OAH 2019090294June 11, 2020
Student v. Los Angeles Unified School District - District Prevailed
OFFICE OF ADMINISTRATIVE HEARINGS
STATE OF CALIFORNIA
CASE NO. 2019090294
PARENT ON BEHALF OF STUDENT,
LOS ANGELES UNIFIED SCHOOL DISTRICT.
JUNE 11, 2020
On September 6, 2019, the Office of Administrative Hearings, called OAH, received a due process hearing request from Student naming Los Angeles Unified School District. OAH continued the matter for good cause on October 15, 2019. Administrative Law Judge Laurie Gorsline heard this matter on March 4, 5 and 6, 2020 in Van Nuys, California. OAH continued the matter for good cause on March 9, 2020, before any witnesses were called, and on March 18, 2020, by General Order due to the Covid-19 Pandemic. Administrative Law Judge Adrienne L. Krikorian reviewed the entire record, conducted the last two days of hearing by videoconference on May 5 and 6, 2020, and wrote this Decision.
Attorneys Surisa Rivers and Sarah Dawley represented Student. Paralegal Rosa Villar attended all hearing days. Mother attended the hearing on March 4, 5, 6, and 9, and for a short time on May 6, 2020. Law clerk James Golfo and Father attended the first day of hearing. A Spanish language interpreter assisted Parents.
Attorney Patrick Balucan represented Los Angeles Unified School District, referred to as Los Angeles Unified. Andrew Vasquez, District Administrator in the special education division of Los Angeles Unified attended the first two hearing days. Due Process Specialist Patrick Johnson attended the last four hearing days.
OAH continued the matter to May 27, 2020, at the parties’ request for written closing briefs. OAH closed the record and submitted the matter on May 27, 2020.
Did Los Angeles Unified School District deny Student a free appropriate public education in individualized education programs dated November 14, 2018, and February 27, 2019, based on its failure to offer appropriate augmentative and alternative communication devices and services to meet her communication needs?
This hearing was held under the Individuals with Disabilities Education Act, its regulations, and California statutes and regulations. (20 U.S.C. § 1400 et. seq.; 34 C.F.R. § 300.1 (2006) et seq.; Ed. Code, § 56000 et seq.; Cal. Code Regs., tit. 5, § 3000 et seq.) The main purposes of the Individuals with Disabilities Education Act, referred to as the IDEA, are to ensure:
- all children with disabilities have available to them a free appropriate public education that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment and independent living, and
- the rights of children with disabilities and their parents are protected. (20 U.S.C. § 1400(d)(1); See Ed. Code, § 56000, subd. (a).)
The IDEA affords parents and local educational agencies the procedural protection of an impartial due process hearing with respect to any matter relating to the identification, assessment, or educational placement of the child, or the provision of a free appropriate public education, referred to as FAPE, to the child. (20 U.S.C. § 1415(b)(6) & (f); 34 C.F.R. § 300.511; Ed. Code, §§ 56501, 56502, and 56505; Cal. Code Regs., tit. 5, § 3082.) The party requesting the hearing is limited to the issues alleged in the complaint, unless the other party consents, and has the burden of proof by a preponderance of the evidence. (20 U.S.C. § 1415(f)(3)(B); Ed. Code, § 56502, subd. (i); Schaffer v. Weast (2005) 546 U.S. 49, 57-58, 62 [126 S.Ct. 528, 163 L.Ed.2d 387]; and see 20 U.S.C. § 1415(i)(2)(C)(iii).) Student had the burden of proof as the filing party. The factual statements in this Decision constitute the written findings of fact required by the IDEA and state law. (20 U.S.C. § 1415(h)(4); Ed. Code, § 56505, subd. (e)(5).)
Student was 16 years old and attended Leeway School for Educational Therapy also known as Sierra School, a nonpublic school, at the time of hearing. Student resided within the Los Angeles Unified’s geographic boundaries at all relevant times. Student was eligible for special education under the category of Intellectual Disability. Student had the genetic disorder known as Prader-Willi Syndrome. Student’s disabilities included severe expressive language delays. Student communicated wants and needs primarily by gesture and one and two-word expressions. Student was exposed to English at school and Spanish at home, and knew a few single words in both languages. From November 2006 until May 2011, Student attended Alfonso B. Perez Special Education Center where she received direct language and speech services.
In May 2011, after a language and speech assessment, Student began receiving collaborative, classroom-based communication support throughout the school day. Los Angeles Unified did not assess Student in the area of speech after 2011 until late November and early December 2018.
ISSUE: DID LOS ANGELES UNIFIED DENY STUDENT A FREE AND APPROPRIATE PUBLIC EDUCATION IN INDIVIDUALIZED EDUCATION PROGRAMS DATED NOVEMBER 14, 2018, AND FEBRUARY 27, 2019, BASED ON ITS FAILURE TO OFFER APPROPRIATE AUGMENTATIVE AND ALTERNATIVE COMMUNICATION DEVICES AND SERVICES TO MEET HER COMMUNICATION NEEDS?
