California Special Education Law

Advocacy Resources, Hearing & Appeal Decisions, Statistics and More for Parents

OAH 2020010653

July 13, 2020

Tags: , , , , ,

Student v. Castro Valley Unified School District - District Prevailed


CASE NO. 2020010653



JULY 13, 2020
On January 17, 2020, the Office of Administrative Hearings, called OAH, received a due process hearing request from Parents and Student, collectively referred to as Student, naming Castro Valley Unified School District. On January 31, 2020, Student’s amended complaint was deemed filed and served. On March 16, 2020, OAH continued the matter for good cause. Administrative Law Judge Elsa H. Jones heard this matter by videoconference on May 12, 14, 15, 19, 20, 21, 26, 27, and 28, 2020.
Attorneys Eileen Matteucci and Roberta S. Savage represented Student.
Student’s mother, referred to as Mother, attended all hearing days on Student’s behalf.
Attorney J. Sterling Elmore represented Castro Valley. Suzy Williams, Castro Valley’s
Director of Special Education, attended all hearing days on Castro Valley’s behalf.
Sworn testimony and documentary evidence were received at the hearing. At the
parties’ request the matter was continued to June 22, 2020, for written closing briefs.
The record was closed, and the matter was submitted on June 22, 2020.


1. Did Castro Valley fail to provide Student a free appropriate public education,
referred to as a FAPE, from January 23, 2019, through the end of extended
school year 2019, and during the 2019-2020 school year by:
a. Continually and intentionally withholding from and misrepresenting to
Parents necessary information about Student’s functioning at school?
b. Conducting an inappropriate educationally related mental health services
assessment in February 2019?
c. Failing to offer Student appropriate
i. Goals
ii. Behavioral services;
iii. Emotional services;
iv. Social services; and
v. Placement?
The issues have been re-organized and re-numbered from the sequence set forth
in the Prehearing Conference Order, to better comport with the manner in which the
issues are addressed in Student’s closing brief. Their content has not been changed.


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.)
(All subsequent references to the Code of Federal Regulations are to the 2006 version.)
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 FAPE that emphasizes special
education and related services designed to meet their unique needs and prepare
them for further education, employment and independent living, and
• the rights of children with disabilities and their parents are protected. (20 U.S.C.
§ 1400(d)(1); See Ed. Code, § 56000, subd. (a).)
The IDEA affords parents and local educational agencies the procedural
protection of an impartial due process hearing with respect to any matter relating to the
identification, assessment, or educational placement of the child, or the provision of a
FAPE to the child. (20 U.S.C. § 1415(b)(6) & (f); 34 C.F.R. § 300.511 (2006); Ed. Code,
§§ 56501, 56502, and 56505; Cal. Code Regs., tit. 5, § 3082.) The party requesting the
hearing is limited to the issues alleged in the complaint, unless the other party consents,
and has the burden of proof by a preponderance of the evidence. (20 U.S.C. §
1415(f)(3)(B); Ed. Code, § 56502, subd. (i); Schaffer v. Weast (2005) 546 U.S. 49, 57-58, 62
[126 S.Ct. 528, 163 L.Ed.2d 387]; and see 20 U.S.C. § 1415(i)(2)(C)(iii).) In this matter,
Student 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 time of hearing, Student was eight years old years old and in second grade
at Intermountain Residential, a residential treatment center in Montana. Intermountain
is a California certified nonpublic school. At all relevant times, Parents resided within the
geographical boundaries of Castro Unified.
Student is high-functioning and bright. In June 2016, when he was five years old,
the California school district where he then resided found Student eligible for special
education under the categories of autism and speech and language impairment. The
family then moved to Pittsburgh, Pennsylvania, where Student repeated kindergarten at
Parents’ request and received special education services.
In March 2018, when Student’s family returned to California, Student enrolled in
Castro Valley. Castro Valley placed Student in a general education kindergarten
classroom at Independent Elementary School.
Student continued attending Independent as a first grader during the 2018-2019
school year, as a special education student in Stephanie Keller’s first grade general
education class. Student remained enrolled at Independent and in Ms. Keller’s class
until May 23, 2019 when Parents placed Student at Intermountain.


Student contends Castro Valley failed to share information Parents requested
regarding data as to Student’s progress on his speech and language goal during the
2018-2019 school year, failed to share behavior data with Parents as agreed to at the
September 28, 2018 IEP team meeting, and did not accurately report important
information regarding Student behavioral functioning at school. Finally, Student
contends that the February 2019 educationally related mental health services
assessment did not include any information from Student’s classroom teacher or other
school staff or professionals with whom Student interacted most regularly regarding
Student’s need for social-emotional goals or mental health services.
