OAH 2010080422

56. There was a great deal of testimony about the use and value of highchairs in the Jackson classroom, which were not available at Plymouth. As previously discussed, Student used a highchair when he was engaged in sensory activities. Ms. Elliott testified that they helped him feel contained, and there was evidence that a highchair was used in some instructional situations. The evidence established that the highchairs were not used for disciplinary purposes, and Student was willingly taken to one and seated. Although the highchairs were designated by Ms. Elliott as equipment that needed to be moved to Plymouth, they were not moved, because Ms. Hawk believed use of them violated the laws against restraining special education students. Some Rifton chairs, which served a similar function as the highchairs, were moved, but they were not used as often because they tipped easily, and Ms. Hawk had safety belts in them removed before they were sent to Plymouth.²¹

57. The highchairs in the Jackson classroom served many purposes for Student. They provided a secure environment for him to engage in sensory activities such as fingerpainting and playing with shaving cream. Student, like many children with autistic-like behaviors, had eating problems. He only liked to eat a very limited variety of foods, so lunchtimes and snack times gave staff an opportunity to help him to try new foods. However, staff found it difficult to introduce new foods to him when he was not sitting in a highchair.

58. The lack of highchairs in the classroom also created safety concerns for Staff. It was easier and safer for staff to help Student with activities when they could stand or sit behind him or in front of him, and did not have to lean across a table to reach Student and assist him in hand-over-hand activities, for example. In the Plymouth classroom, one of the aides was injured when Student suddenly tried to stand up from a preschool sized chair at a table when the aide was leaning over behind him, and Student’s head hit her chin. Had Student been seated in one of the highchairs, the aide would not have been injured.

59. The lack of sufficient equipment to address the other children’s sensory needs in the classroom also affected Student. The evidence established that because other children’s sensory needs were not addressed in the Plymouth SDC, they too would act out, and this was disruptive to all the other children, including Student. The room was very noisy, and there was no place to take a child in a tantrum to calm him down away from the others. Student’s ability to access the curriculum and obtain educational benefit was affected by the disruptions caused by other children, which would cause him to act out, or keep him from focusing on his work.

60. Prior to the beginning of the school year, Ms. Elliott tried to arrange the Plymouth classroom in a manner that would provide small work areas as well as larger areas for circle time and snacks. Because the room was so small and configured awkwardly, this was very difficult. In fact, Ms. Elliott and her staff had rearranged the room four times before the end of October 2010.

61. In the Jackson SDC classroom, discrete areas for small group or one-on-one instruction, circle time, and quiet time were separated from each other so students in a specific area were not distracted by staff and students using other areas. In the Plymouth SDC classroom the small areas are side-by-side, and it is easy for students and staff to be distracted by what is going on in an adjacent area. This is the case with Student. This affects the quality of instructional time for Student. Ms. Elliott testified persuasively that Student made virtually no progress on his reading goal benchmark to learn blended beginning sounds of words because the Plymouth classroom was too noisy to provide him with adequate instruction. However, between the development of the reading goal on March 4, 2010, and the end of the 2009-2010 school year, Student had exceeded the benchmark for that quarter at Jackson.

62. When a student exhibits serious behavior problems in the school setting that impede his ability to make educational progress, a BSP may be created to eliminate the behavior. A BSP describes the targeted behaviors, describes the environment in which the behaviors occur and the events preceding the behaviors. A strategy is developed to either prevent the targeted behavior, or to control it if it cannot be prevented using positive reinforcement. Towards the end of the 2009-2010 school year, the school psychologist at Plymouth, Steven Pedego, created a BSP for Student. Ms. Elliott and the classroom aides began implementing the BSP at the beginning of the 2010-2011 school year. However, the size of the classroom at Plymouth limited their ability to do this.

63. Student had a history of escaping from the classroom, running away from adults when frustrated, and screaming in the classroom several times each day. Student had a tendency to scream when he wanted a preferred object, or wanted to do an activity in another area, but was prevented from doing so by staff, or when someone would get in his way. The behavior plan was designed to have Student replace his screaming behavior with asking for something in a quiet voice. However, due to the small size of the Plymouth classroom, Student would escape from one area to another that was not on his schedule, grab a preferred object, and then scream when someone tried to take it back. Then, he would ask for the item in the quiet voice as he was supposed to. This diminished the effectiveness of the BSP because Student was still screaming, although he was then engaging in the desired replacement behavior. In addition, one of the primary reinforcements for Student’s desired behavior was computer time, but computers are not available in the Plymouth classroom.