Student contends Los Angeles Unified denied Student a FAPE because it failed to offer appropriate augmentative and alternative communication devices and services to meet Student’s communication needs in the November 14, 2018, and February 27, 2019 individualized education programs, referred to as IEP. Student contends that, as of November 2018 and February 2019, she required an iPad or similar device programmed with high technology communication software to access her educational program.
Los Angeles Unified contends it offered Student appropriate supports and services to address Student’s communication needs as those were known at the time of the November 2018 and February 2019 IEP offers of special education and related services. Los Angeles Unified also contends that the IEP documents properly disclosed the augmentative alternative communication supports in the IEP, which was all it was required to do to make a clear offer.
FAPE means special education and related services that are available to an eligible child that meets state educational standards at no charge to the parent or guardian. (20 U.S.C. § 1401(9); 34 C.F.R. § 300.17.) Parents and school personnel develop an IEP for an eligible student based upon state law and the IDEA. (20 U.S.C. §§ 1401(14), 1414(d)(1); and see Ed. Code, §§ 56031,56032, 56341, 56345, subd. (a) and 56363 subd. (a); 34 C.F.R. §§ 300.320, 300.321, and 300.501.)
In general, a child eligible for special education must be provided access to specialized instruction and related services which are individually designed to provide educational benefit through an IEP reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances. (Board of Education of the Hendrick Hudson Central School Dist. v. Rowley (1982) 458 U.S. 176, 201-204; Endrew F. v. Douglas County School Dist. RE-1 (2017) 580 U.S. ____ [137 S.Ct. 988, 1000].)
Assistive technology is any item, piece of equipment or product system used to increase, maintain or improve the functional capabilities of individuals with disabilities. [20 U.S.C. § 1401(1)]. Schools must use assistive technology devices and services if needed to maximize accessibility for children with disabilities. (20 U.S.C. §1400(c)(5)(H). Assistive technology “services” are defined as “any service that directly assists a child with a disability in the selection, acquisition or use of an assistive technology device,” and includes the evaluation of the assistive technology needs of the child, the customization, maintenance, repair and replacement of devices, and training and technical assistance for the child, the child’s family and professionals serving the child. (20 U.S.C. § 1401(2)(A)-(F); 34 C.F.R. § 300.6 (a)-(f); 71 Fed. Reg. 46548 (Aug. 14, 2006); Cal. Code Regs. tit. 5 § 3051.19(a) [any service that directly assists an individual with exceptional needs in the selection or use of an assistive technology device that is educationally necessary].)
An augmentative alternative communication device is an assistive technology device if it is used to increase, maintain, or improve the functional capabilities of a child with a disability, and if the child’s IEP team determines that the child needs the device in order to receive a FAPE. (71 Fed. Reg. 46547 (Aug. 14, 2006).)
THE NOVEMBER 14, 2018 IEP OFFERED STUDENT A FAPE
Student contends the November 14, 2018 IEP team failed to clearly offer Student appropriate support in the area of augmentative alternative communication. Student also contends that the offer of a picture vocabulary bank to support her communication goal was not clearly communicated. Student also contends more high technology augmentative alternative communication supports were appropriate for Student at the time of this IEP.
Los Angeles Unified contends the November 14, 2018 IEP meeting, although designated as Student’s annual IEP, was intended to be an “implementation IEP meeting” for the purpose of documenting the terms of a September 2018 settlement agreement. Los Angeles Unified argued that the IEP team was not obligated to make a comprehensive IEP offer during that meeting. Los Angeles Unified also argued the IEP document offered at the November 14, 2018 team meeting was clearly communicated to Parents.
An IEP is a written document detailing, in relevant part, the student’s current levels of academic and functional performance. It should include a statement of measurable academic and functional goals, a statement of the special education and related services that are to be provided to the student, a statement of supplemental aids and supports, and an explanation of the extent to which the child will not participate with non disabled children in a regular class or other activities. (20 U.S.C. § 1414(d)(1)(A)(i); 34 C.F.R. § 300.320(a); Ed. Code § 56345, subd. (a).)
The IEP is to be read as a whole. No requirement exists that necessary information be included in a particular section of the IEP if that information is contained elsewhere. (20 U.S.C. § 1414(d)(1)(A)(ii); 34 C.F.R. § 300.320(d)(2); Ed. Code, § 56345, subd. (h).)
An IEP team must meet at least annually to review a student’s educational progress including progress toward goals. The annual IEP team must also review the Student’s IEP, the appropriateness of placement and make any necessary revisions. (Ed. Code § 56343(d). The IEP team shall consist of those persons specified in Education Code section 56341. Other persons may participate if they possess expertise or knowledge essential for the review. (Ibid.)