Castro Valley contends that it provided Parents with all the information requested
to ensure Parents’ informed participation in the IEP process from January 23, 2019,
forward. It also contends that, had any procedural violation occurred, Student failed to
demonstrate that any such violation significantly impeded Parents’ participation,
impeded Student’s right to a FAPE, or denied Student educational benefit.
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 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.)
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 (Rowley);
Endrew F. v. Douglas County School Dist. (2017) 580 U.S. ____ [137 S.Ct. 988, 1000]
(Endrew F.); E.F. v. Newport Mesa Unified School Dist. (9th Cir. 2018) 726 Fed.Appx. 535.)
States must establish and maintain certain procedural safeguards to ensure that
each student with a disability receives the FAPE to which the student is entitled, and that
parents are involved in the formulation of the student’s educational program. (W.G., et
al. v. Board of Trustees of Target Range School Dist., etc. (9th Cir. 1992) 960 F.2d 1479,
1483.) (Target Range.) Citing Rowley, supra, the court also recognized the importance
of adherence to the procedural requirements of the IDEA, but noted that procedural
flaws do not automatically require a finding of a denial of a FAPE. (Id. at 1484.)
Procedural violations may constitute a denial of a FAPE if they result in the loss of
educational opportunity to the student or seriously infringe on the parents’ opportunity
to participate in the IEP process. (Ibid.) These requirements are also found in the IDEA
and California Education Code, both of which provide that a procedural violation only
constitutes a denial of FAPE if it:
• impeded the child’s right to a FAPE;
• significantly impeded the parent’s opportunity to participate in the
decisionmaking process regarding the provision of a FAPE to the child; or
• caused a deprivation of educational benefits.
(20U.S.C. § 1415 (f)(3)(E)(ii); Ed. Code, § 56505, subd. (f)(2).)
The IDEA emphasizes the importance of parental participation in a child’s
education. “Procedural violations that interfere with parental participation in the IEP
formulation process undermine the very essence of the IDEA. An IEP which addresses
the unique needs of the child cannot be developed if those people who are most
familiar with the child’s needs are not involved or fully informed.” (Amanda J., etc., v.
Clark County School Dist. (9th Cir., 2001), 267 F.3d 877, 892.) In the case of Timothy O.
v. Paso Robles Unified School Dist. (9th Cir. 2016) 822 F.3d 1105, a school district failed
to assess a student for autism, and did not disclose to parents its suspicions that student
had autism. In finding the district liable for failing to assess the student in all areas of
suspected disability, the court stated, “The creation of an IEP is not a unilateral
enterprise by the school district, but rather, a collaborative process that necessitates
parents’ input. . . .the failure to obtain necessary information about student’s disorder
prevented an informed discussion with his parents about his specific needs as an autistic
child.” (822 F.3d at 1125-1126.)
Student’s contentions are rooted in the responses Student’s first grade teacher,
Stephanie Keller, gave in completing the rating scales on two psychoeducational
assessments. The first assessment was a private psychological assessment obtained by
Parents from H. Nicole Hess, Ph.D., and Rebecca Schilling, Ph.D., which they performed
in June and September 2018. This assessment is referred to as the Schilling assessment.
The second assessment was the triennial psychoeducational assessment Castro Valley
conducted in February and March 2019. Ms. Keller’s ratings on behavior scales in both
of these assessments reflected Student had some emotional and behavioral challenges
that fell into the clinically significant range, but Ms. Keller and other school staff did not
observe Student engaged in any extreme behaviors at school. They only observed
Student committing minor, typical first-grade behavioral infractions at school.
2018-2019 SCHOOL YEAR
After Student’s family enrolled him in kindergarten in Castro Valley in spring
2018, Parents objected to the 30-day IEP developed by Castro Valley. This IEP included
fewer behavioral supports than Student had received from his Pittsburgh school district.
Further, Castro Valley denied Parents’ request for an educationally related mental health
services assessment. Therefore, Parents obtained an assessment from
Rebecca E. Schilling, Ph.D., and H. Nicole Hess, Ph.D., to identify areas of Student’s
strengths, to obtain clarifications of his diagnoses and assist with educational planning.
