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OAH 2019120639-2020050123

July 28, 2020

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Student v. Ventura Unified School District - District Prevailed

BEFORE THE
OFFICE OF ADMINISTRATIVE HEARINGS
STATE OF CALIFORNIA

CASE NO. 2019120639
CASE NO. 2020050123

THE CONSOLIDATED MATTERS INVOLVING
PARENT ON BEHALF OF STUDENT, AND
VENTURA UNIFIED SCHOOL DISTRICT.

Decision

July 28, 2020

On, December 17, 2019, the Office of Administrative Hearings, called OAH, received a due process hearing request from Parent on behalf of Student, naming Ventura Unified School District as respondent. On May 5, 2020, OAH received a request for due process hearing from Ventura Unified School District, naming Parent on behalf of Student as respondent. On May 8, 2020, OAH consolidated the cases.

Administrative Law Judge Penelope Pahl heard this matter on June 2, 3, 4, 5, 8, 9, 10, 11, and 12, 2020. The hearing was held remotely using the Microsoft Teams videoconferencing platform to connect the parties, their attorneys and the witnesses. Frank Zankich, attorney at law, represented Student. Mother attended the hearing each day on behalf of Student. Tamra Kaufman, attorney at law, represented Ventura Unified School District. Ventura’s Director of Special Education, Marcus Konanz, attended the hearing each day on Ventura’s behalf.

Following the close of testimony, the matter was continued at the parties’ request, until June 29, 2020, for the submission of written closing briefs. Briefs were timely received, the record was closed, and the matter was submitted for decision on June 29, 2020.

ISSUES

The undersigned has reordered the issues to address eligibility first, followed by the remaining issues. An Administrative Law Judge is permitted to reorder and renumber issues so long as no substantive changes are made. (J.W. v. Fresno Unified Sch. Dist. (9th Cir. 2010) 626 F.3d 431, 442-443; and Ford v. Long Beach Unified Sch. Dist. (9th Cir. 2002) 291 F.3d 1086, 1090.)

VENTURA’S ISSUES

1. Did Ventura appropriately determine that Student no longer qualified for special education and related services as of her June 5, 2019 individualized education program or IEP?

2. May Ventura exit Student from special education and related services without Parent consent?

STUDENT’S ISSUES

3. Beginning December 17, 2017, through December 17, 2019, did Ventura deny Student a free appropriate public education, or FAPE, by failing to offer adequate services, specifically:

a. specialized academic instruction in English language arts; b. a summer intensive reading intervention program; c. an annual subscription to Learning Ally; d. counseling to address executive functioning needs; e. vision therapy services; and f. services to address Students phonetic decoding deficits?

4. Did Ventura deny Student a FAPE during the 2019-2020 school year by failing to conduct a vision therapy assessment?

5. Did Ventura’s June 2019 IEP, which determined Student no longer qualified for special education and related services, deny Student a FAPE?

6. Did Ventura deny Student a FAPE by failing to implement her September 7, 2018 IEP after the June 2019 IEP team meeting?

JURISDICTION

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 FAPE to the child. (20 U.S.C. § 1415(b)(6) & (f); 34 C.F.R. § 300.511; Ed. Code, §§ 56501, 56502, and 56505; Cal. Code Regs., tit. 5, § 3082.) The party requesting the hearing is limited to the issues alleged in the complaint, unless the other party consents; and has the burden of proof by a preponderance of the evidence. (20 U.S.C. § 1415(f)(3)(B); Ed. Code, § 56502, subd. (i); Schaffer v. Weast (2005) 546 U.S. 49, 57-58, 62 [126 S.Ct. 528, 163 L.Ed.2d 387]; see 20 U.S.C. § 1415(i)(2)(C)(iii).) In this consolidated hearing each party has the burden of proving the issues raised by the complaints they filed. The factual statements included in this decision constitute the 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 14 years old and just completing ninth grade at the time of hearing. Student resided within the Ventura Unified School District geographic boundaries at all relevant times. Ventura found Student eligible for special education under the category of specific learning disability during the 2016-2017 school year, the beginning of Student’s sixth grade year. Student’s continuing eligibility after June 4, 2019, was at issue in this hearing.

STUDENT’S INDIVIDUALIZED EDUCATION PROGRAM

Student has always been in the general education setting for 100 percent of her school day, fully participating in all core academic subjects, electives, and physical education with no modifications. The only services Student’s initial and subsequent IEP’s offered were “SAI Academic consultation/collaboration services for 20 minutes monthly.”

Student never received specialized academic instruction in any academic subject during her consultation and collaboration sessions. Instead, the 20 minutes per month was divided between consultation with Student’s teachers about Student’s progress, and consultation with Student. No teacher ever expressed concerns about Student’s academic abilities or work. Nor did any teacher ever express concerns about her behavior or mental health.

Part of the collaboration between teachers and Student’s case manager involved Teachers informing the case manager of their class testing schedule. The case manager arranged a quiet testing space for Student with the opportunity to have test questions read to her if needed. Student rarely used paraeducators to read test questions aloud. Student used her consultation time with the case managers, first in middle school and then in high school, to review her progress, which was always excellent. She also occasionally discussed concerns about her classes or teachers and asked administrative questions, such as how to apply to the lottery for a rigorous magnet school she wished to attend for high school.

In addition to the 20 minutes per month of academic collaboration and consultation, Student received a range of accommodations. The accommodations included: seating away from distractions and noise; testing in a quiet environment; additional time to complete assignments; frequent checks for understanding; simple, repetitive instructions; tests and quizzes or items presented orally; directions given in a variety of ways; study guides, sheets, or notes provided by the teacher as needed; frontloading content and vocabulary; and textbooks on CD ROM or an extra set of textbooks for home. Student was also allowed additional time to respond to questions; she was not to be called on to read aloud, unless she volunteered; she was allowed a multiplication chart and calculator, although she did not use the chart; and she was not penalized for misspelling, except on spelling tests. Parent consented to Student’s initial IEP and her seventh and eighth grade IEP’s in 2017 and 2018.

Each annual review demonstrated that Student made good progress on her reading without the support of any specialized academic instruction. Student’s IEP team, including Parent, did not identify a need for any direct specialized academic instruction. Student’s teachers testified that Student was one of their top students. Each teacher noted that Student only occasionally asked for extra time to complete assignments, and those occasions were usually when she had missed school due to an illness or injury. Student sometimes accessed other accommodations, such as having a separate testing space or sitting in the front of the room. However, she frequently tested with her class and, when she was allowed to choose her own seat, sometimes chose one in the back without a negative impact on her performance.