Here, Student and Los Angeles Unified entered into a settlement agreement in September 2018 which resolved a prior dispute between the parties. Student waived all claims against Los Angeles Unified arising before September 21, 2018. Los Angeles Unified agreed to change Student’s placement to Leeway nonpublic school, which had a low student to teacher ratio, and a highly structured therapeutic setting with social emotional and behavioral supports to address Student’s behavioral needs. Los Angeles Unified agreed to conduct comprehensive assessments including in the area of speech and language and augmentative alternative communication. Los Angeles Unified also agreed to provide 40 hours of compensatory speech and language support from a nonpublic agency to be completed by December 2019.
The parties agreed in the settlement agreement that Student’s annual IEP scheduled for November 2018 IEP would serve as an implementation IEP meeting to document the terms of the settlement agreement in Student’s IEP. Student specifically agreed to waive the attendance of required school personnel, including a general education teacher and services providers, at the November 2018 IEP team meeting.
Student transferred to Leeway in October 2018. The IEP team met on November 14, 2018. Mother, a paralegal from Student’s attorney’s office, Los Angeles Unified administrative designee Robert Ngan, special education teacher Nelly Flores Torres, Leeway administrator Nadine Lewis, and Leeway program director Ana Palacios attended the meeting. Pursuant to Student’s waiver of attendance of otherwise required attendees, a speech therapist did not attend.
While a typical annual IEP meeting should consider an overall annual program for Student, here, the purpose of and attendees at the IEP meeting were limited as a result of the September 2018 settlement agreement. Parent’s attorney approved the agreement as to form and content. Thus, Student’s argument that the IEP team in November 2018 did not discuss or offer any services or supports in the area of speech and language was not persuasive. Student could have requested as part of the settlement agreement that a speech therapist attend that IEP meeting to address Student’s need for augmentative alternative communication until the agreed-upon assessments were completed. The settlement agreement’s negotiated waiver of required personnel, including a speech therapist, established that the parties defined the primary purpose of the November 2018 annual IEP meeting as an implementation IEP meeting, in part to begin the assessment process.
Torres provided an update of Student’s current progress at the November 2018 IEP team meeting. Student’s poor attendance record negatively impacted achievement toward her goal in English Language Development, although she achieved the objective of identifying a picture card for music and restroom. Student’s present levels of performance in English Language Development noted she would benefit from a picture vocabulary bank to help Student express needs, wants and preferences in the classroom.
The IEP team documented the September 2018 settlement terms, including the agreed-upon 40 hours of compensatory speech and language support from a nonpublic agency to be completed by December 2019. The IEP team’s FAPE offer for the remainder of the 2018-2019 school year was a special day program with low student-to-teacher ratio at Leeway nonpublic school, home to school transportation, and parent counseling and training. The IEP annual goals included a goal for English Language Development that would help Student to identify needs and wants by using 15 new picture/vocabulary cards related to school.
Los Angeles Unified provided Mother, on November 14, 2018, an assessment plan for comprehensive assessments, which included a speech and language assessment inclusive of evaluation of Student’s needs for augmentative alternative communication support. Mother signed and returned the assessment plan on the same day. The IEP team agreed to reconvene within the required timeline to review the assessment results. The IEP team did not offer any other specific communication supports pending the outcome of the assessments.
Student did not prove that the November 14, 2018 IEP team failed in its obligation to offer high technology augmentative alternative communication supports. In Adams v. State of Oregon (9th Cir. 1999) 195 F.3d 1141, 1149 (Adams), the Ninth Circuit noted that actions of a school district cannot be judged exclusively in hindsight.
An IEP must take into account what was and was not objectively reasonable at the time the IEP was drafted. Adams is applicable here for several reasons.
First, those IEP team members representing Los Angeles Unified at the November 14 2018 IEP team meeting were, by agreement of the parties, administrative personnel, except for Torres. Although the IEP team meeting was identified in the IEP document as Student’s annual IEP review meeting, Student did not prove, considering the negotiated terms of the settlement agreement, that the representatives of Los Angeles Unified and Leeway who attended the meeting should have been sufficiently familiar with Student’s educational records or history and unique needs in the area of communication to make an informed offer of augmentative alternative communication support. Student also did not prove, given the limited and express purpose of the meeting as an implementation IEP meeting, that those members had an obligation to research Student’s educational history or consult with a speech therapist before the meeting for the purpose of making an appropriate offer of augmentative alternative communication support at the IEP team meeting. Student waived her right to receive a full FAPE offer regarding speech and language services and supports at the November 2018 IEP meeting.
