mr. Moore told the team at the February 6, 2012 IEP meeting. According to Ms. Smith’s testimony, Mr. Moore stated that he had not worked with Student very many times, so most of what he told the team was based on parental report and his diagnosis of Student was based exclusively on parental report. Student’s mother denied that Mr. Moore made such statements to the IEP team.

140. Mr. Moore did not testify during the hearing, but he did write a letter in December 2011 which indicated that he had been meeting with Student “to address issues of anxiety, stress, and depression stemming from a refusal by the Temecula Unified School District to make an academic placement at the Winston School.” The letter went on to state:

[Student] has recently experienced panic attack symptoms including rapid heart beat, trembling or shaking, shortness of breath, nausea, and lightheadedness. These symptoms have occurred during her exposure to crowded environments such as the mall or on trains. Other times that have triggered these symptoms have included interactions with Temecula USD representatives, both at the Winston School and more recently at her home. She has also experienced unexpected symptoms not associated with known situational triggers. I believe a diagnosis of Panic Disorder is appropriate at this time and, as a result, it would be difficult for [Student] to thrive academically at an institution as large as Chaparral High School.

141. The county mental health report presented a different picture of Student. Contrary to the report of Student’s mother and Mr. Moore, Dr. Evelyn believed that Student’s desire to attend Winston, not her mental health issues, was preventing her from attending public school. She took issue with Mr. Moore’s opinion and believed his letter was carefully worded. During the hearing, she described it as “encrypted.”

142. Dr. Evelyn has extensive experience evaluating children with mental health needs, including experience working with adolescents with depression, anxiety, self-harm behaviors, and panic disorders. She has evaluated youths who were prevented from going to school as a result of their anxiety. She explained that a panic disorder can be disabling because the individual will worry and not get anything done.

143. She testified that the purpose of her assessment was to determine if Student was a person who could benefit from county mental health services. Her assessment was not a complete psychoeducational assessment. She did not do any testing and spent about an hour and a half interviewing Student and her mother. Student came to Dr. Evelyn’s office for the interview. Student’s mother testified that Student was having difficulty leaving her
home because of her emotional issues, and Student was only able to go to Dr. Evelyn’s office because Mr. Moore, her mother, her advocate, and her sister convinced her to go.

144. After interviewing Student, Dr. Evelyn did not believe that Student’s failure to attend school was due to a panic disorder. Instead, she believed that Student did not want to attend any school but Winston. In Dr. Evelyn’s opinion, Student’s mental health issue seemed more like an adjustment disorder than a panic disorder. Student had some symptoms of anxiety and felt claustrophobic, but she could function and go to school – just not at any other school besides Winston.

145. The parties dispute what happened during Dr. Evelyn’s interview with respect to evidence of Student cutting herself. Student’s mother testified that she tried to show Dr. Evelyn where Student had been cutting, but Dr. Evelyn said she did not need to see it.

146. Dr. Evelyn denied that occurred. She testified that she asked to see Student’s arms, and Student pointed to two areas, but Dr. Evelyn did not see any evidence of scarring in those two areas. At that point Dr. Evelyn said she did not need to see anything else.

147. Dr. Evelyn’s report concluded that Student did not appear to have significant emotional/behavioral problems that would interfere with her ability to benefit from the District’s proposed public high school placement, and did not recommend any mental health treatment for Student. The report concluded that Student’s “current emotional difficulties appear to stem from her disappointment over the school district’s legal mandate to place students in the least restrictive setting and it is manifested by her recent refusal to attend school.” The report also concluded that the District’s proposed transition plan was appropriate and would support Student in the transition to the public school.

148. The IEP team discussed attempts to help Student attend school. They decided, as a transition service, to send Ms. Kubes to Student’s home once a week for four weeks to try to build a rapport with Student. Ms. Kubes would instruct Student in school work during those sessions, but the purpose was not to give home instruction. Instead the purpose was to give Student an individual with whom she could feel comfortable, to help ease her transition to the public school. In order to accommodate Student’s anxiety, Ms. Kubes would meet with Student at a public business establishment near Student’s home (Starbucks), instead of Student’s home. The IEP also continued to offer the transition services from the August 2011 IEP, including the counseling and mobility pass.

149. Student’s mother disagreed that the District’s February 2012 addendum IEP was appropriate for Student, but she signed her consent to allow the District to try it on February 21, 2012. On the same day, Student’s mother consented to an assessment plan for Dr. Perlman’s IEE and to the proposed assessments for vision therapy and CAPD.

150. In Dr. Tibbetts’ opinion, the District’s February 2012 transition plan was appropriate given the information the District had at the time. He believed that, based on the county mental health report, the District did not have enough information to determine that
Student had ED at that time. Student was starting to look more complex, but the county assessment found her to be a pupil with SLD who was refusing to go to school. Dr. Tibbetts liked the fact that the new transition plan got Student out of her house to a neutral location to meet with Ms. Kubes while the team waited for new assessment information.

151. After Student’s mother agreed to the IEP, Ms. Kubes met with Student at Starbucks coffee shop on four occasions to try to build a rapport with Student. During those meetings Ms. Kubes provided instruction to Student in the area of United States history. Ms. Kubes had suggested just working on one subject so the District did not overwhelm Student. Student was angry at the District during the first session because she had to leave Winston to return to public school. After she expressed her anger to Ms. Kubes, they were able to work together. Student worked with Ms. Kubes every time they met, and Ms. Kubes believed that she established a good relationship with Student during that time. However, Student still failed to attend school.

152. There were delays in completing Ms. French’s social/emotional assessment because of the need to schedule the dates with both Student’s mother and Mr. Moore, in order for the testing to take place in Mr. Moore’s office. Ms. French ultimately completed her assessment and drafted a report dated April 16, 2012.

153. Ms. French’s assessment consisted of observation and interview of Student (during testing), interview of Student’s special education teacher, administration of behavior rating scales, and a review of records, including review of past school assessments, Dr. Gray’s report and Dr. Evelyn’s report. The rating scales included the Piers-Harris Children’s Self-Concept Scale, Second Edition, the Reynolds Adolescent Depression Scale, Second Edition, the Scale for Assessing Emotional Disturbance, Second Edition, and the BASC.

154. Ms. French conducted her testing of Student in a conference room outside of Mr. Moore’s office. Mr. Moore was present during the testing. Student’s scores on the various rating scales changed from the average range in the May 2011 assessment to show anxiety and depression in the April 2012 assessment. Student responded in the clinically significant range regarding self-injurious behaviors. Student’s mother and Ms. Kubes both responded to their rating scales with answers that indicated a high probability of ED. When Ms. French sought input from Mr. Moore, he stated that he did not know Student that well.

155. Ms. French determined that Student met the eligibility criteria for a child with ED in two respects: 1) she had a general pervasive mood of unhappiness or depression; and 2) she had a tendency to develop physical symptoms or fears associated with personal or school problems. Ms. French believed that Student had grown depressed over the months since the 2011 assessment because Student had withdrawn and sequestered herself in her home. In Ms. French’s opinion, Student had developed emotional issues not apparent in May 2011.

The April 16, 2012 IEP Offer

156. Student’s IEP team met again on April 16, 2012, to review the new assessment data and consider Student’s placement in light of that data. The District team members recommended that Student’s eligibility for special education be changed to ED with a secondary eligibility category of SLD. The team also drafted additional IEP goals to address Student’s mental health needs. Because of Student’s anxiety and other emotional issues, the District proposed placement for Student at a school referred to as Oak Grove Murrieta (Oak Grove).

157. Oak Grove is an NPS which specializes in educating pupils with ED. The Oak Grove program has a strong therapeutic component. During the hearing, Michelle Sebastian, an education specialist/administrator from Oak Grove, testified that Student’s proposed classes at Oak Grove contained approximately 11 to 12 pupils. There was a teacher and two support staff in each class. One of the staff members was a behavior specialist or counselor and the other was an educational assistant. According to Ms. Sebastian, Oak Grove’s population of ED pupils consists of approximately 60 percent with acting-out behaviors and 40 percent with acting-in behaviors (which are behaviors directed at the pupil, such as selfinjurious, cutting behaviors). There are licensed therapists on the Oak Grove staff. If a pupil needs to see a licensed therapist for any reason, the pupil can do so. Oak Grove also offers an extended day program after school. On three days a week, the program is led by a licensed therapist who runs a social counseling group. The other two days can be used for homework, study skills or social skills. All pupils who attend Oak Grove are required to attend a minimum of 60 minutes per week of therapy.

158. The District’s proposed April 2012 IEP called for Student to receive specialized academic instruction for 314 minutes a day, with post-secondary transition services (such as college awareness and career awareness classes). The supplementary aids and services in the proposed IEP included: visual aids to support instruction, a mobility pass to enable Student to speak to a counselor or trusted staff member, access to assistive technology for writing assignments, and repeated directions.

159. To help Student transition to Oak Grove, the IEP called for Student to receive a 50-minute therapy session to be “provided off campus at a mutually agreed upon place and time provided by an Oak Grove therapist.” The IEP also contained “[s]ocial/emotional goals to determine progress” and called for individual therapy one time per week for 50 minutes per session as well as family therapy every other week for 50 minutes minimum for the first three months.

160. The District IEP team members felt that Student’s mental health needs could be adequately addressed at Oak Grove, and the school’s academic component would enable Student to make up the credits she had missed and work toward a high school diploma. Ms. Smith testified that the District believed Oak Grove was appropriate because it had a therapeutic component as well as an academic component. While Winston could provide
counseling, Ms. Smith did not believe Winston offered the same therapeutic component to the program.

161. Ms. French also testified that Oak Grove was an appropriate placement for Student at that time because of the significant therapeutic component of the Oak Grove program and the small class size. In her opinion, the transition plan to have Student meet with a counselor at a neutral location could be successful because Student had been able to leave her house to meet with Ms. Kubes at Starbucks in the past.

162. Ms. Kubes also believed that Student needed the small group, therapeutic environment that Oak Grove could provide. Winston did not have the same therapeutic environment.

163. Ms. Sebastian had never met or assessed Student, but based on what she heard at the April IEP meeting, she felt Oak Grove could meet Student’s needs. She testified that Student’s IEP goals were similar to those of pupils at Oak Grove and Student’s reported “acting-in” behaviors were similar to many of Oak Grove’s pupils.

164. Amil Alzubaidi, a licensed marriage and family therapist who serves as the Coordinator of Behavioral Health for the District, attended Student’s April 2012 IEP meeting. He agreed that Oak Grove could meet Student’s needs because of its strong therapeutic environment. He believed it could help Student develop the coping strategies she needed. In his opinion, by April 2012, Student’s needs had changed so it was no longer appropriate to offer her a placement at the public high school. Student needed immediate access to a counselor, which she could get at Oak Grove, but not at Winston. He also believed the transition plan was appropriate.

165. Dr. Tibbetts also opined that Oak Grove was an appropriate placement at that point in time. Dr, Tibbetts was familiar with the program at Oak Grove and had placed pupils at Oak Grove in the past. He visited Oak Grove in October 2012, shortly before the hearing. He explained that Student had been found eligible under the ED category and the District now understood that her unwillingness to leave home was part of an underlying ED. It was very important at that point to offer a sheltered placement to address her emotional as well as academic needs. In his opinion, Oak Grove had many aspects that made it appropriate – it was a small campus, has small class sizes, three adults in each class (including a behavioral aide or counselor) and therapy was embedded in the program. The school had a credit recovery program, so Student could make up the school credit she lost.

166. Dr. Tibbetts also felt that the transition plan was appropriate since it gave Student a chance to meet with and become familiar with Oak Grove staff. Since Student had been able to meet Ms. Kubes at a neutral location, the District could reasonably anticipate that she would meet with the Oak Grove staff at a neutral location. He believed that the staff at Oak Grove was trained to address anxiety and the types of symptoms that Student exhibited. He felt that Student could be taught coping skills to address her anxiety.

167. Dr. Tibbetts was familiar with Winston and did not believe Winston could properly serve her needs, given what the IEP team knew at that point in time. When Student had attended Winston in the past, her emotional needs had not been as severe as those she exhibited later. The distance from Student’s home to Winston was another factor that made it inappropriate.

168. Student’s witnesses, on the other hand, did not believe that Oak Grove was an appropriate placement. Student’s mother observed Oak Grove in either April or May 2012 and testified that she saw a physical fight break out between two girls in the class that Student would have attended. She also saw a lot of yelling and swearing. She said that when she described her daughter to the teacher, the teacher was surprised the District had recommended Oak Grove. Student’s mother later agreed to the Oak Grove placement (after the August 2012 IEP offer) because she thought anything would be better than nothing, not because she thought it was appropriate.

169. During the hearing, Dr. Perlman also took issue with the proposed Oak Grove placement. (Dr. Perlman’s specific objections to Oak Grove will be discussed in the Factual Findings regarding his IEE below.) In his opinion, Student’s IEP team should have recommended a placement at Winston. Dr. Perlman’s IEE was not conducted until after the April 2012 IEP meeting, so the District did not have the benefit of his findings at the time of the meeting. As will be discussed below, Dr. Perlman’s findings supported the District’s decision to change Student’s eligibility category to ED. Although he disagreed with Oak Grove as a placement, his findings regarding Student’s anxiety and panic disorder supported the District’s decision to offer a small, therapeutic NPS placement for Student.

Dr. Perlman’s IEE

170. Dr. Perlman began his IEE assessment of Student in May 2012. On August 12, 2012, he sent a copy of his IEE report to the District along with comments on the April 2012 proposed goals. Dr. Perlman conducted an extremely detailed review of all of Student’s prior testing based on records provided to him by Student’s mother. Dr. Perlman interviewed Mr. Kozlowski, Student and Student’s mother. He also conducted academic, cognitive, and social-emotional testing. At the time of Dr. Perlman’s testing, Student was 17 years and nine months old, and had not attended school for approximately a year. Dr. Perlman contacted Mr. Moore to confirm the diagnoses in Mr. Moore’s letter, but did not interview him. Dr. Perlman made no attempt to speak with Student’s middle school teachers, but relied solely on the records and information about middle school provided by Student and her mother.

171. Dr. Perlman agreed with the IEP team’s decision to change Student’s eligibility category to ED, with the secondary eligibility category of SLD. Dr. Perlman noted in his report that:

There was no mistaking the fact that [Student] has Depressive Disorder and an Anxiety Disorder. Evidence from multiple sources (empirical and anecdotal) was clear, in fact, that [Student] is not merely experiencing a global dissatisfaction with her current condition; rather, intensely negative and painful emotions impact her substantially, virtually on a daily basis. (Emphasis in original.)

172. Dr. Perlman’s testimony at hearing supported his report. He felt very strongly, based on his interview of Student, that Student genuinely suffered from anxiety and panic attacks. He believed that her problems were chronic, not a reaction to an immediate stressor. He believed that she was likely to internalize depression, rather than act out, which is why she resorted to cutting or withdrawal.