Student’s IEP services and accommodations did not change from the time she was made eligible in the sixth grade, until the time Ventura proposed to exit Student from special education in her June 5, 2019 IEP. At no time, from the date Student was made eligible for special education through the eighth grade, did Mother, Student, or any other educator or teacher suggest that Student needed specialized academic instruction or any additional special education related services. At hearing, Mother’s sole concern during testimony was that Student continue to receive the accommodations provided in Student’s IEP. Mother feared that, without the accommodations, Student would regress, negatively impacting Student’s college admission opportunities and sports eligibility. The evidence established that, in eighth grade, Student demonstrated average reading capabilities for her age group. Student never received a grade below a B during her seventh grade year and received straight A’s in eighth grade. Simultaneously, Student juggled a demanding sports schedule, playing on two soccer teams, and regularly switching between her Mother’s and Father’s homes.

In the 2019-2020 school year, Student began attending Foothill Technical High School, the rigorous magnet school she requested in eighth grade. Foothill has adopted a Universal Design for Learning system, called UDL. It provides the accommodations in Student’s IEP to all students, as the accommodations are generally accepted as educational best practice that allow all students equal access to education. All Foothill textbooks are provided electronically and have audio capability. Ancillary books, such as novels read in English classes, are also provided in an audible format. The Foothill teachers who testified at hearing explained that there are a variety of reasons students do not want to read out loud in class. Therefore, usually students are not called upon to read aloud unless they volunteer. Under the UDL, Student had the ability to test in an alternate environment, extra time for assignments when needed, frequent checks for understanding, simple repetitive directions, directions given in a variety of ways, increased verbal response time, study guides or sheets and notes provided as needed, front loading vocabulary; and an extra set of books at home. Students are encouraged to ask for what they need to succeed, whether that is a quiet testing space, preferred seating, extra time to complete work or something else that meets a student’s need.

VENTURA’S ISSUES

ISSUE 1: DID VENTURA APPROPRIATELY DETERMINE THAT STUDENT NO LONGER QUALIFIED FOR SPECIAL EDUCATION AND RELATED SERVICES AS OF HER JUNE 5, 2019 IEP?

Ventura asserts that it conducted legally compliant assessments demonstrating that Student no longer qualified for special education and related services pursuant to the pertinent definitions of state and federal law. Student argues that her independent educational evaluation demonstrates that Student continues to have a disability requiring specialized academic instruction and related services, as well as a range of accommodations; and on that basis she should continue to qualify for special education. Student specifically asserts that she is behind in reading and the California common core standards require that she be taught to read.

All students receiving special education and related services are reevaluated at least every three years to examine their continuing eligibility and, if eligible, their current educational needs, unless both the district and the parents agree reevaluation is unnecessary. (20 U.S.C. § 1414 (c)(5)(A); Ed. Code § 56381, subd. (a)(2).) A reevaluation may be done following proper notice to the parents and receipt of consent. (20 U.S.C. § 1414 (b)(1) and §1415 (b)(3), (b)(4) and (c); Ed. Code 56381, subd. (f).) Neither notice of the assessments, nor parental consent to the evaluations are disputed here.

A student cannot be disqualified, often called, “exited,” from special education services without first conducting assessments to determine whether this action is appropriate, unless the student is graduating from high school or has attained the age of 22. (20 U.S.C. § 1414(c)(5)(A) and (B)(i); 34 C.F.R. § 300.305 (e)(2); Ed. Code, § 56381, subd. (h).) A student qualifies as an individual with exceptional needs, and is therefore eligible for special education and related services, if an IEP team determines that the results of a legally compliant assessment demonstrate the child has a disability, and the degree of the child’s impairment requires special education and related services that cannot be provided with modification of the regular school program. (Ed. Code §§56026, 56320; Cal. Code Regs., tit. 5, § 3030, subd. (a).)

Legally compliant assessments are conducted by qualified assessors who select valid, reliable assessment instruments, and other means of evaluation, that avoid discrimination on the basis of sex, race, or culture. The assessments must be administered according to the assessment producer’s instructions, in a language and form most likely to yield accurate results regarding the student’s academic, developmental and functional abilities. (20 U.S.C. § 1414 (b)(3)(A); Ed. Code § 56320, subd. (a) and (b)(3).) Assessors are required to use a variety of technically sound assessment tools and strategies to gather relevant information, including information provided by a parent, to assist in determining whether the child has a disability; and, if so, the relative contribution of cognitive and behavioral factors, in addition to physical and developmental factors. (20 U.S.C. § 1414 (b)(2)(A); Ed. Code § 56320, subd. (b).) Assessors are prohibited from relying on a single measure or assessment as the sole basis for determining whether a child is eligible for special education or the appropriate content of an eligible student’s IEP. (20 U.S.C. § 1414 (b)(2)(A); Ed Code. § 56320, subd. (e).)

Both Nick Vlahos, the school psychologist for Ventura Unified School District, and Beverly Januszewski, the clinical psychologist who performed Student’s independent educational evaluation, used the strengths and weaknesses analysis for evaluating a specific learning disability. However, they arrived at different conclusions.

VENTURA’S SPECIFIC LEARNING DISABILITY TESTING

Nick Vlahos is the California credentialed school psychologist who conducted testing for Ventura Unified School District. He was on special assignment to Ventura, conducting assessments, and training school psychologists and other assessors. Ventura conducted a triennial assessment of Student in late May and June of 2019, consisting of a psychoeducational evaluation, academic assessments, an evaluation of Student’s social-emotional well-being, and a health assessment. The evaluations were all conducted by qualified professionals who met the licensing and credentialing requirements of state and federal law. (Ed. Code § 56320, subd. (b)(3).) The assessments administered were not racially, culturally or sexually discriminatory and were administered in Student’s primary language of English. (20 U.S.C. § 1412(a)(6)(B); Ed. Code § 56320, subd. (a).) The assessments were valid and reliable; and no conclusion regarding eligibility was based only on the results of a single testing instrument. (20 U.S.C 1414 (b)(2)(B); Ed Code § 56320 subd. (d).) The evidence established that Ventura’s assessments regarding whether Student had a specific learning disability were legally compliant.