In late summer 2018, during the pendency of the Schilling assessment, Student
entered the general education first grade class at Independent taught by
Stephanie Keller. Ms. Keller received her bachelor’s degree in education in 1982 from
the University of New Orleans, and holds a California multiple subject credential. She
has been employed by Castro Valley for 18 years, all of them spent teaching first grade
at Independent Elementary. Prior to her employment at Castro Valley, she was a teacher
in other states for approximately 14 years.
Ms. Keller was the only adult assigned to her first grade classroom during the
2018-2019 school year. The general education classroom had several behavior
supports, including a calm down box which contained various sensory and other
materials for students to access, separate seating areas where children could sit when
they needed to focus or needed other types of additional support besides sitting at their
own desk, and a visual schedule. The school also implemented a positive behavior
intervention system, which included a token reward system, tracking of minor
infractions, referred to as “uh-ohs,” more serious infractions, and restorative justice.
Uh-ohs were handled by the classroom teacher; other types of infractions were referred
to the principal. From August 29, 2018, through November 15, 2018, Student had
six uh-ohs. He had no uh-ohs after November 15, 2018. He had no major or serious
infractions at any time.
The Schilling assessors conducted their assessment on June 12, June 13, and
September 14, 2018.
The assessors summarized Student’s family, developmental, and educational
history, the results of his previous assessments, and his special education and home
services. In particular, Student had a long history of dysregulated mood, angry
outbursts, anger, and noncompliance. These behaviors escalated when the family was in
Pittsburgh, and Student then became aggressive toward family members. Student had
a history of elopement, and when he was dysregulated, his statements and conduct
usually concerned harming himself, his family, and classmates.
Student’s behaviors improved somewhat when the family moved back to
California, but significant behavioral challenges persisted at home. He continued to
experience episodes of dysregulated mood. He demonstrated severe verbal rages and
aggressive physical outbursts that were inappropriate for his age and the situation. At
one point, Child Protective Services was called because Student was holding one of his
sisters tightly by the throat, and Student’s family was referred to the Regional Center’s
crisis response team for 24-hour assistance when needed. In fall 2018, Student began to
receive 15 hours per week of applied behavior analysis therapy.
The Schilling assessment results reflected that socially, Student had immature
social cognitive skills, including perspective-taking, reading and responding to social
cues, and understanding social dynamics. In conversation, he tended to follow his own
train of thought, and talked at, rather than with, others. He tended to be rigid and literal
in his thinking, and had deficiencies in the use of nonverbal communication. He
engaged in several restricted and repetitive behaviors, and presented with hypo-and
hyper-sensitivity to sensory stimuli.
The Schilling assessors administered the Behavior Assessment System for
Children, Third Edition rating scales to Mother and Ms. Keller. Ms. Keller rated Student
in the clinically significant range in the areas of hyperactivity, depression, withdrawal,
anger control, developmental-social disorders, emotional self-control, executive
functioning, negative emotionality, attention deficit hyperactivity disorder probability,
and autism probability. The assessors determined that both Mother’s and Ms. Keller’s
ratings were consistent with high probabilities of attention deficit hyperactivity disorder,
autism spectrum disorder, and emotional dysregulation, with a significant level of
functional impairment.
The Schilling assessors also administered the Vineland Adaptive Behavior Scales,
3rd Edition to Mother and Ms. Keller. The scales measured adaptive behavior, or the
things people did to function in their everyday lives. Mother and Ms. Keller both rated
Student in the moderately low range in communication skills, and in the low range in
daily living skills. Mother rated Student in the moderately low range in socialization, and
Ms. Keller rated Student in the low range in that area. The adaptive behavior composite
score for both Mother and Ms. Keller fell in the moderately low range.
On the Delis-Rating of Executive Functioning, the results reflected that
Mother and Ms. Keller had similar concerns about Student’s executive functioning,
including attention, behavior regulation, and impulse control, but Mother’s concerns
were significant, and Ms. Keller’s ratings were more moderate than Mother’s.
The report included the results of Dr. Schilling’s observation of Student at
Independent during recess and in his general education classroom. She observed he
engaged in interactions and reciprocal play with peers. Student needed occasional
prompts, but was able to be redirected in class, and could focus on his assignment.
He participated with his class in a counting game, and attempted to protest when
eliminated from the game, but, when redirected, he sat and waited quietly while the
game finished. Dr. Schilling did not report Student engaged in any disruptive or
maladaptive behaviors during her observation.