173. During his testimony, he also acknowledged that Student’s failure to attend school by the time of his May 2012 IEE involved other factors besides just anxiety and panic disorder. After being out of school for a year and a half, there could be “secondary gain” for Student that was motivating her to stay home. He did not specifically assess that secondary gain, but he acknowledged it existed. By the time of the hearing, he could not rule out that there was a volitional component to Student’s failure to attend school, particularly given the length of time Student had been in control and out of school.

174. During the hearing, the District attempted to introduce evidence that Student’s anxiety and panic disorder were not as severe as Student’s mother and Dr. Perlman claimed they were. For example, the District brought in evidence that Student attended a crowded arts festival at Winston in 2012 at a time when she was supposedly afraid to leave her house to go to crowded places such as the mall. District witnesses such as Mr. Alzubaidi testified that the reason Student failed to attend Oak Grove (after Student’s mother agreed to that placement in approximately September 2012) was, at least in part, because of lack of “buy  in” from Student’s mother.

175. While Student is clearly a complex young woman whose failure to go to school was influenced by many factors, Dr. Perlman’s opinion that she suffered from anxiety and panic disorder was persuasive. Even the District’s expert Dr. Tibbetts never questioned Dr. Perlman’s findings in this regard, and Coral French found Student eligible under ED. Indeed, Student’s serious emotional issues were the very thing that made the District’s offer of a small, therapeutic school such as Oak Grove necessary for Student.

176. While Dr. Perlman agreed with the District’s decision to change Student’s eligibility category to ED, he did not agree with the proposed Oak Grove placement. In his experience, Oak Grove had a fine school for children with ED issues of acting-out, but not for an “acting-in” ED pupil such as Student. He stated that Oak Grove specialized in working with “a relatively street-wise population of acting-out teens.” His report admitted that “[g]iven that they cater to that particular population, no doubt Oak Grove does have the therapeutic staff to conduct the types of therapies I noted in my recommendations above.” However, he qualified that admission by stating that the Oak Grove students “have little in common with [Student], and they could not be considered as being her peers.”

177. In Dr. Perlman’s opinion, Winston, on the other hand, worked with children who had ED issues of the acting-in type, and provided the “social milieu” and “development of extra-curricular competencies” to assist with Student’s “distorted self perceptions.” His report noted that Student “may be more emotionally compromised now than when she first enrolled in the Winston School three years ago.” However he believed that her continuing contact with friends from Winston and the fact that she had engaged in recent social activities at Winston, such as attending a softball game in May 2012 and the school prom in June 2012 were positive factors regarding Winston. He also noted that “the odds of familial buy-in for the Winston School are infinitely greater than they are for Oak Grove.” During the hearing, he explained that Student tended to be rigid in the way she thinks and was not open to rethinking her position in light of new information. He explained that this was why it was so difficult to get her to change her position about transitioning. At the time of the hearing, he believed Student would refuse any placement the District recommended.

178. It was clear that Dr. Perlman relied heavily on the preferences of Student and Student’s mother in making his recommendations regarding academic placement. For example, at one point his report noted that: “[i]mportantly, though, familial buy-in is the key to [Student] experiencing any semblance of academic success, in any program. If [Student and Student’s mother] do not both buy-in to the placement recommendation, [Student] will not put a foot through the portal.”

The August 24, 2012 IEP Offer

179. In approximately August 2012, Ms. Kubes conducted assessments of Student related to mathematics (which Dr. Perlman had not assessed in his IEE) and post-secondary transition planning. Student still did not want District representatives in her home, and Ms. Kubes felt she could not do a proper assessment at Starbucks, so Student’s mother suggested the Murrieta Library. The assessment was ultimately done there.

180. At some point in August 2012, Student’s mother decided to accept the April IEP offer, but felt she could not do so because the proposed goals expired in August 2012, one year after the initial August 2011 IEP offer. There was correspondence between the parties, but no signed IEP at that time.

181. Student’s IEP team met again on August 24, 2012. ¹² The team had previously reviewed Dr. Perlman’s report at the August 13, 2012 IEP meeting. Student’s mother attended the meeting. Student’s attorney and Dr. Perlman participated by telephone. Michele Sebastian from Oak Grove also attended the meeting.

182. The August 24, 2012 IEP contained present levels of performance based, in part, on Student’s past assessments and past performance at Winston. Those present levels also included updated information from Dr. Perlman’s assessment and the District’s assessments. The present levels clearly delineated which portions of the information were derived from the different sources. Student’s mother was given an opportunity to comment and provide input regarding the present levels of performance. In Ms. Smith’s opinion, the present levels were derived from multiple sources and were accurate at the time of the meeting. Mr. Alzubaidi was also of the opinion that they were accurate. He felt it was appropriate to include information from multiple sources, including Winston, because that was the last school Student had attended.

183. The IEP contained two proposed transition plans – an ITP related to postsecondary transition and a plan to transition Student from her home to Oak Grove. The postsecondary transition plan was based on information obtained by Mr. Kozlowski in May 2011, and the District’s transition assessment done by Ms. Kubes in August 2012.

184. The post-secondary ITP included activities related to taking college entrance exams, researching colleges, developing a resume, developing work-related social skills, obtaining a driver’s license, opening a checking account, and similar activities. The IEP also contained transition goals and services related to those activities. Ms. Kubes ran the ITP class at the District high school and had assessed Student in that area, so she was familiar with Student’s needs in that area. She believed her assessment was sufficient to develop the ITP. During the hearing, she described in detail how each of the transition services in the IEP would help Student.

185. The IEP team also discussed goals for Student. According to stipulation by the parties during the hearing, the goals Student disputes are goals one, three, four, six, twelve, fourteen, fifteen and sixteen. The disputed goals related to math (solving division problems and fractions), reading comprehension, reading fluency, test taking strategies, handling strong emotions related to anxiety and depression, improved self-esteem, and positive self-reflection.

186. Student’s mother and her counsel were given an opportunity to participate in determining the baselines and the goals. Dr. Perlman also provided input by telephone. The District made changes to the goals during the meeting based on their input.

187. In Ms. Smith’s opinion, each of the goals was measurable and based on an area of need for Student. She believed the goals were appropriate for Student. Dr. Perlman testified that he assisted the team with drafting goals 12, 14, and 15. He described goal 14 as a great goal. He remembered that the IEP team painstakingly wrote the goals and everyone contributed. Mr. Alzubaidi also testified that goals 14, 15, and 16 were appropriate. He
explained that Dr. Perlman had assisted with drafting goal 16. He believed there was sufficient information in the baselines to measure progress on the goals.

188. The IEP called for Student to participate in statewide testing with testing accommodations including things such as extra time, a small group setting, and supervised breaks within a section of the test.

189. The supplementary aids and services in the IEP included visual aids to support instruction, a mobility pass, access to assistive technology, repeated directions, and preferential seating in a place where Student “feels comfortable.”

190. The August 2012 IEP proposed placement at Oak Grove, with specialized academic instruction for 314 minutes per day at the NPS, including a therapeutic component provided by a licensed therapist. The IEP also called for extended day services at Oak Grove for 90 minutes a day, as well as college awareness, career awareness and similar transition classes to be held at Oak Grove. The IEP provided for individual therapy sessions two times per week at 30 minutes per session and one family therapy session per week at 40 minutes per session, in which Student’s mother could participate via telephone or in person. There would also be consideration of group therapy once Student acclimated to the program. The District offered to transport Student and her mother to the family therapy. The IEP offered extended school year services during the summer of a similar type and amount, and curb-tocurb transportation for Student to and from school.

191. The IEP contained a section entitled “Activities to Support Transition.” That section contained a list of transition activities. The IEP notes described those activities:

Transition plan – Oak Grove therapist will review [Student’s] records and IEP. 5 hours of therapy will be provided to work with [Student], Special education teacher, and parent to assist with development of a positive relationship between [Student] and Oak Grove.

Also included in the transition plan:
–tour of campus without students present. TVUSD Special ed teacher will
accompany.
–Assistant director of Oak Grove will meet with [Student] prior to school
commencing.
–Therapy sessions with [Student] and the Special education teacher to be
included within the 5 hours.
–Family therapy session with Oak Grove Therapist for 40 minutes.
Any hours out of the 5 allotted hours will carry over to the first week of
school.

192. There was a discussion about placement during the meeting. The parties discussed the Arch Academy (which Dr. Perlman had recommended in his report), the possibility of a comprehensive public high school, Winston, and Oak Grove. Student’s mother, Dr. Perlman, and the District staff members all provided input into that discussion. The team agreed that a comprehensive public high school campus would not be appropriate at that time due to Student’s emotional needs.

193. Dr. Perlman and Student’s mother both stated that they preferred the Winston school as a placement for Student. The District staff did not believe that Winston would be appropriate at that time because it lacked an inclusive therapeutic component. The assistant director of Oak Grove attended the meeting and told the team that Oak Grove could meet Student’s needs. She stated that Student would have opportunity for credit recovery provided by a credentialed teacher while attending Oak Grove.

194. Ms. Smith testified that the proposed IEP services and accommodations would be appropriate for Student. She felt that the IEP accommodations would help decrease Student’s anxiety. She visited Arch Academy and did not believe the independent study framework there would provide sufficient support for Student. She also testified that Student’s mother agreed during the meeting that Arch Academy would not be appropriate for Student. Ms. Smith felt that Winston would not be appropriate because it did not have the necessary therapeutic environment. In her opinion Student’s needs had changed since August 2011, and Student needed access to a therapist throughout the day. In her opinion, Oak Grove was an appropriate placement.

195. Dr. Perlman told the team he had not visited the Oak Grove Program in years. The District paid for Dr. Perlman’s time to assess Student and to participate in the two August 2012 IEP meetings, but did not offer or agree to fund his visit to Oak Grove. Dr. Perlman ultimately visited Oak Grove about a month before the hearing and was able to testify to that visit during the hearing.

196. During the hearing, Dr. Perlman opined that Oak Grove had the capability to provide psychotherapy for Student. He also agreed that a small class size would be good for Student. However, based on his past experience with Oak Grove, he believed the pupils there to be a rough crowd, unlike Student who is a clean-cut “collegiate” type individual. He said that a representative from Oak Grove told him that the population there was mostly the “acting-out” type of ED pupils rather than the “acting-in” type as Student was. He believed that Oak Grove services the “acting-out” type of ED pupils well, but it was not a proper placement for Student.

197. He also testified that, because he did not believe Oak Grove was appropriate and because Student’s mother did not believe it was appropriate, those two things combined would make it very difficult to convince Student to go there. He did not object to the District’s offer of IEP services or goals; it was the proposed placement he found problematic. However, toward the end of the hearing, he admitted that, with appropriate transition services, Student would be capable of attending Oak Grove.

198. Dr. Tibbetts, on the other hand, felt that Oak Grove was an appropriate placement based on the findings in Dr. Perlman’s report. He also believed that proposed transition plan in the August 2012 IEP was appropriate. In his opinion, it was specifically designed to meet Student’s needs and provide support for her during the transition. It would allow Student to tour the facility without any pupils present, so she would not have to worry about panic attacks in front of her peers. The special education teacher would accompany her on the tour so she could develop an alliance with the teacher. The transition also provided a significant number of therapy hours and family sessions.

199. Ms. Sebastian also opined that Oak Grove would be appropriate based on what she heard at the August 2012 meeting. She believed that Oak Grove could implement Student’s IEP goals and could serve Student’s needs.

200. Mr. Alzubaidi believed that Oak Grove was an appropriate placement and that the proposed transition plan was appropriate. He visited the Arch Academy because Dr. Perlman had mentioned it, but he did not believe the program would be appropriate for Student because it called for pupils to work at their own pace. He believed that Student’s needs were too great for Arch or Winston.

201. The District witnesses were persuasive in their testimony that the District’s August 2012 IEP offer was designed to address each of Student’s unique needs and was reasonably calculated to provide Student with educational benefit. By August 2012, it was clear to the District that Student needed a therapeutic environment to address her serious mental health issues. Oak Grove provided such an environment. Oak Grove had the staff and resources to help Student with her anxiety and panic attacks. An Oak Grove placement could help Student learn appropriate coping skills which she could take with her into the world.

202. Student and her mother may have preferred Winston, but as discussed in the Legal Conclusions below, the law does not require a school district to place a child in the parent’s preferred program. Instead the focus of a due process case is the appropriateness of the District’s proposed program. Dr. Perlman’s testimony regarding Oak Grove was important, but his opinions regarding placement were heavily influenced by familial preference. For that reason, his opinions are not as persuasive as those of Dr. Tibbetts on this issue.

Events After the August 2012 IEP Meeting

203. Student’s mother did not agree that the District’s August 2012 IEP offer was appropriate, but she eventually signed it, permitting the District to implement it. The District sent the bus to Student’s house to pick up Student, but Student never got on the bus. The District tried various transition strategies such as sending an Oak Grove counselor and District staff (including Ms. Kubes) to meet with Student at Student’s home. The District offered to provide Student a tour of Oak Grove after school hours. These activities were not sufficient to convince Student to attend.

204. Ms. Kubes even went so far as to arrange for a rental car to transport Student so she would not have to ride in the bus. The District invited Student’s mother to ride in the car with Student and Ms. Kubes. No one answered the door at Student’s home on the day that Ms. Kubes arrived with the car.

205. During the hearing, two additional issues were raised – one regarding a form in the Oak Grove admission packet that required a parent to consent to physical restraint (if necessary) for a pupil. Student’s mother initially objected to that language, but later completed the admission papers without agreeing to that clause. The other involved comments made by one of the District bus drivers to Student on September 14, 2012, when she failed to board the bus.

206. Neither of these issues is significant to this case, because Student’s failure to access the District’s transition services or attend Oak Grove was not dependent on either of these things. The transition services began prior to the time that Student’s mother returned the admission papers to the District, and Student still failed to access those services. Student’s mother and Student eventually completed the admission paperwork (with comments and limitations, such as refusal to permit physical restraint) and returned those papers to the District. Student’s mother admitted during the hearing that she did not believe her daughter would attend Oak Grove even at the time they filled out the admission paperwork. The evidence did not show that the form language of the Oak Grove admission papers had any impact on Student’s attendance (or lack of attendance) there. At no time during the hearing was there any evidence that Oak Grove would deny Student attendance based on the limitations Student’s mother wrote when she filled out the application documents or her refusal to permit physical restraint.

207. Likewise, Student had already failed to attend Oak Grove before any comments were made by the bus driver. Even when Ms. Kubes arranged for a car to transport Student to Oak Grove, Student did not board that car, access the offered transition services, or attend Oak Grove. Any comments made by a bus driver, no matter how Student interpreted those comments, had no impact on Student’s attendance at Oak Grove. Student’s mother candidly admitted during her testimony that, even if the bus driver had not made any comments, Student still would not have gone to Oak Grove.

