OAH 2013071293

Tags: ALJ - Robert G. Martin, Los Angeles County, Los Angeles Unified School District, Seizure Disorder, Southern California, Specific Learning Disability - SLD, Stay Put Motion Denied, Student Prevailed, Student Represented by Parent/Guardian, Transportation

Student v. Los Angeles Unified School District - Student Prevailed

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BEFORE THE
OFFICE OF ADMINISTRATIVE HEARINGS
STATE OF CALIFORNIA

In the Matter of:
PARENT ON BEHALF OF STUDENT,
v.
LOS ANGELES UNIFIED SCHOOL DISTRICT.

OAH CASE NO. 2013071293

DECISION

Administrative Law Judge (ALJ) Robert G. Martin, Office of Administrative Hearings (OAH), State of California, heard this matter on September 24 and 25, 2013 in Van Nuys, California. Student’s father (Father) represented Student. Attorney Anahid Hoonanian represented Los Angeles Unified School District (District). District Due Process Specialist Mindy Weiss attended both days of the hearing.

Student filed his request for a due process hearing (complaint) on July 29, 2013. There were no amendments filed, or continuances requested or ordered, prior to the hearing. At the close of the hearing on September 25, 2013, the ALJ granted the parties’ request for a continuance to file written closing arguments by October 4, 2013. The record was closed and the matter was submitted on October 4, 2013 upon receipt of written closing arguments.

ISSUES

Did District deny Student a free appropriate public education (FAPE) by failing to offer Student home to school transportation for the 2013-2014 school year in Student’s May 16, 2013 individualized education program (IEP)? ¹

FACTUAL FINDINGS

1. At the time of the hearing, Student was a six-year-old boy residing within District with his parents (Parents) and older brother. Student attended a first grade general education class at District’s Lassen Elementary School. Student was eligible for special education under the category of specific learning disability, and was receiving related services of 30 minutes per week of in-class resource specialist program in English/Language Arts, and 120 minutes per month of individualized language and speech services.

2. Student has had two incidents of febrile seizures (convulsions triggered by a fever). These occurred in January and February 2009, when Student was two and one-half years old. Father testified that in those incidents, Student’s temperature increased quickly and unexpectedly from a mild fever of 99 degrees to a temperature over 103 degrees. Student’s emergency room record for the January 8, 2009 incident indicated that the emergency room physician diagnosed Student as having a “simple febrile seizure,” perhaps caused by an upper respiratory infection that the physician treated with Motrin and Tylenol. Student’s temperature came down from 103.6 degrees to 99.8 degrees, and he was discharged the same day. District was not given a copy of the January 8, 2009 emergency room record prior to the hearing. No medical record pertaining to Student’s February 2009 seizure incident was presented at hearing

3. Although Student had not suffered any seizures since February 2009, Parents remained concerned about the possibility of fever-induced seizures based, in part, on their experience with Student’s older brother. Student’s brother was autistic, and at one time possessed limited speech abilities. Parents believed that Student’s brother lost his speech abilities entirely after suffering a series of febrile seizures.

4. To reduce the possibility that Student might suffer seizures, Parents took care to avoid conditions that they thought might lead him to develop a fever. In particular, perceiving Student to be sensitive to cold and heat, they avoided giving him ice cold drinks or exposing him to extremes of heat or cold, dressed him warmly on cold days, and limited his exposure to sun on warm days.

5. In May 2010, Student was first found eligible for special education placement and related services under the category of developmental delay.

6. For his 2011-2012 school year, Student attended preschool at Gledhill Elementary School and received home to school transportation.

7. In the course of enrolling Student for the 2012-2013 school year, Parents were given an Examination by Private Physician form, dated August 14, 2012, that they returned after having it completed by a nurse practitioner. The form stated, “[Student] has cold and heat sensitivity. Also sensitive to sun outdoors. Call parents if he becomes febrile – T >99.9° F.”