Dr. Schilling and Dr. Hess assessed Student’s cognitive, academic, executive
control, verbal learning, and visual-motor integration skills, and evaluated him for
autism and anxiety. They rendered diagnoses of Disruptive Mood Dysregulation
Disorder and Attention Deficit Hyperactivity Disorder, Combined Presentation, and
confirmed his previous diagnosis of Autism Spectrum Disorder. The assessors noted
that Student demonstrated frequent emotional outbursts and engaged in a range of
disruptive behaviors in both home and school settings, but his behavior was wellmanaged in his current educational placement.
The report concluded with four pages of recommendations including special
education services based on a primary eligibility category of autism and a secondary
eligibility category of other health impairment. The report did not recommend
placement in a special education class, a smaller class, or a residential treatment center.
Castro Valley convened an IEP team meeting on September 28, 2018, to review
the Schilling report. Dr. Schilling, Mother, Student’s advocate, Ms. Keller, school
principal Patrick Hansen-Schmitt and school psychologist Louise Lindgren attended the
meeting, among others. The notes reflect that the Schilling assessment was discussed,
and Ms. Keller’s ratings were reported. Ms. Keller also reported an incident that
occurred a few days before the meeting, when Student had written three X’s on his neck
with markers, and pointed his pencil at his neck. This incident had not been previously
reported to Mother. The team decided to include a speech goal requiring Student to
make a positive response to a peer after Mother voiced a concern that a similar previous
speech goal had been dropped. Mother stated she believed an educationally related
mental health assessment was needed, but the school psychologist said that staff was
not seeing issues at school. The principal agreed to discuss counseling with the school
counselor. Data on Student’s speech goals and behavior were to be provided to Parent.
Student’s mid-trimester progress report, dated October 13, 2018, was written by
Ms. Keller and given to Mother. It stated Student was meeting standards and making
progress. Student only needed to improve focus. There was no suggestion that Student
engaged in dysfunctional, disruptive, or negative behaviors in class.
On October 17 and 18, 2018, Mother and Ms. Keller corresponded regarding
several incidents involving Student. Ms. Keller reported to Mother two incidents at
school involving other boys contacting or touching Student’s genitalia. Ms. Keller
and/or Mr. Hansen-Schmitt spoke to the boys involved and these events were not
repeated. Mother reported to Ms. Keller that Student had a panic attack the week
before that caused Mother to take student to the emergency room. Mother wrote that
she believed the panic attack was due to anxiety about events at school. Ms. Keller
responded that she did not know what could have caused the panic attack, and
expressed concern. Mother replied to Ms. Keller, expressing that she believed the panic
attack was due to a teasing incident that occurred that morning. She stated Student’s
anxiety was increasing, and he took things literally, so that when peers teased him about
being in a tree with a girl “k-i-s-s-i-n-g”, as happened during summer 2018, or he
imagined playing “war” at recess, he became very upset. The evidence at hearing
reflected that this panic attack was actually caused by Student believing he was
poisoned when he swallowed toothpaste. Moreover, staff promptly put a stop to the
teasing regarding Student sitting in a tree and kissing a girl. There was no specific
evidence that Student was subject to any other teasing or bullying at school
In her email, Mother also wrote that she was concerned when she first heard
about the marks on Student’s neck and the pencil to the neck incidents at the IEP team
meeting. Mother wrote that her concern was heightened when Ms. Keller reported at a
recent parent-teacher conference that he had done “the pencil thing” again, so Mother
consulted the county crisis hotline and received a referral for evaluation with a children’s
mental health center for moderate to severe cases. Pending the appointment with the
mental health center, Student’s psychiatrist increased his medication to stabilize him.
Mother emphasized it was important that the school inform her about such incidents.
Shortly after the September 2018 IEP team meeting, Ms. Lindgren discussed with
Student the incident when he drew XXXs on his neck, and was satisfied that Student had
no intention to harm himself. She also requested Ms. Keller keep a log of Student’s
behaviors that were not uh-oh’s. Ms. Keller logged 5 behaviors between
September 25 and October 5, 2018. Besides the events described above involving the
instances of putting his pencil to his neck and writing XXXs on his neck, they involved
another instance of drawing on himself with markers, one instance of saying and
spelling “bad words,” and one instance of telling inappropriate and imaginative stories
to peers. Ms. Keller discussed these events with Student, and the school reported them
to Parents.
Independent’s principal, Mr. Hansen-Schmitt, testified at hearing regarding two
additional occasions he spoke to Student about his conduct. Once, Student cut his hair
in class on “crazy hair” day. Another time, he observed Student and several other
children debating on the playground whether a “bad word” was really a “bad word.”
Mr. Hansen-Schmitt considered these events, and all of Student’s conduct during first
grade, to be within the realm of typical first grade conduct.
