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OAH 2019120845

March 20, 2020

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Monterey Peninsula Unified School District v. Student - Student Prevailed

BEFORE THE
OFFICE OF ADMINISTRATIVE HEARINGS
STATE OF CALIFORNIA

CASE NO. 2019120845

MONTEREY PENINSULA UNIFIED SCHOOL DISTRICT,
v.
PARENT ON BEHALF OF STUDENT.

DECISION

MARCH 30, 2020

On December 20, 2019, the Office of Administrative Hearings, called OAH, received a due process hearing request from Monterey Peninsula Unified School District, naming Student as respondent. On January 6, 2020, OAH granted a joint request to continue. Administrative Law Judge Marlo
Nisperos heard this matter in Monterey on February 11, and 12, 2020.
Elizabeth Rho-Ng, attorney at law, represented Monterey and was assisted by
Denise Lee, attorney. Katie Rivera, Monterey’s Senior Director of Special Education
Services attended all hearing days on Monterey’s behalf. Parent briefly appeared and
represented Student on the first day of hearing accompanied by Megan Williams.
Student did not attend.
Before the parties made their opening statements, Parent and Williams decided
to leave. The ALJ informed Parent the hearing would proceed in their absence if they
chose to leave. The ALJ encouraged Parent to participate in the proceedings and
advised they were welcome to return to the hearing at any time. Parent did not return
for the remainder of the due process hearing.
At Monterey’s request, the matter was continued to March 3, 2020, for a written
closing brief. Monterey timely submitted its closing brief and the record closed on
March 3, 2020.

ISSUE

Was Monterey’s October 30, 2019 psychoeducational assessment appropriate,
such that Student is not entitled to an independent educational evaluation at
Monterey’s expense?

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 a
free appropriate public education, referred to as FAPE, to the child. (20 U.S.C.
§ 1415(b)(6) & (f); 34 C.F.R. § 300.511; Ed. Code, §§ 56501, 56502, and 56505; Cal. Code
Regs., tit. 5, § 3082.) The party requesting the hearing is limited to the issues alleged in
the complaint, unless the other party consents, and has the burden of proof by a
preponderance of the evidence. (20 U.S.C. § 1415(f)(3)(B); Ed. Code, § 56502, subd. (i);
Schaffer v. Weast (2005) 546 U.S. 49, 57-58, 62 [126 S.Ct. 528, 163 L.Ed.2d 387]; and see
20 U.S.C. § 1415(i)(2)(C)(iii).) Monterey filed the request for due process hearing and has
the burden of proof. 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).)
At the beginning of the hearing, Parent made an oral motion to disqualify the
ALJ. Parent stated the reason for the challenge was because they were uncomfortable
and did not trust anyone. California Government Code § 11425.40, subdivision (a)
states, “The presiding officer is subject to disqualification for bias, prejudice, or interest
in the proceeding.” The ALJ denied Parent’s motion for disqualification because the
presiding officer could be fair and impartial and had no personal interest in the
proceeding.
Student resided with Parent within Monterey’s geographic boundaries at all
relevant times. Student was 16 years old and in the11th grade at the time of hearing.
Student was initially deemed eligible for special education and related services in fall
2019 under the category other health impairment.

ISSUE: WAS MONTEREY’S OCTOBER 30, 2019 PSYCHOEDUCATIONAL
ASSESSMENT APPROPRIATE, SUCH THAT STUDENT IS NOT ENTITLED TO
AN INDEPENDENT EDUCATIONAL EVALUATION AT MONTEREY’S EXPENSE?