208. As of the start of the hearing on November 6, 2012, Student had never attended Oak Grove, despite numerous good-faith attempts by the District to offer Student transition services. At some point shortly before the hearing started, Student told Ms. Kubes not to visit her home any more, so Ms. Kubes stopped coming. Student told Ms. Kubes that the night before Ms. Kubes arrived, Student couldn’t sleep or eat. Student’s family was also in the process of moving from their home at that time and the kitchen table where Student usually sat when she talked to District visitors through the kitchen window was gone. Despite Student’s comments on the last visit, Ms. Kubes believed that she maintained a good relationship with Student. On the last visit, Student came out of her home to give Ms. Kubes a hug.

Factual Findings Regarding the Remedy

209. As will be discussed in the Legal Conclusions below, the District denied Student a FAPE by failing to respond in a timely fashion to Student’s mother’s request for an IEE. Normally the appropriate remedy for such a denial would be to order the District to provide an IEE at public expense. That was initially one of the remedies Student sought when Student filed OAH case number 2012020005. However, the District agreed to provide that IEE shortly after that case was filed, and the District ultimately funded Dr. Perlman’s IEE.

210. During the hearing, Student’s counsel explained that Student was no longer seeking an IEE as a remedy. Instead, Student contends that the failure to respond to the IEE request in a timely fashion denied Student a FAPE.

211. Dr. Perlman and Student’s mother felt that ordering the District to return Student to Winston would be an appropriate remedy for a denial of FAPE. In Dr. Perlman’s opinion, placement at Winston had the best chance of success as a remedy, because of Student’s successful history there.

212. However, Dr. Perlman also testified that a short return to Winston of only a few months would not be helpful to Student. Student would be anxious when her time there was ending, and it would reduce her chances of being successful anywhere besides Winston. When the bus came to take Student to the next placement, the same pattern would repeat.

213. If only a few months denial of FAPE was found, Dr. Perlman recommended psychotherapy for Student to try to ease her into a new placement. Dr. Perlman did not believe home hospital instruction would be appropriate because it would continue the isolation Student has brought on herself. He recommended hour-long sessions of therapy twice a week. Student’s mother did not believe Student would let a District counselor into her home, even if OAH ordered the District to pay for counseling.

214. Dr. Perlman testified that, with a sufficient transition program, Student could attend Oak Grove. However, at this point, to get Student into Oak Grove, she would need many counseling sessions at home. He acknowledged that Student might not be motivated to get better during therapy if she knows she is going to be sent to a place she does not want. He alternatively mentioned that, because Student is now 18 years old, she could go directly to a community college program.

215. A factor complicating any remedy in this case is Student’s current residence. According to documentation submitted by the parties after the hearing ended, Student has now moved her residence outside of District jurisdiction, so the District is no longer obligated to provide her with a FAPE.

LEGAL CONCLUSIONS

1. In a special education administrative proceeding, the party seeking relief has the burden of proof. (Schaffer v. Weast (2005) 546 U.S. 49 [126 S.Ct. 528, 163 L.Ed.2d 387].) Here, Student has the burden of proof in this proceeding with respect to the issues raised in Student’s due process hearing request and the District has the burden of proof with respect to the issues raised in the District’s due process hearing request.

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 pupil at no cost to the parents, that meet the state educational standards, and that conform to the pupil’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 (Rowley) (1982) 458 U.S. 176 [102 S.Ct. 3034, 73 L.Ed.2d 690], 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 pupil’s IEP to determine if it was reasonably calculated to enable the student to receive educational benefit. (Id. at pp. 206 -207.)

4. Not every procedural violation of IDEA results in a substantive denial of FAPE. (W.G. v. Board of Trustees of Target Range School District (9th Cir. 1992) 960 F.2d 1479, 1484.) According to Education Code section 56505, subdivision (f)(2), a procedural violation may result in a substantive denial of FAPE only if it:

1. Impeded the right of the child to a free appropriate public education;
2. Significantly impeded the opportunity of the parents to participate in the decision making process regarding the provision of a free appropriate public education to the child of the parents; or
3. Caused a deprivation of educational benefits.

5. 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.)

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. (Gregory K. v. Longview School District (9th Cir. 1987) 811 F.2d 1307, 1314 (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.) 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 (Adams).) 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.)

Did the District Fail to Comply with State and Federal Special Education Law When it Failed to Provide Student with an IEE After Her Oral Request for an IEE in August 2011, or Her Written Request on September 19, 2011, or Failed to File a Request for a Due Process Hearing to Prove its Assessment Was Appropriate?

7. The procedural safeguards of the IDEA provide that under certain conditions a pupil is entitled to obtain an IEE at public expense. (20 U.S.C. § 1415(b)(1); 34 C.F.R. § 300.502 (a)(1) (2006); Ed. Code, § 56329, subd. (b); Ed. Code, § 56506, subd. (c).) “Independent educational evaluation means 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)) (2006).) To obtain an IEE, the student must disagree with an assessment obtained by the public agency and request an IEE. (34 C.F.R. § 300.502(b)(1), (2) (2006).)

8. The provision of an IEE is not automatic. Code of Federal Regulations, title 34, part 300.502(b)(2) (2006), provides, in relevant part, that following the pupil’s request for an IEE, the public agency must, without unnecessary delay, either: (i) File a due process complaint to request a hearing to show that its assessment is appropriate; or (ii) Ensure that an independent educational assessment is provided at public expense, unless the agency demonstrates in a hearing pursuant to parts 300.507 through 300.513 that the assessment obtained by the parent did not meet agency criteria. (See also Ed. Code, § 56329, subd. (c) [providing that a public agency may initiate a due process hearing to show that its assessment was appropriate].)

9. The law does not specify what constitutes unnecessary delay. Cases have indicated that unnecessary delay is determined by the particular facts of the case. (J.P. v. Ripon Unified School District (E.D.Cal. 2009) 2009 WL 1034993.) In Pajaro Valley Unified School District v. J.S. (N.D. Cal. 2006) 2006 WL 3734289 (Pajaro), for example, the court found that a 90-day delay was too long.

10. As set forth in Factual Finding 88 above, Student failed to meet her burden to show that an IEE request was made during the August 2011 IEP meeting. However, as set forth in Factual Findings 121 – 125 above, there is no dispute that Student’s mother sent a letter requesting an IEE on September 19, 2011. While the letter did not specifically state
that Student objected to the District’s triennial assessment, the District could easily determine from the language of the letter which assessment was contested. The District waited too long to respond to the request for an IEE. The time period from September 19, 2011, to February 6, 2012, is almost five months – far beyond the time limit discussed in Pajaro. The District committed a procedural violation of IDEA.

11. Under the facts of this case, that procedural violation resulted in a substantive denial of FAPE. During the time that the District delayed its response, Student’s mother and the IEP team were waiting for information. At first, the county mental health assessment was unduly delayed, and later in February 2012, the IEP team received conflicting information regarding Student’s needs. An IEE would have provided valuable information to the team during this time.

12. The District’s delay in addressing the request for an IEE significantly impeded the opportunity of Student’s mother to participate in the decision making process regarding the provision of a FAPE to Student, thereby resulting in a substantive denial of FAPE. Student’s mother needed to know whether the District would grant or deny her request for an IEE to determine how she should proceed. Eventually, she was forced to file for due process, only to have the District offer an IEE almost immediately after she filed. She should not have had to wait that long and should not have had to file for due process to get a response, particularly under the facts of this case, involving very unusual circumstances and an emotionally complex pupil who was failing to attend school.

13. In addition, the failure of the District to act sooner denied the IEP team valuable information which might have led the team to make a different offer for Student in February 2012. Instead of waiting until April 2012 to offer Oak Grove (after Coral French’s assessment), the IEP team could have offered it sooner. This was not a case where Student’s needs were well understood – by fall 2011, the IEP team needed input and Dr. Perlman’s opinion at that point would have provided important information.

14. Because Student’s needs were evolving during the long time she was out of school, it is not possible to say with certainty that Dr. Perlman’s IEE, if begun in December 2011 or January 2012, would have reached the same conclusions it did when begun in May 2012. However, his input would still have guided the February 2012 IEP team. In any event, once the District offered Oak Grove, a therapeutic NPS designed to address Student’s mental health needs, in April 2012, there were no further denial of FAPE. Even if Dr. Perlman’s IEE had been done sooner, and even if it came to the same conclusions, the District would still have been correct in offering that placement (as will be discussed in more detail below).

15. By mid-November 2011, it was clear to the IEP team that Student was not accessing the high school placement and the transition activities attempted by the District were not working. The county assessment was taking too long and the IEP team needed further input. Under those circumstances, the District should have responded to the IEE request within 60 days (by mid-November). Had the District agreed to fund the IEE in November 2011, within 60 days after the request by Student’s mother, an assessment could have been completed within another 60 days, by approximately January 15, 2012, and the February 2012 IEP team would have had Dr. Perlman’s input. Under these circumstances, it is appropriate to find that the District denied Student a FAPE from January 15, 2012, until April 16, 2012, when the offer of Oak Grove was made, a time period of approximately three months. The appropriate remedy for that three-month denial of FAPE will be discussed below.

Did the District Deny Student a FAPE When it Failed to Fully and Timely Assess Student in the Spring of 2011?

16. Before any child can be found eligible for special education, a school district is required to assess the child in all areas of suspected disability. (20 U.S.C. § 1414(a); Ed. Code, § 56320.) Once a child has been found eligible for special education, a school district must reassess the child at least every three years, unless the parents and district agree otherwise. (Ed. Code, § 56381, subd. (a)(2); 34 C.F.R. § 300.303(b)(2) (2006).)

17. In the instant case, Student contends that the District failed to assess Student sufficiently in the areas of social/emotional, mental health and vision processing/vision therapy. Student does not contest the actual assessments that were done or the qualifications of the assessors. Instead, Student believes that further testing should have been done. However, as set forth in Factual Findings 1 – 72 above, the District’s May 2011 triennial assessment fully assessed Student in all areas of suspected disability at the time. The District witnesses were persuasive on this issue.

18. In Student’s written closing argument, Student made much of the fact that Ms. French described the social/emotional portion of her assessment as a “screening” during her testimony. However, that appeared to be a matter of word choice, not a legal definition. Ms. French received information from Student’s teachers, administered rating scales to Student and two of Student’s teachers, reviewed prior assessments that addressed social/emotional issues, and observed Student. Her “screening” was, in fact, an assessment to determine Student’s special education needs, not a “screening…to determine appropriate instructional strategies for curriculum implementation….” (34 C.F.R. § 300.302 (2006).) Ms. French’s testimony that the social/emotional portion of her assessment was sufficient to address Student’s suspected areas of disability at the time was persuasive.

19. Although Student exhibited anxiety during the assessment at the thought of leaving Winston, there was not enough indication as of May 2011 that Student needed further assessment in social/emotional or mental health areas. At that time, she appeared to be a happy, well-adjusted pupil who did not want to leave a school that she liked. As Dr. Evelyn indicated, what high school pupil ever wants to leave a school where she is happy and has friends? However, families move all the time and high school pupils are forced to relocate. Even if the pupils are upset by the move, that does not mean they have ED.

20. Likewise, as set forth in Factual Findings 62 – 72, the District’s May 2011 assessment appropriately addressed Student’s needs related to visual processing/vision therapy. Contrary to Student’s contention, Ms. French assessed Student in the area of visual processing during the May 2011 assessment. Student’s own expert Dr. Perlman saw no need for a further vision therapy assessment based on the District’s May 2011 assessment and earlier assessments. A year later, when Dr. Huang conducted a visual processing assessment, he found no visual sensory problems. He relied on Dr. Perlman’s IEE to discuss visual perceptual issues, but even then his findings were not conclusive on the subject. His language (set forth in Factual Finding 68 above) that visual perceptual deficits were not Student’s “primary problem” but “can be a contributing factor” was hardly a statement that an earlier vision therapy assessment was required.

21. Student has the burden to show the District’s May 2011 triennial assessment was not appropriate and failed to meet that burden. There was no denial of FAPE.

Did the District Deny Student a FAPE During the 2011 – 2012 School Year by: 1) Making an IEP Offer Based on Inadequate Assessment Information; 2) Failing to Provide an Appropriate Transition Plan from Student’s Nonpublic School to the High School; and 3) Failing to Offer an Appropriate Placement?

22. As stated in Factual Findings 1 – 72 and Legal Conclusions 1 – 21 above, the District’s May 2011 assessment was appropriate and comprehensive. When new information surfaced at the time of the August 2, 2011 IEP meeting, the District reacted properly by referring Student for further assessment. Student has failed to meet her burden to show that the District denied a FAPE by making the August 2011 IEP offer based on inadequate assessment information.

23. As stated in Factual Findings 117 – 125 above, the county mental health agency should have conducted its assessment sooner. (See, e.g., Ed Code, § 56043, subd. (c), requiring an assessment to be conducted and an IEP team meeting held within 60 days.) However, that county mental health assessment confirmed that the District’s August 2, 2011 IEP offer was appropriate. Any delay in providing that assessment did not mean that the District’s IEP offers were based on inadequate information – even if the assessment had been provided sooner, nothing would have changed.

24. As stated in Legal Conclusions 7 – 15 above, the District failed to respond in a timely fashion to the IEE request by Student’s mother. Had the District timely responded, the IEP team could have had additional assessment information regarding Student’s condition at the time. Instead, the District lacked adequate information until Ms. French’s report was finished and Student’s evolving mental health needs were understood. Had the IEP possessed Dr. Perlman’s report prior to the February 2012 IEP meeting, a therapeutic NPS placement such as Oak Grove might have been offered sooner. For this reason, as stated above, the District denied Student a FAPE between January 15, 2012, and April 16, 2012, based on a failure to have adequate assessment information.

The August 2, 2011 Offer of Placement

25. In considering the offers of placement made by the District at various times during this case, it is important to keep in mind what was objectively reasonable for the District staff to know about Student at each point in time. As stated above, an IEP offer is evaluated based on what was objectively reasonable at the time, not based on hindsight. (Adams, supra, 195 F.3d at p. 1149.)

26. As of August 2, 2011, as stated in Factual Findings 73 – 116 above, it was objectively reasonable for the District to offer Student a placement in a public high school with specialized academic instruction, services and accommodations. From everything the District learned during its May 2011 assessment, Student was a capable teenager who should have been able to succeed in public school, provided that she received appropriate educational support to address her learning disability. She did not require a restrictive, special education setting such as the Winston School. Student’s emotional reaction to the District’s assessments seemed to come from her desire to stay at a school she liked, not an underlying ED.

