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OAH 2019101186

February 25, 2020

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Student v. Rocklin Unified School District - Split Decision

BEFORE THE
OFFICE OF ADMINISTRATIVE HEARINGS
STATE OF CALIFORNIA

CASE NO. 2019101186

PARENT ON BEHALF OF STUDENT,
v.
ROCKLIN UNIFIED SCHOOL DISTRICT.

DECISION

FEBRUARY 25, 2020

On October 29, 2019, Student filed a due process hearing request with the Office of Administrative Hearings, called OAH, naming Rocklin Unified School District, called Rocklin. On December 23, 2019, OAH continued the case for good cause. Administrative Law Judge Cynthia Fritz, called ALJ, heard this matter in Rocklin, California, on January 14, 15, 16, 17, 21, 22, 24, and 27, 2020.

Attorney Geralyn Clancy represented Student. Parent attended all hearing days on Student’s behalf. Attorneys Marcy Gutierrez and Tilman Heyer represented Rocklin. Stacy Barsdale, Rocklin’s Director of Special Education, attended the hearing each day on Rocklin’s behalf. Attorney Kelly Dunagan and law clerk Sabrina Buendid attended the hearing to assist Rocklin. Elisabeth Davidson, Rocklin’s Assistant Director of Special Education, attended the hearing briefly on January 17, 2020, in Ms. Barsdale’s stead.

At the parties’ request the matter was continued to February 14, 2020, for closing briefs. The record was closed, and the matter was submitted on February 14, 2020.

ISSUES

At hearing, Student withdrew issues 1, 2.a, 2.b, 2.c, 2.d, 2.e, and 2.f., as set forth in the Order Following Prehearing Conference dated January 7, 2020. The ALJ renumbered the remaining issues for clarity. The issues addressed in this Decision are:

  1. Did Rocklin fail in its child find obligation to Student from October 28, 2017, through August 20, 2019, by:
    1. failing to seek and serve when it had information concerning suspected disabilities, specifically, specific learning disability, other health impairment, and emotional disturbance, that severely impacted Student’s education;
    2. failing to initiate and conduct a special education assessment prior to March 2018;
    3. failing to provide an assessment plan;
    4. failing to develop an individualized education program, called IEP, including goals, interventions, supports and related services, accommodations, and modifications;
    5. failing to offer Student a systematic, evidence-based writing program for students with dysgraphia; and
    6. failing to find Student eligible for special education in the categories of specific learning disability, other health impairment, and emotional disturbance, and thus denying Student access to special education?
  2. Did Rocklin Unified School District deny Student a free appropriate public education, called a FAPE, from August 21, 2019, to the present by:
    1. failing to draft appropriate, meaningful, and measurable goals in written expression, executive functioning, social skills, and behavior;
    2. failing to offer goals in all areas of suspected disability, specifically, psychological for obsessive compulsive disorder and anxiety, social-emotional, academic, orthographic processing, fine motor, written expression, assistive technology, typing, executive functioning, self-regulation, sensory, task completion, and attention to task;
    3. failing to offer therapeutic interventions and counseling, such as individual and group weekly sessions, for obsessive compulsive disorder and anxiety;
    4. failing to offer Student asystematic, evidenced-based writing program for students with dysgraphia;
    5. failing to offer adequate speech and language therapy, specifically two to three 30-minute sessions per week, to address pragmatic language and social skills deficits;
    6. failing to offer a typing program, specifically one 60-minute session per week, provided by a qualified tutor;
    7. failing to offer occupational therapy, specifically one 60-minute session per week, provided by a qualified non-public agency;
    8. failing to offer adequate assistive technology services and consultation, equipment, programs, and applications;
    9. failing to offer extended school year; and
    10. denying meaningful participation by Student’s Parent in the August 21, 2019 IEP team meeting, by failing to address her concerns and Student’s documented areas of need?

JURISDICTION AND BACKGROUND

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 FAPE, to the child. (20 U.S.C. § 1415(b)(6) & (f); 34 C.F.R. § 300.511 (2006); 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).) Accordingly, Student had the burden of proof on all issues. 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 12 years old and in fifth grade at the time of hearing. He resided with Parent within Rocklin’s geographic boundaries at all relevant times. On August 21, 2019, Rocklin found Student eligible for special education under the primary category of other health impairment for anxiety and attention deficit hyperactivity disorder, called ADHD, and the secondary category of specific learning disability for written expression.

ISSUE 1(B): DID ROCKLIN FAIL IN ITS CHILD FIND OBLIGATIONS TO STUDENT FROM OCTOBER 28, 2017, THROUGH AUGUST 20, 2019, BY FAILING TO INITIATE AND CONDUCT A SPECIAL EDUCATION ASSESSMENT PRIOR TO MARCH 2018?

Student contends that Rocklin should have suspected Student had disabilities requiring special education in the areas of specific learning disability, other health impairment, and emotional disturbance prior to Parent’s request for special education assessments on March 9, 2018. Student asserts that Rocklin was on notice because of 2017 neuropsychological report findings and Student’s increased anxiety, behaviors, negative peer interactions, and difficulty with written expression and handwriting.
Rocklin maintains that Student’s needs were addressed through his 504 Plan, a plan under Section 504 of the United States Rehabilitation Act of 1973, and general education interventions. Thus, there was no suspicion that he required special education evaluations prior to March 2018.

School districts have an affirmative, ongoing duty to actively and systematically seek out, identify, locate, and evaluate all children with disabilities residing within their boundaries who may be in need of special education and related services. (20 U.S.C. § 1412(a)(3)(A); 34 C.F.R. § 300.111(a)(2006); Ed. Code, §§ 56171, 56300 et seq.) This ongoing duty is referred to as “child find,” which California has incorporated in its Education Code. (Ed. Code, § 56301, subds. (a), (b).)

A disability is “suspected,” and a child must be assessed, when the district is on notice that the child has displayed symptoms of that disability or that the child may have a particular disorder. (Timothy O. v. Paso Robles Unified School Dist. (9th Cir. 2016) 822 F.3d 1105, 1120-21 (Timothy O.); Department of Educ., State of Hawaii v. Cari Rae S. (D. Hawaii 2001) 158 F.Supp.2d 1190, 1194 (Cari Rae S.).) That notice may come in the form of concerns expressed by parents about a child’s symptoms, opinions expressed by informed professionals, or other less formal indicators, such as the child’s behavior. (Timothy O., supra, 822 F.3d at 1119-1120 [citing Pasatiempo v. Aizawa (9th Cir. 1996) 103 F.3d 796; N.B. v. Hellgate Elementary School Dist. (9th Cir. 2008) 541 F.3d 1202].) The threshold for suspecting that a child has a disability is relatively low. (Cari Rae S. supra, 158 F.Supp.2d at p. 1195.) A school district’s appropriate inquiry is whether the child should be referred for an evaluation, not whether the child actually qualifies for services. (Ibid.)

In 2013, a neuropsychologist diagnosed Student with anxiety and ADHD, and opined that Student qualified for a 504 Plan. Student informed Rocklin upon entering the school district in first grade about his diagnosis and 504 Plan. In 2015, Student undertook therapy after his parents’ divorce, and subsequently started taking Adderall for ADHD and Lexapro for anxiety. Student has received support through a Section 504 Plan since kindergarten.

Student was in third grade and attended Rocklin’s Sunset Ranch elementary school during the 2016-2017 school year. The evidence failed to show a suspected disability requiring special education assessments at that time. Parent noted that his teacher, Antoinette Tildan, “had him dialed in and was able to help him progress through the year successfully due to her warmth, teaching style, and attention to [Student’s] needs.” Student’s academics were strong, as well as his social and behavioral skills. He met or approached all grade level standards by the end of the year, and was above average on state standardized testing. His grades related to, “Characteristics of a Successful Learner” indicated satisfactory to excellent marks.
In 2017, Sutter Medical Group, called Sutter, conducted a neuropsychological evaluation which Parent submitted to Student’s third grade teacher at the end of the school year. Student was again diagnosed with anxiety and ADHD and displayed significant emotional interference during portions of the testing. The assessors, however, did not suggest that Student was eligible for special education, or advise Parent to pursue obtaining an IEP or special education assessments. Instead, it recommended general education interventions. Thus, the Sutter report did not put Rocklin on notice that Student may be a child with a disability requiring special education assessments.

Rebecca Cihak, a credentialed elementary school teacher with over 28 years of experience, taught Student in fourth grade. Ms. Cihak described Student struggling with expressing his ideas in writing and having illegible handwriting at times, but not consistently. He was easily distracted, unorganized, and needed frequent redirection to stay on task. She established that Student was argumentative at times and, inflexible and domineering in small group assignments. During the year he had escalating negative interactions with peers, and was anxious during assessments. He did not have many friends, and sometimes walked around the playground by himself.

Ms. Cihak established that Student was targeted at times by other students, and called inappropriate names. Despite being a target, Student also escalated situations into physical altercations. On one occasion, Student was suspended. In some instances, Student and another student targeted each other.

By the end of fourth grade, in the 2017-2018 school year, Student approached mastery or met grade level standards for all academic subjects, including writing. His grades related to “Characteristics of a Successful Learner” showed satisfactory to excellent marks on all but two categories where he was graded as needing improvement after the second trimester.
Rocklin instituted a positive behavior intervention strategy approach that promoted safety and positive behaviors with students, and a multi-tier systems of supports for general education accommodations. Ms. Cihak accommodated Student through his 504 Plan, and numerous general education supports. Ms. Cihak believed the accommodations were successful and Student progressed in fourth grade.

During this time, Parent complained on occasion regarding the bullying but also said that he was having his best year academically and that he had friends. He had challenges but the information was inconsistent. The behaviors did not rise to a level of a suspected disability. Thus, Student failed to prove that Rocklin should have suspected a disability and assessed Student prior to March 2018.

ISSUE 1(F): DID ROCKLIN FAIL IN ITS CHILD FIND OBLIGATIONS TO STUDENT FROM OCTOBER 28, 2017, THROUGH AUGUST 20, 2019, BY FAILING TO FIND STUDENT ELIGIBLE FOR SPECIAL EDUCATION IN THE CATEGORIES OF SPECIFIC LEARNING DISABILITY, OTHER HEALTH IMPAIRMENT, AND EMOTIONAL DISTURBANCE, AND THUS DENYING STUDENT ACCESS TO SPECIAL EDUCATION?