8. For the 2012-2013 school year, Student began kindergarten in a general education class at Santana Arts Academy, receiving related services in the resource specialist program and in-school language and speech services. Student spent approximately 65 percent of his time in the general education environment. Santana Arts Academy is Student’s school of residence. District initially declined to offer Student any transportation to and from Santana Arts Academy because it was his school of residence, on grounds that District’s operative Transportation Guidelines for Individualized Education Program (IEP) Teams dated January 25, 2010 (Transportation Guidelines) provided that students attending their school of residence are expected to self-transport to and from school. The distance from Student’s residence to Santana Arts Academy is 0.63 miles

9. Student objected to District’s failure to offer transportation for the 2012-2013 school year and requested a due process hearing. In September 2012, Student and District reached a settlement pursuant to which District provided Student home to school transportation for the 2012-2013 school year. The settlement agreement stated that Student would be provided home to school transportation for the 2012-2013 school year on a non-stay put basis, and that Student’s need for transportation for the 2013-2014 school year would be determined at Student’s 2013 annual/three year IEP team meeting. Student’s IEP was amended as of October 16, 2012 to incorporate the above terms.

10. In October 2012, Student developed a fever that lasted several days, but did not lead to any seizures. After Student had been sick three days, Parents took him to an emergency room on October 19, 2012. The physician noted Student’s temperature of 100.4 degrees, prescribed an antibiotic for an ear infection and Motrin and Tylenol for fever, and discharged Student. Student returned to the emergency room the following day with a temperature of 103 degrees, and was prescribed a different antibiotic and told to drink more fluids and continue use of Tylenol and Motrin. Student recovered from this illness thereafter without incident. Parents did not provide the emergency room record for this incident to District prior to the hearing.

11. Also in October 2012, District advised Parents that Santana Arts Academy was over-enrolled, and proposed that Student transfer to Lassen Elementary School under District’s Capacity Adjustment Program (CAP) designed to relieve school overcrowding. District personnel explained that Lassen Elementary School had better facilities, and Parents agreed to enroll Student at Lassen. District’s Division of Special Education then contacted Lassen Elementary School Assistant Principal Michael Ursprung to advise him that Student would be enrolling at Lassen. As the administrator responsible for overseeing Lassen’s special education program, Mr. Ursprung reviewed Student’s records, coordinated Student’s enrollment, and met with Father to arrange Student’s transportation from home to Lassen. Lassen Elementary School is not Student’s school of residence, and the distance from Student’s residence to Lassen Elementary School is 1.48 miles. After transferring to Lassen Elementary School, Student continued to receive home to school transportation pursuant to his September 2012 settlement agreement with District.

12. In late October or November 2012, Parents came to Lassen Elementary School to enroll Student. During this visit, they met with School Nurse Leana Rodriguez, a registered nurse, to discuss any medical issues related to Student. Parents told Nurse Rodriguez about Student’s history of fever-induced seizures in 2009. They requested that the school be prepared to give Student Tylenol if he developed a fever. Nurse Rodriguez told Parents that they would need to complete a form, provided by District, that included a doctor’s order prescribing Tylenol for Student and Parental authorization for the school to give Student the medication. Parents obtained the required medical order and completed and returned the form. Father also told Nurse Rodriguez that Student was sensitive to heat and cold, and asked that he not be exposed to excessive heat or cold. Nurse Rodriguez told Father that if Father brought the school a medical order from a physician explaining Student’s medical condition and the limits on high or low temperatures or sun exposure that should be applied to Student, the school would restrict Student’s exposure accordingly. Parents never provided District any such medical order. Parents and Nurse Rodriguez did not discuss Student’s existing home to school transportation, or the question of whether it was medically necessary.

13. There was no known instance during the 2012-2013 school year that Student came down with an illness during the school day, whether as a result of exposure to heat or cold, or otherwise. Student saw the school nurse on one occasion, when his clothes got wet and his mother was called to bring him dry clothes.

14. In preparation for Student’s 2013 annual/three-year IEP, District conducted a health assessment of Student. The health assessment included vision and hearing tests, a review of Student’s existing school health records, and a telephone survey with Student’s mother conducted by Nurse Rodriguez to obtain current information on any parental concerns relating to Student’s health. Student passed the vision and hearing tests. Student’s mother reiterated Student’s history of seizures in 2009, his sensitivity to heat and cold, and Parents’ instruction that Student avoid cold drinks or foods and staying out for a long period under the sun or in cold weather. She reported that Student often had high fevers, resulting in many school absences. Student’s mother said that Student’s most recent physical examination in January 2013 had found no health issues.