Monterey contends the psychoeducational assessment met all legal requirements
such that Student is not entitled to an independent educational evaluation at public
expense. For the reasons discussed below, Monterey failed to meet its burden
establishing that its psychoeducational assessment was legally compliant. Accordingly,
Student is entitled to an independent psychoeducational evaluation at public expense.
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].)
Parents and school personnel develop an individualized education program,
referred to as an IEP, for an eligible student based upon state law and the IDEA. (20
U.S.C. §§ 1401(14), 1414(d)(1); and see Ed. Code, §§ 56031, 56032, 56341, 56345, subd.
(a), and 56363, subd. (a); 34 C.F.R. §§ 300.320, 300.321, and 300.501.)
ASSESSMENT PLAN
Parental consent is required prior to conducting an initial evaluation to determine
if a child qualifies for special education and related services as a child with a disability.
(20 U.S.C § 1414(a)(1)(D)(i)(I); Ed. Code, § 56043, subd. (b).) A proposed assessment plan
shall be developed within 15 calendar days of the referral for assessment. (Ed. Code, §
56043, subd. (a).)
The assessment plan Parent signed on September 6, 2019 identified assessments
necessary to determine, among other things, whether Student met the criteria for
specific learning disability. The plan listed areas to be assessed and the individual
responsible for administering each test. A special education teacher was designated to
conduct the pre-academic and academic performance assessments. The school
psychologist was assigned assessments in the area of cognition.
ASSESSMENTS MUST BE CONDUCTED BY QUALIFIED INDIVIDUALS
Assessments must be conducted by individuals who are both “knowledgeable of
[the student’s] disability” and “competent to perform the assessment, as determined by
the local educational agency.” (Ed. Code, §§ 56320, subd. (g), 56322; see 20 U.S.C. §
1414(b)(3)(A)(iv).) A psychological assessment must be performed by a credentialed
school psychologist. (Ed. Code, § 56324, subd. (a).)
Eugenie Adams was employed by Monterey as a credentialed school psychologist
since July 2012. While at Monterey, Adams conducted between 60 and 70
psychoeducational assessments per year and was qualified to assess in the eligibility
categories of: autism, other health impairment, specific learning disability, and
emotional disturbance. Adams was competent to perform the psychological assessment
component of the psychoeducational evaluation in this case. Adams was
knowledgeable of Student’s suspected disabilities, specifically, other health impairment
based on attention deficit hyperactivity disorder-like behavior and specific learning
disability.
Kevin O’Haire conducted Student’s academic testing and authored an academic
assessment report. O’Haire’s academic testing results were included in Adams’
psychoeducational report in the analysis of Student’s eligibility under specific learning
disability.
O’Haire did not testify at the due process hearing. Monterey offered no evidence
regarding O’Haire’s education, background, training, or experience. Monterey did not
establish that O’Haire was knowledgeable of Student’s suspected disabilities.
O’Haire was a special education teacher but it is unknown what licenses or
credentials O’Haire possessed to qualify for that position, and what training and
experience O’Haire had in conducting standardized academic testing. Therefore,
Monterey did not establish that O’Haire was competent to perform the WoodcockJohnson Tests of Achievement, Fourth Edition forming the basis for the academic
assessment report.
Adams relied on O’Haire’s Woodcock-Johnson test results when concluding
Student did not have a severe discrepancy between cognitive ability and academic
achievement, as commonly done to determine eligibility under the category of specific
learning disability. A specific learning disability is a disorder in one or more of the basic
psychological processes involved in understanding or in using language, spoken or
written, which may manifest itself in the imperfect ability to listen, think, speak, read,
write, spell, or perform mathematical calculations. (20 USC § 1401(30); 5 CCR §
3030(b)(10); 34 CFR § 300.8(c)(10); Ed. Code, § 56337, subd. (a).) To find eligibility under
specific learning disability, a local educational agency may consider whether a student
has a severe discrepancy between achievement and intellectual ability in oral expression,
listening comprehension, written expression, basic reading skill, reading comprehension,
mathematical calculation, or mathematical reasoning. (Ed. Code, § 56337, subd. (b).) The
assessment plan demonstrated Monterey’s intent to evaluate Student for specific
learning disability by comparing O’Haire’s academic achievement assessment and
Adams’ cognition assessment results.
Adams explained Student did not exhibit a discrepancy between cognitive
functioning, as determined during the psychological testing, and academic achievement,
as determined by O’Haire’s testing. O’Haire’s academic assessment was a necessary
component of Adam’s psychoeducational assessment report. Monterey failed to meet
its burden to establish O’Haire was competent to perform the academic assessment that
Adams relied upon and incorporated by reference into the psychoeducational report.
ASSESSMENT TOOLS
A district must use a variety of assessment tools and strategies to gather relevant
functional, developmental, and academic information about the child, including
information provided by the parent that may assist in determining whether he is eligible
for special education, and what the content of his program should be. (20 U.S.C. §
1414(b)(2)(A); 34 C.F.R. § 300.304(b)(1).) An assessment tool must “provide relevant