ISSUE 1(A): DID ROCKLIN FAIL IN ITS CHILD FIND OBLIGATIONS TO STUDENT FROM OCTOBER 28, 2017, THROUGH AUGUST 20, 2019, BY FAILING TO SEEK AND SERVE WHEN IT HAD INFORMATION CONCERNING A SUSPECTED DISABILITY IN SPECIFIC LEARNING DISABILITY, OTHER HEALTH IMPAIRMENT, AND EMOTIONAL DISTURBANCE, THAT SEVERELY IMPACTED STUDENT’S EDUCATION?

ISSUES 1(D): DID ROCKLIN FAIL IN ITS CHILD FIND OBLIGATIONS TO STUDENT FROM OCTOBER 28, 2017, THROUGH AUGUST 20, 2019, BY FAILING TO DEVELOP AN IEP, INCLUDING GOALS, INTERVENTIONS, SUPPORTS, AND RELATED ACCOMMODATIONS, AND MODIFICATIONS?

Student contends that before August 21, 2019, his behaviors, educational history, and assessments supported a finding that he was eligible for special education. Thus, Rocklin should have offered him an IEP with placement and related services.
Rocklin argues that the evidence fails to support any special education eligibility before August 21, 2019. Additionally, even if Student met the special education criteria, he was able to access his education with general education interventions.

“Special education” is instruction specially designed to meet the unique needs of a child with a disability. (20 U.S.C. § 1401(29); 34 C.F.R. § 300.39 (2006); Ed. Code, § 56031.) A child with a disability includes a child that qualifies under the special education categories of other health impairment, specific learning disability, and a serious emotional disturbance, and who as a result needs special education and related services. (20 U.S.C. § 1401(3)(A)(i), (ii); 34 C.F.R. § 300.8(a)(1).)

In California, special education is required for individuals who are defined in part as individuals whose “impairment . . . requires instruction, services, or both, which cannot be provided with modification of the regular school program.” (Ed. Code,
§ 56026, subd. (b).) A child qualifies as an individual with exceptional needs if the results of an assessment demonstrate that the degree of the child’s impairment requires special education. (Cal. Code Regs., tit. 5, § 3030, subd. (a).)

The IEP team is charged with the duty of reviewing assessment results, determining special education eligibility, determining the IEP contents, and making recommendations regarding a student’s program and placement. (Ed. Code, § 56342.)
Parents and school personnel develop an individualized education program 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].)

STUDENT MEETS ELIGIBILITY FOR OTHER HEALTH IMPAIRMENT

Student contends that his anxiety intensified during fourth grade due to pervasive bullying causing increased ADHD manifestations that significantly impacted his educational performance and required special education.

Rocklin argues that Student’s successful school performance showed that he was accessing his education. Additionally, the Rocklin assessments properly determined he was not eligible for special education under other health impairment, as his anxiety and ADHD needs were met through general education interventions.

A child is eligible for special education under the category of other health impairment if the child has limited strength, vitality, or alertness, including a heightened alertness to environmental stimuli, that results in limited alertness with respect to the educational environment that:

  • is due to chronic or acute health problems such as attention deficit hyperactivity disorder, and other conditions; and
  • adversely affects a child’s educational performance. (Cal. Code Regs., tit. 5, § 3030, subd. (b)(9).)

To be eligible, the student’s educational performance must be adversely affected by the disorder, and he must demonstrate a need for special education and related services. (Ed. Code, §56339, subd. (a).)

On March 8, 2018, Parent complained to Rocklin regarding pervasive bullying and safety. The next day, she requested special education assessments. Rocklin provided her an assessment plan that proposed evaluations in academic achievement, health, intellectual development, speech and language, occupational therapy, social emotional, and adaptive behavior, which Parent signed on March 15, 2018.

On April 5, 2018, Rocklin substantiated or partially substantiated 11 out of 16 incidents from Parent’s bullying complaint. In response to the investigation results, Rocklin instituted a check in and check out support for Student before and after school with the vice principal Cynthia Camillucci or school psychologist Leanne Sublett, for the remainder of the school year. Student would discuss how he was doing and rate his day on a scale of one to 10, 10 being the best day. Ms. Camillucci stated that he rarely rated himself below 5 and typically in the 6 to 7 range, which increased by the end of the year. On one occasion, Student told Ms. Camillucci that “I wish they would all go away” referring to other students, and forming his fingers like a gun. Upon further inquiry, Student changed his words, but it prompted a phone call to Parent.

Pursuant to the assessment plan, Rocklin began a series of assessments of Student in April 2018. Ms. Sublett conducted social-emotional assessments of Student to determine his behaviors. The Children’s Depression Inventory measures the presence and severity of depression symptoms. Student’s rating scale showed a total score of 14 which placed him in the high average range and did not indicate depression. However, his interpersonal and functional subsets were elevated, and consistent with depressive symptoms. Ms. Cihak’s overall rating score was 11 and in the average range.

The Behavioral Assessment System for Children, 3rd Edition, measures behavior and self-perception. A clinically significant rating suggests a high range of maladjustment. Scores in the at-risk range may identify a significant problem that may not be severe enough to require formal treatment. Ms. Cihak rated Student clinically significant in the areas of hyperactivity, aggression, depression, atypicality, and withdrawal. She scored Student at-risk for conduct problems and attention problems. Parent scored Student clinically significant for anxiety, depression, somatization, and attention, and at-risk for hyperactivity, atypicality, and withdrawal. Ms. Cihak’s and Parent’s ratings should have raised concerns about Student’s functioning.

Further, Student’s Adaptive Behavior Assessment System result, that tests the functional skills necessary for daily living, was below average. Student’s lowest score was in the social composite that measures social skills, leisure, and the ability to interact with others effectively and independently.

Rocklin conducted speech and language assessments of Student. In the Social Language and Development Test that measures social language skills, including nonverbal skills, Student tested in the high average in making inferences, multiple interactions, and supporting peers. He scored low, at the fourth percentile, in interpersonal negotiations. A student who scores below average in this subtest may find it difficult to work in small groups while trying to establish joint goals, agree on a suitable time and location to do work, or agree on what the finished product will result in and how it will be presented. These are some of the same problems that Ms. Cihak established plagued Student in her classroom. The assessment results should have collectively caused Rocklin serious concern regarding Student’s social-emotional functioning.

At the IEP team meeting on May 16, 2016, the Rocklin staff members found that Student had a health problem resulting in limited vitality and limited alertness that met the criteria for other health impairment. Additionally, the IEP team meeting notes indicated that Ms. Sublett recommended a social skills group, a behavior intervention plan, school-based mental health services, and collaboration with Student’s private therapist. Rocklin, however, failed to find him eligible under this category because the Rocklin members of the IEP team believed his disability did not adversely affect his educational performance, a judgment which was largely based upon his average and above average academic grades and academic performance. This was an inappropriately narrow view of the impact of Student’s diagnosed medical conditions on his educational performance.
A child’s 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, abrogated in part on other grounds by Schaffer v. Weast (2005) 546 U.S. 49, citing H.R. Rep. No. 410, 1983 U.S.C.C.A.N. 2088, 2106.) Moreover, “Educational benefit” is not limited to academic needs, but also includes the social and emotional needs that affect academic progress, school behavior, and socialization. (County of San Diego v. California Special Education Hearing Office, et al. (9th Cir. 1996) 93 F.3d 1458, 1467.) Accordingly, the law requires the IEP team to consider the overall impact of Student’s limitations on his educational performance not merely his academic performance. Had the IEP team considered the overall impact, it is likely they would have correctly determined Student was eligible for special education and related services under the category of other health impairment.

Rocklin argued that even if he met the forgoing criteria, it was required to attempt general education interventions, including a 504 Plan, before determining Student eligible for special education. Specifically, the law requires that general education interventions be considered and used before a student is referred for special education. (Ed Code, § 56303; Panama-Buena Vista Union School Dist. v. A.V (E.D. Cal., Dec. 5, 2017, No. 1:15-cv-MCE-JLT) 2017 WL 6017014, pp. 5-6.) Not every child who is impaired by a disability is eligible for special education. (Hood v. Encinitas Union School Dist. (9th Cir. 2007) 486 F.3d 1099, 1106 (Hood) [decided under former Education Code section 56337].) A student may have a qualifying disability, yet not be found eligible for special education, because the student’s needs are able to be met with appropriate accommodations in or modification of the general education classroom, or both. (Id. at pp. 1107-1108, 1110.) In Hood, the court instructed, “Just as courts look to the ability of a disabled child to benefit from the services provided to determine if that child is receiving an adequate special education, it is appropriate for courts to determine if a child classified as non-disabled is receiving adequate accommodations in the general classroom – and thus is not entitled to special education services – using the benefit standard.” (Id. at p. 1107.) Student established, however, that his needs exceeded those that could be met through general education interventions and a 504 Plan.

Ms. Sublett recommended special education services, such as the school-based mental health services, that were beyond the accommodations and interventions of a 504 Plan. (L.J. v. Pittsburg Unified School District (9th Cir. 2016) 835 F.3d 1168, 1174-1178.) Ms. Sublett administered the social-emotional portion of the assessments, and met with Student when he checked in or out on occasion starting in April 2018. Thus, her recommendations for school-based mental health services and other interventions were based on substantial personal knowledge and were persuasive. Notably, Ms. Sublett’s recommendations were not included in Student’s subsequent 504 Plan.

Student also needed speech and language services related to pragmatics to address his interpersonal negotiations skills and inability to effectively work with others.

The evidence established that by May 16, 2018, Student was eligible under the category of other health impairment due to his increased anxiety that was worsening his ADHD as he was repeatedly unfocused in class and had difficulty remaining on task. The assessment data suggested clinically significant maladjustment in five areas. Additionally, Student’s behaviors and anxiety increased despite Rocklin’s interventions. His negative social interactions were exacerbated as Student had insufficient interpersonal negotiation skills and increased impulsivity that escalated in a challenging social environment in fourth grade. This included Student retaliating against students with physical aggression, a suspension, negative peer interactions, and making a gun gesture with his fingers at school. He would argue with the teacher, was inflexible with students, and anxious over assessments. Although the check in and check out procedure helped Student, the assessment data showed that these accommodations were not a replacement for the special education services needed. Rocklin, however, focused on Student’s good grades and academic performance, rather the broader educational benefit standard which includes Student’s social, emotional, and communicative deficits.