15. Student’s 2013 annual/three-year IEP team meeting was held on May 16, 2013, shortly before his sixth birthday. Parents attended, as did District IEP team members

Michael Ursprung, Student’s Special Education Teacher Suhjung Ko, Student’s General Education Teacher Julie Roberts, School Psychologist Cindy Chang-Lee, Speech and Language Provider Shibani Samant, and Occupational Therapist Karen Stanton.

16. Because Student’s then-existing special education eligibility category of developmental delay was applicable only to children between three and five years old, District re-assessed Student’s eligibility. District concluded that Student was eligible for continued special education and related services under the category of specific learning disability (SLD), based on a severe discrepancy between Student’s cognitive ability and his academic achievement in oral expression and listening comprehension.

17. Student’s May 16, 2013 IEP offered Student continued placement in a general education class at Lassen Elementary School. District also offered Student related services of 30 minutes per week of in-class resource specialist program in English and Language Arts to support Student’s IEP goals for behavioral support (initiate and follow through on tasks with less prompting), listening comprehension (respond accurately to who, what, when, where, and how questions during read-aloud sessions), and written and oral expression (speak and write in complete sentences in response to verbal or visual cues), and 120 minutes per month of individualized language and speech services to support Student’s IEP goals for language and speech pragmatics (maintain a topic of conversation while asking and answering questions). Student was to spend 98 percent of his time in the general education environment, leaving it only for language and speech services. Parents agreed to these offers of placement and services.

18. As agreed in Student’s 2012 settlement agreement with District and Student’s amended October 16, 2012 IEP, District also evaluated Student’s eligibility for transportation for the 2013-2014 school year. Lassen Elementary School Assistant Principal Michael Ursprung was primarily responsible for District’s transportation evaluation.

19. Student’s eligibility for transportation was evaluated under District’s Transportation Guidelines. The District developed these guidelines to comply with Education Code section 56195.8(b)(5), which requires that school districts adopt policies: (i) that describe how special education transportation is coordinated with regular home to school transportation; and (ii) set forth criteria for meeting the transportation needs of special education pupils, and to comply with Education Code section 41851.2, which requires that IEP teams have guidelines that clarify when special education transportation services are required. The Transportation Guidelines explained that the District provided transportation as a related service to students with disabilities solely to meet the need of the student, and that self-transportation is considered the least restrictive transportation option for a student with disabilities. The Transportation Guidelines noted that the benefits of a special education Student’s attending his or her school of residence included the development of friendships, the health benefits associated with being physically active, the opportunity to develop skills associated with personal independence, community awareness and the application of decision-making and safety skills taught in the school, home, and community.

20. District’s Transportation Guidelines provided that a special education student might be entitled to home to school transportation if, among other things, he or she was medically fragile or had an acute or chronic illness, such that the student required transportation to access the instructional program. The guidelines also stated that transportation “is provided” as a related service for students with disabilities who are placed by the District at a school of attendance other than their “home school” (defined as school of residence or school of choice). In such instances, the student is entitled to school to school transportation from the Student’s home school to his or her school of attendance, as the “least restrictive transportation option” that offers the student with a disability the greatest opportunity to use the same means of transportation that would be used by a nondisabled peer of similar age. As noted above, Student was placed at Lassen Elementary School pursuant to District’s CAP in 2012 because Student’s school of residence, Santana Arts Academy, was over-enrolled. District’s operative reference guide, Procedures for Capping School Enrollment dated June 2, 2009, provided that all students moved pursuant to that program – whether or not they had a disability – were entitled to transportation (subject to exceptions not applicable to Student).

