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OAH 2020010158

March 19, 2020

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Trivium Charter School v. Student - District Prevailed

BEFORE THE
OFFICE OF ADMINISTRATIVE HEARINGS
STATE OF CALIFORNIA

CASE NO. 2020010158

TRIVIUM CHARTER SCHOOL,
v.
PARENT ON BEHALF OF STUDENT.

DECISION

MARCH 19, 2020
On January 3, 2020, the Office of Administrative Hearings, called OAH, received a due process hearing request from Trivium Charter School, naming Parent, on behalf of Student, as respondent. Parent on behalf of Student shall be referred to as Student. On January 13, 2020, Trivium moved to continue the matter due to unavailability of counsel. On January 17, 2020, OAH granted Trivium’s motion to continue for good cause. On January 30, 2020, Student requested a continuance because Parent did not receive Trivium’s evidence binder five business days prior to the hearing. On January 31, 2020, OAH granted Student’s motion to continue for good cause.
Administrative Law Judge Cararea Lucier heard this matter in Santa Barbara, California,
on February 5, 6, and 7, 2020.
Hollis R. Peterson represented Trivium Charter School. Trisha Vais,
Executive Director, attended all hearing days on Trivium’s behalf. Annette Lawrence,
Special Education Service Specialist, attended some hearing days on Trivium’s behalf.
Parent represented Student. Student did not attend the hearing.
At the parties’ request, OAH continued the matter to February 24, 2020, for
written closing briefs. The record was closed, and the matter submitted on
February 24, 2020.

ISSUE

Is Trivium entitled to perform Student’s triennial assessment as proposed to
Parent on November 14, 2019, without parental consent?

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
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).) Here, Trivium filed the complaint and has 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).)
BACKGROUND
Student was 16 years old and in tenth grade at the time of hearing. Student was
enrolled in Trivium Charter School at all relevant times. Student was eligible for special
education under the category of other health impairment.
Student was diagnosed with Tourette’s Syndrome, Generalized Anxiety Disorder,
Obsessive Compulsive Disorder, and Pediatric Autoimmune Neuropsychiatric Disorder
associated with Streptococcus, referred to as PANDAS. PANDAS is a rare disorder that
occurs due to a bacterial infection that affects the body’s immune system. PANDAS can
produce a wide range of neuropsychiatric symptoms, including sudden onset tic
disorders, obsessive compulsive disorders, and irritability. Other symptoms include
aggression, severe separation anxiety, panic attacks, emotional lability, chronic fatigue,
restrictive eating, attention deficit, and deterioration in school performance. Despite her
disabilities, Student created beautiful artwork and music. Student was a talented singer
and aspiring song writer.
Student attended school each day at Trivium accompanied by her mother and
her service dog. Trivium was an independent study charter school. Trivium was
authorized by Blochman Union School District, but was its own local educational agency,
referred to as an LEA. Although it was a non-classroom-based program, Trivium offered
a classroom experience for two days per week. The classroom days were referred to as
A Classical Education days, referred to as ACE days. On ACE days, students attended
classes with teachers and peers, from 9:00 AM to 3:15 PM. Parent’s goal was for Student
to attend as many ACE days as possible.

ISSUE: IS TRIVIUM ENTITLED TO PERFORM STUDENT’S TRIENNIAL
ASSESSMENT AS PROPOSED TO PARENT ON NOVEMBER 14, 2019,
WITHOUT PARENTAL CONSENT?