Moreover, after the IEP team meeting, Student’s fourth grade state standardized scores were published showing a significant decline in some areas as rated below standard, and a marked decrease from his standardized test scores the year before. After acquired information is not dispositive of eligibility because the IEP team did not have the benefit of the information at the time the eligibility decision was made. However, the Ninth Circuit has observed that after-acquired evidence may shed light on the objective reasonableness of a school district’s actions at the time the school district rendered its decision. (E.M. v. Pajaro Valley Unified School Dist. (9th Cir. 2011) 652 F.3d 999, 1006.) The Ninth Circuit held that, in reviewing a district’s actions, courts may look to evidence not known to the decision makers at the time as “additional data, discovered late in the evaluation process, may provide significant insight into the child’s condition, and the reasonableness of the school district’s action, at the earlier date.”

(Ibid). Here, the results support Student’s difficulty with assessments, emotional interference, and ADHD manifestations, and its adverse educational effect on his educational performance.

The evidence established that Student could not access his school program without special education placement and instruction. Student proved by the preponderance of the evidence that Student was eligible under the category of other health impairment on May 16, 2018.

As explained, Student failed to show that Rocklin should have suspected a disability that required special education prior to March 2018. Rocklin, however, should have found Student eligible for special education under the category of other health impairment on May 16, 2018, after reviewing the test results and hearing the opinion of Ms. Sublett that Student required special education services.

Since Student should have been found eligible for special education under the category of other health impairment at the May 16, 2018 IEP team meeting, Rocklin should have developed an IEP, including goals, interventions, supports, related accommodations, and modifications from May 16, 2018, and should have had these supports in place through August 20, 2019. The failure to do so constituted a denial of a FAPE.

STUDENT WAS NOT ELIGIBLE UNDER SPECIFIC LEARNING DISABILITY

Student argues that Rocklin’s April 2018 assessment showed a severe discrepancy between his capabilities and his performance in written expression and qualified him for special education. Rocklin disagrees and further maintains that Student failed to show a specific learning disability before August 21, 2019, and if he did, he did not require special education as a result of it.

A child is eligible for special education under the category of specific learning disability if the child has a disorder in one or more of the basic psychological processes involved in understanding or in using language, spoken or written. (20 U.S.C. §1401(30); Ed. Code, § 56337, subd. (a).) This type of disorder may result in the imperfect ability to listen, think, speak, read, write, spell, or do mathematical calculations. (Ibid.) The basic psychological processes include attention, visual processing, auditory processing, sensory-motor skills, and the cognitive abilities of association, conceptualization, and expression. (Ibid.)
In determining whether a child has a specific learning disability, the school district may consider whether the child has a severe discrepancy between intellectual ability and achievement in oral expression, listening comprehension, written expression, basic reading skill, reading comprehension, mathematical calculation, or mathematical reasoning. (Cal. Code Regs., tit. 5, § 3030, subd. (b)(10)(B).) Rocklin chose to use the severe discrepancy method. The decision as to whether a severe discrepancy exists shall take into account all relevant material available regarding the child. No single score or product of scores, test, or procedure can be used as the sole criterion for the decisions of the IEP team regarding the child’s eligibility for special education. (Ibid.) Eligibility also requires a student to be unable to access the curriculum without instruction and services not available in the regular curriculum ((Ed. Code § 56026, subd. (b).)

Here, Rocklin used Student’s Global Conceptual Ability standard score (113) in intellectual ability on the Differential Abilities Scales, Second Edition. Rocklin compared the Global Conceptual Ability standard score to the standard scores in Reading Composite (110), Basic Reading (100), Reading Comprehension and Fluency (120), Written Expression Composite (94), Math Fluency Composite (109), Math Composite (117), and Oral Language Composite (120) on the Wechsler Individual Academic Test, Third Edition, in achievement. Rocklin determined no severe discrepancy between intellectual ability and achievement existed. Rocklin argued that this was the established practice for determining severe discrepancy between intellectual ability and achievement. Accordingly, Student was found ineligible under the category of specific learning disability.

Student’s expert, Lisa Pippin, a licensed educational psychologist with 15 years of experience as a school psychologist and consultant, opined that the test results showed a severe discrepancy between Student’s verbal cluster standard score (118) in cognition, and his written expression composite score (94) in academic achievement. She concluded he needed special education as a result. Rocklin disagreed and believed Ms. Pippin used inappropriate comparisons in making that determination.

Ms. Pippin’s analysis of Student’s eligibility under the category of specific learning disability was unpersuasive. She based her opinion only on the belief that a severe discrepancy existed. Student, however, provided no authority that the comparison between two composite scores versus comparing the traditional intelligence quotient score to the achievement standard scores, was an appropriate measure of severe discrepancy. Accordingly, Student failed to meet his burden of persuasion that a specific learning disability existed by May 16, 2018. Without a severe discrepancy between Student’s ability and achievement, the other eligibility factors need not be considered.

Further, the facts do not support Student’s contention that an IEP team meeting should have been held to revisit special eligibility for specific learning disability after May 16, 2018, and before August 21, 2019. On May 17, 2018, Parent requested an independent educational evaluation. Rocklin agreed and contracted with Lisa Pippin, Student’s expert, to conduct it. On July 30, 2018, Parent informed Rocklin that she was seeking an alternative placement for Student because of the disagreement over eligibility, and intended to request reimbursement. After Student’s fourth grade year at Rocklin, and until receiving Ms. Pippin’s report, Rocklin had no new information about Student’s academic functioning as he was placed in a private school.

STUDENT WAS NOT ELIGIBLE UNDER EMOTIONAL DISTURBANCE

A child is eligible for special education under the category of emotional disturbance, if the child exhibits one or more of the following five characteristics, over a long period of time, and to a marked degree, that adversely affects the child’s educational performance:

  • an inability to learn that cannot be explained by intellectual, sensory, or health factors;
  • an inability to build or maintain satisfactory interpersonal relationships with peers and teachers;
  • inappropriate types of behavior or feelings under normal circumstances;
  • a general pervasive mood of unhappiness or depression; or
  • a tendency to develop physical symptoms or fears associated with personal or school problems.
    (Cal. Code Regs., tit. 5, § 3030, subd. (b)(4).)

Student failed to establish that he should have been found eligible under the category of emotional disturbance at the May 16, 2018 IEP team meeting or before. The evidence that Rocklin had at that time did not demonstrate that Student was emotionally disturbed or met any of the five categories over a long period of time, to a marked degree, and that it adversely affected Student’s educational performance.

Ms. Pippin was not persuasive at hearing in establishing that Student had an emotional disturbance by the time of the May 16, 2018 IEP team meeting or before, as she had no personal knowledge of Student and failed to ask Rocklin about his social- emotional functioning at that time. Since she failed to elicit relevant information in forming her opinion, it was given little weight. Additionally, the evidence presented, such as Student’s academic performance and social emotional functioning was contrary to her opinion that Student met the emotional disturbance criteria and the limiting factors such as over a long period of time and for a marked degree.

In fourth grade at Rocklin, Student performed well academically and could access the curriculum. He had friends at school and outside of school. Student had a general understanding of situations that occurred at school, comprehended his actions, and did not have catastrophic or atypical reactions to situations. Despite the challenges established by his fourth grade teacher, he generally had age-appropriate behavior, and thus did not meet the limiting criteria. Student reported that he did not like school, but was not depressed. The evidence failed to show self-injurious or dangerous behavior. He attended school 93% of the time in fourth grade, and visited the school nurse 10 times, with nine visits lasting less than five minutes long. The evidence failed to establish that Student had a tendency to develop physical symptoms or fears associated with school, even if Student’s anxiety and ADHD symptoms increased.

Further, while Parent testified to Student’s struggles at home, there was no evidence presented that Rocklin was aware of them or that they extended to school. Thus, Student did not sustain his burden in establishing that he was eligible under emotional disturbance from October 29, 2017, through May 16, 2018.

Student was also not eligible under the category of emotional disturbance by the time of August 21, 2019 IEP team meeting, as Ms. Pippin opined. A number of factors undermined her opinion that Student was emotionally disturbed.

Ms. Pippin did not understand the limiting factors that the law requires to meet the emotional disturbance criteria such as over a long period of time, to a marked degree, and that it must adversely affect Student’s educational performance. She was repeatedly impeached when she failed to know that the criteria for emotional disturbance required limiting factors. Her testimony was not rehabilitated in this area, and it affected her credibility.

Ms. Pippin further opined that Student manifested obsessive compulsive symptoms that supported some emotional disturbance criteria, but had only worked with two students and a friend with obsessive compulsive disorder. Further, she was not trained or qualified to diagnose obsessive compulsive disorder. In her report, she cautioned that further investigation and testing into obsessive compulsive disorder by a qualified assessor were needed. Regardless of her own warning, she based some of her opinion on the data that she believed needed further investigation.

Ms. Pippin’s further findings that Student manifested obsessive compulsive characteristics were also discredited. She linked Student’s superior verbal comprehension result of 142 in her cognitive testing with obsessive compulsive characteristics. The verbal comprehension score, however, was inconsistent with the two previous neuropsychological evaluations in 2013 and 2017 using the same assessment, and Rocklin’s 2018 cognitive testing. Additionally, at hearing, Rocklin found scoring errors in Ms. Pippin’s verbal comprehension testing, and she admitted that she failed to follow the protocol. Moreover, Rocklin rescored Student’s verbal comprehension score with four different school psychologists. Three scored it at 103, and the fourth was within one point of 103. These scores were consistent with his verbal comprehension scores in previous assessments. While Ms. Pippin admitted to some scoring errors and failing to follow the testing protocol, she refused to acknowledge other scoring and administration errors, and believed that they had no impact. This damaged Ms. Pippin’s credibility considerably.