66. The evidence established that the SDC classroom at Plymouth lacked equipment to address Student’s sensory and educational needs, and this contributed to him failing to make meaningful progress in some areas for the 2010-2011 school year.

Failure to Provide an Appropriate Educational Program

67. Student contends that a combination of factors have led to the District failing to provide Student with an appropriate educational program, for the 2010-2011 school year, and thus he has been denied a FAPE. In addition to the factors discussed above, Student contends that from October 18, 2010, to the conclusion of the hearing, the District failed to staff the SDC at Plymouth with a sufficient numbers of adequately trained aides, and from October 22, to December 13, 2010, the District failed to provide the Plymouth SDC with a properly credentialed teacher

68. Ms. Elliott and her three aides were extremely frustrated by the working conditions in the Plymouth SDC. They struggled to create a classroom environment that would meet Student’s needs, although they were lacking the space and equipment of the Jackson classroom. They wrote at least one letter to the District Superintendent expressing their concerns.

69. On or about Monday, October 18, 2010, the three classroom aides in Ms. Elliott’s classroom were summoned to a meeting with the Superintendent and Ms. Hawk. A representative of their union was also present, as was someone from the Human Resources Department. The aides were told that they were being transferred, and given a choice of schools where there were openings for aides. None of the aides had asked to be transferred, and no reasons were given to them for the transfer. The evidence established that the transfer of the aides from Ms. Elliott’s classroom was involuntary. Ms. Elliott was notified at 3:30 p.m. that afternoon that her aides would not be returning the next school day. Ms. Elliott had an excellent relationship with these aides. The three aides never returned to the Plymouth classroom, and were replaced by two substitute aides, only one of whom had had substituted in the SDC previously and had experience working with autistic children.

70. On October 21, 2010, Ms. Elliott’s physician advised her that she was suffering from health problems, and she needed to take a leave of absence from her teaching position. Ms. Elliott was scheduled to return to work on November 11, 2010. However, she continues to be on medical leave, and is not scheduled to return to the Plymouth SDC until January 3, 2011.

71. After Ms. Elliott was placed on medical leave, the staffing of the Plymouth SDC became chaotic. The District replaced Ms. Elliot with a substitute teacher, Cari Taylor. Ms. Taylor had a mild to moderate special education credential, but did not have the appropriate credential or certification to teach an SDC for children with autistic-like behaviors. However, she had substituted for Ms. Elliott in the past, and was Ms. Elliott’s preferred substitute. Because she was not properly credentialed, Ms. Taylor could only teach the SDC class for 20 cumulative days in a school year. After Ms. Taylor had used up her 20 cumulative days of substituting in the class, she was then replaced by another substitute teacher who also did not have a credential or certificate to teach children with autistic-like behaviors. There was evidence that one or two other substitute teachers were also placed in the Plymouth SDC during Ms. Elliott’s medical leave for just one or two days apiece. During the due process hearing, the District hired a properly credentialed teacher to take over the Plymouth SDC as a permanent substitute until Ms. Elliott returned. This teacher’s first day in the class was December 13, 2010.

72. Prior to Ms. Elliott’s scheduled return from leave in November 2010, the District assigned a permanent aide to replace one of the substitute aides. This new aide had been trained to work with children who had autistic-like behaviors several years before in another school district. The substitute aide who remained in the class and was apparently given permanent status has no prior experience working with autistic children, and there has been no replacement for the third aide who was removed from the SDC in October 2010.

73. Student was very distressed when the classroom aides disappeared from his SDC at Plymouth. He was especially close to one aide, who had been in Ms. Elliott’s classroom for several years, and all three aides had been assigned to Ms. Elliott’s SDC for the 2009-2010 school year. After Ms. Elliott went on medical leave, Student became even more distressed and resistant to going to school.

76. In mid-October 2010, Ms. Elliott prepared progress reports for seven of Student’s goals that were developed at the March 4, 2010 IEP meeting. Although he had not met benchmarks for every one of those goals, he had made some progress. However, the District failed to present evidence to establish Student’s educational progress after Ms. Elliott went on leave from any teacher or aide or other person who had been present in Student’s classroom on a day-to-day basis consistently since October.