Trivium contends it should be allowed to assess Student, as proposed on
November 14, 2019, without parental consent. Trivium asserts Student’s triennial
assessment was due in February 2020, and multiple individualized education program,
called an IEP, team members believed reassessment was warranted. Trivium further
contends reassessment is necessary to clarify Student’s needs and resolve
disagreements within the IEP team over the level of services and accommodations
Student requires to receive a FAPE. Trivium additionally contends an educationally
related mental health services assessment is necessary to address Student’s socialemotional and mental health needs and to explore whether she requires educationally related mental health services to receive a FAPE. Finally, Trivium contends that because
Student has turned 16 years old, it must be allowed to conduct a post-secondary
transition assessment to develop a legally compliant individualized transition plan in her
next IEP.
Student contends she should receive an independent educational evaluation in
lieu of reassessment by Trivium. Student asserts Trivium does not have staff competent
to assess Student because they do not have expertise in PANDAS. Student contends
Trivium will misunderstand Student’s medical needs and view Student’s actions as
psychological or volitional in nature rather than medical. Student argues Trivium’s
proposed reassessments will result in Student being misdiagnosed, causing Student
substantial harm. Student further contends Trivium’s assessment plan was procedurally
deficient. Student contends Parent and Student’s doctors were left out of the
development of the assessment plan. Finally, Student alleges the proposed
reassessments are intended to drive Student out of the school, as retaliation for filing
compliance complaints with the California Department of Education.
LEGAL FRAMEWORK UNDER THE IDEA
A FAPE means special education and related services that are available to an
eligible child that meets state educational standards at no charge to the parent or
guardian. (20 U.S.C. § 1401(9); 34 C.F.R. § 300.17.) Parents and school personnel
develop an IEP for an eligible student based upon state law and the IDEA. (20 U.S.C.
§§ 1401(14), 1414(d)(1); and see Ed. Code, §§ 56031,56032, 56341, 56345, subd. (a),
56363 subd. (a); 34 C.F.R. §§ 300.320, 300.321, 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].)
SPECIAL EDUCATION ASSESSMENTS
A district must ensure that a child is assessed in all areas related to a suspected
disability. (20 U.S.C. § 1414(b)(3)(B); Ed. Code § 56320, subd. (f).) The assessment must
be sufficiently comprehensive to identify all of the student’s special education and
related services needs, whether or not commonly linked to the disability category in
which the child is classified. (34 C.F.R. § 300.304(c)(6).)
A reassessment shall occur not more frequently than once a year, unless the
parent and the district agree otherwise, and shall occur at least once every three years,
unless the parent and the district agree in writing that a reassessment is unnecessary.
(20 U.S.C. § 1414(a)(2)(B); Ed. Code § 56381, subd. (a)(2).)
Beginning not later than the first IEP to be in effect when the student is 16 years
of age, or younger if determined appropriate by the IEP team, and updated annually
thereafter, the IEP shall include appropriate measurable postsecondary goals based
upon age-appropriate transition assessments related to training, education,
employment, and where appropriate, independent living skills; and the transition
services, including courses of study, needed to assist the pupil in reaching those goals.
(20 U.S.C. § 1414 (d)(1)(A)(i)(VIII); Ed. Code, §§ 56345, subd. (a)(8); 56043, subd. (g)(1).)
“Transition services” are defined in the IDEA as a coordinated set of activities
designed within a results-oriented process, focused on improving the academic and
functional achievement to facilitate movement from school to post-school activities,
such as postsecondary education, vocational education, integrated employment,
including supported employment, continuing and adult education, adult services,
independent living, or community participation. Transition services are to be based
upon individual needs, taking into account individual strengths, preferences, and
interests. Transition services include instruction, related services, community
experiences, development of employment and other post-school adult living objectives.
If appropriate, transition services include acquisition of daily living skills and provision of
a functional vocational evaluation. (Ed. Code, § 56345.1, subd. (a); 20 U.S.C. § 1401(34);
34 C.F.R. § 300.43(b).)
On November 14, 2019, Trivium provided Parent with an assessment plan proposing
assessments of Student in six areas:
• Academic Achievement, by a Special Education Teacher;
• Health, review of records, by a School Nurse;
• Intellectual Development, by a School Psychologist;
• Motor Development, review of records, by an Occupational Therapist;
• Social emotional/behavioral, educationally related mental health services, by a
School Psychologist; and
• Post-Secondary Transition, including student and parent interviews, by a Special
Education Teacher.
NEED FOR REASSESSMENTS
A local educational agency must conduct a reassessment at least once every
three years, unless the parent and the agency agree that it is unnecessary. (20 U.S.C.