Additionally, Student’s behavior and academic performance during the 2018- 2019 school year did not support an emotional disturbance eligibility. Student attended Brookfield school, an academically accelerated school, and was retained in fourth grade. Brookfield curriculum is one year ahead of Rocklin’s and Student accessed curriculum equivalent to fifth grade state standards during the 2018-2019 school year. Student had a yearly grade point average of 3.7 with mostly A grades. Student’s negative peer interactions significantly decreased at Brookfield, with only one reported negative interaction during the year, and he had friends. Student did not have attendance problems. In fact, Parent believed he had a successful year at Brookfield.

Student did not have a diagnosis of depression although was being treated by a therapist and saw a psychiatrist for medications.
Student’s anxiety did increase at Brookfield due to the academic rigor of the curriculum. This manifested in panic attacks, crying, and increased picking at his skin. Afiya Moore, Student’s fourth grade teacher at Brookfield, explained, however, it was not consistent throughout the year, and thus did not meet the factors for a long period of time and to a marked degree which are required for emotional disturbance eligibility. Student’s behavior and reactions at Brookfield were generally age-appropriate. Additionally, Parent believed he was having a happier school experience at Brookfield. While Student’s subset score for intrusive thoughts was high on the Children’s Measure of Obsessive-Compulsive Symptoms, administered by Ms. Pippin, his general measure of symptomatology was in the average range. The evidence did not support emotional disturbance eligibility while Student was at Brookfield.

To the extent that some of Student’s behaviors might exhibit some of the emotional disturbance criteria, the evidence did not establish that they had occurred over a long period of time and to a marked degree. Accordingly, Student failed to prove that Student was emotionally disturbed at the time of the August 21, 2019 IEP team meeting or before.

ISSUES 1(C): DID ROCKLIN FAIL IN ITS CHILD FIND OBLIGATIONS TO STUDENT FROM OCTOBER 28, 2017, THROUGH AUGUST 20, 2019, BY FAILING TO PROVIDE AN ASSESSMENT PLAN?

Student claims that Rocklin failed to provide an assessment plan to Parent. Rocklin disagrees. A school district must give parent an assessment plan within 15 calendar days of referral, not counting calendar days between the pupil’s regular school sessions or terms or calendar days of school vacation in excess of five schooldays, from the date of receipt of referral, unless the parent or guardian agrees in writing to an extension. Ed. Code, §§ 56043, subd. (a); 56321, subd. (a).)
Here, Parent requested a special education assessment on March 9, 2018. Rocklin timely provided an assessment plan and Parent signed consent on March 14, 2018. Student failed to prove that Rocklin failed to provide a timely assessment plan.

ISSUES 1(E) & 2(D): DID ROCKLIN FAIL IN ITS CHILD FIND OBLIGATIONS AND DENY STUDENT A FAPE FROM OCTOBER 28, 2017, THROUGH THE PRESENT, BY FAILING TO OFFER STUDENT A SYSTEMATIC, EVIDENCE BASED WRITING PROGRAM FOR STUDENTS WITH DYSGRAPHIA?

Student contends that Rocklin failed to offer him a systematic, evidence-based writing program to address his dysgraphia. Rocklin maintains the written expression offer at the August 21, 2019 IEP team meeting, met Student’s needs and was reasonably calculated to provide meaningful educational benefit to him, thus, providing a FAPE.

Special education is specially designed instruction, at no cost to the parent, to meet the unique needs of individuals with exceptional needs. (20 U.S.C. § 1401(29); Ed. Code, § 56031, subd. (a).) A Student’s IEP must contain a statement of the special education and related and supplementary aids and services, based on peer-reviewed research to the extent practicable, to enable the student to advance to attaining the annuals goals, to be involved in and make progress in the general education curriculum. (20 U.S.C. § 1414(c)(i)(B)(iv); Ed. Code, § 56345, subd. (a)(4).)

The methodology used to implement an IEP is left up to the district’s discretion so long as it meets a student’s needs and is reasonably calculated to provide meaningful educational benefit to the child. (Rowley, supra, 458 U.S. at p. 208; Adams v. State of Oregon, supra 195 F.3d at pp. 1149-1150; Pitchford v. Salem-Keizer School Dist. (D. Or. 2001) 155 F.Supp.2d 1213, 1230-32; T.B. v. Warwick School Committee (1st Cir. 2004) 361 F.3d 80, 84 (citing Roland M. v. Concord School Committee (1st Cir. 1990) 910 F.2d 983, 992.)

The evidence demonstrated that Student did not need special education services for his writing deficits from October 27, 2017, through August 20, 2019. At that time, Student did not meet the criteria for specific learning disability and was able to access academics with general education interventions.

On August 21, 2019, Student was found eligible under the category of specific learning disability related to written expression. Ms. Pippin opined that Student had characteristics of dysgraphia, not dyslexia. Education Code Section 56335 defines and describes educational services for students with the characteristics of dyslexia, as evidence-based, multi-sensory, direct, explicit, structured and with a sequential approach to instruction. (Ed. Code § 56335, subd. (a).) A student who is eligible for special education under the category of specific learning disability, and who exhibits characteristics of dyslexia, is entitled to receive this instruction as special educational services. (Ed. Code § 56335.5, subd. (a).)

The IDEA and Education Code are silent, however, as to any explicit instruction for students with dysgraphia. Rocklin therefore had discretion in addressing Student’s dysgraphia as long as its approach met his needs and was part of an IEP that was reasonably calculated to provide educational benefit.

Here, Rocklin offered Student 90 minutes weekly of group special education specialized academic instruction for his written expression deficits. Even Student’s expert did not recommend the writing program Student seeks. In her report and at hearing, Ms. Pippin recommended instructional support with a resource specialist to assist with writing strategies for dysgraphia. She did not recommend in her report or at hearing, a systematic, evidence-based writing program for Student. Thus, Student failed to prove by the preponderance of the evidence that Rocklin was required to provide a systemic evidence based program for Student’s dysgraphia.

ISSUE 2(A): DID ROCKLIN DENY STUDENT A FAPE FROM AUGUST 21, 2019, TO THE PRESENT BY FAILING TO DRAFT APPROPRIATE, MEANINGFUL, AND MEASURABLE GOALS IN WRITTEN EXPRESSION, EXECUTIVE FUNCTIONING, SOCIAL SKILLS, AND BEHAVIOR?

Student maintains that Rocklin did not offer any measurable or appropriate goals. Rocklin contends that all goals were meaningful and measurable and it did not deny Student a FAPE.

A FAPE means special education and related services that are available to an eligible child who meets state educational standards at no charge to the parent or guardian. (20 U.S.C. § 1401(9); 34 C.F.R. § 300.17 (2006).) An annual IEP must contain a statement of measurable annual goals designed to: (1) meet the individual’s needs that result from the individual’s disability to enable the pupil to be involved in and make progress in the general curriculum; and (2) meet each of the pupil’s other educational needs that result from the individual’s disability. (20 U.S.C. § 1414(d)(1)(A)(i)(II); Ed. Code, § 56345, subd. (a)(2).) Annual goals are statements that describe what a child with a disability can reasonably be expected to accomplish within a 12-month period in the child’s special education program. (Letter to Butler, 213 IDELR 118 (OSERS 1988); Notice of Interpretation, Appendix A to 34 C.F.R., part 300, Question 4 (1999 regulations).)

Additionally, the IEP must contain statements of how the child’s goals will be measured and the special education and related services, based on peer-reviewed research to the extent practicable, that will be provided to the student. (20 U.S.C. §1414(d)(1)(A)(i)(III), (IV); 34 C.F.R. § 300.320(a)(3), (4); Ed. Code, § 56345, subd. (a)(3), (4).) The IEP must show a direct relationship between the present levels of performance, the goals and objectives, and the specific educational services to be provided. (Cal. Code Regs., tit. 5, § 3040.)

An IEP is evaluated in light of information available at the time it was developed, and is not to be evaluated in hindsight. (Adams v. State of Oregon (9th Cir. 1999) 195 F.3d 1141, 1149 (Adams).) An IEP for a student with a disability is measured as of the time that it was created. (Ibid.) This evaluation standard is known as the “snapshot rule.” (Ibid.; J.W. v. Fresno Unified School Dist. (9th Cir. 2010) 626 F.3d 431, 439. In reviewing the sufficiency of an IEP’s offer of FAPE, the snapshot rule looks at what is reasonable given the information available to the team at the time. (Ibid.; J.G. v. Douglas County School Dist. (9th Cir. 2008) 552 F.3d 786, 801.)

On August 21, 2019, an IEP team meeting was held to review Ms. Pippin’s assessment. Brookfield staff were invited to attend the meeting but did not. Thus, Student’s present levels of performance were taken from Ms. Pippin’s report including the Brookfield teacher interviews, observations, and assessment data, as well as the information regarding Student’s educational history at Brookfield and Rocklin. The IEP contained accurate present levels of academic and functional performance based on the information that was available at the times the goals were developed. In her report, Ms. Pippin recommended goals in:

  • written expression including writing and spelling;
  • executive skills including initiation and work completion, goal-directed persistence, time management, and self-regulation; and
  • socialization including reading neutral and angry faces, and developing social negation and social repair strategies.

Rocklin offered goals in written expression, executive skills, social skills, and behavior.

WRITTEN EXPRESSION

In the area of written expression, Rocklin offered an annual goal that Student would strengthen writing by being given a second attempt and access to technology to edit and revise using a word processor and editing applications by formulating clear and coherent sentences, using proper grammar and mechanics, as measured by student work samples and teacher charted records. Rocklin designated the special education and general education teachers as the persons responsible for facilitating the goal. The goal aimed for Student to progress in general curriculum state grade level standards.

At hearing, Ms. Pippin argued that the goal addressed only one component of Student’ written expression deficits, sentence writing, and it was not appropriate. She believed that it should include measurability for paragraph and essay writing also, or additional goals should be added for paragraph and essay writing. She did not opine as to the measurability of the offered goal.
The annual writing goal was measurable and appropriate. The goal addressed his writing expression deficits including planning and organizing his writing as recommended by Ms. Pippin. Student needed to complete it with 75 percent accuracy in 75 percent of the trials in order to meet the goal. The goal, as written, could be used for not only sentences but paragraphs and essay writing. The general education and special education teachers’ data and observations would be used to measure accuracy.