77. At the beginning of the school year, Ms. Hawk asked a program coordinator, Mitzi Faulkner, to visit Ms. Elliott’s SDC regularly to make sure she had access to any needed support.²² Prior to Ms. Elliott’s medical leave, Ms. Faulkner had visited the Plymouth SDC a few times. From the time Ms. Elliott went on leave, to the time of the due process hearing, Ms. Faulkner estimated that she had visited the classroom approximately 30 times, staying anywhere from an hour to a whole day. Ms. Faulkner testified that she believes Student made educational progress, and received educational benefit after Ms. Elliott went on leave.

78. Ms. Faulkner only saw Student sporadically during her visits, and was not asked specifically to observe him to determine what progress he was making. Further, because she was not employed by the district last year, she is not familiar with Student’s behavior in the Jackson classroom and the amount of progress he made the previous year. Therefore, her testimony that she believes Student continued to make educational progress after Ms. Elliott went on leave was not substantial or supported by the evidence.

79. Mother testified persuasively that, in her opinion, Student has not made progress in any area at school since Ms. Elliot went on leave. The evidence established that the abrupt departure of the aides and teacher, and the replacement of the teacher and aides by new, and sometimes unqualified personnel, drastically changed Student’s educational program. The preponderance of evidence showed that Student’s progress after October was negligible. The evidence established that Student has been denied a FAPE for the 2010-2011 school year.

Mainstreaming and LRE

80. The IDEA requires that students with disabilities be placed, to the extent practicable, in classrooms with typically developing peers. If this is not possible, the students need to be mainstreamed as much as possible with these typically developing peers. Such mainstreaming may occur on the playground, at lunch or in assemblies, if it is not possible for the children with disabilities to periodically participate in regular education classes. Placement must foster maximum interaction between students with disabilities and their nondisabled peers. The law favors mainstreaming, although it recognizes that a less restrictive setting may not always meet a child’s unique needs, and for some students a more restrictive setting may be necessary to provide a student with a FAPE.

81. Ms. Hawk testified that the SDC was moved from Jackson to Plymouth because the preschool children in the class needed to have the opportunity to interact with typically developing preschoolers, and there was no such preschool class at Jackson.

82. At Jackson, students in Ms. Elliott’s SDC for the 2009-2010 school year were purposefully mainstreamed with typically developing kindergarten students when they were four and approaching kindergarten age because there was no regular preschool on the campus. At Jackson, after Student was four years old, he interacted with kindergarten students at recess and lunch. He was shadowed by adults who assisted in facilitating interaction between him and the other children.

83. Student’s mainstreaming experience with the kindergarten class at Jackson was positive. He was making friends, learned to stay seated with them when eating lunch, had peer tutoring and was developing appropriate social skills. Student was participating in these mainstreaming activities three to four times a week. Had Student’s class remained at Jackson, he would have been mainstreamed with typically developing kindergartners more frequently than the previous school year since it was anticipated that he would begin attending a regular kindergarten class in the fall of 2011. Because Student turned four in early March of 2010, and children may begin kindergarten in September if they will be five by December 2 of that school year, it is likely that some children in the kindergarten class are no more than three to six months older than Student in the current school year.

84. When Student began attending the SDC at Plymouth, the SDC preschool-aged children began interacting with typically developing general education preschool students during a 30-45 minute outdoor recess time. On occasion, Student played basketball with members of the regular preschool class, and he also played with them at a water table. It was unclear from the testimony at hearing what kind of interaction between the two classes was available once the weather precluded outdoor playtime, although there was evidence that Student visited the regular preschool at Plymouth twice during the 2010-2011 school year to participate in a music activity. There were attempts by the adults to facilitate interactions between the SDC students and preschool students during recess, but this was difficult due to the number of students and the large space that was being used for recess. The adults were primarily occupied with keeping the children in sight and safe.

85. The difference in mainstreaming at Jackson for the 2009-2010 school year, and Plymouth for the 2010-2011 school year was insubstantial. Although the goal of mainstreaming the preschool aged children in Ms. Elliott’s class for part of the day with same-aged typical peers was laudable, the move resulted in Student being denied a FAPE, and FAPE can not be sacrificed for LRE. Jackson was the LRE for Student, because that was where he could be provided with FAPE.