§ 1414(a)(2)(B)(ii); 34 C.F.R. § 300.303(b)(2); Ed. Code, §§ 56043, subd. (k), 56281,
subd. (a)(2).) The agency must also conduct a reassessment if it determines that the
educational or related services needs of the child, including improved academic
achievement and functional performance, warrant a reassessment. (20 U.S.C.
§ 1414(a)(2)(A)(i); 34 C.F.R. § 300.303(a)(1); Ed. Code, § 56381, subd. (a)(1).) To the extent
possible, school agencies must encourage the consolidation of meetings to review
reassessments with other IEP team meetings, such as those to discuss post-secondary
individualized transition plans. (Ed. Code, § 56381, subd. (j).)
Trivium has the legal right to conduct a triennial reassessment of Student.
Trivium last conducted a comprehensive assessment of Student in February 2017, when
Trivium first considered her initial eligibility for special education. Student’s IEP team
met on February 27, 2017, to discuss the initial assessments. Within the past three
years, Trivium assessed Student in the areas of assistive technology, health, and
occupational therapy, at Parent’s request. Trivium had not conducted a compressive
assessment of Student in all areas of suspected disability since 2017.
Levi Henry was a school psychologist for Trivium. He was a licensed educational
psychologist with over 20 years of experience. He believed a triennial reassessment was
warranted for Student. He had known Student for three and one half years. He
assessed Student for her initial IEP. Henry provided Student with counseling services
pursuant to her IEP. At the time of the hearing, Henry and Student were working on
reducing Student’s anxiety at school. Henry presented as a highly credible witness
because he was thoughtful and direct, with a careful and measured demeanor.
Henry felt strongly that triennial reassessments were warranted for several
reasons. First, the IEP team needed updated information about Student and changes in
her condition. In previous school years, Student did not attend many classes or
complete much work. In eighth grade, Student attended class less than 10 percent of
ACE days and 23 percent of partial ACE days. At the beginning of ninth grade, Student
attended ACE days on only 16 percent of days, and completed 17 percent of the
expected work. Student struggled with attendance and work completion throughout
her ninth grade year and did not receive credit for any classes. In contrast, for tenth
grade during the 2019-2020 school year, Student attended many more classes and
improved her work completion. Student performed well academically.
Second, Henry saw fluctuations in Student’s symptoms, which warranted an
assessment to consider her educational needs. Although Student still exhibited
substantial anxiety, Student’s separation anxiety from her mother was inconsistent.
Sometimes separating from her mother was a big problem, but sometimes not.
Additionally, Henry saw Student’s reactions to her paper phobia as inconsistent. She did
not display adverse responses to paper in 100 percent of circumstances.
Henry believed the IEP team also needed reassessments to fully consider
disagreements at IEP team meetings over the services and accommodations Student
required to receive a FAPE. Parent requested a scribe and specialized academic
instruction for every minute of the school day. Henry believed the IEP team did not
have evidence to support Parent’s requests, and therefore needed reassessments.
Fourth, Henry believed Trivium needed to conduct an educationally related
mental health services assessment of Student. Trivium had not previously conducted a
mental health assessment of Student. Henry described Student as having a
neuropsychiatric disorder. The disorder, PANDAS, caused a region of Student’s brain,
the basal ganglia, to inflame, which affected her emotions and behavior. Her condition
was linked to suspected problems with executive functioning, emotional regulation, and
behavior. Although the medical condition was the underlying cause of Student’s
behaviors, Student may have adopted negative learned behaviors and continued to use
them past the time of the medical flare up. Henry believed a mental health assessment
was necessary to identify Student’s needs as well as potential services to address her
needs. After an assessment, Student would be considered for access to educationally
related mental health services, which were not available to her yet at the time of the
hearing.
Finally, Henry felt that Trivium needed to assess Student to develop a postsecondary transition plan. Student recently turned 16 years old. Trivium was required
to assess Student, invite Student to an IEP team meeting, and develop a post-secondary
individualized transition plan. During her tenth grade year, Student completed a school
project in which she investigated a career as a singer and song writer. However, this
project was within the context of her general education classes and not tied to her IEP
or transition goals.
Annette Lawrence was the special education service specialist for Trivium.
Among other duties, Lawrence maintained the IEP team meeting notes and documents
for special education students, including releases of information. Lawrence attended IEP
team meetings for Student. She was responsible for submitting the assessment plan
and procedural safeguards to Parent.
Lawrence believed a triennial reassessment was warranted. It was required to
assess Student to develop a post-secondary transition plan. Lawrence stressed that the