21. The District IEP team members found Student ineligible for home to school transportation. Reviewing the available Student records and information from Parents, the District IEP team members considered whether home-to-school transportation should be offered based on Student’s history of seizures in 2009, and the conclusions by Parents and in the physical examination form completed by a nurse practitioner dated August 14, 2012, that Student was “sensitive to heat and cold.” Noting that Student had not suffered a seizure in over four years, and the absence of any medical order from a physician explaining Student’s medical condition and the limits on high or low temperatures or sun exposure that should be applied to Student, the District IEP team members concluded that Student’s health records did not support a finding that he was medically fragile or had an acute or chronic illness such that he required home to school transportation. District’s offer of transportation in Student’s May 16, 2013 IEP was “none.” At the IEP meeting, Parents disagreed with District’s failure to offer transportation. They contended that Student required transportation from home to school because of his sensitivity to heat and cold, his history of frequent fevers, and the two febrile seizures he had suffered in January and February 2009. Without home to school transportation, Student would at times be exposed to hot and cold weather on his way to and from school, and Parents expressed concern that such exposure might cause Student to develop a seizure-inducing fever. At the IEP meeting Parents also requested home-to-school transportation on grounds that Student’s mother could not drive and needed to care for Student’s autistic and cognitively-impaired older brother, and Student’s father would have difficulty dropping off and picking up Student each day due to his work schedule.

22. The District IEP team members did not consider Student’s eligibility for school to school transportation from Student’s school of residence – Santana Arts Academy – to Student’s school of attendance, Lassen Elementary School. No testimony was presented that prior to or at the May 16, 2013 IEP, District had discussed with Parents the possibility that their agreement to allow Student to be placed at Lassen Elementary would make that school Student’s home school, to which Parents would be required to transport Student.

23. On September 6, 2013, Father met with Student’s primary care physician, Gina Johnson, M.D., and asked her to provide a written medical opinion that, due to a sensitivity to cold and heat, Student required home to school transportation to avoid exposure to extremes of temperature. Dr. Johnson declined to provide such an opinion, but did provide Father a letter stating, “[Student] is sensitive to heat and cold. His parents would prefer him to not have ice cold drinks nor be exposed to severe extremes of temperature in the classroom or on the playground.”

LEGAL CONCLUSIONS

1. Student contends that District failed to provide Student a FAPE because it offered Student no transportation for the 2013-2014 school year at Student’s May 16, 2013 IEP. As discussed below, Student proved by a preponderance of the evidence that District denied Student a FAPE by failing to provide him transportation from his school of residence to his school of attendance, where Student was entitled to such transportation as a related service under District transportation policies and guidelines for IEP teams that the District developed to comply with the Education Code, and where non-disabled students would be entitled to such transportation.

2. As the petitioning party, Student had the burden of proof on all issues. (Schaffer v. Weast (2005) 546 U.S. 49, 56-62 [126 S.Ct. 528, 163 L.Ed.2d 387].)

3. The purpose of the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. § 1400 et. seq.) is to “ensure that all children with disabilities have available to them a free appropriate public education (FAPE),” and to protect the rights of those children and their parents. (20 U.S.C. § 1400(d)(1)(A), (B), and (C); see also Ed. Code, § 56000.) A FAPE means special education and related services that are available to the student at no cost, that meet the state educational standards, and that conform to the Student’s individualized education program (IEP). (20 U.S.C. § 1401(9); Cal. Code Regs., tit. 5, § 3001, subd. (o).) “Special education” is instruction specially designed to meet the unique needs of a child with a disability. (20 U.S.C. § 1401(29).) A child’s unique educational needs are to be broadly construed to include the child’s academic, social, health, emotional, communicative, physical and vocational needs. (Seattle Sch. Dist. No. 1 v. B.S. (9th Cir. 1996) 82 F.3d 1493, 1500, citing H.R. Rep. No. 410, 1983 U.S.C.C.A.N. 2088, 2106.)