EXECUTIVE FUNCTIONING

The annual IEP’s executive functioning goal called for Student to increase his ability to complete and turn in assignments by organizing assignments in a filing system 29

with labels of “things to do” and “things completed” on 80 percent of the given opportunities across five consecutive days. The goal was drafted to address educational needs including organization and task completion. Student’s special education and general education teachers were responsible for facilitating this goal.
At hearing, however, no evidence was presented that the proposed executive functioning goal was unclear, inappropriate, immeasurable, or should be divided into smaller goals. The goal indicated that it needed to be completed with 80 percent accuracy over five days for Student to meet the goal. The general education and special education teachers would facilitate and gather the data for the goal. It addressed his executive functioning related to organizing assignments to manage homework, deadlines, and projects as suggested by Ms. Pippin. The executive functioning goal was appropriately developing, using the data available from Ms. Pippin’s report, and provided a mechanism to determine whether the intended outcome for Student was being met. Thus, Student failed to meet his burden of proof that Rocklin denied him a FAPE by failing to offer an appropriate, meaningful, and measurable executive functioning goal.

SOCIAL SKILLS

As an annual goal, Student would be given a problem in a fictional social scenario and social behavior, and he would identify and explain the problem and provide at least one appropriate solution in 80 percent of the opportunities. This would enable Student to progress toward the general education curriculum state standard of speaking and listening and engaging in collaborative discussion. Rocklin designated the special education teacher and speech and language pathologist as the persons responsible for facilitating the goal.

In Ms. Pippin’s report, she recommended a socialization goal that developed social negotiation and social repair strategies. This goal is comparable to Ms. Pippin’s recommendation. Student did not offer any evidence at hearing that this goal was inappropriate, unclear, immeasurable, or meaningless. The goal was measurable and accuracy was determined by the speech and language and special education teachers’ observations and data collection. It was designed to address his weakness in social negotiations. The goal described what Student was expected to achieve within a year’s time in social skills. Thus, Student failed to meet his burden of proof that Rocklin failed to offer an appropriate, meaningful, and measurable social skills goal.

BEHAVIOR

Rocklin proposed an annual behavior goal dealing with coping skills. In the classroom, Student would utilize positive self-talk and coping strategies, to handle stressful situations or work demands in which he may break down into tears, demonstrated by engaging in an academic task or activity, in a calm and positive manner with no more than one prompt on two to three occasions. This goal addressed Student’s educational needs due to anxiety. Rocklin designated the special education teacher and the general education teacher as the persons responsible for this goal.

As stated by Rocklin staff and indicated in the IEP, Rocklin lacked enough baseline data to include a specific time period for the academic activity in the goal, because they believed they did not have enough information available in Ms. Pippin’s report. Further, Brookfield staff failed to appear at the IEP team meeting to provide more information.

Ms. Pippin recommended a coping skill to manage anxiety and obsessive compulsive disorder, and argued that the offered goal was inappropriate because it was not connected to Student’s underlying obsessive compulsive characteristics. As explained, Ms. Pippin was not a persuasive analyst of obsessive compulsive disorder.

As written, the behavior goal is not measurable because it failed to include the amount of time needed for the task or activity to determine if Student is making progress on the goal. The goal did not describe what Student was expected to achieve within a year’s time in behavioral coping skills, which amounts to a procedural error.

A procedural error does not automatically require a finding that a FAPE was denied. A procedural violation results in a denial of a FAPE only if the violation: (1) impeded the child’s right to a FAPE; (2) significantly impeded the parent’s opportunity to participate in the decision-making process regarding the provision of a FAPE to the parent’s child; or (3) caused a deprivation of educational benefits. (20 U.S.C. § 1415(f)(3)(E)(ii); see Ed. Code, § 56505, subd. (f)(2); W.G. v. Board of Trustees of Target Range Sch. Dist. No. 23 (9th Cir. 1992) 960 F.2d 1479, 1484.)

Although Rocklin attempted to contact Ms. Pippin to get her feedback to further improve the goal, she did not respond. Rocklin also offered an assessment plan to get further baseline data, however, Parent did not consent.

Despite Rocklin’s procedural error, Student offered no evidence to establish a deprivation of an educational benefit or how any ambiguity in this goal deprived Parent of meaningful participation in the development of Student’s IEP. Steps were taken by Rocklin to address the ambiguity of this goal with Ms. Pippin and Parent.

Additionally, Student attended Brookfield at the time this goal was developed and Parent had previously signed a contract to attend the school for the entirety of the 2019-2020 school year, despite the results of the IEP meeting. Brookfield does not offer special education services and could not implement Student’s IEP. Thus, no deprivation of educational benefit or effect on parental participation is found for this procedural violation. Further, Student failed to address goals in his closing brief and has apparently abandoned the argument.

ISSUE 2(B): DID ROCKLIN DENY STUDENT A FAPE FROM AUGUST 21, 2019, TO THE PRESENT BY FAILING TO OFFER GOALS IN ALL AREAS OF SUSPECTED DISABILITY SPECIFICALLY, PSYCHOLOGICAL FOR OBSESSIVE COMPULSIVE DISORDER AND ANXIETY, SOCIAL EMOTIONAL, ACADEMIC, ORTHOGRAPHIC PROCESSING, FINE MOTOR, WRITTEN EXPRESSION, ASSISTIVE TECHNOLOGY, TYPING, EXECUTIVE FUNCTIONING, SELF-REGULATION, SENSORY, TASK COMPLETION, AND ATTENTION TO TASK?

Student contends that his August 21, 2019 IEP should have contained additional goals to provide him a FAPE. Rocklin argues that additional goals were not required.

Student’s expert did not recommend goals in orthographic processing, fine motor, assistive technology, sensory, and typing. Further, neither Ms. Pippin’s assessment data nor Rocklin’s assessment data showed that these were areas of need for Student. Further, Parent conceded at hearing that Student’s areas of need were written expression, executive functioning, social skills, and behavior, which were the areas Rocklin did address. Accordingly, Student failed to establish that goals were needed in orthographic processing, fine motor, assistive technology, sensory, or typing.

ACADEMICS AND WRITTEN EXPRESSION GOALS

Ms. Pippin recommended at hearing additional goals in written expression in organizing paragraphs and essays. Ms. Pippin argued that additional goals were needed because the proposed written expression goal failed to encapsulate all of Student’s written expression needs. Rocklin drafted a measurable and meaningful goal in written expression, and Student offered no persuasive evidence that Student’s written expression deficits were not addressed through the proposed goal. Rocklin’s goal addressed formulating clear and coherent sentences, using proper grammar and mechanics, which would help with paragraphs and essays and other kinds of writing.

Ms. Pippin based her opinion on her assessment data and Student’s educational history. She administered the narrative compositional fluency subtest that determines deficits in written expression. Student scored borderline to low on the subsets. At hearing, however, Ms. Pippin’s testimony was persuasively challenged. Ms. Pippin’s opinion rested on Student’s writing sample consisting of a total of 42 seconds of writing. Ms. Pippin failed to provide an additional prompt to Student as required by the testing protocol, placing doubt as to its validity.

Student’s test scores did not show a need for additional writing goals. In expository writing, Student scored in the low average to borderline range. Further, Student’s 2018 sentence composition and essay subset scores administered by Rocklin were average. And, his composition and grammar scores at Brookfield consisted of above average grades. While Student’s writing was below Rocklin’s standard by the end of his fourth grade at Brookfield, his standardized score in English at the end of the year showed him in the 89th national percentile. The evidence did not establish this was an area of need for which an additional goal was necessary.

Further, Ms. Pippin recommended a spelling goal in her report so that Student could learn six syllable spelling types. The evidence, however, did not support the need for a goal in this area. As part of the admissions process, Brookfield’s principal,
Dr. Josephine Gonsalves, administered assessments of Student which showed a low spelling score. Dr. Gonsalves, however, failed to follow the protocol or the manual instructions when administering the testing which rendered the result unreliable. Additionally, in Ms. Pippin’s testing, Student scored in the high average to average range for orthographic spelling on the Process Assessment of the Learner, Second Edition, that addresses spelling. Student received scores in the average range in spelling when Ms. Hard administered academic testing in 2018. And, Student received A and B grades in spelling at Brookfield in fourth grade. The evidence established that spelling was not an area of need for which Student needed a goal.

Additionally, Rocklin offered numerous accommodations for Student’s written expression deficits. Student failed to prove that these accommodations were inappropriate or failed to meet his needs. Accordingly, Student failed to prove by a preponderance of the evidence that further written expression, spelling, or academic goals were needed.

EXECUTIVE FUNCTIONING, TASK COMPLETION, AND ATTENTION TO TASK GOALS

Relying solely on Ms. Pippin’s opinions, Student argues he was denied a FAPE because Rocklin failed to provide him executive functioning goals for initiation/work completion and attention to task, which she recommended in her report. Rocklin contends that its proposed executive functioning goal concerning goal direction and work completion was adequate to address his needs.
There is no dispute that Student’s distraction adversely affected his education, and that some of his academic limitations are products of ADHD and manifest in frequent loss of attention in class. Both his Rocklin and Brookfield teachers acknowledged his frequent lack of focus, as did Ms. Sublett, who observed him in class at Rocklin, and Ms. Pippin, who observed him in class at Brookfield.

Rocklin addressed Student’s executive functioning by providing a measurable, meaningful, and clear goal that addressed working on his organization to manage his homework, deadlines, projects, and work completion. In addition to this annual proposed goal, Student’s August 21, 2019 IEP contained numerous accommodations designed to aid him in executive functioning, planning, organization, task completion, and attention to task.

Student did not prove that the goal and additional accommodations in his IEP were insufficient to address his needs. Additionally, Ms. Pippin did not propose additional executive functioning goals at hearing, and such additional goals were not addressed in Student’s closing brief. Thus, Student failed to prove that he was denied a FAPE because Rocklin did not provide additional goals in executive functioning, task completion, and attention to task.

SELF REGULATION, COPING SKILLS, BEHAVIOR, PSYCHOLOGICAL, AND SOCIAL-EMOTIONAL GOALS

In regard to self-regulation and behavior, Ms. Pippin recommended goals in coping skills to manage his anxiety and obsessive compulsive symptoms.