27. In August 2011, given all the assessment data and Student’s ability to progress at Winston, the District had no choice but to offer Student a placement in the public school where she would have access to typical peers. The law only permits a school district to remove a pupil from the regular education environment if “the nature or severity of the disability . . . is such that education in the regular classes with the use of supplementary aids and services cannot be achieved satisfactorily.” (20 U.S.C. § 1412(a)(5)(A); Ed. Code, § 56040.1, subd. (b); see also Sacramento City Unified School District v. Rachel H. (9th Cir. 1994) 14 F.3d 1398.) Indeed, as of August 2011, if the District had insisted that Student attend Winston instead of the public school, Student’s mother could have filed for due process on the basis that Winston was not the LRE appropriate for Student.

28. In Student’s written closing argument, Student contends that the District’s offer of Oak Grove in April 2012 showed that its August 2011 offer of the public school was inappropriate. However, that argument is not well taken. As set forth in Factual Findings 114, 155, and 173, both Dr. Perlman and Ms. French indicated that Student’s emotional state changed over the months due to her isolation at home and her long time away from school. Student’s emotional needs were not the same in August 2011 as they were later. Based on what the District knew in August 2011, the offer of the public school was objectively reasonable. By April 2012, Student’s circumstances had changed and a more restrictive placement was necessary.

29. The District’s August 2011 offer was reasonably calculated to provide Student with educational benefit in the least restrictive environment based on the assessment information and other information the District possessed at the time. Student failed to meet her burden to show the placement offer was inappropriate. There was no denial of FAPE.

The August 2011 Transition Plan

30. Student also failed to meet her burden to show that the District’s proposed transition plan in the August 2011 IEP was inappropriate. As set forth in Factual Findings 79 – 87 and 106 – 114, the District staff proposed a well-crafted plan designed to address any anxiety Student might feel about going back to public school. Student was offered counseling and a pass so she could leave class any time she felt stressed. The District had a team of educators and mental health professionals ready to meet with Student on her first day of school to help ease her concerns. As set forth in Factual Findings 126 – 136, after Student failed to take the bus, the District sent people to her home to help with the transition. Those people were willing to stand outside Student’s home and talk to her through a window in an effort to help her. When that did not work, the District noticed a new IEP meeting. The District acted appropriately under these extremely unusual circumstances. There was no denial of FAPE.

Did the District’s IEP Dated August 24, 2012, Offer Student a FAPE in the LRE?

31 When a District files a due process hearing request to defend the appropriateness of an IEP offer, the District has the burden to prove that offer was appropriate both procedurally and substantively. However, in order to save time at hearing, it is common practice for the parties to stipulate as to those areas of a District offer to which the student objects. The stipulation does not change the burden of proof, but it does limit the issues for hearing.

32. In the outset of the hearing in the instant case, Student stipulated to nine portions of the August 24, 2012 IEP to which Student objected. Those are: 1) the placement; 2) the transition plan; 3) parental participation in the placement determination; 4) the present levels of performance; 5) goals; 6) the post-secondary ITP; 7) the accuracy of the IEP “minutes”; 8) the failure to pay for Dr. Perlman to visit Oak Grove; and 9) the failure to ensure statewide testing. Each of these issues will be addressed in turn to see if the District met its burden of proof.

The Proposed Placement

33. Student’s main dispute over the August 2012 IEP offer involved the proposed placement at Oak Grove. Student believes that Oak Grove was not an appropriate placement and that Student should have been placed at Winston instead. As set forth in Factual Findings 156 – 202, the District offered Student a placement at Oak Grove in both April 2012 and August 2012.

34. The District witnesses were consistent in their testimony that Student’s serious mental health issues in April and August 2012 required the small, therapeutic placement and services that Oak Grove could provide. Oak Grove had the staff, expertise and program designed to confront Student’s anxiety/panic and teach her coping skills.

35. Dr. Perlman’s objections to Oak Grove were based on his understanding that Oak Grove consisted mostly of ED pupils with “acting-out” behaviors. However, as set forth in Factual Finding 157, Ms. Sebastian testified that 40 percent of the pupils at Oak Grove had “acting-in” behaviors. Her testimony in that regard was persuasive – she was an administrator at the school and would be the best person to know the pupils there.

36. Dr. Perlman’s other main objection to Oak Grove involved the lack of familial “buy-in” to the placement. While a parent is an important part of the IEP process, parental preference is not the deciding legal factor in determining whether a placement is reasonably calculated to provide educational benefit. A parent’s preferred placement does not trump an appropriate district offer, even if the preferred parental placement would give a child greater educational benefit. (Gregory K., supra, 811 F.2d at p. 1314.) A parent does not have a “veto power” in an IEP meeting. (Ms. S. v. Vashon Island School District (9th Cir. 2003) 337 F.3d 1115, 1131 (Vashon Island).)

37. The District witnesses were persuasive in their testimony that Oak Grove was the appropriate placement for Student as of April 2012 and August 2012. ¹³ The District met its burden to show that the August 2012 IEP placement offer was appropriate.

The Plan to Transition Student to Oak Grove

38. As set forth in Factual Findings 191 – 204, the District met its burden to prove that the transition services offered in the August 2012 IEP were appropriate at the time the offer was made. The transition plan offered many services and supports to ease Student’s anxiety about a new NPS, including therapy sessions, a visit to the campus, meetings with staff, and similar things. At the time the IEP offer was made, it was objectively reasonable to conclude that those services would enable Student to attend Oak Grove. Student’s mother had never signed the April 2012 IEP, so Student had not yet attempted to access the Oak Grove transition services as of August 2012. Although the Student had a history of failing to attend the public school, Oak Grove was not a large, public, high school campus. It was a small, private school, not part of the District. The testimony of the District witnesses regarding the appropriateness of the transition services was persuasive.

Parental Participation

39. Student contends that Student’s mother had no meaningful participation in the determination of placement at the August 2012 IEP meeting. As set forth in Factual Findings 192 – 195 above, the testimony and other evidence indicated there was a full discussion of placement during the meeting. Student’s mother and Dr. Perlman were given an opportunity to provide input to the team. Just because the parties disagree about a district’s offer does not mean there was predetermination or lack of parental involvement in the IEP process. Parental participation does not mean that a school district must accept every preference of the child’s parents. As stated above, a parent does not have a veto power at an IEP meeting. (Vashon Island, supra, 337 F.3d at p. 1131.) Likewise, just because the team does not adopt a placement preferred by the parent, does not mean that the parent did not have an adequate opportunity to participate in the IEP process. (B.B. v. Hawaii Dept. of Education (D.Hawaii 2006) 483 F.Supp.2d 1042, 1051.)

The Present Levels of Performance

40. An IEP is required to contain a “statement of the individual’s present levels of academic achievement and functional performance.” (Ed. Code, § 56345, subd. (a)(1).) Student contends that the present levels of performance in the IEP were based on outdated reports of progress and were incorrect. Student apparently objects to the inclusion of information from Winston and older assessments in the August 2012 IEP present levels of performance. However, as set forth in Factual Finding 182, both Ms. Smith and Mr. Alzubaidi testified that it was appropriate to include this information. There was no testimony or evidence to contradict them.

The IEP Goals

41. An IEP must include a “statement of measurable annual goals, including academic and functional goals, designed to do the following:”

Meet the needs of the individual that result from the disability of the individual to enable the pupil to be involved in and make progress in the general education curriculum.

Meet each of the other educational needs of the pupil that result from the disability of the individual.

(Ed. Code, § 56345, subd. (a)(2).)

42. Student contends that several goals in the August 2012 IEP lacked baselines and were not objectively measurable, including goals one, three, four, six, twelve, fourteen, fifteen and sixteen. As set forth in Factual Findings 185 – 187 above, various witnesses (including Dr. Perlman) testified regarding the appropriateness of the IEP goals. Even if some goals lacked specific percentages in their baselines, the District witnesses were clear in their testimony that the goals were appropriate and measurable. There was no testimony to contradict them.

The Post-Secondary ITP

43. At the outset of the hearing, Student stated that Student objected to the postsecondary ITP contained in the August 2012 IEP offer. However, in Student’s written closing argument, Student contends that the District’s August 2011 ITP was inappropriate. It does not appear that this was a typographical error because the discussion occurs in the portion of the brief involving the earlier IEP. Student did not plead any problem with the August 2011 post-secondary ITP in her due process request, and the issue is not properly raised at this time. However, even if it was properly raised, as set forth in Factual Findings 115 – 116 above, the ITP was appropriate and there was no denial of FAPE.

44. The District also met its burden to show that the August 2012 post-secondary ITP was appropriate. As set forth in Factual Finding 184 above, Ms. Kubes’ uncontested testimony was directly on point and was persuasive. Student’s written closing argument alleges that the post-secondary goals were not appropriate because they did not address Student’s emotional needs, such as the need to be able to leave her house. However, those needs were addressed in the IEP supports and services for Student while she was in high school. The post-secondary ITP addressed Student’s later needs – what she would need after she was able to access a school program and gain a high school diploma.

The Remaining Issues

45. Student’s last three contentions are: 1) that the IEP “minutes” did not accurately reflect the information or statements made at the meeting; 2) that the District offered to have Dr. Perlman observe Oak Grove and then refused to pay for his visit; and 3) that the District failed to ensure statewide assessment.

46. Student’s written closing argument did not address the issue related to the statewide assessment, so it unclear what the basis for this objection might be. As set forth in Factual Finding 188, the August 2012 IEP called for Student to participate in statewide testing with accommodations.

47. Student’s written closing argument also makes no mention of the issues regarding the lack of funding for Dr. Perlman to visit Oak Grove or the accuracy of the IEP “minutes” so it is uncertain as to Student’s legal basis for these objections. Student has not cited any authority that IEP meeting notes (assuming that is what is meant by “minutes”) must be accurate. A parent always has an opportunity to object to their accuracy later. Student also cites to no authority that requires a school district to fund an individual who conducts an IEE to visit a proposed placement after the IEE is finished. There is no basis for finding a procedural violation with respect to either of these issues.

48. The District met its burden to show that its August 2012 IEP was reasonably calculated to provide Student with educational benefit at the time it was made and that the District complied with the law in preparing that IEP. There was no denial of FAPE.

The Appropriate Remedy

49. The District seeks an order from OAH finding that the August 2012 IEP was appropriate at the time it was made. The District also requested an order declaring that the
District could enforce the IEP at the present time, but that issue is now moot based on the evidence that Student no longer resides within the District.

50. As discussed above, Student proved that the District denied her a FAPE for three months between January 15, 2012, and April 16, 2012. Student seeks compensatory education based on the District’s denial of FAPE.

51. Compensatory education is an equitable remedy designed to “ensure that the student is appropriately educated within the meaning of the IDEA.” (Parents of Student W v. Puyallup School District, No. 3 (9th Cir. 1994) 31 F.3d 1489, 1497.) There is no obligation to provide a day-for-day compensation for time missed. The remedy of compensatory education depends on a “fact-specific analysis” of the individual circumstances of the case. (Ibid.) The court is given broad discretion in fashioning a remedy, as long as the relief is appropriate in light of the purpose of special education law. (School Committee of the Town of Burlington, Massachusetts (1985) 471 U.S. 359, 369 [105 S.Ct. 1996].)

52. As stated above in Factual Findings 209 – 215, Student believes that a return to Winston is the appropriate remedy for a denial of FAPE. However, Dr. Perlman testified that a return to Winston for a few months would not benefit Student and might make it less likely that she would be able to attend a different placement after that. Dr. Perlman also felt that home hospital instruction would not benefit her.

53. Dr. Perlman’s testimony is persuasive on this issue. At the present time, it appears that Student’s mental health needs are the greatest stumbling block to her education. Those needs are the primary matter that must be addressed. Giving her home hospital instruction or sending her back to Winston for three months would be like placing a band-aid over a festering wound. She would simply fall back into her old patterns after those three months ended. She would not develop the coping skills she needs to overcome her anxiety and panic about non-preferred locations and activities.

54. Dr. Perlman believes that Student needs a significant amount of psychotherapy to help with her mental health issues. He recommended two times a week for one hour per session. His opinion in this regard is persuasive. It is reasonable to order the District to provide psychotherapy to Student twice a week for 12 weeks (three months), for a total of 24 sessions. Each session will be one hour long. The purpose of the therapy will be to assist Student with attending Oak Grove, a community college program, or whatever educational placement her new school district’s IEP team may recommend. Because Student no longer resides in the District, the District may provide this service through either District staff or an outside provider, at the District’s option. However, the individual providing the service must be a licensed mental health care professional such as a marriage and family therapist, school psychologist, clinical psychologist, or psychiatrist. The services may be provided in Student’s home or at another location agreeable to both Student and the mental health provider. The 24 sessions can be held on any days agreeable to the provider and Student, but they will expire after six months, as set forth in the next paragraph.

55. Student is now an adult and is not required to attend school or accept services from any school district. She may choose not to accept this psychotherapy. Therefore, it is reasonable to put a time-limit on the offered services, after which the District will no longer be obligated to offer or provide the service. Because of matters such as illness or vacations, Student may not always be available for two psychotherapy sessions per week. A six-month time limit is more than enough time to cover any absences that may occur. However, if Student should inform the District in writing at any time during that six month period that she no longer wishes to engage in the psychotherapy or if she fails to attend or participate in four sessions in a row (which were scheduled on dates and times to which she previously agreed), the District’s obligation to provide the services will cease.

ORDER

1. The District’s August 24, 2012 IEP offered Student a free appropriate public education in the least restrictive environment.

2. The District shall provide Student with 24 sessions, lasting one hour each session, of psychotherapy provided by a licensed marriage and family therapist, school psychologist, clinical psychologist, or psychiatrist. The District shall make the first of those sessions available to Student within one month of the date of this Decision. The District’s obligation to provide the services will expire seven months from the date of this Decision and there will be no obligation for the District to provide or fund any of the remaining sessions after that time. Should Student (or her agent) inform the District in writing at any time during that seven-month period that she no longer wishes to engage in the psychotherapy or if she fails to attend or participate in four sessions in a row (which were scheduled on dates and times to which she or her agent previously agreed), the District’s obligation to provide the services will cease.

3. All of Student’s remaining 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, Student prevailed on Student’s first issue and a portion of Student’s third issue. The District prevailed on all other issues in this case.

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: January 14, 2013

SUSAN RUFF
Administrative Law Judge
Office of Administrative Hearings

BEFORE THE
OFFICE OF ADMINISTRATIVE HEARINGS
STATE OF CALIFORNIA

In the Matter of:
PARENT ON BEHALF OF STUDENT,
v.
SANTA BARBARA UNIFIED SCHOOL DISTRICT.