information that directly assists persons in determining the educational needs of the
child.” (34 C.F.R. § 300.304(c)(7).)
In selecting assessment tools, the assessor must do more than pick a generally
valid instrument. Tests and other assessment materials must be used “for purposes for
which the assessments or measures are valid and reliable.” (20 U.S.C. § 1414(a)(3)(A)(iii);
Ed. Code, § 56320, subd. (b)(2).) Assessment tools must be “tailored to assess specific
areas of educational need . . .” (Ed. Code, § 56320, subd. (c).) “Special attention shall be
given to the [child’s] unique educational needs . . .” (Id., subd. (g).)
Assessors must use “technically sound instruments that may assess the relative
contribution of cognitive and behavioral factors, in addition to physical or
developmental factors.” (20 U.S.C. § 1414(b)(2)(C); 34 C.F.R. § 300.304 (b)(3).)
‘Technically sound instruments’ generally refers to assessments that have been shown
through research to be valid and reliable.” (Assistance to States for the Education of
Children With Disabilities and Preschool Grants for Children With Disabilities, 71
Fed.Reg. 46540-46541, 46642 (Aug.14,2006).)
Tests and assessment materials must be selected and administered so as not to
be racially, culturally or sexually discriminatory; and must be provided and administered
in the student’s primary language or other mode of communication unless this is clearly
not feasible. (20 U.S.C. § 1414(a)(3)(A)(i)-(iii); Ed. Code, § 56320, subd. (a).) Assessments
and other evaluation materials must be administered by trained and knowledgeable
personnel in conformance with the instructions provided by the producer of such tests.
(20 U.S.C. § 1414(b)(3)(A)(iv) &(v); 34 C.F.R. § 300.304(c)(iv) & (v); Ed. Code § 56320, subd.
(b)(3).)
Adams gathered relevant functional, developmental, behavioral, and academic
information in preparing the psychoeducational assessment report. Adams reviewed
school records, interviewed current and former teachers, and observed Student in the
classroom. Adams interviewed Student and Parent to learn of Student’s medical, family,
and developmental history. Adams selected a variety of technically sound tools that
assessed Student’s cognitive, behavior, physical, and developmental factors. These
strategies helped determine if Student was eligible for special education and the
content of the IEP. The evidence established that all tests Adams administered were in
conformance with instructions provided by the producer. The instruments selected
generated results that reflected Student’s current aptitude and achievement.
Student immigrated to the United States when they were four years old and
English was not their native language. By 2016, Monterey re-designated Student from
English language learner to fluent English proficient. The evidence established that by
the time of the assessment, Student’s primary language was English. Therefore, it was
proper to conduct the assessments in English since it is Student’s primary language.
To measure Student’s cognitive ability, Adams chose to administer the Kaufman
Assessment Battery for Children, Second Edition, because it was linguistically and
culturally sensitive. By design, the mental processing and nonverbal processing indexes
removed cultural bias and were selected so the resulting intelligence quotient, or IQ,
scores were accurate and valid considering Student’s immigration history. This
assessment tool generated valid results that accurately reflected Student’s cognitive
abilities and IQ.
Unlike Adam’s testing, Monterey did not present evidence regarding whether the
Woodcock-Johnson test administered by O’Haire was used for purposes for which the
test is valid and reliable. Monterey did not establish that the tool was tailored to assess
specific areas of educational need or whether special attention was given to Student’s
unique needs when selecting this tool. There was no evidence demonstrating that
O’Haire’s selected instruments were technically sound and not racially, culturally or
sexually discriminatory. Additionally, there was no evidence that the test was
administered by a trained individual or in conformance with test instructions. Monterey
did not meet its burden to prove the instrument administered for the academic
assessment was legally compliant.
Adams reported there was no discrepancy between Student’s academic
achievement on the Woodcock-Johnson test and the cognitive functioning scores seen
on the Kauffman Assessment Battery for Children. After considering both test results,
Adams opined Student did not meet eligibility criteria. Academic testing performed by
O’Haire was an essential part of the evaluation for specific learning disability. O’Haire’s
academic assessment was inextricably intertwined with Adams’ psychoeducational
assessment.
At hearing, Monterey focused on Adam’s cognitive evaluation. At issue, however,
is the legal compliance of the psychoeducational assessment, not merely Adams’ testing
and conclusions. Adams authored the report. The report, however, relies on both
Adam’s testing and that conducted by O’Haire. The Woodcock-Johnson test results
were required for the analysis of specific learning disability eligibility. However,
Monterey did not demonstrate the academic assessment met legal requirements. As a
result, Monterey has failed to meet its burden of proving the psychoeducational
assessment complied with state and federal legal requirements.

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. Monterey’s October 30, 2019 psychoeducational assessment was not legally
compliant.
2. Student is entitled to an independent psychoeducational evaluation at
Monterey’s expense.
3. Student prevailed on the sole issue heard and decided.

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.

Marlo Nisperos
Administrative Law Judge
Office of Administrative Hearings