VENTURA IEP TEAM MEMBERS’ ELIGIBILITY DETERMINATION

California Code of Regulations, title 5, section 3030, defines the elements necessary to establish eligibility for special education. A student may be eligible for special education in the category of specific learning disability if she has: “. . . a disorder in one or more of the basic psychological processes involved in understanding or in using language, spoken or written, that may have manifested itself in the imperfect ability to listen, think, speak, read, write, spell, or do mathematical calculations, including conditions such as perceptual disabilities, brain injury, minimal brain dysfunction, dyslexia, and developmental aphasia. The basic psychological processes include attention, visual processing, auditory processing, phonological processing, sensory-motor skills, cognitive abilities including association, conceptualization and expression.” (Cal. Code Regs., tit. 5, § 3030, subd. (b)(10).)

IEP teams have a choice of methods to use in determining whether a student has a specific learning disability. (20 U.S.C. § 1414(b)(6)(A); Cal. Code Regs., tit. 5, § 3030 (b)(10)(B).) One of those is to evaluate whether there is a “pattern of strengths and weaknesses in performance, achievement, or both; relative to age, state-approved grade level standards, or intellectual development, that is determined by the group to be relevant to the identification of a specific learning disability.” (Cal. Code Regs., tit. 5, § 3030 (b)(10)(C)(2)(ii).)

A student may be eligible if the pattern of strengths and weaknesses identified is connected to a pupil’s inability to achieve adequately for the pupil’s age. Alternatively, eligibility may be established if the Student is unable to meet State-approved grade level standards when provided with learning experiences and instruction appropriate for the pupil’s age or state-approved grade level standards, in the areas of oral expression; listening comprehension; written expression; reading, including fluency and comprehension; and mathematics, including calculation and problem solving. (Cal. Code Regs., tit. 5, § 3030 (b)(10)(C)(1).)

Results from Ventura’s triennial psychoeducational assessment showed Student’s academic testing results were all in the average range, as measured by the Woodcock-Johnson IV, Tests of Achievement and Oral Language 4th edition. Student scored in the average range on all clusters, including, Basic Reading, Reading Comprehension, Reading Fluency, Math Calculation, Math Problem Solving, Written Expression, Oral Expressions and Listening Comprehension. She scored in the high average range in written expression and in the low average range in oral language and listening comprehension.

Mr. Vlahos also administered the Wechsler Intelligence Scale for Children, 5th edition, the Test of Auditory Processing Skills, 3rd edition, the Test of Visual Perceptual Skills, 4th edition, and the Pfeifer Assessment of Reading. Student demonstrated high average psychological cognitive and processing abilities in the areas of verbal long-term recall and processing speed; and high average to average abilities in the area of visual spatial working memory. She performed within the average range in auditory processing, fluid reasoning, oral language, phonological processing and verbal working memory. Regarding orthographic processing, which is recognizing and remembering printed words and parts of words, Student scored in the average to low average range. However, Student scored in the average range on three of four orthographic subtests. Student’s only low average score being on the test of spelling capability. Therefore, it was determined that her overall skills were in the average as opposed to the low-average range.

Ventura completed observations of Student as part of her triennial evaluation. Student was on task 98 percent of the time, engaged, and appropriately interacting with her teacher and her peers in her eighth grade English Language Arts class. Student was also observed during lunch, interacting with friends, laughing and talking. Mr. Vlahos described her focus during the testing as “remarkable” noting that she maintained well-focused attention the whole time.

Mr. Vlahos also interviewed Student’s eighth grade teachers as part of his assessment. Her teachers informed him that she was a stellar student. Those reports were consistent with Mr. Vlahos’ independent review. He reviewed Student’s records from the time she was initially made eligible for special education in the sixth grade to the date of his assessment. During that period, Student had never earned less than a 3.1 grade point average, and in seventh and eighth grade never less than the 3.5 grade point average necessary to maintain honor roll status. Student earned straight A’s for the entirety of her eighth grade year, a goal Student had set for herself at the beginning of the year. Student’s work was not modified to require a lower volume of work or lower standards than her general education classmates, and no homework or test scores were dropped in computing her final grades.

State approved testing demonstrated that Student’s reading abilities steadily improved over the course of her middle school years, ending with results placing her at grade level in reading in January of 2019. This improvement was achieved without any specialized academic instruction, using the “AR “or Accelerated Reading program, which is the supplemental reading program required of all general education students. The evidence established that Student is able to read at grade level.

When identifying a specific learning disability using a pattern of strengths and weaknesses, the assessor is required to identify a pattern of strengths and weaknesses in performance, achievement, or both, relative to age, state-approved grade level standards, or intellectual development, as determined by using legally compliant assessments. The pattern of strengths and weaknesses identified must be determined by the IEP team to be relevant to the identification of a specific learning disability. In order for the student to qualify for special education, the learning disability must also result in a degree of impairment requiring specialized academic instruction. (34 C.F.R. § 300.309 (a); Cal. Code Regs., tit. 5, § 3030, subd. (a).)

Based on Ventura’s assessment results, Student did not demonstrate any area of cognitive weakness or academic weakness on which to base an analysis for a specific learning disability. While Student had a few subtest results establishing a relative weakness, compared to her strengths, none of those indicated a learning deficit that impacted her ability to access her education. Student’s cumulative reading testing demonstrated skills in the average range.

Nor did Student’s assessment reveal any area in which she required special education. Student’s testing performance coupled with her consistently strong grades demonstrated that Student accesses the general education curriculum without specialized academic instruction. Ventura’s June 5, 2019 legally compliant psychoeducational evaluation established that Student no longer met the eligibility criteria for a specific learning disability.

DR. JANUSZEWSKI’S INDEPENDENT ASSESSMENT

Mother disagreed with Ventura’s conclusion that Student no longer qualified for special education. Ventura granted her an independent educational evaluation, called an IEE, to secure a second opinion. In October of 2019, Mother consulted with Dr. Beverly Januszewski, a California licensed clinical psychologist, who performed the IEE of Student. Dr. Januszewski assessed Student in the areas of Executive Function, Intellectual Function, Academic Achievement, Visual Perception Skills, and Socio-Emotional Function. Dr. Januszewski concluded that Student was eligible for special education, under the categories of specific learning disability and other health impairment on the basis of her diagnosis of attention deficit hyperactivity disorder.