Relief

86. An ALJ in a due process hearing has broad powers to grant relief. This relief is equitable in nature.

87. Student requested, in his closing argument that the ALJ order the District to hire a consultant with expertise in the area of designing programs and classrooms for preschool and kindergarten children with autistic-like behaviors to recommend and implement necessary changes to the Plymouth SDC to remediate the shortcomings in that classroom and program. However, appropriate relief must be crafted solely for this Student.

88. As a remedy for the District’s failure to provide Student with a FAPE for this school year, the District shall provide Student with a classroom that is spacious enough to contain discrete instructional areas for both one-to-one and small group instruction, a quiet area, a reading area, an eating area, and a circle-time area. These areas shall be sufficiently separate from each other so that Student is not distracted by others when using one of these spaces. In the classroom, or adjacent to it, shall be an area with sufficient equipment to meet Student’s gross motor and sensory integration needs. This equipment shall be chosen so as to provide Student with the same benefits he derived from the swings, trampolines, ball pit, stairs, therapy bed and mats in the Jackson SDC. This area may be shared with other classes, although it should be accessible to Student on an as-needed basis. There shall be at least one computer in the classroom that Student can use, although it may be shared with other students. A highchair or equivalent seating that provides Student with the containment and pressure that he needs to meaningfully engage in sensory activities, or participate in instructional activities , shall be available for use as necessary to meet Student’s needs. The classroom shall be staffed with a teacher who is appropriately credentialed to teach Student, as well as trained aides. The adult-to-student ratio in the classroom shall be no more than one adult to two-and-one-half students.

91. Ms. Elliott testified that she believed Student would benefit from compensatory education that included “intensive therapy, some playgroup therapy . . . [reading instruction] anything that would help him to get ready for kindergarten.” However, she did not testify as to the amount, frequency or duration of compensatory education, nor did any other witness.²³ Therefore, the parties shall meet and confer to determine whether they can agree on an independent assessor to determine appropriate compensatory education for Student.

92. If the parties cannot agree to an independent assessor, each party shall provide the other with three suggestions for a qualified independent evaluator to assess Student for compensatory education. If the parties name the same assessor, that person shall conduct the assessment. If the parties name two of the same assessors, Student shall designate who will conduct the assessment. If the parties do not name any of the same providers, the District shall designate an assessor on Student’s list. The cost of this assessment shall not exceed $2,000, and shall be paid by the District.

93. The independent assessor shall evaluate Student and determine appropriate compensatory education to remediate the District’s denial of a FAPE to Student for the 20102011 school year, with particular attention paid to social and behavioral issues, and reading.

94. An IEP team shall meet to discuss the independent evaluation, and adopt the recommendations of the independent assessor for compensatory education.

LEGAL CONCLUSIONS

Burden of Proof

1. Under Schaffer v. Weast (2005) 546 U.S. 49 [126 S.Ct. 528], the party who files the request for due process has the burden of persuasion at the due process hearing. Student has the burden of proof because he is the complainant.

Elements of a FAPE

2. Under both the federal IDEA and State law, students with disabilities have the right to a FAPE. (20 U.S.C. § 1400; Ed. Code, § 56000.) A FAPE means special education and related services that are available to the student at no charge to the parent or guardian, that meet the state educational standards, and conform to the student’s IEP. (20 U.S.C. § 1401(9).)

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 school districts to provide special education students the best education available, or to provide instruction or services that maximize a student’s abilities. (Rowley, supra, at p. 198.) School districts are required to provide only a “basic floor of opportunity” that consists of access to specialized instruction and related services individually designed to provide educational benefit to the student. (Id. at p. 201; J.L. v. Mercer Island School Dist. (9th Cir. 2010) 592 F.3d. 938, 950-953.) The Ninth Circuit has also referred to the educational benefit standard as “meaningful educational benefit.” (N.B. v. Hellgate Elementary School Dist. (9th Cir. 2007) 541 F.3d 1202, 1212 1213; Adams v. State of Oregon (9th Cir. 1999) 195 F.2d 1141, 1149 (Adams).) However, a determination of educational benefit must take into account a student’s potential. (Deal v. Hamilton County Bd. Of Educ. (6th Cir. 2004) 392 F3d 840, 861-865.)