IEP team needed current and accurate information about Student. Student recently
improved, making well documented progress in her tenth grade year. Student suffered
emotional or psychiatric symptoms in response to external events and circumstances,
which her providers referred to as triggers. Lawrence believed the IEP team had a list of
triggers that no longer appeared to be triggers.
Robert Bradfield was a general education teacher at Trivium. He held a multiple
subject teaching credential. He knew Student for four years. Bradfield attended
Student’s IEP team meetings, and believed a triennial reassessment was warranted.
Bradfield thought the IEP team needed to reassess Student because of changes in
her school performance. During the 2019-2020 school year, Student attended almost
every day, a significant improvement. Student was at the top of her class academically.
Bradfield did not believe Student required a scribe, which Parent requested. Bradfield
felt that the IEP team needed assessment data to guide the team’s decision-making
process.
Trisha Vais was the Executive Director of the Trivium Charter School Network.
She oversaw all aspects of the fiscal, academic, and operational areas of the three
charter schools within the Trivium network. Vais knew Student and Parent for two years.
Vais attended all of Student’s IEP team meetings except for one. Vais presented as a
dedicated educator and credible witness, with a compassionate and patient demeanor.
She believed a triennial reassessment was warranted.
As the Executive Director, Vais recognized that Trivium was obligated by the
Education Code to conduct a triennial reassessment of Student unless the parties
agreed it was unnecessary. Numerous Trivium staff members told Vais that a
reassessment was warranted, including Student’s teachers Bradfield and Hannah Sheets,
school psychologist Henry, and Linda Harley, the Director of Special Education.
Since December 2018, the IEP team met on a monthly basis to discuss Student’s
services and accommodations. Parent and Trivium vigorously disagreed whether
Student still required her mother to attend classes with her as an IEP accommodation.
Pursuant to the last signed IEP of December 13, 2018, one accommodation Student
received was “Parent can attend ACE Day classes or be in proximity of the classroom
environment to ease student separation anxiety.” Sandy Patterson, Learning Center
Coordinator, believed Parent was disruptive to staff on at least two occasions. Parent
passionately disputed the idea that she disrupted the school. Parent filed a police
report alleging that Trivium made false allegations against her. Additionally, the IEP
team disagreed as to whether Student required a scribe. Vais stressed that the IEP team
needed reassessment data to discuss Student’s improved school performance and
disagreements over Student’s IEP accommodations. Within the monthly IEP team
meetings, the parties had discussed their opinions, thoughts, and beliefs, and in Vais’s
opinion, it was time to collect data.
ASSESSMENT NOTICE
Reassessments require parental consent, or, in the absence of parental consent,
an order following a due process hearing. (20 U.S.C. § 1414(c)(3); Ed. Code, § 56381,
subd. (f)(1).) To obtain parental consent the school district must provide proper notice
to the student and his or her parent. (20 U.S.C. §§ 1414(b)(1); 1415(b)(3), (c)(1); 34 C.F.R.
§ 300.304(a); Ed. Code, § 56321, subd. (a).) The notice consists of the proposed
assessment plan and a copy of parental procedural safeguards under the IDEA and
related state laws. (Ed. Code, § 56321, subd. (a).) The assessment plan must:
• be in a language easily understood by the public and the native language of the
parent;
• explain the types of assessments to be conducted; and
• notify parents that no IEP will result from the assessment without the consent of
the parent.
(Ed. Code, 56321, subd. (b)(1)-(4); see also 34 C.F.R. § 300.9(a).) The district must give
the parent at least 15 days to review, sign, and return the proposed assessment plan.
(Ed. Code, § 56321, subd. (a).)
Trivium provided Parent with a legally compliant assessment plan. On
November 12, 2019, Trivium emailed Parent with an assessment plan dated
October 31, 2019, as well as a copy of parental procedural safeguards. On
November 13, 2019, Parent faxed to Trivium her disagreement with the assessment plan.
Parent noted the date on the assessment plan as being different from the date she
received it. Lawrence corrected the date on the assessment plan, but made no other
changes. On November 14, 2019, Trivium emailed Parent the corrected assessment
plan. Parent did not respond.
The assessment plan provided on November 14, 2019, was in a language easily
understood by the public. It was in Parent’s native language of English. The assessment
plan explained the types of assessments to be conducted and that no IEP would result
from the assessment without the consent of the parent. In her email to Parent on
November 14, 2019, Lawrence explained that Parent had 15 days to sign and return the
assessment plan. In sum, Trivium provided Parent with a proper assessment plan under
the law.
COMPETENT ASSESORS
Reassessments must be conducted by persons competent to perform them, as
determined by the local educational agency. (20 U.S.C. 1414(b)(3)(A)(iv); 34 C.F.R.
§ 300.304(c)(1)(iv); Ed. Code, § 56322.) Any psychological assessments of pupils shall be
made in accordance with Education Code section 56320 and shall be conducted by a