Student’s testing outcomes on Dr. Januszewski’s assessment instruments were closely aligned with Ventura’s. Student scored in the average range across all composites on the Wechsler Individual Achievement Test, with the exception of the Basic Reading Composite on which she scored an 81. Her scores on the Total Reading Composite and the Reading Comprehension and Fluency composite, however, were both average. Student scored solidly in the average range on the Total Achievement composite.

Dr. Januszewski made two diagnoses based on the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition, also called the DSM-V. They were: Attention Deficit-Hyperactivity Disorder, primarily inattentive presentation, Moderate; and Specific Learning Disorder with Impairment in Reading, Moderate.

OVERARCHING CREDIBILITY CONCERNS

Dr. Januszewski’s opinions regarding Student’s disabilities and qualifications for special education were not deemed credible for several reasons:

• In reaching her conclusions, she relied heavily on anecdotal information from Mother, and notations in Student’s school records from elementary school; without addressing more current school performance records or teacher comments

• Dr. Januszewski attributes her conclusion that Student has longstanding, significant reading deficits to a comparison of Student’s initial eligibility assessment from sixth grade and her own current IEE testing results; without including results of Ventura’s 2019 triennial assessment, which refute her conclusions.

• Dr. Januszewski did not observe Student, or interview any of her middle school or current high school teachers. It was her opinion that an observation would not provide useful, additional information. While Dr. Januszewski spoke with Student’s high school case manager, that case manager had only known Student a few weeks, had met with her infrequently, and had provided no instruction.

• Dr. Januszewski did not explain how, despite the overall information regarding Student’s strong academic abilities in unmodified general education classes, Student’s disability impairs her educational performance or prevents her from accessing general education materials at grade level. In order to qualify for special education, a student must not only have a disability; the student must also require special education and related services that cannot be provided with modification of the regular school program. (Hood v. Encinitas Union School District, (9th Cir. 2007) 486 F. 3d 1099, 1109; Ed. Code, § 56333 and 56026; Cal. Code Regs., tit. 5, § 3030, subd. (a).)

• Dr. Januszewski’s report recommended that Student be removed from her general education English Language Arts class, for three hours each week, for intervention regarding, what Dr. Januszewski described as, Student’s extremely low decoding skills. This recommendation was made without accounting for Student’s performance in her general education classes or Ventura’s recent test results; and without considering the IDEA and California special education requirement that Student be educated in the least restrictive environment. (20 U.S.C. § 1412(a)(5); 34 C.F.R. 300.114; Ed. Code § 56040.1) In her testimony, Dr. Januszewski amended this recommendation to provide for after school intervention due to her concerns that removal of Student from general education English Language Arts class might negatively impact Student’s college admission or sports eligibility.

DR. JANUSZEWSKI’S SPECIFIC LEARNING DISABILITY DETERMINATION

Significant questions were raised as to the reliability of Dr. Januszewski’s determination that Student qualified for special education in the category of specific learning disability. In reaching her conclusion, Dr. Januszewski’s strength and weaknesses analysis focused on a single low academic subtest score, and a single low average cognitive subtest, rather than the composite scores, to establish Student’s pattern of strengths and weaknesses. In doing so, Dr. Januszewski dismissed the prevailing average test results in both her own and Ventura’s testing. She then also compared the single low subtest score, which was a significant outlier to the other scores Student achieved, to Students full scale IQ, concluding that comparison, also, demonstrated a specific learning disability. In neither case did Dr. Januszewski identify an impact on Student’s educational performance.

Mr. Vlahos was critical of Dr. Januszewski’s approach to determining that Student had a specific learning disability. He questioned the focus on a single subtest score to establish academic or cognitive weaknesses, stating that such a comparison did not comport with the usual professional practice. According to Mr. Vlahos, it was considered more reliable to compare composite scores than to “cherry pick” individual subtest scores; as the latter resulted in conclusions that were not accurate representations of the testing. The evidence established his criticisms were valid. On cross-examination, Dr. Januszewski acknowledged that the use of composites for purposes of specific learning disability comparisons “yields a stronger case.” Dr. Januszewski’s tendency to misconstrue information, and her disregard of facts that were inconsistent with her conclusion that Student should be eligible for special education, called into question her objectivity in analyzing the testing data. Her presentation of Student’s testing results did not provide an accurate portrayal of Student’s testing performance. For these reasons in addition to the other credibility concerns noted, Dr. Januszewski’s opinions were given little weight.

OTHER HEALTH IMPAIRMENT VENTURA’S TESTING

A student may be eligible for special education in the category of other health impairment if she has a chronic or acute health impairment that limits her strength, vitality, or alertness, including a heightened alertness to environmental stimuli, that results in limited alertness with respect to the educational environment; and that adversely affects a child’s educational performance such as attention deficit disorder or attention deficit hyperactivity disorder. (34 C.F.R. § 300.8(c)(9); Ed. Code, § 56339, subd. (a); Cal. Code. Regs., tit. 5, § 3030 subd. (b)(9).)

Ventura conducted a thorough and valid assessment to determine whether Student had health impairments that impacted her ability to access her education. Teachers consistently testified that Student demonstrated no attentional difficulties in their classes. Ventura’s observation of Student in class showed her to be on task 98 percent of the time, with appropriate focus on the teacher or her peers depending on whether the teacher was offering instruction or Student was working on a group project. In addition to interviewing teachers, Mother, and Student, Mr. Vlahos used standardized instruments to assess Student’s social-emotional functioning. Mother and Student completed rating scales from the Behavior Assessment System for Children, 3rd edition. Mother rated Student’s anxiety level in the “at risk” range, indicating a possibly developing problem that should be monitored closely. She noted no other concerns. Specifically, all attention measures were average. Mother rated Student as “low” in the area of hyperactivity, which is the rating indicating risk below average on this scale. Student rated herself as average in every category, with the exception of self-esteem, on which she self-assessed at just over the “at risk” threshold.

Student’s middle school teachers for math, and English language arts completed rating scales from the Connors, 3rd edition. Student’s teachers rated her in the average risk level in every category, which included, inattention; hyperactivity and impulsivity; learning problems and executive functioning; defiance and aggression; and peer relations. These ratings aligned with teacher reports of Student’s function in the classroom as being at least similar and often superior to her peer group generally. None of the testing or information regarding Student’s academic achievement or peer interactions indicated any chronic or acute health impairment that was impairing her educational performance. Ventura met its burden of establishing that Student did not meet the eligibility criteria for having any other health impairment.