Castro Valley convened Student’s annual IEP team meeting on October 29, 2018.
The team included Mother, a Castro Valley administrator, Ms. Lindgren, Ms. Keller,
Mr. Hansen-Schmitt, speech and language pathologist Maureen Martin, and
occupational therapist Sherin Thomas.
Student was eligible for special education under the primary category of autism
and the secondary category of speech or language impairment. Student exhibited
social or pragmatic language difficulties that sometimes impacted his ability to
participate in and maintain peer relationships.
The team described Student as a happy, bright, articulate child with a good
imagination. The team discussed Mother’s concerns. Mother again expressed her
concern about a “war” game at school which she believed Student thought was real.
Ms. Keller explained it was a game the children played at recess. Mother was concerned
about Student’s social interactions, especially during unstructured times. She was also
concerned with his executive functioning, and that he was losing possessions. Ms. Keller
commented Student was doing well with the classroom token reward system, and was
about to earn a reward. Mother related Student’s complaints about and avoidance of
handwriting tasks, including his homework. Parent and Ms. Keller discussed that it was
not the content, but rather Student was resistant to writing tasks.
Mother was concerned Student would not be able to maintain his current level of
functioning at school, and may not be able to control his emotions at school. Ms. Keller
commented Student’s taking a pencil and holding it to his neck or stomach was only
attention seeking, and he was not threatening or intending to hurt himself. Parent
expressed concern about this conduct, and that she was not advised every time such
things occurred. Mother told the team that Student had mental health services outside
of school in Pittsburgh, and Parents were seeking local mental health services.
The team considered Student’s present levels of performance. He passed his
hearing and vision screening. In the area of academic and functional skills, Student was
meeting grade-level standards in language arts and math. He was challenged in
maintaining his focus during math, but could be redirected. Student had a separate
table in the classroom he could go to when working so that he was closer to the teacher
and had more freedom to move around in his chair without distracting his peers. He did
not value organization, and preferred things to be messy. He needed prompts to keep
an organized desk. He was capable of good penmanship but did not maintain it.
Ms. Martin discussed Student’s progress in speech and language. As to
communication development, Student enjoyed interacting in the speech room. Lunch
bunch, a group of Student and his peers, had started meeting in the speech room every
week under the supervision and guidance of Ms. Martin. They practiced greetings and
conversations, and then agreed on the game they played during the session. Student
was performing well asking and answering questions with his peers. Student actively
contributed to therapist-facilitated conversations during lunch bunch and kept
conversations and play going when the therapist faded herself out of the group.
Student looked forward to lunch bunch. Ms. Keller commented that she received
positive feedback about lunch bunch, and different peers attended it each session.
Student met his two annual speech goals. The first goal related to Student
identifying the thoughts/feelings of story characters/peers during structured activities,
and Student could do that with 90 to 100 percent accuracy. He consistently identified
one or two reasons why someone might be feeling a specific way, and consistently
described his own feelings. He was a good model for the others in the speech room.
Student’s second goal required him to ask questions during structured activities.
Student consistently asked questions 90 to 100 percent of the time. He actively
engaged with others during structured opportunities in the speech room, directing
questions to peers and helping facilitate interaction during the group, and did not need
a model. He spontaneously asked questions during every therapy session to gain
information from his therapist and peers. He showed patience and understanding when
he knew more than his peers in the speech room, and discreetly corrected them by only
whispering to Ms. Martin. He had a very good sense of humor.
Mother had concerns about Student maintaining peer relationships and being
positive when topics were not of his choosing or interest. She reported he could be
negative or dismissive, and did not want him to adopt that attitude in peer relationships.
Ms. Martin and Ms. Keller acknowledged that Student became frustrated in class when
other peers did not know things he did, but that they were working on this.
Regarding gross and fine motor development, the occupational therapist’s
consultation services were focused on fine motor skills and sensory breaks. Student did
well with certain tasks that required fine motor skills, such as cutting and origami.
Student could attend to the task at hand in class. He folded reward tickets that
were meant to be sent home into origami, but would pay attention to the lesson while
he was folding and answer correctly when asked a question. The occupational therapist
recommended Student be provided with alternate paper to fold as a sensory break
rather than papers that were supposed to go home. Student’s gross motor skills were
not an area of suspected disability.
In the social emotional and behavioral area, Ms. Keller and Ms. Martin reported
Student was adapting positively to first grade. He could be direct with his peers in the
classroom and on the playground, which led to some disagreements, but the level was
not outside the norm of typical first grade behavior. Student negatively commented to
a peer an average of twice a week in the classroom. In the speech room, Student
engaged with his peers in a positive manner. He liked to win when playing board
games but he did not demonstrate negative behaviors when he lost.