credentialed school psychologist who is trained and prepared to assess cultural and
ethnic factors appropriate to the pupil being assessed. (Ed. Code, §§ 56322, 56324,
subd. (a).) A health assessment must be conducted by a credentialed school nurse or
physician. (Ed. Code, § 56324 subd. (b).)
Parent refused to consent to the assessment plan in part because she strongly
believed Trivium did not have assessors competent to assess Student. Parent worried
that Trivium staff were not experts in PANDAS, so Student would be misdiagnosed.
Parent thought the IEP team misunderstood Student’s symptoms of her medical
disorder and might attribute the symptoms to more widely understood psychological
conditions.
Parent had sincere trepidations about the assessment process due to Parent’s
long history of trying to get a medical diagnosis and proper care for Student. Parent
spent four years having Student assessed by doctors before Student was diagnosed with
PANDAS. However, the law does not allow parents to choose assessors for a special
education assessment. (See 20 U.S.C. § 1414(b)(3)(A)(iv); 34 C.F.R. § 300.304(c)(1)(iv);
Ed. Code, § 56322.) The school agency is entitled to select the assessors as long as they
are competent under the parameters established by the Education Code and the school
agency.
Trivium proved the assessments proposed to Parent on November 14, 2019,
would be conducted by persons competent to perform them. Trivium assigned
Deborah Johnson to conduct the intellectual development, social emotional/behavioral,
and educationally related mental health services portions of the assessments proposed
to the Parent on November 14, 2019. Johnson was a credentialed school psychologist.
She had a Bachelor of Arts in Psychology and a Master of Science in School Psychology.
She had over 20 years of experience conducting assessments of students in public
schools. Johnson was experienced in conducting assessments for a diverse population
of students and trained and prepared to assess cultural and ethnic factors appropriate
to a pupil being assessed. Trivium chose Johnson to conduct the intellectual
development, social emotional/behavioral, and educationally related mental health
services portions of the assessment rather than Levi Henry, Student’s school counselor,
to protect the rapport between Student and Henry.
Trivium assigned Laura Gardener to conduct the academic achievement and
post-secondary transition portions of the proposed assessments. Gardener was a
credentialed special education teacher. She had nine years of experience teaching in
both general education and special education classrooms. She was experienced in
conducting special education assessments. Trivium chose Gardener, in part, out of
deference to Parent’s concerns about the proposed assessments being conducted by
another teacher Parent believed triggered Student’s anxiety.
Trivium proved it would conduct the motor development and health portions of
the proposed assessments by persons competent to perform them. Trivium would
assign a licensed occupational therapist to conduct the motor development assessment
and a credentialed school nurse to conduct the health assessment. School psychologist
Henry drafted the assessment plan in consultation with Trivium staff. Henry was
thoughtful and careful in developing the plan. Trivium considered the needs of Student
and Parent’s preferences in choosing the assessors.
PARENT CONCERNS AND CONDITIONS
Parent was concerned about the proposed assessments for a number of reasons.
First, the proposed assessments would involve paper. Student had a paper phobia.
Second, some proposed tests were to be timed. Student had test-taking anxiety,
fatigued easily, and needed breaks. Third, the assessments would take place during
academic instructional time. Student would miss some academic instruction. Fourth,
the assessments would capture Student’s performance on a particular day and time.
Student’s symptoms of PANDAS fluctuated due to the waxing and waning nature of the
condition. Finally, Parent believed Trivium should have allowed Student’s doctors,
private providers, and Parent to discuss the assessments proposed at an IEP team
meeting, and should have solicited input regarding the assessment instruments and
process.
As long as the statutory requirements for assessments are satisfied, parents may
not put conditions on assessments. A school agency is not required to convene an IEP
team meeting to discuss and develop a plan for a student’s reassessment. (34. C.F.R.
§ 300.305(b); Ed. Code, § 56381, subd. (g).) The selection of particular testing or
evaluation instruments is left to the discretion of State and local educational authorities.
(Letter to Anonymous (OSEP September 17, 1993).) Parental conditions on assessment
“vitiated any rights the school district had under the IDEA for the reevaluation process.”
(G.J. v. Muscogee County Sch. Dist. (11th Cir. 2012) 668 F.3d 1258, 1264.) A parent does
not have the right to observe assessments, as this places an imposition on district
testing, which a school district is not obligated to accept or accommodate. (Student
R.A. v. West Contra Costa Unified Sch. Dist. (N.D. Cal., August 17, 2015, Case No. 14-cv0931-PJH) 2015 WL 4914795 [nonpub. Opn.], affirmed (9th Cir. 2017) 696 Fed. Appx.
171.) In sum, the law does not allow Parent to place any conditions on the assessments
of Student proposed by Trivium on November 14, 2019.