Second, Student’s educational records established that her disability of Prader-Willi Syndrome contributed to her minimal ability to verbally communicate with more than a few words in English or Spanish, up to the time of the November 2018 IEP team meeting. Student’s previous educational program at Perez, until she transferred to Leeway in October 2018, was language based, and incorporated language development throughout the school day, without direct services in language and speech. The most current assessment was seven years old. Los Angeles Unified did not have current assessment information in November 2018 from which to reach informed conclusions as to what type of augmentative alternative communication supports, if any, Student required in November 2018, particularly in the new placement, where the focus was more on behavior than at Perez, which focused on language development. The negotiated agreement contemplated that an assessment would be conducted and considered at a subsequent IEP team meeting.
Third, Los Angeles Unified speech pathologist John Lee and school psychologist Margarine Harris opined at hearing that, at the time they assessed Student in late November and December 2018, after the November IEP meeting, Los Angeles Unified was not meeting Student’s communication needs. However, the data Lee collected regarding Student’s need for augmentative alternative communication support, and Lee’s and Harris’s opinions following their assessments about Student’s needs in communication, were not known to the Los Angeles Unified November 2018 IEP team members at the time it developed its offer. Neither professional attended that IEP meeting. Student offered no evidence that what these assessors determined from testing after the meeting should have been known by the November 14, 2018 IEP team, particularly given the purpose of the meeting and the limited representation at that meeting.
Therefore, under Adams, assessments conducted after the November 2018 meeting were not persuasive in proving that the November 14, 2018 IEP team knew at the time it made its offer that more support using augmentative alternative communication, high technology devices, or speech therapy services, might benefit Student. (Adams, supra, 195 F.3d at pg. 1149.)
Student argued that the IEP offer of augmentative alternative communication support was not clear. Student contended that the reference in Student’s goal to the picture vocabulary bank to assist Student to express her needs, wants and preferences in the classroom was not also listed in the section for “Accommodations, Modifications, and Supports” or in Part 4 of the IEP.
However, the IEP is to be read as a whole. (Ed. Code, § 56345, subd. (h).) The English Language Development annual goal specifically referenced the picture vocabulary bank as a method to assist Student in achieving the goal. Mother attended and participated at the November 2018 meeting, was assisted by an interpreter, and by a paralegal from Student’s attorney’s office. Mother reviewed the IEP document, signed consent to the IEP for purposes of implementation of the IEP, but disagreed that the IEP offer constituted a FAPE because of the lack of speech and language services. Mother was aware that the IEP team would assess Student in the area of augmentative alternative communication support. The argument that the IEP team did not clearly communicate to Mother its offer of a picture vocabulary bank as a support was not persuasive.
Student offered no credible evidence that the November 14, 2018 IEP team had any basis of knowledge that Student required speech therapy supported by augmentative alternative communication supports or high technology devices, other than the use of a picture vocabulary bank, which it included as part of Student’s annual goals. Given the agreed-upon limited purpose of the IEP meeting, and Student’s waiver of attendance of a speech therapist at that meeting, Student did not prove that Los Angeles Unified procedurally or substantively denied Student a FAPE by failing to offer appropriate augmentative alternative communication support in the November 14, 2018 IEP.
THE FEBRUARY 27, 2019 IEP OFFERED STUDENT A FAPE
Student contends the February 27, 2019 IEP denied Student a FAPE by failing to offer Student appropriate augmentative alternative communication support in the form of high technology devices and programs. Student also contends the IEP reference to examples of support in the form of a picture exchange communication board was not clear and did not constitute an offer of appropriate augmentative and alternative communication devices and services. Los Angeles Unified contends the IEP clearly offered appropriate support in the area of communication to Student based upon information known to the IEP team at the time, following a comprehensive assessment by a qualified speech therapist.
2018 TRIENNIAL ASSESSMENTS DETERMINED STUDENT’S NEEDS
DECEMBER 2018 SPEECH AND LANGUAGE ASSESSMENT
Speech and language therapist Lee conducted a speech and language assessment at the end of November and during December 2018. The assessment included augmentative alternative communication. Lee was a licensed speech therapist, with a master’s degree and a certificated clear credential in speech pathology. Lee worked as a speech therapist since 2009. Lee assessed and provided speech therapy services to children. The therapy Lee provided incorporated the use of augmentative alternative communication supports.
Lee spoke and understood Spanish with sufficient proficiency to understand Student if Student spoke a word in Spanish and to administer test instruments in Spanish. His job duties included assessing and treating, in Spanish and English,
Los Angeles Unified students attending non-public schools in the area of speech and language, utilizing augmentative alternative communication, and attending IEP team meetings for those students. Lee testified at hearing. Based upon Lee’s education, credentials, training and experience, and Lee’s confident demeanor at hearing, Lee’s testimony was credible.
The purpose of Lee’s speech and language assessment was to determine if Student needed augmentative or alternative communication support to assist Student in receptive and expressive language to access the curriculum. Lee used both Spanish and English words during some trial testing, including providing motivation and prompting in Spanish. Lee reviewed Student’s school records, including past assessments and IEP’s. Lee interviewed Mother and Student’s teacher and observed Student in the classroom. The assessment included evaluation of Student’s receptive and expressive language.