OAH CASE NO. 2012080468

DECISION

Administrative Law Judge (ALJ) Rebecca Freie, from the Office of Administrative Hearings (OAH), State of California, heard this matter on October 15 through 18, and 22 through 25, 2012, in Santa Barbara, California. The last two days of hearing were conducted telephonically on November 14 and 19, 2012.

Attorney Andrea Marcus represented Student. She was assisted by paralegal Anne Zachry for several days of the hearing. Parent was present for the first day of hearing, and present for partial days for the remainder of the hearing, with the exception of one day when she was absent. ¹ Student did not attend the hearing.

Attorney Mary Kellogg represented Santa Barbara Unified School District (District). She was assisted during the first week of hearing by attorney Matthew Soliemanpour. Kirsten Escobedo, Director of Special Education for the District, was present throughout the hearing, with the exception of a few brief absences, as the District’s representative. ²

On August 16, 2012, Student filed a request for a due process hearing (complaint) with OAH. On September 13, 2012, OAH granted the parties’ joint request for a continuance. At hearing oral and documentary evidence were received. The matter was then continued to November 30, 2012, to permit the parties to submit written closing arguments. The record was closed on November 30, 2012, upon receipt of the closing arguments, and the matter was submitted for decision. ³

ISSUES ⁴

1. From August 17, 2010, to September 22, 2011, did the District deny Student a free appropriate public education (FAPE) by failing to find Student eligible for special education and related services?

2. Was the District’s individualized education program (IEP) team meeting and resultant offer of August 14, 2012, a denial of a FAPE as it prevented meaningful parental participation by making a “take-it-or-leave-it” offer of placement?

CONTENTIONS

Student claims that the District ignored his multiple disabilities in the areas of emotional disturbance (ED), attention deficit hyperactivity disorder (ADHD), and a specific learning disability (SLD) for many years. Although he was assessed for special education in 2004, the IEP team did not find him eligible. Student alleges that the District should have subsequently referred him for a special education assessment no later than August 17, 2010, when he was attending Santa Barbara Junior High School (SBJHS), and failing to do so violated its child find obligations. ⁵ Instead, he claims, the District relied on general education interventions during the 2010-2011 school year (SY) which were ineffective, and the District only agreed to assess him after Parent made a written request for a special education assessment on April 27, 2011. He was not assessed until September 2011, and then found eligible for special education and services on September 22, 2011. ⁶ As a result, Student argues that he was denied a FAPE from August 17, 2010 to September 22, 2011.

Student also claims that the District predetermined its offer of placement at Santa Barbara High School (SBHS) at an IEP team meeting on August 14, 2012, when placement for the 2012-2013 SY was to be decided. Student contends that the District’s offer, made at the end of that IEP team meeting, was predetermined and constituted a “take it or leave it” offer, and as a result, Parent was denied meaningful participation at the IEP team meeting, and thus Student was denied a FAPE.

The District claims that it did not fail to meet its child find obligation before or during the 2010-2011 SY because it had no reason to suspect that Student was disabled, and even if it had, it was required to utilize general education interventions before it referred him for an assessment to determine if he was eligible for special education. The District argues that it met its child find obligations by making information available to parents via the District and special education local area plan’s (SELPA) websites, placing an annual notice in the local newspaper, and providing parents with information when students are enrolled in the District, and register each year when they are at SBJHS. The District also argues that the Individuals with Disabilities Education Act (IDEA) does not require it to train teachers and staff about child find, how to determine if a child might be suspected of having a disability, and what to do if one does have such a suspicion. The District claims that it did not have an obligation to refer Student for a special education assessment until Parent requested one on April 27, 2011.

The District further argues that it did not predetermine Student’s placement prior to the August 14, 2012 IEP team meeting, and thus did not prevent Parent from meaningfully participating in that meeting. There were no meetings or discussions involving District participants regarding Student’s placement prior to that IEP team meeting. Further, Parent and Student, as well as Student’s attorney who attended the IEP team meeting, were active participants at that meeting, and many of their suggestions were incorporated into the subsequent IEP offer.

FACTUAL FINDINGS

Background and Jurisdiction

1. Student is presently 16 years of age and has resided with Parent within the boundaries of the District for most of his life, and attended District schools until the middle of the 2011-2012 SY. Parent is a public school teacher. During the course of the due process hearing Student resumed attendance at a District high school, following several months of placement at a school operated by the Santa Barbara County Education Office (CEO). Student was found eligible for special education on September 22, 2011.

2. Student was born addicted to heroin and was placed with Parent at the age of three months. In 2004 the District assessed him for special education and he was medically diagnosed with ADHD at about this time. The assessor found that he might be eligible for special education because he had ADHD, and a possible ED. However, when the IEP team, including Parent, met to review the assessment the team determined that Student was not eligible at all for special education. As will be explained further below, it was unclear why the IEP team did not find Student eligible for special education under the category of other health impaired (OHI), the eligibility category for most Students with ADHD, and why he was not found eligible as a child with ED.

Child Find

3. When a student is suspected of having a disability a school district is obligated to have him assessed to determine whether he is eligible for special education. School districts are required to have in place a system of informing parents and the community that special education is available to children who are district residents and qualify for those services, and to inform them that children who are suspected of having a disability can be assessed by the district. Districts are also required to actively and systematically seek out students who may be disabled in order to determine whether they require special education and related services. A student can be referred for a special education by a parent, teacher, or any other interested party.

4. The process of identifying a student suspected of having a disability is called child find. Failure of a school district to engage in appropriate child find activities is a procedural violation.

Procedural Violations

5. A procedural violation results in denial of a 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 child, or it causes a deprivation of educational benefits.

SBJHS’s Intervention Pyramids

6. SBJHS utilized a system of general education interventions for students who were believed to be at risk for behavior or academic problems. School personnel referred to them as “intervention pyramids.” ⁷

7. The academic pyramid of intervention (academic pyramid) contained four levels. The base of the pyramid was applicable to all students, and was called the prevention level. It listed strategies and programs designed to prevent all students from struggling academically. The second level of the pyramid was called “Early Intervention,” and described early intervention strategies and programs. These were the initial general education strategies for the 25 percent of students who showed signs of having academic problems that were not being addressed at the prevention level. Included at this level were math and English language arts (ELA) after-school intervention programs.

8. “Mandatorial” was one of the programs listed in the early intervention section of the academic pyramid. This was a program where students who were behind in completing homework would eat early lunch and then go to a classroom staffed by a credentialed general education teacher with the possible assistance of student teachers. In this classroom the students were expected to work on homework, with the assistance of the teacher or student teacher if necessary. Once the student was caught up on homework, often after just a week of participation, Mandatorial ended. However, some students were in Mandatorial for several weeks, and some were assigned to “permanent” Mandatorial, which was the at the next intervention level of the pyramid. Failure to attend Mandatorial could result in detention.

9. The next level of the academic pyramid was called “Strategic Interventions,” and was generally applied to five to 15 percent of the students at SBJHS. It contained additional strategies and services that included referral for a student study team (SST) meeting. ⁸ At SBJHS, these meetings were generally attended by one or more administrators, a counselor, two teachers who received a stipend for being part of the team, a school psychologist, the student, the student’s parent, and any teachers of the student who might choose to attend.

10. At the top of the academic pyramid, applicable to only one to five percent of the students at SBJHS, was enrollment in elective classes called Reconnecting Youth (RY), and Core. Another intervention at the top of the academic pyramid was revoking the District’s consent to allow a student from another school district to attend SBJHS.

11. The behavior intervention pyramid (behavior pyramid) was similar to the academic pyramid with “Prevention” at the base of the pyramid, “Early Intervention” was the next category, and “Strategic Intervention” was above that. The top section of the pyramid, was not titled. The percentages of students affected at each level were the same as on the academic pyramid.

12. At the strategic intervention level of the behavior pyramid, applicable to five to 15 percent of students, were SST II, Core, home or class suspension, teen court, and work detail. At the top of the pyramid were interventions such as contacting the safety resource officer, identifying a drug education/treatment program, involuntary transfer and expulsion.

2009-2010 SY

13. By August 17, 2010, there was substantial evidence that Student’s grades and behavior were deteriorating, and had been doing so since the previous school year. Student’s grades consisted of three B’s, two C’s, and an A in physical education (PE) for the first semester of seventh grade, the 2009-2010 SY. However, in the second semester Student’s grades had fallen to two C’s and three D’s, although he continued to have an A in PE. Student had four disciplinary incidents that school year. At the end of the school year, Student’s Standardized Test and Reporting (STAR) scores were at the Below Basic level in ELA, and Proficient in math when he was tested. ⁹

14. Also concerning were Student’s seventh grade report card marks in the areas of citizenship and work habits. The first semester of seventh grade, Student’s grades in both areas were “S” for satisfactory, with the exception of social studies where his grades in both areas were “O” for outstanding, the highest mark available. For the second semester, he had “S” marks in citizenship in all classes except social studies and pre-algebra, where those marks had fallen to “U” for unsatisfactory, the lowest mark available. In the area of work habits for the second semester, Student again had U’s in pre-algebra and social studies. In general science and advisory, he had marks of “N” for needs improvement, and S’s in the two remaining subjects.

15. Due to Student’s deteriorating grades and behavior, the District decided before the end of the 2009-2010 SY that Student would be enrolled in Core and RY for his eighth grade year. Both classes were considered to be elective general education interventions for struggling students, and at the very top of the academic pyramid. There was no evidence that the District, in fashioning Student’s program for his eighth grade year, inquired whether Student needed special education. This is especially concerning because part of the District’s records included the 2004 assessment.

2010-2011 SY

16. Student was enrolled in Core and RY. Core was a class for students who were considered to be at risk for gang affiliation, and who might be struggling academically or socially. Many were considered to have behavioral issues. Core was a place where these students were assisted with homework and organization, and were encouraged to talk about things that were bothering them. In addition, the students went on fieldtrips, called “adventures,” such as going to the beach where they might learn how to surfboard or kayak.

17. The RY class was a set curriculum to help students manage stress, develop healthy relationships and self-esteem, and if necessary it also addressed drug and alcohol use. Both classes were at the very top level of the academic pyramid, and Core was at the second to top level of the behavior pyramid.

Student’s Lack of Progress in Eighth Grade

18. Student’s behavior and academic performance continued to worsen after the SY 2010-2011 began on August 23, 2010. By October 1, 2010, Student had already accumulated four discipline referrals. These behavioral incidents continued throughout the 2010-2011 SY. ¹⁰

19. Student was suspended from school for three days on September 14, 2010, after he jumped off the roof of the PE building in front of other students. On September 24 and 28, 2010, Student was disciplined for truancy from Mandatorial and intervention programs. ¹¹ Student received a discipline referral on October 1, 2010, because he was found to be in possession of drawings alluding to marijuana use, and also violated school rules by using his phone to text in class.

20. On October 7, 2011, Student was disciplined for excessive tardiness. He was disciplined for truancy on October 11, 2010. On October 15, 2010, he was suspended for two days after calling a teacher an obscene name. Student was disciplined on October 20, 2010, because he failed to appear for detention, to which he had been sent because of another disciplinary incident. On November 4, 2010, Student was suspended for one day after he slammed another student into a wall. On November 15, 2010, Student was again disciplined for truancy. There was no evidence that, during this period, the District considered whether Student’s struggles were related to a disability.

Student’s Referral to SST

21. At some point in October 2010, Student was selected for an SST meeting set for November 17, 2010. Prior to an SST meeting, one of two teachers assigned to the SST, Kayleen Chilton, the school librarian, was responsible for distributing a form to each of the teachers of the student who was subject of the meeting. ¹² The subject student’s teachers then completed the form which reported the student’s current grade in the class, as well as checking boxes that described characteristics of the student in the areas of grades and work habits, behavior, any physical symptoms, and any interventions that the teacher had tried to help him improve in these areas. There was also an area for written comments.

22. After the forms were collected, another teacher on the SST, Julie Kluss, summarized the information on the teacher forms on the SST form that was used for the meeting. ¹³ The assistant principal, July Bolton was in charge of the SST meeting. ¹⁴ She, the school psychologist, and the director of special education at SBJHS were the most active participants at an SST meeting. Although there was little direct evidence in this regard, it appeared that a student’s teachers rarely came to SST meetings.

23. In preparation for the November 17, 2010 SST meeting, each of Student’s six teachers completed an SST teacher form. Student’s RY teacher, Elise Simmons, made positive comments and pledged to “work [with] him harder on making better decisions.” ¹⁵

24. Student’s science teacher, Nelli Hill, reported that academically Student was “[achieving] below potential;” he was “behind in assignments;” and had “incomplete assignments.” ¹⁶ Student was reported to “lack motivation.” His behavior was described as “inappropriate,” in science. He was reported to distract other students, and he was described as “easily distracted/inattentive.” Ms. Hill noted that he talked back to her, used obscene language, and engaged in “dramatic behavior,” by stapling himself. As interventions, Ms. Hill reported that she had frequently contacted Parent, changed his seating, and assigned him to detention. Student’s then current grade in the class was a D.

25. Student’s pre-algebra teacher, Bud Andrews, reported that Student’s then current grade was a D-or F. ¹⁷ Like Ms. Hill, he also noted that Student was “[achieving] below potential,” and “lack[ed] motivation.” In the area of behavior, he also found that Student distracted others, and was distracted himself. He engaged in “inappropriate responses/behavior,” was “disruptive,” and “[talked] too much.” Mr. Andrews had also contacted parent, changed Student’s seat, and had “sent [him] to the office during class.”

26. Student’s Core teacher, Marc Fidel also noted that Student had “incomplete assignments” and “[lacked] motivation.” ¹⁸ In the area of behavior he, like the other teachers, described Student as distracting others and also was distracted himself, and he engaged in “inappropriate responses/behavior.” Mr. Fidel also noted that Student seemed “lethargic.” Student was earning a C in Core.

27. Rich Lashua, Student’s English teacher, reported Student’s current grade was an F. ¹⁹ Like Ms. Hill, Mr. Lashua reported that Student was “[achieving] below potential,” he was “behind in assignments,” had “incomplete assignments[,]” and he “[lacked] motivation.” Mr. Lashua also reported that in the area of behavior Student was “Easily distracted/inattentive.” Mr. Lashua was concerned that Student was “lethargic” and had written “I hate my life” on an assignment. As in-class interventions, Mr. Lashua had called Parent and changed Student’s seat. Mr. Lashua also wrote in the comments section that Student was “extremely unmotivated.”

28. Student’s PE teacher Edward Gover did not check any of the boxes on the form. His sole written comment was “Run him on a hamster wheel prior to school.” ²⁰ Student had an A-in PE.