The team reviewed the ratings Ms. Keller gave on the Behavior Assessment Scale
administered as part of the Schilling assessment. Ms. Keller discussed her responses,
and described Student’s social-emotional functioning. Student did not often become
angry or overly frustrated, but when he did, he might shove papers in his desk or
“huff and puff.” When angry, he mumbled, but not loudly. When frustrated with a
peer’s answer in class, he would mumble, “I can’t believe they don’t know this.” This
occurred inconsistently, perhaps every other week. His frustration did not last long
when redirected, but he could perseverate. Mother noted that Student was very literal,
and that was how he perceived things. Ms. Martin stated she would work on this area in
lunch bunch. Student liked to share his knowledge with peers and adults, and did not
always understand when others did not want to talk about his interests.
The team agreed to add general education counseling support, which was
available to all students. The counseling team would communicate with the speech and
language therapist and then a counselor would provide tier 1 and tier 2 supports, both
of which were general education services. Tier 1 supports were general supports given
to a class, tier 2 supports were for students who needed additional support, such as
pull-out and small group counseling services. At Mother’s request, the team developed
a plan for when Student did something that could be perceived as self-harm.
Mother stated that Student’s anger and frustration built up at school and was
expressed at home. At home, Mother observed Student in extreme distress. Parent
reported significant issues with mood regulation and verbal hostility. Student engaged
in negative self-talk, aggressive behavior, and wanting to get others in trouble.
Ms. Keller and school staff did not see these behaviors. Mother reported that Student
took Lamictal for mood stabilization.
The program specialist asked about family therapy. Mother and the team
discussed calming techniques that could be used at home. Student liked music, origami,
and yoga.
Student had sensory issues related to smell and noise, and did not like to be in
the multipurpose room for lunch. He was content to sit outside and eat his lunch, and
other children would join him and eat with him.
In the vocational area, Student followed classroom and school rules. As to
adaptive and daily living skills, Student independently took care of his personal needs.
The team decided Student’s area of need was social skills, and developed an
annual goal in pragmatic language to meet that need. Parent reported Student directed
negative comments to siblings and adults when he found something boring or not to
his liking. Teacher reported Student did this one to two times per week at school. The
goal stated Student would direct positive comments toward peers during facilitated
conversations given a daily verbal reminder of lunch bunch rules, and repair any
negative comment given a verbal prompt, in 8 out of 10 occurrences as measured by
The team considered special factors, and specifically decided Student’s behavior
did not impede his learning or that of others.
The team agreed upon several classroom accommodations. These included
Student would also have access to a calm down box or calm down corner in the
classroom, or both, to relieve anxiety or stress.
The IEP team determined that Student or staff needed specified supports, which
included Student having access to identified items of interest as necessary to motivate
and calm him during transitions or times of anxiety or stress, use of a school-wide safety
plan in the event of elopement at school or during field trips; verbal and nonverbal
reminders that Student maintain personal space and use positive and neutral
communication with peers and adults; regular communication via email or in person
between home and school to inform Parents of any signs of anxiety, staying on-task,
and social interactions that may have an impact at home; and access to and use of social
stories to outline expected behaviors for Student as situations arose.
The IEP offered group language and speech services totaling 210 minutes per
month, and 100 minutes per year of consultation occupational therapy services for
sensory needs. It also offered 20 minutes per week of individual and group specialized
academic instruction consultation services by the resource specialist for assistance in
executive functioning skills in the area of organization of work and supplies, transitions
from one activity to another, and working in small groups.
The October 29, 2018 IEP offered placement in Student’s general education class.
The team determined Student did not need extended school year services, as they did
not foresee that Student would regress in academic or social skills over the summer.
Mother reported she sent Student to therapeutic camps during the summer. Mother
agreed it was no longer necessary for Student to have an applied behavior analysis aide
assist with his transition from home to school. Mother asked about updates from the
counseling team and the resource specialist, and was told that progress would be sent
at report card time.
Mother took the IEP home to read. Parents did not consent to the October 2018
Shortly after the IEP team meeting, Mr. Hansen-Schmitt requested Wendy Pham,
the school counselor, to observe Student in the classroom to learn his counseling needs.
In November 2018, Ms. Pham observed Student in the classroom for approximately
45 minutes to an hour. She observed he needed to focus, but she did not note any
behavioral or social problems. Ms. Pham intended to discuss her classroom observation
with Mr. Hansen-Schmitt after the Thanksgiving break.