Lee administered a variety of tests, including trials using augmentative alternative communication supports and devices. Lee consulted with Los Angeles Unified augmentative alternative communication specialist Kylie Puckett to assist with the augmentative alternative communication portion of his assessment. Lee used vocabulary during testing that Student should have known because of her status as an English Language Learner, and based on vocabulary generally taught to English Language Learner students. Lee also administered trials using a communication board, a low technology device that was a single message voice output communication aide, the Go-Talk mid-technology device on an iPad, and the TouchChat high technology device on the iPad.
Lee concluded Student had stronger skills identifying larger icons from a smaller field, and strength in categorizing picture cards. Student had difficulty sorting into grammatical categories. Student could not complete some of the trials Lee administered due to her low level of functioning. The TouchChat was an English-only program. Student did not use the TouchChat program on the device for communicative purposes. She activated icons at random without showing communicative intent.
On the GoTalk device trial, also given in English, Student activated the icon for a ball, but did not do anything with the ball indicating she wanted to use the ball for its purpose.
Lee determined that Student’s attention and motivation at school was limited. She was not motivated to participate in non-preferred activities, including activities during testing. She had difficulty sustaining attention when trying to use the higher technology devices. Lee concluded that she did not use the higher technology devices such as an iPad during testing as intended.
Lee documented his assessment results in a report dated January 31, 2019. Lee concluded Student was a limited verbal student, who used physical gestures, limited hand signs and single words to express herself. Her verbal language was limited to an average length of one to two words, in either Spanish or English. She was most interested in photographs when shown pictures. Student initiated spontaneous communication when motivated. Student used simple hand signs to communicate both spontaneously and in imitation, appearing to understand and express the meaning of signs accurately. Student’s communication skills did not generally consider the listener’s perspective or follow social rules.
Student’s deficits in functional communication attributed to Prader-Willi Syndrome had an adverse impact on her ability to access the school curriculum.
Lee opined Student would benefit from continuing to build communicative intent and symbolic representation by initiating communication and making choices given static picture-based communication modalities, such as picture exchange and communication boards with core vocabulary. Based upon his test results, Lee opined Student would also benefit from low tech supports, such as communication boards, to enable her to establish foundational skills before advancing to higher technology devices, based upon Student’s very low level of functioning at the time Lee assessed Student.
Lee opined that Student could not successfully use features on the high tech trialed devices and that using those devices would lead to her frustration. Lee recommended 30 minutes of collaborative speech therapy supplemented by static picture-based supports.
Lee opined that augmentative alternative communication was any “non-oral means of communication.” Lee characterized it as a support rather than a service.
Lee distinguished the support from the related service of assistive technology, which consisted of the use of high tech devices used to help a child with communication deficits access their educational program. Lee opined that a child could benefit in the classroom from augmentative alternative communication support, such as static picture boards, used by trained staff, depending on the child’s unique needs. Lee also opined that if a child does not demonstrate an intent to communicate with others, the child may not understand the purpose of a higher tech augmentative alternative communication system.
Student’s closing arguments focused on the alleged inadequacy of Lee’s assessment as support for a determination that Los Angeles Unified’s offer denied Student a FAPE. The arguments were not persuasive and raised issues that were not presented for hearing, specifically the validity and adequacy of Lee’s assessment. Student also noted that Lee opined, when asked at hearing, and after reviewing an independent evaluation from December 2019, that his results on high technology trials may have provided more information about Student’s ability to use those devices, if conducted in both English and Spanish. His opinion on that issue was speculative, and based partially on hindsight from his review of a later independent educational
evaluation. However, the testimony Student notes in the closing brief did not impact the overall credibility of Lee’s opinions on the issue presented. Lee’s opinions at hearing were credible and supported his recommendations and conclusions regarding Student’s needs as they were known in February 2019.
2018 PSYCHOEDUCATIONAL ASSESSMENT
School Psychologist Margarine Harris conducted a psychoeducational assessment of Student in December 2018, in which she informally evaluate Student’s communication needs to the extent they impacted Student’s educational environment. Harris testified at hearing. Harris’s experience as a school psychologist, credentials and educational background qualified Harris to offer credible opinions about Student.
Harris considered the results of Lee’s assessment as part of her assessment.
Harris assessed Student in English with the assistance of translation by Student’s Spanish-speaking classroom behavior aide. Harris used testing instruments that were not language loaded, but used gestures and nonverbal communication. Tasks included using play materials and objects that were familiar to Student. Harris presented tasks, modeled them, and observed whether Student could complete the task. Student understood some concepts, but required so much support that Harris concluded Student was still emerging in communication. Student’s nonverbal ability was better developed than Student’s verbal reasoning. Student paid minimal attention to tasks, particularly those in which Student was not interested.