In Rocklin’s August 21, 2019 IEP, Rocklin proposed a behavior goal dealing with coping skills related to anxiety. Ms. Pippin argued at hearing that the goal was insufficient because it did not deal with his underlying issue of obsessive compulsive disorder, and an additional goal was needed to address obsessive compulsive symptoms.

Student failed to establish that the August 21, 2019 IEP required a self-regulation goal related to obsessive compulsive disorder. Ms. Pippin’s analysis of Student’s alleged obsessive compulsive disorder was unpersuasive. Among other things previously discussed, that she is unable to render the diagnosis, particularly undercut her persuasiveness on this point. At the time of the IEP, Rocklin did not agree that Student had obsessive compulsive disorder characteristics. Additionally, the evidence gleaned after the IEP team meeting proved the unreliability of the report related to obsessive compulsive characteristics, and supports Rocklin’s belief that at the time of the IEP team meeting, it did not have enough information to regard obsessive compulsive disorder as an area of need. The fact that Student was accepted into a medical treatment program partially based on Ms. Pippin’s inaccurate findings is also unpersuasive. Student failed to prove that he needed an additional goal in coping skills related to obsessive compulsive characteristics.

Additionally, Ms. Pippin neither recommended in her report nor at hearing any other additional goals related to psychological, behavioral, social-emotional, self- regulation, or coping skills. Neither Parent or Ms. Pippin discussed additional goals in these areas beyond the need for a coping skills goal related to obsessive compulsive disorder. Student therefore failed to prove by a preponderance of the evidence that any further behavioral, psychological, social-emotional, self-regulation, or coping skills goals were needed to provide Student a FAPE.

SOCIAL SKILLS GOALS

Ms. Pippin recommended a socialization goal in reading neutral and angry faces, and negation and social repair strategies. Rocklin offered a proposed annual goal in social skills addressing negotiation and social repair strategies that was clear, appropriate, and measurable. Further, the evidence does not support a need for an additional goal in reading faces.
Ms. Pippin used subtests from the Developmental Neuropsychological Assessment to measure student’s social perception. The affect recognition subtest measures a student’s ability to recognize another person’s affect. Student scored on this subtest in the average range overall, although his ability to read a neutral face was below average. Student scores showed average to above average skills on the Theory of Mind portion of the Social Perception testing. Theory of Mind consisted of two tasks that are designed to assess the ability of the student to understand mental functions such as belief, intentions, deception, emotion, imagination, and pretending, as well as the ability to understand that others have their own thoughts, ideas, and feelings.

Although Student’s overall test scores on both social perception tests were in the average to above average range, Ms. Pippin opined that Student needed direct services to recognize neutral and angry faces, and a goal. The evidence does not support
Ms. Pippin’s proposition because Student’s overall testing across both measures was average or more.
Student failed to prove by the preponderance of the evidence that Rocklin needed to provide any additional goals in any area to offer Student a FAPE.

ISSUE 2(C): DID ROCKLIN DENY STUDENT A FAPE FROM AUGUST 21, 2019, TO THE PRESENT BY FAILING TO OFFER THERAPEUTIC INTERVENTIONS AND COUNSELING, SUCH AS INDIVIDUAL AND GROUP WEEKLY SESSIONS, FOR OBSESSIVE COMPULSIVE DISORDER AND ANXIETY?

Student contends that he was denied a FAPE because the August 21, 2019 IEP did not offer counseling services for obsessive compulsive symptoms and anxiety. Rocklin maintains that Student did not meet his burden on this issue because, at the time the IEP was developed, there was no indication that Student required counseling as a related service.

California law defines special education as instruction designed to meet the unique needs of the pupil coupled with related services as needed to enable the pupil to benefit from instruction. (Ed. Code, § 56031.) “Related Services” include transportation and other developmental, corrective and supportive services as may be required to assist the child in benefiting from special education. (20 U.S.C. § 1401.) In California, related services are called designated instruction and services, and must be provided as may be required to assist an individual with exceptional needs to benefit from special education ….” (Ed. Code, § 56363, subd. (a).)

Student failed to establish that the August 21, 2019 IEP should have provided obsessive compulsive disorder counseling. As stated, Ms. Pippin’s opinion as it relates to obsessive compulsive symptoms was unreliable, overreaching, and unpersuasive. At the time the IEP was developed, there was no reliable indication that Student required obsessive compulsive counseling as a related service.

Student did meet his burden in proving by a preponderance of the evidence that counseling for anxiety was needed to provide him a FAPE. Student was diagnosed with anxiety in 2013 and again in 2017 and had been taking Lexapro for it since 2016. At times, he also received outside therapy and visited a psychiatrist for medication. In 2018, Ms. Sublett, Rocklin’s school psychologist, recommended school-based mental health counseling. The following year at Brookfield, Student’s behaviors and anxiety increased due to the increased academic rigor and lack of special education support. In 2019, Ms. Pippin recommended educationally related mental health services. Thus, prior to the August 21, 2019 IEP, two assessors had recommended counseling as a related service, including one from Rocklin.

Further, Student began manifesting anxiety at Brookfield with panic attacks, crying, and increased picking at this skin, and he continued to have difficulties with peer relationships and arguing with teachers. While Rocklin contends that the IEP supports for written expression and executive functioning also served to address the root of the anxiety, this argument is misplaced. The IEP supports may reduce some academic anxiety but it does not address the underlying anxiety issues. Rocklin had sufficient information at the August 21, 2019 IEP that Student needed educationally related counseling services. Accordingly, Student proved that Student needed a therapeutic intervention such as counseling at the time of the August 21, 2019 IEP for his anxiety. Rocklin’s failure to offer it denied Student a FAPE.

ISSUE 2(E): DID ROCKLIN DENY STUDENT A FAPE FROM AUGUST 21, 2019, TO THE PRESENT BY FAILING TO OFFER ADEQUATE SPEECH AND LANGUAGE THERAPY, SPECIFICALLY TWO TO THREE 30 MINUTE SESSIONS PER WEEK TO ADDRESS PRAGMATIC LANGUAGE AND SOCIAL SKILLS DEFICITS?

Student contends that Rocklin failed to offer the appropriate amount of speech and language services to Student. Rocklin maintains that the speech and language offer was appropriate to meet his social deficits.

On August 21, 2019, Rocklin offered Student 60 minutes monthly of speech and language group related services to support Student’s area of need in pragmatic language and social skills. Student did not offer evidence from a speech and language
pathologist or other professional to cast doubt on the appropriateness of these services, 40 or offer other evidence for that purpose. Ms. Pippin recommended a referral to a speech and language pathologist, but did suggest services. For these reasons, Student failed to prove that Rocklin’s speech and language services offer denied him a FAPE.

ISSUE 2(F): DID ROCKLIN DENY STUDENT A FAPE FROM AUGUST 21, 2019, TO THE PRESENT BY FAILING TO OFFER A TYPING PROGRAM, SPECIFICALLY ONE 60-MINUTE SESSION PER WEEK, PROVIDED BY QUALIFIED TUTOR?

Student contends that he requires a typing program as a related service to address his dysgraphia and to receive an appropriate education. Rocklin argues that it offered Student a typing program, and thus did not deny Student a FAPE.
In the August 21, 2019 IEP, Rocklin offered Student, as an accommodation to support his written expression deficits, the use of computer applications for keyboarding, word processing, and speech-to-text. Additionally, Rocklin has a typing program that can be accessed and is available to all Rocklin students.

The evidence proved that students who have deficits in written expression, with dysgraphia characteristics, benefit from typing or some alternative to handwriting. Rocklin included the use of computer applications in its goals, and Ms. Pippin also recommended that Student learn keyboarding skills. Student, however, failed to prove that he had an area of need in typing. Ms. Cihak reported that his typing skills were age-appropriate. Further, Ms. Pippin noted that Student did an “awesome job” typing an essay in class at Brookfield. Brookfield allowed Student to type some assignments on the computer, and his composition, spelling, and grammar grades do not reflect that typing was problematic. Student failed to prove that Rocklin should have offered a typing program to Student.

ISSUE 2(G): DID ROCKLIN DENY STUDENT A FAPE FROM AUGUST 21, 2019, TO THE PRESENT BY FAILING TO OFFER OCCUPATIONAL THERAPY, SPECIFICALLY, ONE 60 MINUTE SESSION PER WEEK PROVIDED BY A QUALIFIED TUTOR?

Student argues that he needed occupational therapy services to address fine motor and handwriting deficits. Rocklin contends that the evidence does not support Student’s proposition.

Both Rocklin’s occupational therapist Danielle Covell and Ms. Pippin assessed Student in handwriting and motor skills, producing average to high average scores. Ms. Covell’s persuasively testified that the results showed that Student had no occupational therapy needs to be addressed and special education services were unneeded. Ms. Pippin did not opine as to Student’s occupational therapy needs.

In June 11, 2018, a private occupational therapy assessment of Student was conducted by Capital Kids. The Capital Kids report found that Student needed occupational therapy services. It was admitted as administrative hearsay under the provision of section 3082, subdivision (b), of title 5 of the California Code of Regulations, which provides that “[h]earsay evidence may be used for the purpose of supplementing or explaining other evidence but shall not be sufficient in itself to support a finding unless it would be admissible over objection in civil actions.” Here, the Capital Kids report did not supplement or explain any other evidence. Student failed to produce an occupational therapist to explain or agree with the report, elaborate upon the opinions in the report, or be cross-examined. The findings in the report cannot be used as sole support for a finding. While Ms. Pippin included the findings in her report, she did not herself opine as to Student’s occupational therapy needs and did not recommend IEP occupational therapy services. Thus, Student failed to meet his burden of persuasion that Rocklin denied Student a FAPE when it did not offer occupational therapy in its August 21, 2019, IEP.

ISSUE 2(H): DID ROCKLIN DENY STUDENT A FAPE FROM AUGUST 21, 2019, TO THE PRESENT BY FAILING TO OFFER ASSISTIVE TECHNOLOGY SERVICES AND CONSULTATION, EQUIPMENT, PROGRAMS, AND APPLICATIONS?