29. All of the check marks and comments, with the exception of Mr. Gover’s, were summarized on the SST reporting form under the heading, “Areas of Concern,” as were some of the previous interventions including his enrollment in RY and Core. However, none of the teachers suggested that Student be assessed for special education. Further, his participation in Mandatorial, and ELA and math intervention programs were not noted on the SST reporting form, nor his failures to attend these programs, and his disciplinary incidents. As will be discussed further in this Decision, because the SST did not have this additional information, it did not have the entire picture of how dismally Student was doing in school that year.

30. The SST meeting for Student scheduled for November 17, 2010, did not occur. There was no explanation as to why it did not occur when scheduled, although District witnesses intimated that probably it was because Student or Parent did not appear, or could not attend. However, the evidence did not establish this.

31. On December 7, 2010, Student was disciplined for defying authority. He failed to appear for trash pick-up detail (due to another disciplinary incident), and then lied by saying he had been working with a teacher at the time, when he had not. Student was disciplined on December 13, 2010, for truancy.

The SST Meeting of December 15, 2010

32. The first SST meeting for Student for the 2010-2011 SY occurred on December 15, 2010. In attendance were Student, Parent, Michael Stieren (SBJHS director of special education), Helen Hernandez (school psychologist), Ms. Kluss, Ms. Chilton, Katelyn McMeekin (Student’s counselor), and Ms. Bolton. ²¹ None of Student’s teachers attended.

33. With the exception of Ms. McMeekin, all of the District attendees at the December 15, 2010 SST meeting testified. However, none of these witnesses had any clear recollection as to what specifically occurred at that meeting; they could describe only what generally happened at such a meeting. Ms. Kluss testified that her role was to be a “witness.” It appeared that neither she nor Ms. Chilton were expected to be active participants in an SST meeting. Ms. Hernandez was supposed to review the subject student’s cumulative file before or at the SST meeting.

Cumulative File

34. Student’s cumulative file would have contained copies of all of his report cards starting at kindergarten. In elementary school, Student’s teachers made comments on his report cards that referred to his high energy level, lack of focus and impulsivity. He repeated third grade at Parent’s request. However, Student received average to above average grades in elementary school for the most part.

35. The first semester was ending on January 14, 2011. There were three marking periods between the beginning of the 2010-2011 SY on August 23, 2010, and the end of the first semester. ²² Student’s grades were B’s for RY, F’s for science, an initial F and two D’s for pre-algebra, two C’s followed by an F for English, two A’s followed by a B in PE, and two B’s followed by a C+ in Core.

2004 Assessment

36. A thorough review of Student’s files would have also revealed the 2004 assessment of Student for special education, when Student was in the second grade. The results of his tests strongly suggested that he should have been found eligible for special education services at that time. For example, during a classroom observation, Student was noted to be off-task 95 percent of the time he was observed. After reviewing the responses of Student’s teacher and Parent on several standardized assessment tools, the assessor noted that Student’s “scores reflect symptoms that mirror DSM-IV criteria for combined Inattention and Hyperactive-type Attention Deficit-Hyperactivity Disorder (ADHD) across settings.”

37. In addition to assessment results that clearly presented the picture of a child with ADHD, Student also appeared to meet the criteria for a child with ED based on the scores given to him by his teacher and Parent when they completed the Devereaux Behavior Rating Scale—School Form. A child whose total score exceeds 114 is “likely to meet the eligibility criteria for ED designation.” Student’s teacher’s total score was 137; Parent’s total score was 138.

38. Ms. Hernandez testified that she reviewed Student’s file for the December 15, 2010 SST meeting, and that she did recall seeing the 2004 evaluation either before or at the meeting. But neither Ms. Hernandez nor anyone else at the meeting, including Mr. Stieren, appeared to consider whether Student’s current difficulties were related to any disability he might have.

39. As discussed further below, although nothing in this Decision should be construed as finding that the District should have found Student eligible for special education in 2004, and the two year statute of limitations has not been extended to include claims prior to August 17, 2010, the information from the 2004 evaluation was part of Student’s educational record. This put the District on notice that he had previously been found to exhibit characteristics often found in children who have disabilities and require special education services, and this information should have caused the District to suspect that Student might have a disability which required assessment.

Disciplinary Records

40. Some of the SST members had access to and ability to review Student’s disciplinary record which would have revealed the multiple disciplinary incidents in which he was involved from the beginning of the school year. However, there was no evidence that these records were reviewed prior to or during this SST meeting.

Results of the SST Meeting of December 15, 2010 SST Meeting

41. Although the District’s SST members had available to them all of the information concerning the general education interventions that had been tried with Student since the beginning of the 2010-2011 SY, it is unclear whether they availed themselves of this information. In terms of the academic pyramid, Student been participating in RY and Core, interventions at the top of the academic pyramid, since the beginning of the school year, and was clearly not making progress in spite of those interventions. He was also now in permanent Mandatorial, and still was not making progress. He was at the top of the tier of the behavior intervention pyramid, just short of expulsion or involuntary transfer to another school.

42. At the SST meeting on December 15, 2010, the team decided, with the concurrence of Parent, that she would seek counseling for Student and Ms. Hernandez gave her the name of an agency that could provide this. Parent was also to receive weekly progress reports and it was recommended that she shadow Student for all or part of a school day, referred to as a “Parent Visit Day.” Finally, it was recommended that there be a “follow-up” SST, although no date was assigned for this SST meeting. It does not appear that any of the District personnel who attended that SST meeting considered whether Student should be referred for a special education assessment, nor was there any discussion of such a step.

43. Parent arranged for Student to have the recommended counseling, although he only attended a few sessions. She had previously enrolled Student in an online tutoring program, although neither she nor Student found that program to be helpful. Parent did not do the Parent Visit Day because Student was vehemently opposed to her doing so.

44. Student ended the first semester of his eighth grade year with F’s in English, pre-algebra, and science; C’s in Core and PE; and a B-in RY. However, the evidence established that no one arranged for the follow-up SST meeting after the semester ended on January 14, 2011, or when Student continued to receive poor grades as the second semester progressed.

45. During the 2010-2011 SY, Student often told Parent that he was frustrated in school because he was unable to keep up, and at some point during the 2010-2011 SY, it was discovered that Student was smoking marijuana on a regular basis. In addition, Parent finally informed him that both of his biological parents had a history of serious substance abuse and this was extremely upsetting for Student. However, although Student’s marijuana use may have been a factor in his school problems, the evidence did not establish it as the primary cause. Rather, the evidence showed that Student’s deteriorating performance in the school was caused by his inability to cope in that environment due to processing difficulties and lack of focus caused by his ADHD, and possibly also due to ED. Although Parent followed through with most of the recommendations of the December 15, 2010 SST, the District appeared to do nothing different to address Student’s issues for several additional months.

The SST Meeting of April 27, 2011

46. On January 12, 2011, Student was again disciplined for defying authority. On February 4 and March 17, 2011, Student was disciplined for truancy. On March 22, 2011, in two separate incidents, Student was disciplined for defying authority and failing to appear for detention. On March 25, 2011, Student was disciplined for defying authority in his science class, as well as at lunch. He was suspended from class for two days, and also referred to teen court. On April 11, 2011, Student was suspended for two days because he was again defiant to a teacher and disruptive in class.

47. In April 2011, Student was reported to be failing in pre-algebra, science and English. He was also reported to be in danger of not matriculating to high school for the following school year. Finally, another SST meeting was scheduled for April 27, 2011. In preparation for the meeting, some of Student’s teachers again completed the teacher forms. Mr. Gover and Mr. Fidel did not. Ms. Hill and Mr. LaShua, as well as Student’s current prealgebra teacher, Shawn Rocha, reported the same areas of concern in academics and behavior as had been reported previously, with additional concerns in the area of behavior expressed by Mr. Lashua. These concerns closely mirrored Ms. Hill’s responses on the teacher form for Student’s December 2010 SST meeting.

48. Two of Student’s teachers, Mr. Lashua and Mr. Rocha, attended the SST meeting on April 27, 2011. Parent attended and presented the team with a written request for a special education assessment. There was very little testimony as to what transpired at that meeting, and it is unclear whether the SST meeting would have resulted in an SST referral for a special education assessment if Parent had not requested one.

49. Ms. Hernandez prepared an assessment plan that was sent to Parent on May 10, 2011. The District received the signed consent from Parent for the assessment on May 17, 2011. However, because only slightly more than two weeks were left in the 2010-2011 SY, the District’s assessment of Student for special education did not begin until the start of the 2011-2012 SY.

50. The 2010-2011 SY ended on June 2, 2011. Student’s grades for the second semester of the 2010-2011 SY were an A in RY, D’s in Pre-Algebra and PE, F’s in Science and English, and a C in Core. It is noteworthy that one of Student’s D’s was in PE, a class in which previously he did well. Mr. Gover commented on the report card that Student had worked below his ability. Student’s STAR scores from the eighth grade were “Far Below Basic” in ELA, History/Social Science, and Science. His score was Proficient in Math.

51. Although Student argued that class attendance was a major issue for Student in his eighth grade year, this was not established by the evidence. He only had four days of unexcused absences that school year. All disciplinary referrals for truancy were related to absences from Mandatorial, academic intervention programs, or disciplinary activities.

52.Student attended summer school at Puente, a continuation middle school operated by CEO, presumably to make up credits. ²³ He continued to exhibit poor behavior while there.

The 2011 Assessment and IEP Team Meeting

53. The 2011-2012 SY began on August 25, 2011, for students. Student was now enrolled at SBHS as a ninth grader. Student was assessed by school psychologist, Juan Gallardo, in September 2011. ²⁴ This evaluation was reviewed at an IEP team meeting on September 22, 2011. Mr. Gallardo found that Student had an auditory processing disorder which was affecting his school performance, and his medically diagnosed ADHD was also affecting him in the educational setting. In addition, the assessment results showed that Student was clinically depressed The IEP team found Student eligible for special education services under the primary eligibility category of SLD, and the secondary eligibility category of OHI. Although Student’s depression was severe, it was unclear how long he had suffered from this condition, so he was not found eligible in the category of ED. ²⁵

54. The IEP that was developed on September 22, 2011, contained goals in the areas of study skills and organization, career exploration, social-emotional, and reading fluency. It called for Student to have 30 minutes yearly of consultation in each of the following areas: college awareness and career awareness. In addition, he was to have two 20-minute sessions of counseling each month, and receive 55 minutes of specialized academic instruction each day. Parent agreed to the IEP and it was implemented, but Student did not experience success with this IEP at SBHS, as will be discussed below.

55. An assessment by CEO in 2012, and an IEE conducted at the same time as the CEO assessment, corroborated the results of Mr. Gallardo’s assessment. In addition, testimony of the neuropsychologist who conducted the IEE confirmed that Student had probably suffered from the SLD, OHI and ED for many years prior to being made eligible for special education at the September 22, 2011 IEP team meeting.

Assessment of District’s Compliance with Child Find

56. The District has made significant efforts to make parents aware of the IDEA notice of procedural safeguards, which states that parents and others can request a special education assessment if they suspect a child has a disability. However, it was unclear when, during the 2010-2011 SY, this information was first placed on its website, and that of the SELPA. In addition, notices advising parents about obtaining assessments for children suspected of having a disability are published annually in the primary Santa Barbara newspaper.

57. At the beginning of each school year the District gives parents written information stating that they may refer their children for special education assessments if they suspect their child may have a disability. At SBJHS, at the beginning of the school year, a student could not get his class schedule if his parent did not turn in a signed acknowledgement of receipt of this information.

58. The District’s child find efforts do not, however, appear to involve significant activity beyond making information available to parents. The IDEA requires not only that parents be informed of the availability of special education, but also that a district engage in active and systematic efforts to identify possibly disabled students, whether their parents are engaged or cooperative or not, or even if their parents cannot be found. A central part of such efforts is the law’s encouragement of special education referrals by school personnel. This requires a level of training and awareness that does not appear to exist in the District.

59. Although the District presented evidence of all the ways in which it and the SELPA communicated to parents about child find, the presentation of this evidence only serves as an attempt to shift the burden of referring a child suspected of having a disability for a special education assessment to his parent. This evidence does not immunize the District from liability for failing to see what was obvious by August 17, 2010, that Student’s academic and behavioral difficulties may have been rooted in his disabilities. The evidence that Student did not benefit from the multiple interventions from both the academic and behavior pyramids during the 2010-2011 SY confirms this.

60. The evidence showed that District staff were inadequately trained in special education in general and child find in particular. In California, professionals who work in the public school system as teachers, counselors, school psychologists, or administrators, must possess a credential issued by the California Commission on Teacher Credentialing (CCTC). ²⁶ As part of the teacher credentialing process in California, all prospective teachers take a course in which special education is discussed as part of the curriculum. After a prospective teacher or other education professional graduates with the requisite course work to apply to for a credential from CCTC, that individual receives a “preliminary credential.” In order to receive a “clear credential,” certain additional coursework/training must be completed within the next five years. In addition, once an education professional has a clear credential, there are continuing education requirements.

61. It appeared from the testimony of the SBJHS witnesses who possess CCTC credentials in areas other than special education that very little of this post-credential coursework and training had a special education component. Even more importantly, there was no evidence that any training was provided, either in the District or in continuing education courses provided by other institutions, that would help these District employees to determine that a student struggling academically or behaviorally could be suspected of having a disability and might need to be assessed for special education services, or that they could make such a referral at any time.

62. Immediately prior to, or at the beginning of the 2010-2011 SY, the District conducted a mandatory training for administrators such as school principals and assistant principals. A component off this training was a session on special education and child find duties of school personnel. There was no evidence that SBJHS administrators who attended this training ever provided this information to other school personnel.

63. There was testimony that District special education employees received monthly training sessions dealing specifically with special education issues. However, Ms. Escobedo testified that less than 15 minutes of these trainings for the 2010-2011 SY were concerned with child find. Ten teachers or administrators at SBJHS testified about child find. Most of them testified that they understood that the SST meeting was the forum in which a referral could be made for a special education assessment. However, even at the hearing, they seemed unaware that they, as education professionals, could have referred Student for a special education assessment at any time.

64. Many testified that if they suspected a child had a disability, they would consult with the student’s academic counselor, or the school psychologist or director of special education. Then, if appropriate, an SST meeting would be arranged. Unless a parent requested such an assessment, the SST process seemed to be the only other avenue staff at SBJHS knew was available for such a referral to be made. Even Mr. Stierens, who was the special education director during the 2010-2011 SY, and the assistant principal’s interim replacement the previous school year, testified to that. In fact, Mr. Stierens testified that it was important to give the intervention pyramids a chance to work, because not doing so would be “giving up on a child.” The implication was that referring a child for a special education assessment, rather than using every single intervention in the pyramid before doing so was akin to failure.

65. Ms. Bolton acknowledged that a teacher or other staff could refer a student for a special education assessment, but she testified that if she suspected a student had a disability she would consult with the school psychologist about the student, as that was not one of her areas of expertise. Only Ms. Kluss, who was never one of Student’s teachers at SBJHS but a member of the SST whose position was primarily clerical in nature, testified that she knew that, as a teacher, she could refer a student for a special education assessment at any time, and had done so in the past.