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.
Trivium is entitled to perform Student’s triennial assessment as proposed to
Parent on November 14, 2019, without parental consent. Trivium prevailed on the sole
issue in this matter.

REMEDIES

If parents do not consent to a reassessment plan, the school district or charter
school may conduct the reassessment by showing at a due process hearing that it needs
to reassess the student and it is lawfully entitled to do so. (20 U.S.C. § 1414(c)(3);
34 C.F.R. § 300.300(c)(1)(ii); Ed. Code, §§ 56381, subd. (f)(3), 56501, subd. (a)(3).) Trivium
properly filed a request for a due process hearing in this matter. Trivium proved with
overwhelming evidence and testimony that it needed to reassess Student, the areas of
assessment, its assessors were qualified, and was legally entitled to do so.
It is well settled that parents who want their children to receive special education
services must allow reassessment by the district, with assessors of its choice. (Gregory K.
v. Longview Sch. Dist. (9th Cir. 1987) 811 F.2d 1307, 1315; Johnson v. Duneland Sch.
Corp. (7th Cir. 1996) 92 F.3d 554, 558; Andress v. Cleveland Indep. Sch. Dist.
(5th Cir. 1995) 64 F.3d 176, 178-179; Dubois v. Connecticut State Bd. of Educ.
(2d Cir. 1984) 727 F.2d 44, 48.)
In its closing brief, Trivium also seeks an order mandating that Parent sign and
return releases of information between Trivium and three of Student’s private providers
and doctors. Trivium seeks an order that it is not obligated to provide special education
services, or otherwise accord Student of the rights of a special education student, until
Parent has complied.
For several years Parent has insisted that Student’s IEP team adopt educational
recommendations from Student’s private providers and doctors. Parent made her
perspective clear in the IEP team meeting of January 6, 2020. Parent and Student’s
treating psychologist insisted that because Student had a medical condition, PANDAS,
the IEP team must defer to the educational recommendations of medical specialists.
Medical recommendations were ultimatums.
Parent has provided Trivium with 26 letters from Student’s private providers and
doctors with educational recommendations within the past three years. These
recommendations included:
• Student must have a one-on-one aide during school hours;
• Student must have a different special education teacher;
• Student must be allowed flexible school attendance;
• Student must not be given written tests, or computerized tests for math, or
closed book tests for math;
• Student must take all test, exams, and quizzes before or after normal school
hours;
• Student must not be asked to read quickly, remember material, or demonstrate
competence though testing;
• Student must be exempted from physical education and the Presidential Fitness
Exam;
• Student’s behaviors must not be interpreted as defiance;
• Student must be allowed to turn in classwork after the semester deadline;
• Trivium must give Student marks of incomplete for work not turned in by the
semester deadline, and give her full credit for classes if she is able to demonstrate
knowledge through special projects;
• Trivium must give Student credit for elective classes to help her feel secure and
positive about her education;
• Student must not participate in cognitive behavior therapy at school; and
• Student must not be exposed to phobia triggers at school, including paper,
spiders, tests, and needles.
Parent did not allow Trivium to communicate directly with Student’s private
providers and doctors about these recommendations.
Trivium was frustrated that it could not communicate with Student’s doctors and
private providers. Trivium believed Parent was providing the doctors with inaccurate
information. The providers made recommendations without ever seeing Student in the
school environment. The recommendations may have been made solely based upon
information from Parent, without the providers seeing Student in person or conducting
a medical evaluation. Trivium directed substantial resources toward meeting the
demands of Student’s private providers and doctors, even when the IEP team did not
agree the recommendations were educationally appropriate for Student.
At the time of the hearing, Trivium strongly believed it needed to communicate
with Student’s private providers and doctors to develop an appropriate educational
program for Student. In January 2020, Trivium provided Parent with five release of
information forms. Trivium asked Parent to sign and return them. Parent refused.
The sole legal issue in this case relates to the assessment plan proposed to Parent
on November 14, 2019. Trivium did not attach any release of information forms to the
assessment plan provided to Parent on November 14, 2019. Additionally, the
assessment plan did not mention Trivium’s desire to communicate with Student’s private
providers and doctors.
In a letter to Parent dated November 18, 2019, Vais cited legal cases in other