Student contends that Rocklin failed to offer the appropriate amount of assistive technology and consultation services for him to receive an appropriate education. Rocklin disagrees and argues that the assistive technology provided was appropriate and addressed Student’s deficits.

When developing a pupil’s IEP, the IEP team shall consider whether the child requires assistive technology devices and services. (20 U.S.C. § 1414(d)(3)(B)(v); 34 CFR 300.324 (a)(2)(v)(2006); Ed. Code, § 56341.1, subd. (a)(4).) An “assistive technology device” is defined as “any item, piece of equipment or product system [other than a surgically implanted device] . . . that is used to increase, maintain or improve functional capabilities of an individual with exceptional needs.” (20 U.S.C. § 1401(1); Ed. Code, § 56020.5.) Assistive technology devices or services may be required as part of the child’s special education services, related services, or supplementary aids and services. (34 C. F. R. § 300.105.)

Rocklin offered Student the use of computer applications for speech-to-text, keyboarding, word processing, and spelling and grammar error notifications to address his written expression deficits. Rocklin also offered 20 minutes weekly of consultation between the Student and the special education teacher at the start and end of the day to touch base.

Ms. Pippin recommended keyboarding, word processing, speech recognition software, and the use of spell checker in her report. Thus, Rocklin instituted all the Ms. Pippin’s recommendations in assistive technology. At hearing, Ms. Pippin specified particular keyboarding applications and types of programs needed but this was not specified in her report, and the August 21, 2019 IEP notes do not reveal that the particular programs to be used was an issue at the time of the IEP team meeting.
Further, the evidence showed that Brookfield provided some assistive technology supports to Student but less than what was offered by Rocklin. Yet, Student continued to produce grade level work supported by his above-average Brookfield grades in composition, spelling, and grammar.

Ms. Pippin recommended an assistive technology referral in her report but Student presented no witness with expertise in assistive technology to show that the assistive technology offered was not sufficient. Additionally, Ms. Pippin did not identify any areas of need not already being addressed by the assistive technology offered by Rocklin. Student also failed to show that Rocklin needed additional information about him to determine his assistive technology needs. For these reasons, Student did not demonstrate by the preponderance of the evidence that he required additional assistive technology, consultation, equipment, applications, or software.

ISSUE 2(I): DID ROCKLIN DENY STUDENT A FAPE FROM AUGUST 21, 2019, TO THE PRESENT BY FAILING TO OFFER STUDENT EXTENDED SCHOOL YEAR?

Student contends that he was denied a FAPE because he was not offered extended school year services including a systematic evidence-based writing program for students with dysgraphia, a typing program, speech and language therapy, occupational therapy, and therapeutic interventions including an in-patient placement at Rogers Behavioral Health for obsessive compulsive symptoms and anxiety. Rocklin argues that he did not require extended school year services because no evidence supported Student’s regression.

Under the IDEA, schools are required to provide extended school year services as necessary in order to provide a child with a FAPE. (34 C.F.R. § 300.309(a).) Extended school year services “are only necessary to a FAPE when the benefits a disabled child gains during a regular school year will be significantly jeopardized if he is not provided with an educational program during the summer months.’” (N.B. v. Hellgate Elementary School District (9th Cir. 2008) 541 F.3d 1202, 1211-1212 (N.B.), quoting MM ex rel. DM v. Sch. Dist. of Greenville County (4th Cir.2002) 303 F.3d 523, 537-538.) A student is eligible for extended school year services if interruption of the student’s educational programming may cause regression, when coupled with limited recoupment capacity, rendering it impossible or unlikely that the pupil will attain the level of self-sufficiency and independence that would otherwise be expected in view of his or her handicapping condition. (Cal. Code Regs. tit. 5, § 3043.)

Rocklin did not offer extended school year services at the August 21, 2019 IEP. Student argues that due to the intensity of Student’s needs at this time, Student should be found eligible for extended year services; however, this is not the standard. Student presented no evidence that additional weeks of instruction were needed due to regression. Despite Student’s anxiety issues, he performed well educationally at both Rocklin and Brookfield without special education services. Neither Rocklin nor Brookfield teachers testified to any pattern of significant regression after school breaks, and educational records did not reflect significant regression. Student failed to prove that Rocklin denied Student a FAPE when it failed to offer him extended school year services.

ISSUE 2(J): DID ROCKLIN DENY STUDENT A FAPE FROM AUGUST 21, 2019, TO THE PRESENT BY DENYING MEANINGFUL PARTICIPATION BY STUDENT’S PARENT IN THE AUGUST 21, 2019 IEP TEAM MEETING, BY FAILING TO ADDRESS HER CONCERNS AND STUDENT’S DOCUMENTED AREAS OF NEED?

Student maintains that Parent was denied meaningful participation at the August 21, 2019 IEP meeting because Rocklin did not consider Ms. Pippin’s report related to eligibility for emotional disturbance, obsessive compulsive symptoms, and educationally related mental health services. Rocklin argues that Parent attended the meeting, had the opportunity to ask questions and discuss the IEE report, and expressed disagreement with the IEP’s conclusions related to emotional disturbance, obsessive compulsive symptoms, and mental health services. Thus, Parent was afforded meaningful participation at the IEP team meeting.

Parents must be afforded an opportunity to participate in meetings with respect to the identification, assessment, educational placement, and provision of a FAPE to their child. (20 U.S.C. § 1414(d)(1)(B)(i); Ed. Code, §§ 56304, 56342.5.) A parent has meaningfully participated in the development of an IEP when he or she is informed of the child’s problems, attends the IEP meeting, expresses disagreement with the IEP team’s conclusions, and requests revisions in the IEP. (N.L. v. Knox County Schools. (6th Cir. 2003) 315 F.3d 688, 693.) A parent who has an opportunity to discuss a proposed IEP, and whose concerns are considered by the IEP team, has participated in the IEP process in a meaningful way. (Fuhrmann v. East Hanover Bd. of Educ. (3d Cir. 1993) 993 F.2d 1031, 1036.)

Student did not prove that Rocklin impeded Parent’s opportunity to meaningfully participate in the decision-making process. The evidence showed that Parent was an active participant at the August 21, 2019 IEP team meeting and throughout the entire IEP process. Rocklin set an IEP meeting after receiving Ms. Pippin’s report. Parent, her advocate, Dr. Lisa Lindsay, and Ms. Pippin attended the IEP meeting. Ms. Pippin went through her report, findings and conclusions. The IEP was blown up on a large screen.

The IEP document contained approximately two pages of detailed notes that accurately reflected the discussions held during the meeting. From the notes alone, it is clear that the IEP team, including Parent, her advocate, and Ms. Pippin, had a thorough conversation about Ms. Pippin’s assessment report, Parent’s concerns, the eligibility criteria for special education, and the reasons Student met criteria for specific learning disability and other health impairment, and not emotional disturbance. The IEP team also discussed Ms. Pippin’s opinion related to Student’s obsessive compulsive symptoms, and counseling recommendations. Rocklin also considered information from Ms. Pippin’s report and included some services, goals, and accommodations as recommended by her.

Parent expressed disagreement with the team’s conclusions related to a public school placement offer, and her advocate believed that obsessive compulsive disorder should be addressed in the offer of FAPE, as well as specifying that Student needed a small classroom setting. The Rocklin IEP team members acknowledged their concerns.

Further evidence of Parents’ meaningful participation was the IEP team’s decision to exclude the use of the timer on particular assignments that was recommended by Ms. Pippin. Parent disagreed with that recommendation. Rocklin also contacted other Rocklin psychologists to discuss obsessive compulsive disorder symptoms and get more information related to it due to Parent’s concerns.

During the August 21, 2019, IEP team meeting, Parent participated in the discussion regarding Student, shared her impressions and gave her opinion regarding Rocklin’s offer of FAPE. Student failed to prove that Parent was not allowed to meaningfully participate in the August 21, 2019, IEP team meeting and process.

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.

  1. Did Rocklin fail in its child find obligation to Student from October 28, 2017, through August 20, 2019, by:
    1. failing to seek and serve when it had information concerning suspected disabilities, specifically, specific learning disability, other health impairment, and emotional disturbance, that severely impacted Student’s education; Rocklin prevailed on issue 1.a.
    2. failing to initiate and conduct a special education assessment prior to March 2018; Rocklin prevailed on issue 1.b.
    3. failing to provide an assessment plan; Rocklin prevailed on issue 1.c.
    4. failing to develop an individualized education program, called IEP, including goals, interventions, supports and related services, accommodations, and modifications; Student prevailed on issue 1.d.
    5. failing to offer Student a systematic, evidence-based writing program for students with dysgraphia; Rocklin prevailed on issue 1.e.
    6. failing to find Student eligible for special education in the categories of specific learning disability, other health impairment, and emotional disturbance, and thus denying Student access to special education? Student prevailed on issue 1.f.
  2. Did Rocklin Unified School District deny Student a free appropriate public education, called FAPE, from August 21, 2019, to the present by:
    1. failing to draft appropriate, meaningful, and measurable goals in written expression, executive functioning, social skills, and behavior; Rocklin prevailed on issue 2.a.
    2. failing to offer goals in all areas of suspected disability, specifically, psychological for obsessive compulsive disorder and anxiety, social- emotional, academic, orthographic processing, fine motor, written expression, assistive technology, typing, executive functioning, self- regulation, sensory, task completion, and attention to task; Rocklin prevailed on issue 2.b.
    3. failing to offer therapeutic interventions and counseling, such an individual and group weekly sessions, for obsessive compulsive disorder and anxiety; Student prevailed on issue 2.c.
    4. failing to offer Student asystematic, evidenced-based writing program for students with dysgraphia; Rocklin prevailed on issue 2.d.
    5. failing to offer adequate speech and language therapy, specifically two to three 30-minute sessions per week, to address pragmatic language and social skills deficits; Rocklin prevailed on issue 2.e.
    6. failing to offer a typing program, specifically one 60-minute session per week, provided by a qualified tutor; Rocklin prevailed on issue 2.f.
    7. failing to offer occupational therapy, specifically one 60-minute session per week, provided by a qualified non-public agency; Rocklin prevailed on issue 2.g.
    8. failing to offer adequate assistive technology services and consultation, equipment, programs, and applications; Rocklin prevailed on 2.h.
    9. failing to offer extended school year; and Rocklin prevailed on issue 2.i.
    10. denying meaningful participation by Student’s Parent in the August 21, 2019 IEP team meeting, by failing to address her concerns and Student’s documented areas of need? Rocklin prevailed on issue 2.j.