66. It is particularly troubling that at SBJHS, the teachers and staff relied almost exclusively on the flawed intervention pyramids for guidance when a student was struggling either academically or behaviorally. These pyramids may well be useful in supporting general education students. But there was nothing on either pyramid that guided school personnel in the direction of making a direct referral for a special education assessment for a struggling student, especially when the interventions on the pyramid did not seem to be working. Even more troubling was that even though many of Student’s teachers on the SST reporting forms reported that he was a distraction to others, and was distracted himself in class, no one at the SST meeting on December 15, 2010, connected that behavior with the fact that Student had a medical diagnosis of ADHD. Instead most of Student’s teachers seemed to attribute his academic struggles to a “lack of motivation.” This was true even when they testified at the due process hearing.

67. The District argues that it should not be penalized because “in hindsight,” it appears that Student did have a disability requiring special education. However, even before August 17, 2010, there was substantial reason for the District to suspect that Student may have been disabled, and should have previously had him assessed for special education. Its own 2004 assessment established that. Student’s second semester grades for his seventh grade year also showed he was on a downward trajectory, and having behavioral issues as well as academic issues. And as the 2010-2011 SY proceeded, Student continued on this downward trajectory that eventually led him to Juvenile Hall the following school year.

68. The District’s failure to consider the accumulating evidence in his seventh grade year, as identified above, that Student’s problems were related to his disabilities, clearly demonstrates that it failed to meet its child find obligations. And the evidence established that this failure, resulted in Student not having an IEP for the 2010-2011 SY, which denied Student a FAPE for the entire 2010-2011 SY. This evidence was bolstered by the evidence of what occurred during Student’s eighth grade year. Had the District assessed Student during his seventh grade school year and held an IEP meeting which identified him as requiring special education services, such as a period of individualized instruction, and this invention had been put in place, it seems likely that Student would have had a positive and productive eighth grade school year. Instead, the District did little to help Student during the 2010-2011 SY. This resulted in a denial of a FAPE, and entitles Student relief such as compensatory education which will be discussed below.

Remedies

Compensatory Education

69. ALJs have broad latitude in fashioning equitable remedies for the denial of a FAPE, including but not limited to compensatory education, additional services to a pupil, and staff training. An award to compensate for past violations must be based on a factspecific assessment of the consequences of the district’s violation, and must be such that the aggrieved student receives the educational benefit he would have received, had the school district complied with the law. An award of compensatory education may, but need not, provide day-for-day compensation.

70. Student has requested compensatory education for one hour after school in a one-to-one setting in the area of reading, utilizing a program such as Lindamood Bell, by someone certified in teaching such programs, and also trained in dealing with maladaptive behaviors according to peer-reviewed research-based interventions. ²⁷ The District has teachers certified to teach the Lindamood Bell program, and uses the program with some students.

71. The evidence established that Student has deficits in the areas of reading fluency and comprehension. Using the September 22, 2011 IEP, which Student has not challenged, as a model, Student would have received 55 minutes each school day, approximately one hour, of individual instruction for the 2010-2011 SY. There were 180 school days between August 25, 2010, and June 2, 2011, the end of the school year. Therefore, Student is entitled to 180 hours of compensatory education.

72. Accordingly, the District shall provide Student with the compensatory education after school as requested, and during the extended school year. If District personnel cannot provide Student with the compensatory education in his current educational placement, or in a future educational placement, the District may choose a certified nonpublic agency to provide the compensatory education, and the District shall pay for this. The District shall also pay for related transportation costs.

Staff Training

73. Staff training may also be an appropriate remedy for a violation of the IDEA. An order providing appropriate relief in light of the purposes of the IDEA may include an award of school district staff training regarding the area of the law in which violations were found, to benefit the specific pupil involved, or to remedy procedural violations that may affect other pupils in the future.

74. The evidence in this case established that District personnel, even special education personnel, relied on the intervention pyramids used in general education to provide struggling students at SBJHS with interventions, rather than making referrals for special education assessments, when warranted. Further, Ms. Escobedo testified that other than the training of administrators at the beginning of the school year, and monthly trainings for special education personnel, there is no other special education training in the District, other than the training offered to beginning teachers. However, even the administrator and special education personnel trainings that have occurred in the past have spent very little time on the subjects of child find, and identifying students who might be suspected of a disability and require a referral for a special education assessment. Accordingly, the District shall be ordered to provide District personnel, including non-credentialed staff, with six hours of training to be conducted by qualified personnel, who are not employed by the District or the SELPA, in this area no later than September 1, 2013.

The IEP Team Meeting of August 14, 2012

Predetermination

75. A school district cannot come to an IEP team meeting with a predetermined, “take it or leave it” offer of placement. To do so denies a parent meaningful participation in the IEP decision-making process. A parent has meaningfully participated in the development of an IEP when she is informed of her child’s problems, attends the IEP team meeting, expresses her disagreement regarding the IEP team’s conclusions, and requests revisions in the IEP.

Events Preceding the IEP Team Meeting of August 14, 2012

76. Student began the 2011-2012 SY as a ninth grade freshman at SBHS in the District. As previously noted, an IEP team meeting was held on September 22, 2011, at which time the District’s assessments were reviewed, and Student was found eligible for special education. However, he continued to experience behavioral difficulties at SBHS. He was chronically truant, and engaged in other misbehavior as well. He continued to smoke marijuana.

77. Student was cutting classes, smoking marijuana, and engaging in behaviors that ultimately landed him in juvenile hall, probably in February 2012. ²⁸ Apparently, on February 27, 2012, Parent withdrew her consent for special education, believing that it might be easier for Student to be accepted into an alternative school if he did not have an IEP and returned to the District. It was apparent that Student was not having success in a comprehensive public high school environment. In March 2012, Student was threatened with expulsion from SBHS, although it was not at all clear what behavior led to this threat, or when that behavior occurred since other evidence indicated that he may have been in the custody of juvenile court authorities at this time. ²⁹

78. When Student was sent to juvenile hall, responsibility for his education fell to CEO, which operated the high school there called Dos Puertos. While incarcerated, Student began to be medically treated for depression. Subsequently, Student was sent to another Santa Barbara County juvenile facility, Los Prietos Boys Camp (Los Prietos). At Los Prietos Student attended Los Robles High School (Los Robles), which was also operated by CEO. He was at Los Prietos for four months—discharged at the end of July 2012. During this time at Los Prietos, he continued to receive medication for his depression.

79. While Student was at Los Prietos, Parent asked CEO that he again be assessed to determine if he was eligible for special education, since she had previously revoked her consent for special education. CEO personnel would conduct this assessment. An “IEP” team meeting was held on June 22, 2012, and there was evidence that even though Student had not been eligible for special education since February 27, 2012, CEO was using the September 22, 2011 IEP as a model for his schooling at Los Robles. ³⁰ At the IEP team meeting on June 22, 2012, convened by CEO, it was noted that another IEP team meeting would need to be held once Student was released from Los Prietos, as he would not be able to continue attending Los Robles after his release. It was unclear whether Student would then become the responsibility of CEO or the District, although Ms. Escobedo did attend the June 22, 2012 meeting, on behalf of the District.

80. At some point during Student’s juvenile court placement at Los Prietos, Parent also asked for an independent educational assessment (IEE). It was unclear whether this IEE was agreed to by the District or CEO. The IEE was conducted by Jordan Witt, Ph.D., a neuropsychologist in private practice, in June and July 2012, while Student was still at Los Prietos and attending Los Robles. ³¹

81. As a condition of his probation Student was to attend school. Because she did not want him to return to SBHS, when Student was released from Los Prietos at the end of July 2012, Parent contacted Kathy Abney, the principal at La Cuesta High School (La Cuesta), a District continuation high school. ³²

The IEP Team Meeting of August 14, 2012

82. The District convened an IEP meeting on August 14, 2012, because it was now responsible for Student’s education following release from Los Prietos. Attending the IEP team meeting of August 14, 2012, were Student, Parent, and Student’s attorney, Ms. Marcus; Ms. Escobedo, and Ms. Kellogg, on behalf of the District; CEO’s assistant superintendent and its four evaluators, and the CEO attorney; Dr. Witt; Student’s juvenile court probation officer; Ms. Abney; Mr. Gallardo, Tiffany Carson, head of the special education department, and David Meister, assistant principal, from SBHS. Victor Prado, one of Student’s teachers from Los Robles attended a portion of the meeting telephonically. ³³ There were a total of 18 participants at this IEP team meeting.

83. The IEP team meeting of August 14, 2012, lasted more than three-and-a-half hours. The CEO assessment team reviewed its 39-page assessment. Mr Prado discussed Student’s progress at Los Robles. Dr. Witt discussed the recommendations in his assessment, and noted that there were many consistencies in his assessment, the CEO assessment, and Mr. Gallardo’s assessment from September 2011.

84. Mr. Prado reported that Student had done well at Los Robles and, in his opinion, Student thrived in an environment where lots of one-on-one attention was available to him. He also reported that Student had successfully participated in the Read 180 intervention curriculum in reading. Student was tested shortly before he left Puente summer school in August 2011, and scored far below basic on a Read 180 preliminary assessment. By the time Student left Los Prietos, he had risen to the basic reading level, actually just below proficient for his grade level which was deemed to be 10th grade (rather than ninth grade which was his 2011-2012 SY grade level).

85. The CEO assessment team and Dr. Witt found that Student had weaknesses in both reading and math, representative of a SLD, and his cognitive development was in at least the average range. In Dr. Witt’s opinion, as well as the opinion of the CEO school psychologist, Alicia Ledesma, Student’s problems in school could be attributed to issues with his documented ADHD, problems in auditory processing, and ED. ³⁴

86. Following the discussion of the various evaluations, a draft IEP document was passed out to the participants for discussion and revision. ³⁵ The IEP team, including Student, Parent and Ms. Marcus, worked collaboratively in correcting the draft IEP to accurately reflect Student’s current situation, and the current assessments and test scores. Student’s attorney mentioned Student’s history of truancy. ³⁶

87. The team discussed what would be the most appropriate category or categories under which to find Student eligible for special education and related services. It was decided that he would continue to qualify as a student with a SLD in the areas of reading fluency and comprehension, and math, specifically algebra, and that his diagnosis of ADHD also affected him. Further, difficulties in processing and depression also affected his attendance. However, Student would not be made eligible as a student with ED.

88. Following the discussion of eligibility, the team discussed having the IEP reflect Student’s current situation and current levels of performance, and identified areas in which goals were needed. Student’s attorney asked that certain specific items be included in the goals, and the team agreed that proposed goals would be sent to Parent with a final IEP to be considered for approval.

89. The IEP team then discussed placement options for Student. District personnel expressed an interest in transitioning Student to SBHS. It was suggested that Student be enrolled in an individualized instruction program (II) for one period, with two periods of reading instruction in the Read 180 curriculum. In addition he would take a history class that was offered which had a special education teacher available to work collaboratively with students who needed additional help with the class, and an algebra class for students struggling in math which would allow Student to complete his algebra requirements in three semesters rather than the standard two semesters, if necessary. In addition, he would participate in general education PE. Dr. Witt suggested a check-in with a counselor or teacher, or an aide during the first month at SBHS on a daily basis.

90. Ms. Abney, then talked about the program at La Cuesta. At La Cuesta, students are generally in the 11th and 12th grades, over the age of 16, and recovering credits so they can meet high school graduation requirements. According to Ms. Abney, the older students at La Questa have a better understanding than a 10th grader of the amount of work that is necessary to make progress there. Student, because he is now 16, could meet the California statutory requirements for attendance at a continuation high school, but many of the components that had been discussed as being available at SBHS, and that IEP team members, including Student’s attorney, had agreed were important if Student was to be successful, were not available at La Cuesta.

91. For example, the Read 180 program in which Student had been very successful at Los Robles, is not offered at La Cuesta. The reading program offered at La Cuesta is the 3-D reading intervention program. An IEP team member pointed out that this reading program is designed for English learners, and Student is an English-only speaker. Other problem areas at La Cuesta that were discussed concerned the level of special education staffing which consisted of only one special education teacher and a special education aide, and only one part time school psychologist present for just a day-and-a-half each week.

92. Following this presentation by Ms. Abney, several members of the IEP team said they needed to leave the IEP team meeting, so there was an attempt to try to schedule another IEP team meeting. However, Student’s attorney was not available until after the start of the school year two weeks hence. She suggested that Ms. Escobedo send her the proposed goals, at which point Ms. Escobedo made the verbal offer of the program at SBHS which consisted of one period of II, two periods of Read 180, and the previously discussed history and algebra classes. It was only then that it became apparent Parent was unwilling to have Student return to SBHS.

93. It was impressive that during the course of the IEP team meeting most of the participants directed their comments to Student, and he in turn responded to them when appropriate to do so, and corrected perceived inaccuracies in their comments. ³⁷ Student was consistently respectful, attentive and courteous during the IEP team meeting, which began at 2:00 p.m. and ended at 5:37 p.m. ³⁸

94. Ms. Kellogg stated that the District’s offer would be put in writing with the modified goals, as well as additional proposed assessments. Realizing that the District was offering placement at SBHS, not La Cuesta, Student stated that he would be willing to try SBHS. However, Ms. Marcus stated that she believed the proffered services could occur at La Cuesta. Parent became tearful, and Parent, Student and Ms. Marcus left the meeting without setting a firm date for a new IEP team meeting, although September 10 and 11, 2012, were suggested.

95. The evidence established that Parent, Student and Student’s attorney were active members of the IEP team on August 14, 2012. They made comments and asked questions of the participants, during the review of both the CEO assessment, and Dr. Witt’s IEE, as well as the discussion of eligibility, goals, and proposed placement. Based on the conversation amongst the participants during the meeting, there did not appear to be animosity between or among Student, his attorney, Parent, Dr. Witt, and the other team participants from the District, CEO, and Los Prietos until Ms. Escobedo made the verbal offer for placement at SBHS, 23 minutes before the meeting ended. Until that time, all of the IEP team members appeared to be comfortable making comments and asking questions, including Student, Parent and Student’s attorney.