Castro Valley’s schools were closed for a week for Thanksgiving break from
Monday, November 19, through Friday, November 23, 2018. On Tuesday,
November 20, 2018, Student was admitted to the Oakland Children’s Hospital
emergency room on a three-day psychiatric hold for aggressive behavior at home.
Student punched his younger sister multiple times, and harassed his other younger
sister by chasing her, repeatedly pulling her pants down, and one time sticking his hand
in her pants. He was discharged on Wednesday, November 21, 2018, because he no
longer met criteria for a three-day psychiatric hold. Mother contemporaneously
emailed school staff about this event and attached a copy of the hospital’s Closing Crisis
Progress Note. The Closing Crisis Progress Note referred Student for therapeutic
behavioral services, and identified mental health and social service agencies. It
recommended a variety of services, including educationally related mental health
services and increased interventions and academic modifications through the IEP
process. It also included a Safety Plan, which included a list of warning signs that
Student was becoming upset, such as having a fight with a friend, feeling sick, someone
being mean to him, and being chased. The Safety Plan also included a list of internal
coping strategies, such as play with toys, color and draw, fold paper to make origami
figures, watch favorite TV shows, listen to music and sing, and use the computer.
On Saturday, November 24, 2018, Student was again admitted to the emergency
room at Oakland Children’s and placed on a three-day psychiatric hold because he was
considered a danger to his siblings. The hospitalization was due to Student punching
one of his younger sisters multiple times, and then he bit, hit, and kicked Parents.
Child Protective Services investigated both incidents.
Mother advised Suzy Williams, Castro Valley’s Director of Special Education, of
this hospitalization by email on Monday, November 26, 2018, and also mentioned that
Student had been reported to Child Protective Services three times in the past six
months, due to his aggressive behaviors at home. Ms. Williams responded by email on
November 27, 2018, expressed her concern, and wrote that she would contact the
County’s mental health department. Also on November 27, the hospital discharged
Student, with a Closing Crisis Progress Note that included a Safety Plan and was similar
to the previous Closing Crisis Progress Note that Mother received. Mother provided a
copy of the Closing Crisis Safety Plan to Castro Valley. No witness from the hospital
who wrote or could explain the Closing Crisis Progress Notes and Safety Plan was called
to testify at hearing.
Ms. Pham, the school counselor, and Mr. Hansen-Schmitt discussed the Safety
Plan. They developed two general education counseling goals, based on the Safety
Plan, by which Student was to be able to identify feelings, and to identify coping skills,
and decided Ms. Pham would meet with Student for 30 minutes, one time per week, for
eight weeks, to work on the goals. The plan was shared with Mother. This constituted a
tier 3 intervention, available to all general education students who needed it. Ms. Pham
did not provide special education counseling services, but she provided tier 1, 2, and 3
general education interventions, and served about 15 children at each of her assigned
schools with such interventions.
Ms. Pham provided the first session of counseling services to Student on
November 29, 2018, the day after he returned to school from his hospitalization. The
last session was on January 23, 2019. At that time, Student had made progress on the
goals, as he could identify his feelings and use the coping strategies. Student shared
with Ms. Pham he did not need coping strategies at school because he had no problems
at school, but at home he used a glitter bottle he and Ms. Pham had made for him to
use as coping strategy. Beginning February 6, 2019, Ms. Pham transitioned Student to a
lower level of counseling and saw Student every other week to check in with him and to
review and practice his skills. Mother was notified of this transition by email on
January 23, 2019. Those check-ins ended prematurely on February 27, 2019, as Student
did not return to school by the time of the next check-in session.
On December 2, 2018, Student filed a complaint for due process with OAH.
Also in December 2018, Castro Valley referred Student to Alameda County Behavioral
Health Care Services for an educationally related mental health services assessment,
which is the subject of, and more fully described in Issue 1b, below. Castro Valley
contracted with County Mental Health to conduct its educationally related mental health
assessments. Castro Valley included in the referral packet reports of classroom
observations performed separately by counselor Ms. Pham, Mr. Hansen-Schmitt,
resource specialist Kate Carson, and by Ms. Keller, on various dates in December 2018.
All of these reports reflected that none of those individuals observed Student acting in a
disruptive manner or exhibiting dysfunctional or negative behaviors in class.