Harris opined Student functioned at approximately the intellectual level of a one- and-a-half-year-old. Student’s language skills were also well below Student’s age level. Student had no age-appropriate language skills. Student’s skills were consistent with past assessment reports. Student was more receptive to spoken Spanish, and responded to two-step instructions in English. Student’s main mode of communication was gesture and pointing.
Harris opined that the classroom staff at Leeway was not meeting Student’s communication needs at the time of Harris’s psychoeducational assessment. Harris also opined that adding additional classroom supports could meet Student’s needs without direct speech and language therapy services.
STUDENT’S FEBRUARY 27, 2019 IEP TEAM MADE A CLEAR WRITTEN OFFER OF ALTERNATIVE AUGMENTATIVE COMMUNICATION SUPPORTS
Student contends the February 27, 2019 IEP offer of augmentative alternative communication support and services was not clearly communicated to Mother. Student argued, relying on Lee’s testimony, that Lee’s recommendations got “lost in the shuffle” because they were not clearly defined as a part of the FAPE “offer.” Los Angeles Unified contends the February 2019 IEP offer of augmentative alternative communication support was legally sufficient.
The IDEA requires that an educational program be individually designed and reasonably calculated to provide meaningful educational benefit to a child with a disability. (Gregory K. v. Longview School District (9th Cir. 1987) 811 F.2d 1307, 1310 (Gregory K.).) The purpose of a written offer is to alert parents of the need to consider seriously whether a school district’s proposed placement is appropriate under the IDEA. It helps parents determine whether to oppose or accept the placement with supplemental services. (Union v. Smith (9th Cir. 1994) 15 F.3d 1519, cert. denied (1994) 513 U.S. 965 (Union).) The IDEA explicitly requires written prior notice to parents when an educational agency proposes or refuses, to initiate or change the educational placement of a child with a disability. (Id. at p. 1526; see also 20 U.S.C. § 1415(b)(1)(C).)
The requirement of a formal written offer creates a clear record that will eliminate troublesome factual disputes about what additional educational assistance the school district offered to supplement a placement. Failure to make a clear written offer of placement and services is a procedural violation of the IDEA. (Union, supra., 15 F.3d at p. 1527). See also, title 20 U.S.C. § 1414(d)(1)(A)(i), 34 C.F.R. § 300.320(a), and Ed. Code § 56345, subd. (a), supra. Student’s IEP team met for Student’s triennial review on February 27, 2019. Mother, her attorney, the attorney’s paralegal, and all required Los Angeles Unified IEP team members were present. A Spanish interpreter assisted Mother.
The February 2019 IEP team reviewed a number of assessment reports, including Harris’s psychoeducational report and Lee’s speech and language assessment report. The IEP team noted Student had global communication deficits, and difficulties using higher tech devices for speech. The IEP team offered Student 30 minutes a week of collaborative speech and language services consisting of consultation between a speech therapist and the classroom staff. The IEP also offered supports for developing Student’s communicative intent “such as” the picture exchange communication boards with core vocabulary.
Student argued that, because the IEP document did not include a specific FAPE offer on Part 2 of the IEP, referring to any type of assistive technology or communication supports in the box identified as “Assistive Technology”, the IEP offer was procedurally non-compliant under Union, supra, 15 F.3d at p. 1527. Student also argued that the offer was not clear because Lee’s recommendations were not clearly defined as part of the offer of special education and services. Student relied on Lee’s opinion at hearing that, in some instances, he will note augmentative alternative communication supports, such as a communication board, in various places in the IEP so the provider can see it.
Student argued that Lee’s testimony was evidence that the IEP failed to give Student’s Parents sufficient notice of the offer. Student’s arguments were not persuasive.
Specifically, Student’s February 2019 IEP referred to augmentative alternative communication support in three places. The IEP’s present levels of performance in communication referred to Lee’s recommendation for modifications in the area of communication, using a formalized picture support system in the classroom to build symbolic representation skills and encourage use of multimodal communication to access preferred items and activities through the school day. The IEP team developed goal number seven addressing communication. The goal incorporated Lee’s recommendation for use of alternative augmentative communication support such as a picture exchange board. The IEP notes from the meeting in Part 4 of the IEP summarized Lee’s assessment and itemized Lee’s recommendations for 30 minutes of collaborative language and speech therapy, and communication supports using static picture-based communication modalities.
The IEP contained the necessary information to inform Mother of the terms of the offer of services and supports and to allow her to respond to the offer. (Union, supra, 15 F.3d at p. 1527.) In addition to attending the meeting with her attorney with an interpreter’s assistance, Mother received a Spanish language version of the IEP document after the meeting. Mother read those portions of the translated IEP in which she was “most interested.” Mother had sufficient information to know and understand what happened at the IEP meeting and what Los Angeles Unified offered Student at the IEP team meeting and in the IEP.