Issue 1. Did the District deny Student’s parents (Parents) meaningful participation in the IEP process, and therefore deny Student a FAPE from March 5, 2010, to the present, because it:

a) Unilaterally changed Student’s program and placement from a “structured autism” special day class (SDC) to a “severely handicapped” SDC, and moved the class from Jackson Elementary School (Jackson) to Plymouth Elementary School (Plymouth)?

b) Failed to give Parents prior written notice of its intent to change Student’s placement?

c) Failed to include Parents in any planning concerning the transition of Student to his new school which was necessary due to his unique needs?

d) Failed to make a clear written offer of services, by not stating in the individualized educational program (IEP) the specific equipment and assistive technology that were a necessary part of Student’s program?

e) Would not allow the classroom teacher to communicate with Parents about problems in the SDC classroom at Plymouth Elementary School (Plymouth) during the 2010-2011 school year SDC which include, but are not limited to, a lack of equipment, changes to his program, health and safety issues in the classroom and other staff concerns?

Meaningful Participation

6. The IDEA imposes upon the school district the duty to conduct a meaningful IEP meeting with the appropriate parties. (Target Range, supra, at p. 1485.) Parents play a “significant role” in the development of the IEP and are required and vital members of the IEP team. (Winkelman v. Parma City School Dist. (2007) 549 U.S. 1190 [127 S.Ct. 1994, 2000-2001; 167 L.Ed. 2d 904].); 20 U.S.C. § 1414 (d)(1)(B)(i); 35 C.F.R. § 300.322 (2006); Ed. Code, § 56341, subd. (b)(1).).)

Definition of Educational Placement

7. Section 3042 of Title 5 of the California Code of Regulations states:

A specific educational placement is that unique combination of facilities, personnel, location or equipment necessary to provide instructional services to an individual with exceptional needs, as specified in the individualized education program, in any one or a combination of public, private, home and hospital, or residential settings.

Prior Written Notice

8. A school district must provide written notice to the parents of a pupil whenever the district proposes to initiate or change, the educational placement of the pupil, or the provision of a FAPE to the pupil. (20 U.S.C. § 1415(b)(3); 34 C.F.R. § 300.503(a)(2006); Ed. Code, § 56500.4, subd. (a).) The notice must contain: 1) a description of the action proposed by the agency; 2) an explanation for the proposal, along with a description of each evaluation procedure, assessment, record, or report the agency used as a basis for the proposal; 3) a statement that the parents of a disabled child are entitled to procedural safeguards, with the means by which the parents can obtain a copy of those procedural safeguards; 4) sources of assistance for parents to contact; 5) a description of other options that the IEP team considered, with the reasons those options were rejected; and 6) a description of the factors relevant to the agency’s proposal. (20 U.S.C. § 1415(c)(1); 34 C.F.R. § 300.503(b)(2006); Ed. Code, § 56500.4, subd. (b).) A district’s failure to provide adequate prior written notice is a procedural violation of the IDEA.

Clear Written IEP Offer

9. An IEP offer must be sufficiently clear that a parent can understand it and make intelligent decisions based on it. (Union School Dist. v. Smith, (9th Cir. 1993) 15 F.3d 1519, 1526.) In Union, the Ninth Circuit observed that the formal requirements of an IEP are not merely technical, and therefore should be enforced rigorously. The requirement of a coherent, formal, written offer creates a clear record that helps eliminate factual disputes about when placements were offered, what placements were offered, and what additional assistance was offered to supplement a placement. It also assists parents in presenting complaints with respect to any matter relating to the educational placement of the child. (Id. at p. 1526). The requirement of a formal, written offer alerts the parents to the need to consider seriously whether the offered placement was an appropriate placement under the IDEA, so that the parents can decide whether to oppose the offered placement or to accept it with the supplement of additional education services. (Id. at 1526; Glendale Unified School Dist. v. Almasi (C.D. Cal. 2000) 122 F.Supp.2d 1093, 1107 (citing Union, supra, 15 F.3d at p. 1526).)