4. In Board of Education v. Rowley (1982) 458 U.S. 176, 200 [102 S. Ct. 3034, 73 L.Ed.2d 690] (Rowley) the United States Supreme Court addressed the level of instruction and services that must be provided to a student with disabilities to satisfy the requirement of the IDEA. Under Rowley and state and federal statutes, the standard for determining whether a District’s provision of services substantively and procedurally provided a FAPE involves four factors: (1) the services must be designed to conform to meet the Student’s unique needs; (2) the services must be reasonably designed to provide some educational benefit; (3) the services must conform to the IEP as written; and (4) the program offered must be designed to provide the student with the foregoing in the least restrictive environment. While this requires a school district to provide a disabled child with meaningful access to education, it does not mean that the school district is required to guarantee successful results. (20 U.S.C. § 1412(a)(5)(A); Ed. Code, § 56301; Rowley, supra, 458 U.S. at p. 198.) The Court stated that school districts are required to provide only a “basic floor of opportunity” that consists of the access to specialized instructional and related services, which are individually designed to provide educational benefit to the student. (Id. at p. 201.) The Ninth Circuit Court of Appeals has held that despite legislative changes to special education laws since Rowley, to date, Congress has not changed the definition of a FAPE articulated by the Supreme Court in that case. (J.L. v. Mercer Island School Dist., supra, at p. 950 [Congress was presumed to be aware of the Rowley standard and could have expressly changed it if it desired to do so.].) Although sometimes described in Ninth Circuit cases as “educational benefit,” “some educational benefit” or “„meaningful‟ educational benefit,” all of these phrases mean the Rowley standard, which should be applied to determine whether an individual child was provided a FAPE. (Id. at p. 950, fn. 10.)

5. A party has the right to present a complaint “with respect to any matter relating to the identification, evaluation, or educational placement of the child, or the provision of a free appropriate public education to such child.” (20 U.S.C. § 1415(b)(6); Ed. Code, § 56501, subd. (a) [party has a right to present a complaint regarding matters involving proposal or refusal to initiate or change the identification, assessment, or educational placement of a child; the provision of a FAPE to a child; the refusal of a parent or guardian to consent to an assessment of a child; or a disagreement between a parent or guardian and the public education agency as to the availability of a program appropriate for a child, including the question of financial responsibility].) The jurisdiction of OAH is limited to these matters. (Wyner v. Manhattan Beach Unified School Dist. (9th Cir. 2000) 223 F.3d 1026, 1028-1029.)

6. A claim that an IEP failed to offer a FAPE is evaluated in light of information available at the time the IEP was developed; the IEP is not judged in hindsight. (Adams v. State of Oregon (9th Cir. 1999) 195 F. 3d 1141, 1149.) An IEP is a snapshot, not a retrospective. (Ibid., citing Furhmann v. East Hanover Bd. of Education (3d Cir. 1993) 993 F.2d 1031, 1041.) It must be evaluated in terms of what was objectively reasonable when the IEP was developed. (Ibid.)

7. The term “related services” includes transportation and other developmental, corrective, and supportive services as may be required to assist a child to benefit from education. (20 U.S.C. § 1401(26); Ed. Code, § 56363.) 2 The IDEA’s implementing regulations define transportation as: (i) travel to and from school and between schools; (ii) transportation in and around school buildings; and (iii) specialized equipment (such as adapted busses, lifts, and ramps), if required to provide transportation for a child with a disability. (34 C.F.R. § 300.34(c)(16)(2006).) A school district must adopt policies setting forth the criteria for meeting the transportation needs of special education pupils, and describing how special education transportation is coordinated with regular home to school transportation. (Ed. Code, § 56195.8, subd. (b)(5).) Decisions regarding transportation services are left to the discretion of the IEP team. (Analysis of Comments and Changes to 2006 IDEA Part B Regulations, 71 Fed. Reg. 46576 (August 14, 2006).) However, in making its placement recommendations, the IEP team must consider local transportation policies and criteria developed pursuant to Education Code section 56195.8, subdivision (b)(5). (Ed. Code, § 56342, subd. (a).) A district must provide transportation or other related services only if a student with a disability requires it to benefit from Student’s special education. (20 U.S.C § 1401(26)(A); 34 C.F.R. § 300.34(a); Ed. Code, § 56363, subd. (a).)