Student argued in her closing brief that Los Angeles Unified’s “failure to implement” Lee’s recommendations in the area of speech and language was evidence that the offer was not clearly written. However, the issue of implementation of components of the February 27, 2019 IEP was not defined by the parties as an issue for this hearing, nor did the parties agree to add it as an issue at hearing or fully litigate it as a separate issue. Therefore, that issue is not decided by this Decision and the argument was not persuasive as to the issues presented.
The February 27, 2019 IEP offer as written was legally compliant. (20 U.S.C.
§ 1414(d)(1)(A)(ii); 34 C.F.R. § 300.320(d)(2); Ed. Code, § 56345, subd. (h).) Los Angeles Unified did not commit a procedural violation under the IDEA by failing to make a clear written offer, as contemplated by Union, supra, 15 F.3d at p. 1527.
LOS ANGELES UNIFIED’S WRITTEN OFFER OF ALTERNATIVE AUGMENTATIVE COMMUNICATION SUPPORTS IN THE FEBRUARY 27, 2019 IEP DID NOT DENY STUDENT A FAPE.
The February 27, 2019 IEP offered Student a communication goal, collaborative speech and language services and augmentative alternative communication support in the form of a picture support system. Mother consented to implementation of the February 2019 IEP, but objected to the offer of augmentative alternative communication supports and the IEP’s lack of an offer of technology such as an iPad for communication. Mother returned the signed IEP and requested an independent educational evaluation on April 12, 2019, which Los Angeles Unified agreed to fund.
Student retained speech and language pathologist Rachel Madel to conduct an independent augmentative alternative communication assessment. The assessment was completed and summarized in a report dated December 1, 2019, approximately three months after the complaint in this case was filed. Student also retained speech pathologist Barbara Conboy who collaborated with Madel by delivering some of the tasks in Spanish. Conboy also conducted a separate bilingual independent speech and language assessment in late November and early December 2019, which Conboy summarized in a report dated December 11, 2019. The purpose of Conboy’s assessment was to supplement Madel’s assessment.
Neither independent assessor attended any of Student’s IEP meetings in the two years before the filing of the complaint in this case. Both assessors testified at hearing. Although their reports were admitted into evidence, their testimony was only relevant as to what the IEP team knew or should have known at the time of the IEP offers at issue. (Adams, supra, 195 F.3d at p. 1149.) To the extent both independent assessors offered general criticisms of the District’s November 14, 2018, and February 27, 2019 IEP offers, based upon their document review, the ALJ considered those criticisms.
Madel had expertise in the area of communication and the use of alternative augmentative communication devices. Madel reviewed Student’s school records, including past psychoeducational and speech and language assessment reports and IEP’s, as part of her assessment. Student did not make much progress after the 2008 speech and language assessment and before Lee’s 2018 assessment. Student primarily used gestural communication in 2008. Student acquired some vocalizations, using sounds to communicate, by 2018.
Madel concurred with Lee’s overall assessment findings relating to Student’s abilities and performance in late 2018. However, Madel criticized Lee’s scope of testing as a basis for criticizing the February 2019 FAPE offer. She opined Lee’s report had no evidence that his trials were conducted in Spanish, using technology with Spanish words. Madel saw no evidence that instructions were given in Spanish, or that photographs were used with technology administered during testing. Madel opined
based on her own testing that Lee’s results would have been different if Lee had used Spanish words during testing.
Madel’s opinions regarding Lee’s assessment procedures were speculative and not completely credible. Additionally, the validity of Lee’s assessment was not an issue presented for, or fully litigated at, hearing. For example, Lee’s report noted, on page two, that he administered portions of the assessment to Student in English and Spanish. Lee credibly testified that he was a Spanish speaker, used Spanish words and prompts during some of his testing, and could understand if Student used Spanish. Lee conducted trials on technology devices using photographs, as noted on page nine of his report. Madel based her opinion of Lee’s assessment procedures on supposition that was notably incorrect.
Madel found during her 2019 assessment that Student responded to both languages when trials were administered bilingually, and was more responsive to photographs than the use of icons in technology devices. Student performed at a relatively higher level when using advanced technology as opposed to a picture board, demonstrating she was capable of increasing her communication skills to enable her to access her curriculum and acquire educational benefit.
Madel opined that use of a picture exchange system was a good supplement for Student, but was not adequate by itself for Student’s needs. A picture exchange system supports the ability to use core language. She opined children did not develop the language needed to ask questions or comment using a picture exchange system because those skills were not utilized in a picture exchange, which emphasizes use of nouns. Her opinion did not minimize, however, the importance of Lee’s opinion that, at the time he assessed Student, Student required development of foundational communication skills before advancing to higher technology devices.