10. As established by Legal Conclusions 2-6, and Factual Findings 4-22, 26, and 67-79, the evidence showed that the move of the structured autism class from Jackson to Plymouth was a change of placement. Because the new classroom was so much smaller, some of the sensory and other equipment that created a healthy learning environment for Student could not be moved, and the efforts to replace access to similar equipment fell very short. The subsequent drastic change of classroom aides and qualified teacher to less experienced and fewer aides, and substitute teachers lacking proper credentials further altered Student’s educational environment and establishes that the District modified Student’s placement.

11. Legal Conclusions 2-6, and Factual Findings 12-24, and 26, establish that the District’s decision to change the location of the classroom to one that was unsuitable was a unilateral decision by the District to modify Student’s placement that was made without consulting Parents, or holding an IEP meeting. Student’s IEP for the period of time from March 4, 2010, to March 10, 2011, was written on March 4, 2010. All of the participants at the meeting were left with the understanding that Student would continue to be part of Ms. Elliott’s structured autism program which was located in an appropriate classroom with necessary equipment at Jackson. Ms. Hawk notified Ms. Elliott on May 4, 2010, about the move to Plymouth. The evidence established that neither Parents nor Ms. Elliott had been consulted about the proposed change. When the IEP meeting of June 4, 2010, was held, the District did not notify Parents of the upcoming June 9, 2010 school board meeting where the proposed change of SDC classrooms was to be decided. The general education preschool teacher at Plymouth, who taught the class that Student would be mainstreamed into, was not notified that SDC students would be coming to her playground and classroom until the first day of school. All of these facts establish that the District made a unilateral decision to change Student’s placement.

12. The unilateral decision by the District to change Student’s placement denied Parents the opportunity to meaningfully participate in the IEP meeting of March 4, 2010, because they consented to an IEP based on the reasonable expectation that Student would remain in the same placement. The subsequent unilateral decision to change Student’s placement denied him a FAPE because his Parents were unable to meaningfully participate in the IEP process.

13. As established by Legal Conclusions 2-9, and Factual Findings 27-29, the District did not provide Parents with prior written notice of the decision to change Student’s placement. This denied them meaningful participation in the IEP process because they were led to believe that the change of location for Student’s program would not alter his program in any other way. An appropriately drafted prior written notice would have given Parents necessary information to rescind consent to Student’s IEP, or request that a new IEP meeting be convened. Further, failure to provide prior written notice may have led to a delay in Parents filing the complaint in this matter.

14. Legal Conclusions 2-7, and Factual Findings 30-35 establish that Student’s unique needs required a transition plan for the change in location of his program, and the District failed to offer or discuss such a plan, although Parents requested it at the June 4, 2010 IEP meeting. Again, this denied Parents meaningful participation in the IEP process, and denied Student a FAPE, because he did not transition well into his new classroom.

15. As established by Legal Conclusions 2-7, and Factual Findings 36-41, the District’s failure to accurately describe Student’s program as one for children with autistic-like behaviors, also denied Parents meaningful participation in the IEP process, and contributed to Student being denied a FAPE. The description of Student’s program in the IEP of March 4, 2010, is so amorphous that someone unfamiliar with the program and Student would assume that he was being placed in any one of a number of SDCs that the District has available for children his age. This failure to accurately describe Student’s program in detail also allowed the District to believe that it could make significant changes to the program, without calling an IEP meeting.

16. There is nothing in the IDEA or California law that requires the teacher of a special education Student to communicate to parents anything more that his progress in meeting his educational goals, as specified in the IEP. Parents have claimed that the District restrained his teacher from communicating with Parents. As established in Factual Finding 42, Ms. Elliott did communicate with Parents, even though the IDEA and California required nothing more than progress reports. There was no evidence that Parents were denied meaningful participation in the IEP process because Ms. Elliott did not openly communicate with them.

Issue 2. Did the District deny Student a FAPE for the 2010-2011 school year because it:

a) Failed to develop a transition plan for the change of his program and the change from one school site to another, which was necessary due to Student’s unique needs?

b) Failed to consider Student’s physical safety needs when his program was changed from the structured autism SDC to the severely handicapped SDC, which also resulted in a change in the physical location, size and design of his classroom?

c) Failed to provide Student with a classroom environment (relating to size of classroom and physical amenities, necessary equipment and assistive technology) that would meet his unique needs including his sensory needs?

d) Failed to provide him with an educational program that would meet his unique needs and provide him with educational benefit?