DR. JANUSZEWSKI’S ATTENTION ASSESSMENT

Dr. Januszewski also tested Student in the area of attention, based on Mother’s concerns. Dr. Januszewski’s diagnosis of Attention Deficit Hyperactivity Disorder or ADHD, was not thorough or reliable. Her diagnosis was based primarily on anecdotal information provided by Mother, and old records noting comments from Student’s elementary teachers, rather than from testing data; ratings; interviews from any middle school or high school teachers; or from observations of Student in the classroom setting. The diagnosis also fails to account for Dr. Januszewski’s own reported observations of Student while testing, or Student’s educational performance. During testing, Dr. Januszewski observed Student as being cooperative, reflective and engaged, with a coherent and linear thought process demonstrating good insight and motivation. Dr. Januszewski mentions occasional fidgety behavior during the testing. However, she also points out Student was often waiting for the test to progress, asking for the next step. Dr. Januszewski also says Student “often appeared to zone out” during the interview and verbal measures, but did not describe specific instances or instruments impacted and did not note how frequently that occurred. She noted Student’s scores on the Verbal Expanded Crystallized Index feel in the average range and represented Student’s processing strength.

Dr. Januszewski noted Student’s prior diagnosis of ADHD, and Mother’s concerns regarding Student’s difficulties at home sustaining attention, making careless mistakes, “zoning out,” not finishing tasks, being disorganized, avoiding tasks that require sustained attention, losing things, being easily distracted, and being forgetful. Ventura’s assessments refuted these characterizations. Although Student did endorse occasionally “zoning out” at school, her comment was associated with the occasional times she found class boring. Early elementary school records included comments from teachers noting that Student was talkative in class. However, Dr. Januszewski did not interview any of Student’s teachers from either middle school or high school; or conduct any classroom observations. Nor did she reconcile Student’s solid performance in her rigorous high school courses or consistent honor roll history throughout middle school with her conclusions regarding Student’s attention deficits.

In a brief reference to her own assessment data of Student’s behavior, ADHD, and executive functioning, Dr. Januszewski acknowledges that “the questionnaires are not significant other than Student’s self-report of borderline level ADHD symptoms on the Auchenbach scale.” However, while mentioning what appears to be the only notable score, during her discussion of attention deficit, Dr. Januszewski fails to account for the other ratings from Student and the ratings from Mother on that instrument, which were in the normal range.

Dr. Januszewski’s overall conclusion regarding Student’s attention is concerning in its distortion of the testing outcomes. She asserts Student has “inconsistent performance across most academic tasks in this evaluation” which conclusion was not explained, given the nearly consistent average to above-average performance on both Dr. Januszewski’s own academic achievement testing and Ventura’s. However, based on the assertion of inconsistent performance, Dr. Januszewski concludes that “when measured ‘in vivo’ Student’s attention is quite impaired.” Dr. Januszewski concludes by noting, “ADHD-1 is often not obvious with girls who are well-behaved and well-liked and who do not have overt hyperactivity” but fails to point out facts that would point to any current attention difficulties Student demonstrates in the academic environment. Overlooked in Dr. Januszewski’s analysis are Student’s school performance, for which she received nearly straight A’s and in some cases A+ grades, during Middle School, while juggling a demanding sports schedule, playing on two soccer teams; and regularly switching between her Mother and Father’s homes.

No evidence established that Student’s educational performance was adversely affected by ADHD. Student did not demonstrate any indications of an attention problem during her approximately one hour of testimony in this hearing. All ratings and interviews placed Student in the normal range in terms of her attention. All of Student’s teachers and her high school case manager testified to Student’s impressive organizational skills and focus related to her schoolwork. Dr. Januszewski’s conclusion that Student has ADHD is not supported by facts, by her own testing data, or by any testing conducted by Ventura. Dr. Januszewski’s conclusion that Student should be eligible for special education under the category of other health impairment due to an attention deficit is not persuasive.

OTHER ELIGIBILITY CATEGORIES

Demonstration that a disability results in an adverse effect on educational performance, coupled with a need for instruction and services that cannot be provided in the general education program, is required for all categories of special education eligibility. (Hood v. Encinitas Union School District, (9th Cir. 2007) 486 F. 3d 1099, 1109; Ed. Code, §§ 56026, 56333; Cal. Code Regs., tit. 5, § 3030.) No evidence was presented that Student had unmet needs in any category of eligibility that adversely affected her educational performance; or that she required supplemental specialized instruction due to an inability to access her education. Student’s exit from special education was valid as there was no evidence establishing eligibility under any other category.

STUDENT’S ADDITIONAL CLOSING ARGUMENTS

In her closing brief, Student argues that California common core standards require that Student read, not be “read to” as using an audible form of books entails. However, Student submitted no evidence of the California common core standards and made no request for official notice of any documents that would allow an examination of the assertions in the brief. Furthermore, Student failed to establish that she could not read at grade level. Overall testing from both Ventura and Student’s IEE, as well as Student’s school work established that Student’s reading capabilities are average for her age, and do not impair her educational performance.

On several occasions, Student asserted that her reading deficit resulted in substantially longer time being needed for her to complete school work than her peers. Various anecdotal comparisons, some as high as twice as long, were proffered without an evidentiary corroboration. At hearing Mother recalled Student took two hours per night doing homework in seventh grade and two to three hours, two to three times per week; with another three hours on the weekend prior to classes being moved to distance learning due to the Covid-19 health emergency. When providing information to the examining optometrist, Dr. Mayer, on March 9, 2020, which was prior to the initiation of distance learning, Mother stated Student did homework one to two hours per night two to three days per week and two to three hours per night, one to two days per week. No evidence of how long other students took to complete homework was offered.

None of Student’s teachers recalled any concerns being expressed by Student or by Mother during middle school of difficulty due to homework taking an extraordinarily long time. Teachers did note, however, that Student was a very hard worker and “does what it takes” to do “quality work” of which Student was proud. Mother’s intake notes to the optometrist echoed the teachers, stating, Student is a “hard worker and won’t be denied.” Student did not establish a reading deficit was impairing her educational performance or negatively impacting her ability to access her education. Accordingly, these arguments were considered; but are not consistent with the evidence presented and are not persuasive.