REMEDIES

Student seeks reimbursement for the 2018-2019 and 2019-2020 Brookfield school tuition, a six-week placement at Rogers Behavioral Health, a clinical obsessive compulsive disorder assessment, transportation, and compensatory education. Rocklin argues that Student is not entitled to any reimbursement and prospective placement because Brookfield was inappropriate, provided no educational benefit, and failed to meet Student’s needs.

School districts may be ordered to provide compensatory education or additional services to a student who has been denied a FAPE. (Student W. v. Puyallup School Dist. (9th Cir. 1994) 31 F.3d 1489, 1496.) 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 pp. 1496-1497.) The conduct of both parties must be reviewed and considered to determine whether equitable relief is appropriate. (Id. at p. 1496.) An award to compensate for past violations must rely on an individualized assessment, just as an IEP focuses on the individual student’s needs. (Reid ex rel. Reid v. Dist. of Columbia (D.D.C. Cir. 2005) 401 F.3d 516, 524, citing Student W. v. Puyallup School Dist. supra, 31 F.3d at p. 1497.) The award must be fact-specific and “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.” (Reid ex rel. Reid v. Dist. of Columbia, supra, 401 F.3d. at p. 524.)

Parents may be entitled to reimbursement for the costs of placement or services they have procured for their child when the school district has failed to provide a FAPE, and the private placement or services were appropriate under the IDEA and replaced services that the school district failed to provide. (20 U.S.C. § 1412(a)(10)(C); School Committee of Burlington v. Department of Education (1985) 471 U.S. 359, 369-371 [1055 S.Ct. 96] (Burlington).) When a school district fails to provide a FAPE to a pupil with a disability, the pupil is entitled to relief that is “appropriate” in light of the purposes of the IDEA. ALJ’s have broad latitude to fashion equitable remedies appropriate for a denial of a FAPE. (Id. at 369-370; 20 U.S.C. § 1415(i)(2)(C)(3).)

The ruling in Burlington is not so narrow as to permit reimbursement only when the placement or services chosen by the parent are found to be the exact proper placement or services required under the IDEA. (Alamo Heights Independent School Dist. v. State Bd. of Educ. (5th Cir. 1986) 790 F.2d 1153, 1161.) Although the parents’ placement need not be a “state approved” placement, it still must meet certain basic requirements of the IDEA, such as the requirement that the placement address the child’s needs and provide student with an educational benefit. (Florence County School Dist. Four v. Carter (1993) 510 U.S. 7, 13-14, [114 S.Ct. 361, 126 L.Ed.2d 284] (Carter).) Parents may receive reimbursement for the unilateral placement if it is appropriate. (34 C.F.R. § 300.148(c)(2006); Ed. Code, § 56175; Carter, supra, 510 U.S. at pp. 7, 15-16 [.) The appropriateness of the private placement is governed by equitable considerations. (Ibid.) The determination of whether to award reimbursement and how much to award is a matter within the discretion of the hearing officer. (School Committee of Burlington v. Department of Ed. supra, 471 U.S. at p. 369.)

In C. B. v. Garden Grove Unified School Dist. (9th Cir. 2011) 635 F.3 1155 (Garden Grove), the Ninth Circuit set forth the standards to be applied in determining whether a private placement is appropriate for the purpose of reimbursement. There, a student had benefited substantially from a private placement, but parents had been awarded only partial reimbursement because the placement did not address all of the student’s special education needs. (Id. at pp. 1157-1158.) The Court of Appeals held that parents were entitled to full reimbursement because the IDEA “does not require that a private school placement provide all services that a disabled student needs in order to permit full reimbursement.” (Id. at p. 1158.) In reaching this conclusion, the Ninth Circuit relied upon a standard set forth by the Second Circuit. The Court concluded that, for a parent to qualify for reimbursement, parents need not show that a private placement furnishes every special service necessary to maximize their child’s potential. They need only to demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a child with a disability, supported by such services as are necessary to permit the child to benefit from instruction. (Id. at p. 1159 [quoting Frank G. v. Bd. of Education (2d. Cir. 2006) 459 F.3d 356, 365 (citations and emphasis omitted)].)

The conduct of both parties must be reviewed and considered to determine whether relief is appropriate. (Parents of Student W. v. Puyallup Sch. Dist., No. 3, supra, 31 F.3d at p. 1496.) Factors to be considered when considering the amount of reimbursement to be awarded include the existence of other, more suitable placements; the effort expended by the parent in securing alternative placements; and the general cooperative or uncooperative position of the school district. (Target Range, 960 F.2d at 1487; Glendale Unified School Dist. v. Almasi (C.D.Cal. 2000) 122 F.Supp.2d 1093, 1109.)

Here, Parent placed Student at Brookfield School serving general education students in accelerated classes without any special education placement or related services available. Parents timely and appropriately notified Rocklin of their intent to place at a private school because they did not believe Rocklin offered Student a FAPE. For the 2018-2019 school year, Student received some educational benefit at Brookfield. Student’s social anxiety decreased and he continued to progress academically as he had previously, but his school-related anxiety significantly increased due to the academic rigor of the curriculum, increased school workload, and lack of special education services.

When Parent placed Student at Brookfield, no IEP was in place for him and his eligibility was in dispute. After Rocklin failed to find Student eligible for special education at the May 16, 2019 IEP team meeting, Parent needed to find a placement quickly and was not in a position to know whether Brookfield would serve Student’s needs when she enrolled him for the 2018-2019 school year. Considering all of the relevant facts and circumstances, Rocklin shall reimburse Parent for the cost of Brookfield tuition for the 2018-2019 school year in the amount of $12,950. Rocklin shall provide the reimbursement within 45 days of the date of this order. Student’s tuition reimbursement is considered both compensatory and an appropriate remedy for the failure to find Student eligible for special education and offer placement and related services. Student requests an additional $500 for a Brookfield fee, but no documentary or testimonial evidence was presented of this fee, and therefore the request is denied.

Brookfield is located in Sacramento and Parent works in Sacramento. She testified that she drops off and picks up Student while driving back and forth to work. As a result, she does not have to make two round trips each day to transport Student. If reimbursed for transporting Student, Parent’s commute cost would be partially offset by Student’s transportation. However, because Parent does work nearby, Rocklin does not need to compensate Parent for two round trips each day. Parent shall receive reimbursement for transportation of Student of one round trip from Parent’s residence to Brookfield for each day of attendance during the 2018-2019 school year at the IRS mileage rate.

Tuition reimbursement will not be awarded to Student for the 2019-2020 school year. Rocklin offered an IEP with placement, related services, accommodations, and modifications to Student on August 21, 2019 for the 2019-2020 school year. While the IEP offer was deficient because it did not offer counseling, the defect does not justify an award for reimbursement for private school tuition for the year. Moreover, Parent was aware during the 2019-2020 school year that Brookfield did not offer special education services and that the academic rigor and increased workload contributed to Student’s anxiety. Parent had ample time to find a more suitable placement for the 2019-2020 year, and chose to re enroll him at Brookfield knowing that it would continue to exacerbate Student’s anxiety and social emotional difficulties.

To compensate Student for the denial of a FAPE for the 2019-2020 school year due to the absence of counseling services, he is entitled to 22 hours of counseling at a rate not to exceed $150 per hour in an individual or group setting as determined by the therapist providing services. Student failed to provide any evidence of the amount of appropriate counseling services for Student. Thus, the amount was calculated at one hour a week of counseling services from August 21, 2019, through the beginning of the hearing, excluding school holidays. The services shall be accessed from a licensed therapist of Parent’s s choice within 20 miles of Student’s residence. Parent may submit an invoice to Rocklin for services. Rocklin shall reimburse Parent within 45 days of receiving the invoice, or pay the therapist directly. The counseling services shall be used within two years of the date of this decision. All further request for compensatory education were carefully considered and are denied.

Rocklin shall reimburse Parent for one round trip from Parent’s residence for each trip for counseling services. Parent may submit an invoice to Rocklin for mileage reimbursement. Rocklin shall reimburse Parent within 45 days of receiving the invoice.

Student’s request for a six-week in-patient placement at Rogers Behavior Health in Walnut Creek to address his OCD and anxiety is denied. As stated, the evidence does not show any regression or need for extended year services. Additionally, school districts are not responsible for medical placements. (Clovis Unified Sch. Dist. v. California Ofc. Of Admin. Hearings, 903 F.2d 635, 643 (9thCir. 1990).) Rogers Behavior Health is a medical facility and its representative, Laura Ballard, confirmed it is not an educational facility. It is not accredited by the Department of Education. There are no teachers, and it provides no educational instruction. It did not review Student’s educational records or speak to teachers or school staff for its intake process. Student did not prove that this is an appropriate remedy.

All of Student’s other claims for relief were carefully considered and are denied.

ORDER

  1. Within 45 calendar days, Rocklin shall reimburse Parent $12,950 for Brookfield tuition for the 2018-2019 school year.
  2. Rocklin shall reimburse Parent for one round trip from Parent’s residence to Brookfield for each day of attendance during the 2018-2019 school year at the IRS mileage rate. Rocklin shall reimburse Parent within 45 days of receipt of mileage logs.
  3. Rocklin shall provide 22 hours of counseling to Student at a rate not to exceed $150 per hour in an individual or group setting as determined by the therapist providing services. The services shall be accessed from a licensed therapist of Parent’s choice within 20 miles of Student’s residence. Parent may submit an invoice to Rocklin for services. Rocklin shall reimburse Parent within 45 days of receiving the invoice, or pay the therapist directly. The counseling services shall be used within two years of the date of this decision.
  4. Rocklin shall reimburse Parent for one round trip from Parent’s residence for each trip for compensatory education services. Parent may submit a mileage log to Rocklin for mileage reimbursement. Rocklin shall reimburse Parent within 45 days of receiving the mileage log.

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.

Cynthia Fritz
Administrative Law Judge
Office of Administrative Hearings