8. Here, Student did not prove by a preponderance of the evidence that District denied Student a FAPE by failing to offer him home to school transportation either to avoid exposing Student to extremes of temperature, or to accommodate Parents’ work schedules or need to care for Student’s autistic brother. Student offered no expert testimony concerning whether, how, or at what temperatures exposure to heat or cold could cause Student to develop a fever, or whether Student continued to be at risk of suffering seizures as a result of fever. Student never provided District a medical order from a physician explaining Student’s medical condition and the limits on high or low temperatures or sun exposure that should be applied to Student, although School Nurse Rodriguez told Father in October or November 2012 that such an order was necessary in order to place restrictions on Student’s activities at school. Father’s understanding of the type of medical order required is indicated by Father’s ability to obtain and provide District an appropriate medical order for the administration of Tylenol, and by Father’s request to Student’s primary care physician that the physician provide a medical opinion that Student required home to school transportation to avoid exposure to excessive heat and cold. The physician’s unwillingness to provide anything more than a statement that Parents would prefer that he not be exposed to severe extremes of temperature in the classroom or on the playground suggests that the physician was at best uncertain whether Student required transportation. Student’s last reported fever-induced seizures occurred more than four years prior to Student’s May 16, 2013 IEP, which took place at the end of a school year during which Student never saw the school nurse for an illness, although Parents reported that he suffered frequent fevers that caused him to miss school. Student participated in the general education environment 98 percent of the time, and his most recent physical examination in January 2013 had found no health issues. Student did not provide District information sufficient to establish under District’s Transportation Guidelines that Student was medically fragile or had an acute or chronic illness, such that the Student required transportation to access the instructional program. Consistent with IDEA and Education Code provisions that require a district to provide transportation or other related services only if the student with a disability requires it to benefit from his or her special education, District’s Transportation Guidelines stated that transportation would be provided solely to meet the need of the student, and did not indicate that parental need or convenience was a basis for providing a student transportation. (Factual Findings 2, 7, 8, 10, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 23; Legal Conclusions 2-7.)

9. However, the analysis of whether transportation was required in order to provide Student a FAPE does not end with the finding Student failed to meet his burden to prove that transportation from home was required. Student did prove by a preponderance of the evidence that District denied Student a FAPE by failing to provide Student school to school transportation between Santana Arts Academy and Lassen Elementary School pursuant to District’s Transportation Guidelines and District’s Procedures for Capping School Enrollment. The District’s transportation guidelines were developed pursuant to an Education Code mandate for the purpose of guiding District IEP teams and must be considered by District IEP teams when developing offers of FAPE. The guidelines are therefore strong evidence of when transportation would be an appropriate related service for a special education student attending a school other than his or her school of residence. The transportation guidelines stated that transportation “is provided” as a related service for students with disabilities placed by the District at a school other than their “home school” (defined as school of residence or school of choice). School to school transportation was specified as being the “least restrictive transportation option” that offers the student with a disability the greatest opportunity to use the same means of transportation that would be used by a nondisabled peer of similar age. Moreover, the District’s Procedures for Capping School Enrollment provided that all students moved pursuant to the District’s CAP – whether or not they had a disability – were entitled to transportation (subject to exceptions not applicable to Student). Student’s school of residence was Santana Arts Academy. District placed Student at Lassen Elementary School when Santana Arts Academy became over-enrolled in October 2012. Under both the District’s Transportation Guidelines and District’s Procedures for Capping School Enrollment, Student was entitled to school to school transportation between Santana Arts Academy and Lassen Elementary School. There was no rational basis for denying Student transportation applicable to non-disabled students. No evidence was offered that Parents in 2012 agreed to waive any present or future Student rights to transportation, or to make Lassen Student’s home school or “school of choice” for purposes of future determinations of his eligibility for transportation as a related service, when they agreed to his transfer from Santana Arts Academy to Lassen under the District’s CAP. District argued that Student made Lassen Elementary School his home school by declining a District offer to return Student’s placement to Santana Arts Academy, but that offer was not made until the dispute resolution session held after Student filed his Complaint, and so is not relevant to the determination of the appropriateness of the District’s failure to offer transportation as a related service in its May 16, 2013 IEP. (Factual Findings 1, 8, 9, 11, 18, 20, 22, 23; Legal Conclusions 2-7.)

ORDER

1. Student’s request for relief is granted. Until Student’s next IEP, District will transport Student between Student’s present school of residence, Santana Arts Academy, and his present school of attendance, Lassen Elementary School. If Student’s residence within the District or school of attendance within the District changes, District shall continue to transport Student from his school of residence to his school of attendance until an IEP is held to determine Student’s eligibility for transportation.

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. Student prevailed on the sole issue 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: October 21, 2013

ROBERT G. MARTIN
Administrative Law Judge
Office of Administrative Hearings