Provision of a FAPE

17. An IEP is an educational package that must target all of a student’s unique educational needs, whether academic or non-academic. (Lenn v. Portland School Committee (1st Cir. 1993) 998 F.2d 1083, 1089.) The term “unique educational needs” is to be broadly construed and includes the student’s academic, social, emotional, communicative, physical, and vocational needs. (Seattle Sch. Dist. No. 1 v. B.S. (9th Cir. 1996) 82 F.3d 1493, 1500 [citing J.R. Rep. No. 410, 1983 U.S.C.C.A.N. 2088, 2106].)

18. An IEP can be modified at any time, if the IEP team agrees. If a child’s needs change, or there are other changes of circumstance, the IEP team should meet and modify the IEP. (Ed. Code §§ 56343 and 56380.1.)

19. Student alleged that he was denied a FAPE because the District failed to provide him with a transition plan when his SDC changed location from Jackson to Plymouth. As established in Legal Conclusions 2-4, and 17-18, and Factual Findings 43-46, Student’s ability to access his educational program was impaired due to the nature of his disability and the need for him to be transitioned from one school site to another. The evidence established that the District did not suggest any transition program for Student, although it had the opportunity to do so at the June 4, 2010 IEP meeting, when Parents asked for one, and could have done so after the school board approved the move on June 9, 2010. Student would have been more likely to adjust to the classroom on the Plymouth campus if he had been properly transitioned. Failure of the District to do this placed him at a significant disadvantage at the beginning of the school year, and thus contributed to a denial of a FAPE for the 2010-2011 school year.

20. Although Student claimed that he was denied a FAPE because the District failed to consider his safety needs when his program was moved from Jackson to Plymouth, Factual Findings 47-52 do not support this conclusion. When Parents toured the Plymouth campus during the summer of 2010, they pointed out several perceived hazards on the campus, and the District then took steps to remediate these hazards. Additionally, when the District was notified about potential health issues in the classrooms, including but not limited to a rodent infestation, and poor air quality, the District contracted with private businesses with expertise in those areas to conduct inspections, and the District followed up in implementing the recommendations of those experts. There was no evidence to support Parents contention that Student was denied a FAPE because the District ignored his safety needs.

21. As established by Legal Conclusions 2-4, and 17-18, and Factual Findings 5361, the District failed to adequately address Student’s sensory needs in the Plymouth classroom. This was because much of the equipment Student used in the Jackson classroom was not available at all at Plymouth, or was available at very limited times. Further, because the Plymouth classroom was so small, it could not be arranged in a manner that would satisfactorily address his sensory needs. As a result, Student’s behavior deteriorated, as did the behavior of other students in the class at Plymouth, and the noisy and somewhat chaotic environment was not conducive to effective instruction. This was demonstrated by Student’s lack of progress in meeting the benchmark for his reading goal. Student produced evidence that he was not making progress after October 2010, and the District failed to refute this evidence. Accordingly, the District’s failure to adequately address Student’s sensory needs in the Plymouth classroom contributed to a denial of a FAPE for the 2010-2011 school year.

22. Legal Conclusions 2-4, and 17-18, and Factual Findings 53-66 establish that the District failed to provide Student with a classroom environment (relating to size of classroom and physical amenities, necessary equipment and assistive technology) that would meet his unique needs for the 2010-2011 school year. The reduced size of the Plymouth classroom made it impossible for all of the sensory equipment to be installed there. Further, there was no room for computers in the classroom, and thus Student’s time on the computer was reduced. The small size of the classroom interfered with the effectiveness of Student’s BSP, as did the lack of a computer in the classroom to provide Student with reinforcement when he complied with the BSP. The evidence established that the District’s failure to provide Student with an adequate classroom environment contributed to a denial of a FAPE for the 2010-2011 school year.

Failure to Implement the IEP

23. A failure to implement a Student’s IEP will constitute a violation of the Student’s right to a FAPE 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. (Van Duyn. v. Baker School District 5J (9th Cir. 2007) 481 F.3d 770, 778-780.)