ISSUE 2: MAY VENTURA EXIT STUDENT FROM SPECIAL EDUCATION AND RELATED SERVICES WITHOUT PARENT CONSENT?

If an IEP team believes that a student is no longer eligible for special education, the law provides for reassessment and specifically charges the IEP team to consider whether a pupil continues to need special education and related services. (Ed. Code, § 56381, subd. (b)(2)(C).)

Ventura conducted Student’s required triennial assessments in late May and June of 2019, after properly obtaining Mother’s consent. (20 U.S.C. §1415 subd. (b)(3) and (4); and subd. (c).) These assessments were legally compliant as determined herein. Student did not meet the definition of an eligible student who, by reason of their disability, needs special education and related services. (20 U.S.C. § 1401(3)(A).)

Student argued in her closing brief that Ventura failed to give proper prior written notice that it was considering removing Student from special education. She points to notices of upcoming meetings for the June 5, 2019 IEP team meeting and the December 4, 2019 IEP team meeting as being defective in their lack of required prior written notice elements. Student argued, without citation of authority, that prior written notice was required at the point when removal was being considered but had not yet been proposed. Prior written notice is required when the school district proposes or refuses to initiate a change in the identification, assessment, or educational placement of a child with special needs or the provision of a free appropriate public education. (20 U.S.C. § 1415(b)(3); 34 C.F.R. § 300.503; Ed Code § 56500.4.)

Had Ventura provided a prior written in advance of either IEP team meeting, a question of predetermination might have arisen as an IEP team meeting was required prior to making a proposal to exit Student from special education. (Ed. Code § 56381, subd. (b).) Student failed to establish that Ventura made any proposal to change her placement until the June 5, 2019 IEP team meeting. Therefore, the evidence did not support a conclusion that any notice prior to that meeting was due.

The evidence established that Student does not require special education or related services in order to achieve passing marks in the general education curriculum and advance from grade to grade. Student had achieved consistently high marks for the past three school years without any specialized academic instruction or modification of standards. During the entirety of ninth grade she only inconsistently utilized her accommodations, all of which are provided to all Foothill Technology High School general education students. Ventura has established by a preponderance of the evidence that Student no longer qualifies for special education and thus may be “exited” from the program without parental consent.

STUDENT’S ISSUES <h3>ISSUE 3: BEGINNING DECEMBER 17, 2017, THROUGH DECEMBER 17, 2019, DID VENTURA DENY STUDENT A FAPE BY FAILING TO OFFER ADEQUATE SERVICES, SPECIFICALLY: SPECIALIZED ACADEMIC INSTRUCTION IN ENGLISH LANGUAGE ARTS; A SUMMER INTENSIVE READING INTERVENTION PROGRAM; AN ANNUAL SUBSCRIPTION TO LEARNING ALLY; COUNSELING TO ADDRESS EXECUTIVE FUNCTIONING NEEDS; VISION THERAPY SERVICES; AND SERVICES TO ADDRESS STUDENT’S PHONETIC DECODING DEFICITS?

Student asserts that Student should have been provided with “services to assist with phonetics and Dyslexia,” as a weakness in orthographic processing was consistently identified as the basis for Student’s special education eligibility. Student asserted initially that she should have been provided with specialized academic instruction in English Language Arts, counseling to address executive functioning needs, and vision therapy services. Ventura argues that Student’s academic performance establishes that her IEP was providing a FAPE.

Student has been determined to be ineligible for special education and related services as of June 5, 2019. Districts are not obligated to provide a FAPE as defined by the IDEA and state special education laws, to a child who is not eligible for special education. (R.B. v. Napa Valley Unified School District, (2007) 496 F. 3d 932, 942.) Therefore, this issue is limited to the time period from December 17, 2017, to June 4, 2019.

The basic requirement that must be met for a school district to provide FAPE was announced by the U.S. Supreme Court in Board of Ed. of Hendrick Hudson Central School Dist., Westchester County. v. Rowley, (1982) 458 U.S. 176, 102 S.Ct. 3034, 73 L.Ed.2d 690.) The Court held that the guaranteed, substantively adequate program of education to all eligible children is satisfied if a child’s IEP sets out an educational program that is “reasonably calculated to enable the child to receive educational benefits.” (Rowley, supra, 458 U.S. at 207, 102 S.Ct. 3034.) For children fully integrated in the regular classroom, this would typically require an IEP “reasonably calculated to enable the child to achieve passing marks and advance from grade to grade.” (Id., at 204, 102 S.Ct. 3034.) A district provides FAPE when it provides special education and related services, that meet the state educational standards and implement a properly developed IEP, at public expense, under public supervision and direction, in a state-approved preschool, elementary, or high school. (20 U.S.C. § 1401 (9).)

ADDITIONAL SPECIALIZED ACADEMIC INSTRUCTION IN ENGLISH LANGUAGE ARTS

Student failed to meet her burden of establishing that she required specialized academic instruction in English Language Arts. Although Dr. Januszewski’s IEE report initially recommended that Student be removed from her general education English Language Arts class for three hours per week for specialized academic instruction in decoding words, the preponderance of the evidence established that Student did not need remedial reading instruction to access her education. None of the witnesses, including Mother, Student, or Student’s expert, testified that Student should have been removed from her general education English Language Arts classes in either seventh or eighth grade to receive differentiated instruction due to an inability to access the general education curriculum. Notably, at hearing, Student’s expert recommended against removing Student from her high school English classes for specialized academic instruction; expressing concern that missing her general education English Language Arts class might negatively impact Student’s eligibility for college acceptance or sports.

Student’s need for specialized academic assistance was considered at both Student’s 2017 and 2018 annual IEPs. The entire IEP team, including Mother, agreed that the general education classes were the least restrictive environment for Student, and that Student did not require specialized academic instruction as a direct service. A pupil shall be referred for special education instruction and services only after the resources of the regular education program have been considered and where appropriate utilized. (Ed. Code § 546303.) Student’s seventh and eighth grade teachers testified they did not modify the general education curriculum; or drop tests or homework assignment grades to allow Student to achieve a grade she did not earn. Student consistently earned A’s and B’s during the time frame at issue here. Student failed to establish that she had any unmet need that would have required the provision of specialized academic instruction in English Language Arts during the period from December 17, 2017 to June 4, 2019.