Madel also opined Student required more robust technology than the supports recommended by Lee. She recommended high technology devices would enable Student to communicate effectively and functionally so Student could access curricular activities. The purpose of alternative augmentative communication was to give a child who had low verbal skills or was nonverbal, an alternative to verbal communication, with access to expressive language. For example, Madel commented that Student was motivated by and responsive to pictures of family members and food during trials using the ProloQuo2Go application on an iPad. Student responded to favored items, such as “pollo” and snacks. Student could use the icons in the program to navigate to new folders and new words.
In contrast, Lee found that, in November and December 2018 when he tested Student, Student had difficulty progressing from one folder to the next on high tech devices. Student was often not motivated to proceed with the intended use of the device. Lee also acknowledged that, at the time of Los Angeles Unified’s 2018 assessments, Student required more supports and services in the area of communication than what she was receiving. His recommendations for collaborative speech therapy services and a communication goal with augmentative alternative communication support were based upon those findings.
Madel opined that, in the 10 months between Lee’s assessment and her 2019 evaluation, given Student’s history of minimal improvement in communication, the likelihood that Student would have progressed significantly without high technology support was minimal. However, her opinion was speculative and unconvincing. She admitted she did not know what services or supports Student received during that 10 months or whether those may have impacted Student’s performance during Madel’s and Conboy’s testing.
Lee disagreed with Madel’s opinion that, at the time of Lee’s assessment, Student could benefit from more high tech devices before she established stronger foundational skills. Lee’s opinion was more credible than Madel’s because he assessed Student during the applicable statutory time period, and his conclusions and recommendations were based on data and conclusions from that time period. The IEP offer of augmentative alternative communication support in the February 2019 IEP was reasonably calculated, based upon information known to Los Angeles Unified at that time. The offer was designed to confer a meaningful benefit on Student, specifically development of foundational communication skills using static devices instead of high technology devices. (Gregory K., supra, 811 F.2d at p.1314).
Madel was also critical of the February 27, 2019 IEP communication goal. She opined the goal did not support Student’s ability to functionally communicate because the goal made only a vague reference to use of supports. Her opinion was not persuasive because the goal was adequately defined in the context of the entire IEP.
Madel also opined the goal was more appropriately directed at academic skills, rather than communication skills. However, Lee opined that he developed the communication goal with the IEP team to help Student establish the foundational skills Student required at the time of his assessment. The goal was based on information known to him at that time. Lee’s opinions were more credible than Madel’s because he relied on Student’s then-present levels of performance at the time the IEP team developed the goal and when the IEP offer was made.
Madel and Conboy presented their reports to an IEP team in January 2020. Lee recommended to the IEP team that adopting Madel’s recommendations for a 60-day trial period was appropriate to determine whether Student could benefit from the use of a higher level of technology. Lee’s recommendations were included in the January 2020 IEP offer of special education and services.
However, recommendations made at an IEP team meeting held nearly 11 months after Lee’s December 2018 assessment, and after the complaint was filed, did not negatively impact the persuasiveness of Lee’s recommendations as of February 2019. (Adams, supra, 195 F.3d at p. 1149). Madel, Conboy, Harris and Lee offered credible and informed opinions relative to the time periods in which they assessed Student.
Madel did not disagree with Lee’s findings. Both Lee and Harris acknowledged Student required more support in the area of communication at the time of the February 2019 IEP meeting. The February 2019 IEP included additional support in the area of communication.
Lee’s opinions as to the type of additional support needed for FAPE in February 2019 carried more weight than Madel’s as to the sole issue in this case. Lee and the IEP team had contemporaneous knowledge of Student at the time the IEP team made its February 27, 2019 offer, in contrast to Madel’s opinions, which relied on hindsight. (Ibid.) Los Angeles Unified made an appropriate IEP offer based upon the information known to Los Angeles Unified at the time of the IEP meeting.
In summary, Student did not meet her burden of proof. Specifically, she did not prove that Los Angeles Unified denied Student a FAPE in its February 27, 2019 IEP by failing to offer Student appropriate alternative augmentative communication devices or other appropriate services, to enable her to access her educational program and make progress based on her unique needs at the time the offer was made.
CONCLUSIONS AND PREVAILING PARTY
As required by 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. Los Angeles Unified prevailed on the only issue for hearing. Los Angeles Unified School District did not deny Student FAPE in IEP’s dated November 14, 2018, and February 27, 2019, based on its failure to offer appropriate augmentative and alternative communication devices and services to meet her communication needs.
All relief sought by Student is denied.
RIGHT TO APPEAL THIS DECISION
This is a final administrative decision, and all parties are bound by it. Pursuant to Education Code section 56505, subdivision (k), any party may appeal this Decision to a court of competent jurisdiction within 90 days of receipt.
Adrienne L. Krikorian
Administrative Law Judge
Office of Administrative Hearings