jurisdictions in which administrative law judges and hearing officers ordered an
independent medical examination of a student or limited a family’s transportation
reimbursement remedy due to noncooperation with medical releases. (See Oconee
County Sch. Dist. v. A.B. (M.D. Ga., July 1, 2015, 2015 WL 4041297) [nonpub. opn.].); see
also Shelby S. v. Conroe Ind. Sch. Dist. (5th Cir. 2006) 454 F.3d 450, 454-455, cert. denied
(2007) 549 U.S. 1111.) Vais mentioned the cases in a two-page letter that included
18 legal citations. Parent did not understand the legal references and took the letter as
a threat of retaliation. The language of the letter would not put a reasonable person on
notice that Trivium was requesting Parent consent to broad releases of medical and
psychiatric information as part of the triennial reassessment process.
Trivium relies on Oconee County Sch. Dist. v. A.B. (M.D. Ga., July 1, 2015,
2015 WL 4041297) [nonpub. opn.].) and Shelby S. v. Conroe Ind. Sch. Dist. (5th Cir. 2006)
454 F.3d 450, 454-455, cert. denied (2007) 549 U.S. 1111.) to support its request for an
order mandating that Parent sign releases of information. However, Trivium misses the
point. Unlike in Shelby S., Trivium did not propose an independent medical evaluation
of Student in the assessment plan provided to Parent on November 14, 2019.
Furthermore, Oconee County does not support Trivium’s position. In Oconee County,
the ALJ limited the family’s transportation reimbursement claim on equitable grounds,
because the family was uncooperative in the IEP process and did not allow the school
district to communicate with the student’s doctor. The ALJ did not order the family to
sign a release of medical or psychiatric information. Trivium is not legally entitled to an
order forcing Parent to sign releases of medical and psychiatric information as a
condition of receiving special education services.
However, Trivium is proposing to review records as part of its assessment
process. If an educational agency is provided with private assessments or doctor’s
recommendations, it is not required to accept the information as unquestionably true.
(See G.D. v. Westmoreland Sch. Dist. (1st Cir. 1991) 930 F.2d 942, 947 [The duty to
consider an evaluation does not obligate the school district to accept the evaluation or
its recommendations.]) An educational agency must be able to verify the information
through communication with the doctors, reliable supporting documents, or its own
assessment results. The IEP team must consider private and medical information
proffered by a parent, but is not bound to accept it. (34 C.F.R. § 300.502(c)(1).)
Trivium cannot be compelled to embrace unreliable recommendations as part of
assessments that it is legally entitled to conduct. Within the scope of the records review
component, if Parent provides Trivium with records for Trivium to consider as part of the
assessment process then Parent must allow Trivium unfettered communication with the
author of any document provided by Parent on the topic of that document, including
the author’s underlying basis for any recommendations. If Parent does not provide such
a release, then Trivium need not consider the records provided by Parent in its
assessment. If Parent places Student’s medical condition at issue as part of the
assessment process by providing Trivium with Student’s records, such as
recommendations from Student’s medical providers, then Parent has waived any
confidentiality. (Freed v. Home Depot U.S.A., Inc. (S.D. Cal. Jan. 4 2019, Case
No. 18cv359-BAS (LL)) 2019 W.L. 183833, p. 5; Hill v. National Collegiate Athletic
Association (1994) 7 Cal. 4th. 1, 37.)

ORDER

1. Trivium is entitled to assess Student according to the assessment plan provided
to Parent on November 14, 2019, without Parent’s consent.
2. Trivium shall notify Parent within 10 business days of the date of this Decision, of
the dates, times, and places Parent is to present Student for reassessment, and
Parent shall reasonably cooperate in presenting her for assessments on those
dates, times, and places.
3. If Student is unavailable for reassessment due to her medical condition on the
dates Trivium proposes, Parent shall provide Trivium with documentation of the
specific reasons she is not available, written and signed by a qualified medical
provider. Parent shall allow Trivium to communicate with the medical provider
who wrote and signed the documentation, verbally and in writing, regarding
Student’s medical condition. Trivium shall inform such medical provider of this
Decision finding that Trivium has the right to assess Student without conditions.
4. If Parent does not cooperate with the reassessments as specified above, Trivium
will not be obligated to provide special education and related services to Student
until such time as Parent complies with this Order.
5. All other claims 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.

Cararea Lucier
Administrative Law Judge
Office of Administrative Hearings