READING SUPPORTS INCLUDING A SUMMER INTENSIVE READING PROGRAM, ANNUAL SUBSCRIPTION TO READING ALLY, AND SERVICES TO ADDRESS STUDENT’S PHONETIC DECODING DEFICITS

Student steadily improved her reading skills from December 17, 2017, to June 4, 2019. Student earned consistently high grades throughout middle school, and state testing demonstrated grade level reading abilities by the middle of her eighth-grade year. Student’s triennial assessments showed average scores on all reading assessments given in 2019. The IEE opinions to the contrary were given little weight as previously explained.

Regarding any suggestion that Student should have summer reading interventions, no evidence indicating that Student regressed academically over the summer months such that either an extended school year program provided by Ventura in reading, or an intensive summer reading program by an outside agency, would have been necessary, either to avoid regression or to allow Student to access the general education curriculum. Extended school year education is required when it is established that a student, “… has unique needs and requires special education and related services in excess of the regular academic year. Such individuals shall have disabilities which are likely to continue indefinitely or for a prolonged period; and interruption of the pupil’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 disabling condition.” (Cal. Code Regs., tit. 5, § 3043.) Although Dr. Januszewski recommended that the IEP team consider a summer program, such as Lindamood Bell, and a subscription to “Reading Ally,” she did not establish that Student required these services to receive educational benefit. Student failed to meet her burden of proving that Ventura denied her a FAPE from December 17, 2017, to June 4, 2019, by failing to offer a summer intensive reading program, a subscription to Reading Ally, or outside services to address a phonetic decoding deficit.

VISION THERAPY SERVICES

Student asserts she was denied FAPE due to a failure to provide vision therapy services during the period from December 17, 2017 to December 17, 2019. The evidence established that Student was not eligible for special education or related services beginning June 5, 2019. As Student was not eligible for special education after June 5, 2019, she cannot be eligible for remedies for denial of a FAPE after that date. (R.B. v. Napa Valley Unified School District, supra, 496 F. 3d at p. 942.) Student’s arguments conflated the questions of Ventura’s obligation to provide vision therapy during the period of December 17, 2017 through June 4, 2019; and Ventura’s obligation to provide a vision therapy assessment during the 2019-2020 school year. Student asserts that Ventura should have been on notice of Student’s need for vision therapy during the period from December 17, 2017 to June 4, 2019 due to prior notice obtained from a 2016 private assessment that allegedly advised Ventura of the need for the assessment. She further asserts that Dr. Januszewski’s October 25, 2019 assessment, as well as the findings of an assessment report co-produced by optometrist, Dr. James Mayer, and vision therapist, Kelly Matthews, dated May 13, 2020, recommending vision therapy, also put Ventura on notice.

Student asserts that Student’s 2016 private assessment by Nick Barneclo raised the need for vision therapy and the IEP team failed to address it from the time of Student’s initial eligibility forward. Student asserts that the continuing nature of the dereliction of the district’s duty to assess continued into the applicable period under consideration in this hearing; thus the recommendation is not barred by the statute of limitations. The private assessment was conducted by Nick Barneclo who is represented on his report as holding a PhD and being a licensed psychologist. He did not testify at hearing and no corroborating evidence was presented as to his credentials or the opinions of his report. Findings of fact in a special education hearing may not be based solely on hearsay evidence. (Cal. Code Regs., tit. 5, § 3082 subd. (b).)

It is not necessary to make a finding as to the assessor’s qualifications or any statute of limitations bar, as the report cited does not make the recommendation asserted by Student. The 2016 report only acknowledged Student’s long-standing corneal issue, a medical condition that Mother testified had not caused Student problems and was regularly evaluated by an ophthalmologist. The Barneclo report recommended that these regular check-ups continue. Otherwise, the report acknowledged Student’s average visual processing testing scores. The report did not put the IEP team on notice of a need for vision therapy.

Student offered evidence of Dr. Januszewski’s recommendation for an assessment by a developmental optometrist in her October 25, 2019 IEE report and of a recommendation for vision therapy by Dr. James Mayer and Ms. Kelly Matthews in their co-written report dated May 13, 2020. Those recommendations came after the time period at issue. The “snapshot” rule instructs courts to judge the appropriateness of an IEP team’s determination as to Student’s needs on the basis of the information reasonably available to the parties at the time of the IEP meeting. (Adams v. Oregon, (9th Cir. 1999), 195 F.3d 1141, 1149.)

Finally, despite being followed by an ophthalmologist for many years, Student was never advised by the ophthalmologist to seek vision therapy or even a vision therapy assessment. Student did not meet her burden on this issue.

COUNSELING TO ADDRESS EXECUTIVE FUNCTION DEFICITS

Student failed to meet her burden of establishing that she had executive function deficits during the time she was eligible for special education. No evidence was offered of concerns being expressed by teachers, Student, or Parents regarding any inability by Student to meet her middle school academic expectations. Student’s own expert reported that testing of Student’s executive functioning skills on both the Delis-Kaplan Executive Function System Trail-Making Test showed and the Behavior Rating Inventory of Executive Function were solidly in the average and normal ranges, respectively. Nor did Student’s academic performance indicate impairment of any kind.

Student received honor roll level grades and often straight A’s during middle school. Furthermore, Student’s teachers consistently reported that she was at the top of her classes. No evidence was presented that Student had a suspected executive function disability or that she required counseling to address any unmet executive function needs. There was no denial of FAPE in this regard.

ISSUE 4: DID VENTURA DENY STUDENT A FAPE DURING THE 2019-2020 SCHOOL YEAR BY FAILING TO CONDUCT A VISION THERAPY ASSESSMENT?

In this issue, Student articulated the question as whether she was denied FAPE in the 2019-2020 school year, as opposed to whether Ventura failed to assess her for vision therapy needs. The evidence established that Student was not eligible for special education or related services beginning June 5, 2019. A Student who is not eligible for special education cannot be eligible for remedies for denial of a FAPE. (R.B. v. Napa Valley Unified School District, supra, 496 F. 3d at p. 942.) However, the dates included in the issue continue through the 2019-2020 school year which necessarily includes a claim of an independent obligation to assess through the school year’s end, and so that renewed or independent assessment obligation must also be analyzed.