24. Legal Conclusions 2-4, 17-18, and 23, and Factual Findings 67-79 establish that the District denied Student a FAPE for the 2010-2011 school year by failing to provide him with a program that would address his unique needs. Implicit in Student’s IEP was the premise that he would be taught by a properly credentialed teacher, with a sufficient number of properly trained aides. In addition to the factors discussed above, the transfer of classroom aides, subsequent medical leave of his teacher, and replacement of those aides and teacher with substitutes and permanent employees who lacked the appropriate qualifications affected the quality of the program in the Plymouth SDC to such an extent that the program could not provide Student with a FAPE. This constituted a failure to implement Student’s IEP. As a result, he began refusing to go to school, and failed to make progress after October 2010. He showed regression in his behaviors at home. The District did not refute evidence presented by Student that he failed to make progress or receive educational benefit after October 2010. This change of program, and failure to implement his IEP, by failing to staff his classroom with properly trained aides and credentialed teachers, in itself, denied student a FAPE for the 2010-2011 school year, and this denial of a FAPE was exacerbated by other failures to provide him with a FAPE as described above.

LRE

25. A special education student must be educated with nondisabled peers “[t]o the maximum extent appropriate,” and may be removed from the regular education environment only when the nature or severity of the student’s disabilities is such that education in regular classes with the use of supplementary aids and services “cannot be achieved satisfactorily.” (20 U.S.C. § 1412(a)( 5)(A); 34 C.F.R. § 300.114(a)(2)(i) & (ii) (2006); Ed. Code, § 56364.2, subd. (a).) A placement must foster maximum interaction between disabled students and their nondisabled peers “in a manner that is appropriate to the needs of both.” (Ed. Code, § 56031.) However, the Supreme Court has noted that IDEA’s use of the word “appropriate” reflects Congressional recognition “that some settings simply are not suitable environments for the participation of some handicapped children.” (Rowley, supra, 458 U.S. at p. 197.)

26. The District defends its decision to move the SDC students in preschool and kindergarten from Jackson to Plymouth because at Plymouth the preschool children would be provided with the opportunity to be mainstreamed with same-age, typically developing peers. Nevertheless, as determined by Legal Conclusion 25, and Factual Findings 80-85, the District failed to demonstrate that it was providing a FAPE to Student at the Plymouth site, notwithstanding the mainstreaming opportunities with typically developing preschoolers. The LRE for Student is not a program where he cannot be provided a FAPE, such as the SDC classroom at Plymouth.

Remedies

27. 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. An award of compensatory education need not provide a “day-for-day compensation.” (Id. at p. 1497.)

28. An award to compensate for past violations must rely on an individualized examination, 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.)

29. This is a highly unusual case. The evidence presented at hearing clearly established that Student was denied a FAPE by the District for the 2010-2011 school year. The evidence established by Legal Conclusion 27, and Factual Findings 4-79 supports an order that the District make immediate changes to Student’s educational placement to remedy the deficiencies that resulted from the move from Jackson to Plymouth, as detailed in Factual Finding 88.

30. The evidence established by Legal Conclusion 28, and Factual Findings 4-79 also supports an order for compensatory education. Since Student failed to provide sufficient evidence for the ALJ to make a comprehensive order in this regard, Student shall be assessed by an independent assessor, chosen by the parties in accordance with Factual Findings 89-94. Following the assessment, the IEP team shall meet and adopt the recommendations of the independent assessor for compensatory education.

ORDER

1. The District has failed to provide Student with a FAPE for the 2010-2011 school year for the reasons stated herein.

2. The District shall provide Student with a placement that conforms to the conditions described in Factual Finding 88 no later than 15 days from the date of this order.

3. Within 10 days of this order, the parties shall determine, in accordance with Factual Finding 89-94, who will conduct an independent assessment of Student to determine what his needs are for compensatory education. The assessment shall be completed forthwith, and the cost of this assessment shall not exceed $2,000. Within 60 days of this order the IEP team shall meet and develop a program of compensatory education as recommended by the independent assessor.

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 issues 1 a), b), c), d) and 2 a), c), and d). The District prevailed on issues 1 e) and 2 b).

RIGHT TO APPEAL

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. A party may also bring a civil action in the United States District Court. (Ed. Code, § 56505, subd. (k).)

Dated: January 3, 2011

REBECCA FREIE
Administrative Law Judge
Office of Administrative Hearings