96. There was absolutely no evidence that any IEP team member from the District predetermined what the offer of placement would be prior to the IEP team meeting on August 14, 2012. As required by the IDEA, at the IEP team meeting on August 14, 2012, there was a collaborative discussion involving all the members of the team, discussing first the assessments, then moving on to the goals and services Student required to receive a FAPE, and only then a discussion of various educational settings, and the pros and cons each one, i.e., SBHS and La Cuesta, based on what they had to offer. Ms. Escobedo testified persuasively that she made the verbal offer at the IEP team meeting when she did, based on the lengthy previous discussion of over three hours because she knew Student was required to attend school as a condition of his probation. Since school would be starting in just two weeks, and Student’s attorney refused to meet before then, it was incumbent for the District to have an offer on the table, and the evidence established that based on the previous discussion, this offer was reasonable, and not predetermined. ³⁹

97. Ms. Escobedo was very hopeful that a follow up IEP team meeting could be held. When that did not appear to be possible, in part due to everyone’s schedule, Ms. Escobedo wrote a letter to Parent on August 24, 2012, with the final, revised IEP document enclosed which contained an offer of placement and services at SBHS, with all the components discussed as appropriate at the IEP team meeting of August 14, 2012.

98. The District’s written IEP offer took into consideration the fact that Student had, since the August 14, 2012 IEP team meeting, been re-incarcerated. Therefore, his education was now the responsibility of CEO. However, the offer of placement at SBHS discussed at the August 14, 2012 IEP team meeting, was described in the final IEP document from that meeting because it was anticipated that Student would be released from custody in a few weeks. Ms. Escobedo explained that even though Student had previously been expelled from SBHS, he still could attend school there pursuant to his IEP.

99. Ms. Escobedo’s persuasive testimony, and the District’s recording of the IEP team meeting on August 14, 2012, as well as the testimony of other witnesses who attended that meeting, make it clear that the offer of placement and services made then by Ms. Escobedo was not “take it or leave it,” as claimed by Student in both his complaint and closing argument. There was nothing to suggest that once the verbal offer was made on August 14, 2012, Ms. Escobedo could not, or did not, consult with Ms. Abney, the District’s attorney, or other team members to see if it would be possible to offer placement and services at a location other than SBHS. Further, the evidence established that Parent, Student, and his attorney were active participants at the IEP team meeting who were listened to, and whose suggestions were considered and often adopted as part of the District’s offer. The fact that the District offered placement at a location other than that preferred by Student is not a procedural violation, and the District, therefore, prevailed on this issue.

LEGAL CONCLUSIONS

Burden of Proof

1. Under Schaffer v. Weast (2005) 546 U.S. 49 [163 L.Ed.2d 387], the party who filed the request for due process has the burden of persuasion at the due process hearing. In this case, Student filed for a due process hearing and therefore bears the burden of persuasion.

Elements of a FAPE

2. Under the IDEA and State law, children with disabilities have the right to a FAPE. (20 U.S.C. § 1400(d); Ed. Code, § 56000.) The term “free appropriate public education” means special education and related services that (A) have been provided at public expense, under public supervision and direction, and without charge; (B) meet the standards of the state educational agency; (C) include an appropriate preschool, elementary school, or secondary school education in the state involved; and (D) are provided in conformity with the individualized education program required under section 1414(d) of title 20 of the United States Code. (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).)

Child Find

3. The IDEA places an affirmative, ongoing duty on the state and school districts to identify, locate, and evaluate all children with disabilities residing in the state who are in need of special education and related services. (20 U.S.C. § 1412(a)(3); 34 C.F.R. § 300.111(a) (2006).) ⁴⁰ This duty is commonly referred to as “child find.” California law specifically incorporates child find in Education Code section 56301, subdivision (a). ⁴¹ The IDEA and the California Education Code do not specify which activities are sufficient to meet a school district’s child find obligation, and there is no requirement that a school district directly notify every household within its boundaries about child find. However, California law obligates the SELPA to establish written policies and procedures for use by its constituent local agencies for a continuous child find policy. (Ed. Code § 56301, subd. (d)(1).)

4. The school district’s child find duty is not dependent on any request by the parent for special education testing or services. (Reid v. Dist. of Columbia (D.C. Cir. 2005) 401 F.3d 516, 518 (Reid).) Violations of child find, and of the obligation to assess a student, are procedural violations of the IDEA and the Education Code. (Dept. of Education, State of Hawaii v. Cari Rae S. (D. Hawaii 2001) 158 F.Supp. 2d 1190, 1196 (“Cari Rae S.”); Park v. Anaheim Union High School District (9th Cir. 2006) 464 F.3d 1025, 1031 (Park).) “The purpose of the child-find evaluation is to provide access to special education.” (Fitzgerald v. Camdenton R-III School District (8th Cir. 2006) 439 F.3d 773, 776.)

5. A school district’s child find obligation toward a specific child is triggered when there is knowledge of, or reason to suspect a disability, and reason to suspect that special education services may be needed to address that disability. (Cari Rae S., supra, 158 F. Supp. 2d at p. 1194.) The threshold for suspecting that a child has a disability is relatively low. (Id. at p. 1195.) A school district’s appropriate inquiry is whether the child should be referred for an evaluation, not whether the child actually qualifies for services. (Ibid.) The actions of a school district with respect to whether it had knowledge of, or reason to suspect a disability, must be evaluated in light of information that the district knew, or had reason to know, at the relevant time. It is not based upon hindsight. (Adams v. State of Oregon,(9th Cir. 1999) 195 F.3d at p. 1149 (citing Fuhrmann v. East Hanover Bd. of Educ. (3rd Cir. 1993) 993 F.2d 1031) (Fuhrmann).)

6. Federal law, as well as California law, define an individual with exceptional needs as one, who, because of a disability requires instruction and services which cannot be provided with the modification of the regular school program in order to ensure that the child is provided a FAPE. (Ed. Code, § 56026, subd. (b).) However, a school district is required to refer a student with a disability for special education and related services only after the resources of the regular education program have been considered, and where appropriate, utilized. (Ed. Code, § 56303.) Therefore, when determined on a case-by-case basis, a school district may utilize the resources of general education before referring a child for a special education assessment.

7. Nonetheless, a school district’s pursuit of general education interventions may not be used to unreasonably delay the special education assessment process. (Johnson v. Upland Unified School Dist. (2002) 26 Fed.Appx. 689, 690-691 [nonpub. opn.].) A school district may still violate its Child Find duties by continuing to provide unsuccessful interventions rather than evaluating the child’s need for special education and related services.

8. A request for an initial evaluation to determine whether a student is a child with a disability in need of special education and services can be made by either the parent or a public agency, including teachers. (34 C.F.R. § 300.301(b).) A school district’s child find duties are not dependent on any action or inaction by parents. (34 C.F.R 300.111(a); Ed. Code, § 56301).

9. A school district’s failure to meet its Child Find obligations is a serious matter which can deprive a child of FAPE, if the child should have been identified as needing special education and related services. (Newman-Crows Landing Unified Sch. Dist., 108 LRP 45928 (2008), OAH Case No. 2007080681.)

Procedural Violations

10. In Board of Educ. of Hendrick Hudson Central School Dist. v. Rowley (1982) 458 U.S. 176 [102 S.Ct. 3034, 73 L.Ed.2d 690] (Rowley), the Supreme Court recognized the importance of adherence to the procedural requirements of the IDEA. (Id.at 205-206.) However, a procedural error does not automatically require a finding that a FAPE was denied. A procedural violation 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).)

Issue 1: From August 17, 2010, to September 22, 2011, did the District deny Student a FAPE by failing to find Student eligible for special education and related services?

11. Based on Legal Conclusions 2-10, and Factual Findings 1-68, the evidence established that the District failed to meet its child find obligation in regards to Student and thus he was denied a FAPE from August 17, 2010, to September 22, 2011. Although the District and SELPA did provide families with notices to encourage parents to refer children for assessment, in this case many education professionals at SBJHS who had contact with Student, ignored significant signs that he was struggling both academically and behaviorally. While it is not decided here that the District’s 2004 decision not to make Student eligible was wrong, at a minimum the information generated during that process was sufficient to put the District on notice that Student’s struggles may have been related to one or more disabilities. Instead of making a referral for a special education assessment, the District relied on general education interventions, even though it was soon obvious that those interventions were not working. Instead of referring Student for a special education assessment during the second semester of the 2009-2010 SY, when it was clear that Student was in serious trouble behaviorally and academically, the District placed Student in both Core and RY, its two programs at the highest level of the academic pyramid for the 2010-2011 SY. Then the District waited until December 15, 2010, to hold an SST meeting for Student, but instead of referring him for a special education assessment, it simply discussed additional general education interventions. The follow-up IEP team meeting recommended by the December 15, 2010 SST team, was not held until April 27, 2011, some four and one-half months later. Even then, it was Parent’s written request for assessment made at that meeting that finally caused the District to assess Student. The District’s delay in assessing Student for special education impeded his right to a FAPE and caused a deprivation of educational benefits for the entire 2010-2011 SY. As a result of the District’s failure to timely assess Student and find him eligible for special education, he continued to flounder and fail in school in the absence of special education and related services. This denied Student a FAPE, and entitles him to compensatory education.

12. Although the District argues that Student must affirmatively prove that there was a denial of FAPE for compensatory education to be awarded, the only legal authority cited by Student is another OAH case, Student v. Los Angeles County Office of Education and California Department of Mental Health, OAH Case No. 2010110301, issued February 11, 2011. In that matter, the student claimed that due to a recent governor’s executive order there was a delay in placing him in a group home as required by his IEP, and as a result he was denied mental health services required by his IEP. However, the ALJ deciding that case found that Student received more mental health services while he was in juvenile hall than were called for in his IEP, and therefore was not entitled to compensatory education mental health services. In the instant case, the evidence did establish that because an IEP for Student was not in place for the 2010-2011 SY, he was denied a FAPE and he is therefore entitled to compensatory education.

Meaningful Participation

13. Federal and State law require that 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. (20 U.S.C. § 1414(d)(1)(B)(i); Ed. Code, §§ 56304.) “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. v. Clark County School (9th Cir. 2001) 267 F.3d 877, 882.) Violations that impede parental participatory rights “undermine the very essence of the IDEA.” (Id. at 892.)

14. A school district is required to conduct, not just an IEP team meeting, but also a meaningful IEP team meeting. (Target Range, supra, 960 F.2d at p. 1485; Fuhrmann, supra, 993 F.2d at p. 1036.) The standard for “meaningful participation” is an adequate opportunity to participate in the development of the child’s IEP. (Ms. S. ex rel. G. v. Vashon Island School Dist. (9th Cir. 2003) 337 F.3d 1115, 1133.)

15. A parent has meaningfully participated in the development of an IEP when she is informed of her child’s problems, attends the IEP team meeting, expresses her disagreement with the IEP team’s conclusions, and requests revisions in the IEP. (N.L. v. Knox County Schs. (6th Cir. 2003) 315 F.3d 688, 693.) A 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. (Fuhrmann, supra, 993 F.2d at p. 1036.)

Predetermination

16. 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.)

Issue 2: Was the District’s IEP team meeting and resultant offer of August 14, 2012, a denial of a FAPE as it prevented meaningful parental participation by making a “take-it-orleave-it” offer of placement?

17. Based on Legal Conclusions 10 and 13-16, and Factual Findings 75-99, Student did not establish that the District committed a procedural violation by making a “take it or leave it” offer at the IEP team meeting of August 14, 2012. The evidence established that there was open discussion among the team members. The participation of Student, Parent and Student’s attorney was encouraged, and did occur. Suggestions of Parent and Student’s attorney were incorporated into the proposed IEP. There was no evidence of any predetermination by the District when it made its verbal offer on August 14, 2012. In fact, an offer was only made at that time because it became apparent that the IEP team could not reconvene before school started, and Student needed to attend school as a condition of his probation, so it was necessary for the District to make an offer.

Remedies

18. ALJ’s have broad latitude to fashion equitable remedies appropriate for a denial of a FAPE. (School Comm. of Burlington v. Department of Educ. (1996) 471 U.S. 359, 369-370.) School districts may be ordered to provide compensatory education or additional services to a pupil who has been denied a free appropriate public education. (Student W. v. Puyallup School District, (9th Cir. 1994) 31 F.3d 1489, 1496.) The conduct of both parties must be reviewed and considered to determine whether relief is appropriate. (Ibid.) These are equitable remedies that courts may employ to craft “appropriate relief” for a party.

Compensatory Education

19. An award of compensatory education 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, supra (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.)

20. Based on Legal Conclusions 11-12 and 18-19, and Factual Findings 69-72, the evidence established that, to remedy the District’s child find violation, which prevented Student from receiving a FAPE for the entire 2010-2011 SY, Student is entitled to 180 hours of compensatory education services to address reading issues. These services shall be provided by either the District, or a certified NPA of District’s choice, and shall be provided even if Student is no longer attending school in the District. The District shall provide Student with transportation to access this compensatory education, if necessary, or reimburse Parent for transportation costs.

Staff Training

21. Staff training is an appropriate remedy; the IDEA does not require compensatory education services to be awarded directly to a student. An order providing appropriate relief in light of the purposes of the IDEA may include an award of school district staff training regarding the area of the law in which violations were found, to benefit the specific pupil involved, or to remedy procedural violations that may benefit other pupils. (Park, supra, 464 F.3d 1025, 1034 [ student who was denied a FAPE due to failure to properly implement his IEP could most benefit by having his teacher appropriately trained to do so]; Student v. Reed Union School District, Cal.Ofc.Admin.Hrngs. Case No. 2008080580 [requiring training on predetermination and parental participation in IEP’s]; San Diego Unified Sch. Dist. (Cal. SEA 2005) 42 IDELR 249 [105 LRP 5069] [requiring training regarding pupil’s medical condition and unique needs].

22. As established by Legal Conclusions 11-12 and 18-19, and Factual Findings 73-74, the District’s continuing failure to meet its child find obligation during the 2010-2011 SY, as it pertained to Student, was egregious and involved many of its educators. The evidence established that most District personnel had not received significant child find training since they obtained credentials. And even those who had recently received that training still had mistaken ideas of what their individual obligations were as educational professionals as they relate to the District’s child find duties. Accordingly, it is appropriate to order training for District staff, as detailed in Factual Finding 74.

ORDER

1. District shall provide Student with 180 hours of compensatory education to be completed no later than June 30, 2014. This compensatory education shall be one-to-one tutoring or instruction in the area of reading fluency and comprehension, in a program such as Lindamood Bell, and which complies with the specifics in Factual Finding 72, and includes transportation.

2. The District shall provide staff with six hours of training in the area of child find no later than September 1, 2013. This training shall be provided by qualified individuals who are not employees of the District or the District’s SELPA, as specified in Factual Finding 74.

3. Student’s other requests for relief are denied.

PREVAILING PARTY

Education Code section 56507, subdivision (d), requires that the hearing decision indicate the extent to which each party has prevailed on each issue heard and decided. Student prevailed on the first issue, and the District prevailed on the second issue.

NOTICE OF APPEAL RIGHTS

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 United States District Court. (Ed. Code, § 56505, subd. (k).)

Dated: January 4, 2013

REBECCA FREIE
Administrative Law Judge
Office of Administrative Hearings

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