The IDEA requires that, if a school district has notice that a child has displayed symptoms of a disability that is impairing her educational performance, it must assess that child in all areas of that disability using the thorough and reliable procedures specified in the Act. (20 U.S.C. 1401(3); Ed. Code § 56026; Timothy O. v. Paso Robles Unified School District (9th Cir. 2016) 822 F.3d 1105, 1119.) Student asserts that Ventura should have been on notice of Student’s need for a vision therapy assessment due to a 2016 private assessment that allegedly advised Ventura of the need for the assessment. She further asserts that Dr. Januszewski’s assessment also put Ventura on notice. Student also notes the findings of an assessment report co-produced by optometrist, Dr. James Mayer, and vision therapist Kelly Matthews, dated May 13, 2020, recommending vision therapy.

The 2016 Barneclo assessment did not put Ventura on notice that Student needed a vision therapy assessment during the 2019-2020 school year. As previously discussed, that report simply acknowledged Student’s congenital corneal abnormality and recommended that student continue her continued monitoring by the ophthalmologist. No notice of vision problems was established during Student’s middle school years. Dr. Januszewski’s October 25, 2019 report, reviewed by the IEP team on December 4, 2019, recommended that Student be assessed by a developmental optometrist regarding possible tracking deficits Dr. Januszewksi thought might be contributing to a reading disorder. The report did not establish that Student had a reading disorder, or that the asserted reading disorder or any visual processing issue adversely affected Student’s educational performance. Student’s Foothill teachers never had complaints from Student regarding an inability to read the board, books or a computer screen. Nor did Student report difficulties with her eyes.

Student also introduced evidence of a vision therapy assessment dated May 13, 2020, jointly conducted by optometrist Dr. Mayer and vision therapist, Ms. Matthews. However, no evidence was presented that the assessment report was provided to Ventura prior to its disclosure as an exhibit for this hearing. Student did report vision improvement to one teacher, after her March 9, 2020 vision therapy assessment, when she followed a suggestion by the assessing vision therapist that she use clear purple overlays and purple tinted glasses for reading. However, no evidence was presented that, without those items, Student was unable to access her education. Nor did Student prove that the lack of those items or the lack of vision therapy resulted in an impairment of Student’s educational performance. Ventura is obligated to provide Student with a FAPE. However, the FAPE obligation does not include a requirement that Ventura “furnish every special service necessary to maximize each [special education student’s] potential.” (Rowley, supra, 458 U.S. at 199, 102 S.Ct. 3034.)

Nothing presented to Ventura put them on notice that Student needed a vision therapy assessment during the 2019-2020 school year. Student did not establish that Ventura had knowledge of, or reason to suspect, that she had a vision impairment that might be adversely impacting her education at any time before or after June 5, 2019. Therefore, Ventura was not required to assess in this area at any time at issue in this case.

ISSUE 5: DID VENTURA’S JUNE 2019 IEP WHICH DETERMINED STUDENT NO LONGER QUALIFIED FOR SPECIAL EDUCATION AND RELATED SERVICES DENY STUDENT A FAPE?

Student asserts that Ventura erred when it determined that she did not qualify for special education; thus, the June 5, 2019 IEP that sought to disqualify her from special education services denied her a FAPE. As has been discussed, Ventura’s conclusion was correct. Student was properly disqualified from receipt of special education. Therefore, the June 5, 2019 IEP did not deny student a FAPE. (R.B. v. Napa Valley Unified School District, supra, at p. 942.)

ISSUE 6: DID VENTURA DENY STUDENT A FAPE BY FAILING TO IMPLEMENT HER SEPTEMBER 7, 2018 IEP AFTER THE JUNE 2019 IEP TEAM MEETING?

In addressing this issue in her closing brief, Student argues that the “operative stay put IEP was not complied with.” During the pendency of a hearing, a student is entitled to remain in her current placement unless the district and parents agree otherwise. (20 U.S.C. § 1415(j); 34 C.F.R. § 300.518(a) (2006); Ed. Code, § 56505 subd. (d).) In this case, however, the issue raised was whether Student was denied a FAPE due to a failure to implement her IEP after the June 5, 2019 IEP team meeting. The question of stay put compliance was not pled. Thus, this decision does not reach the claim of whether Student’s right to stay put was denied and if so whether she is entitled to any remedy for such a denial.

As to the question of whether Ventura denied Student a FAPE by its failure to implement her September 7, 2018 IEP following the June 5, 2019 IEP team meeting, Student failed to meet her burden of proving she was eligible to receive a FAPE following the June 5, 2019 IEP team meeting. It has been determined here that Student was validly exited from special education on June 5, 2019. She, therefore, was no longer entitled to receive a FAPE pursuant to the IDEA or California special education laws. (R.B. v. Napa Valley Unified School District, supra, at p. 942.)

CONCLUSIONS AND PREVAILING PARTY

Pursuant to California Education Code section 56507, subdivision (d), the hearing decision must indicate the extent to which each party has prevailed on each issue heard and decided.

VENTURA’S ISSUES

1. Ventura appropriately determined that Student no longer qualified for special education and related services as of her June 5, 2019 IEP. Ventura prevailed on issue one.

2. Ventura may exit Student from special education and related services without Parental consent. Ventura prevailed on issue two.

STUDENT’S ISSUES

3. Ventura did not deny Student a FAPE, beginning December 17, 2017, through December 17, 2019, by failing to offer:

a. specialized academic instruction in English language arts; b. a summer intensive reading intervention program; c. an annual subscription to Learning Ally; d. counseling to address executive functioning needs; e. vision therapy services; or f. services to address Students phonetic decoding deficits.

Ventura prevailed on issue three.

4. Ventura did not deny Student a FAPE during the 2019-2020 school year by failing to conduct a vision therapy assessment. Ventura prevailed on issue four.

5. Ventura’s June 2019 Individual education program or IEP, which determined Student no longer qualified for special education and related services, did not deny Student a FAPE. Ventura prevailed on issue five.

6. Ventura did not deny Student a FAPE by failing to implement her September 7, 2018 IEP after the June 2019 IEP team meeting. Ventura prevailed on issue six.

ORDER

1. Ventura’s June 5, 2019 IEP appropriately determined that Student no longer qualifies for special education and related services.

2. Ventura may exit Student from special education without Parent consent. 3. All of Student’s requests for relief are denied.

RIGHT TO APPEAL THIS DECISION

This is a final administrative decision, and all parties are bound by it. Pursuant to Education Code section 56505, subdivision (k), any party may appeal this Decision to a court of competent jurisdiction within 90 days of receipt.

PENELOPE S. PAHL
Administrative Law Judge
Office of Administrative Hearing