The parties settled Student’s due process complaint on January 22, 2019. As part
of the settlement, Parents waived all educational claims prior to January 23, 2019. As a
result, the time frame for the claims that are the subject of this matter run from
January 23, 2019. Events prior to that date are discussed in this Decision because they
reflect material facts regarding Student’s background, and the parties’ knowledge and
The settlement agreement provided, among other things, that Student’s
October 19, 2018 IEP would be amended such that Student would receive an additional
10 minutes per week of specialized academic instruction, and Parents would consent to
the IEP. The settlement agreement also provided Student’s triennial assessment and
triennial IEP team meeting would be advanced; and the triennial assessment would
occur during winter and spring 2019.
Ms. Lindgren, the school psychologist, who at the time of hearing was named
Ms. Copp, compiled the referral packet Castor Valley provided to County Mental Health
in December 2018. It included Mother’s consent for the referral, Student’s most recent
IEP, all psychological assessments within the last three years, counseling reports, report
cards, attendance records, progress on IEP goals, behavior data, and reports of behavior
In addition to the reports of school staff of their classroom observations, and a
summary of Ms. Martin’s observations at lunch bunch, the packet included forms
completed by Ms. Pham and Ms. Martin that described the respective services they
provided to Student. With respect to counseling services, Ms. Pham noted Student’s
social emotional needs in the school setting were age appropriate and goals were not
needed to address any behaviors. She reported the goals for her services were to
support the hospital discharge plan and behaviors in the home setting. With respect to
language and social skills services, Ms. Martin reported that her services were meeting
Student’s needs at school. She commented Parent had concerns at home.
Also in December 2018, Ms. Lindgren spoke with some of Student’s outside
providers, with parental consent, out of concern that Student’s behaviors at home were
so different from those he exhibited at school. The supervisor for Student’s applied
behavior analysis services told Ms. Lindgren that the family needed support at home
and the supervisor was worried about what would occur over Christmas break.
Ms. Lindgren also contacted a physician at Children’s Hospital who had treated Student
during his hospitalization. The physician discussed the supports being instituted at
home, and also expressed concern regarding what would occur at home over Christmas
break. Ms. Lindgren learned from Ms. Ramsey, Student’s Regional Center case manager,
and from Ms. Young, Student’s therapist, that the information they had about Student’s
behaviors and abilities at school was incorrect. Ms. Lindgren corrected their
Shana Yi, a licensed marriage and family therapist with Alameda County
Behavioral Health Care Services, conducted the educational mental health services
assessment, and prepared a report dated February 15, 2019, that was revised on
February 25, 2019. The report was approved by the Chief of the Children’s Specialized
Services section of the County Behavioral Health Care Services.
Ms. Yi found that Student qualified for educational mental health services.
The sources of information for the assessment included the school referral file, and
interviews with Mother, Student, Mr. Hansen-Schmitt, school psychologist
Louise Lindgren; Regional Center Case Manager Catherine Ramsey, and Student’s
therapist from Eden Children’s Services, Vicki Young. Ms. Yi unsuccessfully attempted to
contact Ms. Pham, Ms. Martin, Ms. Keller, and a representative from Child Protective
The assessment report included a brief summary of Student’s development and
family history. The report included brief comments from each of the non-familial
interviewees. Ms. Lindgren acknowledged the discrepancy between Student’s behavior
at school and the behavior Mother saw at home. She told Ms. Yi that Student exhibited
age-appropriate behavior, did well in math and had friends. Mr. Hansen-Schmitt
reported no serious concerns about Student’s behavior but commented on some signs
of attention deficit hyperactivity disorder. Ms. Ramsey expressed that Parents may need
more support and parent training as they had endured multiple adjustments in the past
few years, including the move to and from Pittsburgh. Ms. Young indicated Student had
trouble regulating his emotions and that he likely did better in structured environments.
Mother reported that Student was hospitalized on a three-day psychiatric hold
over Thanksgiving break due to aggressive behavior. She indicated that Student’s
demeanor and behavior changed when he started taking Risperdal and Focalin about a
month prior to the assessment. She reported that Student had been very aggressive at
home since age three-and-a-half, including biting, hitting, and kicking others in the
home. She described him as very rigid and explosive and that his behavior was worse
during the past year-and-a half. His explosive behavior inhibited her from taking
Student to public places at times. She reported feeling frustrated with Castro Valley
because they were not reporting anything similar to what she saw at home, and she
requested more support. Ms. Yi interviewed Student, and her report included only his
comments on his family relationships. There was no evidence as to whether Student
talked to her about any other topic. Ms. Yi used an emotions chart so he could identify
his feelings when his sisters hit or annoyed him, and he pointed to the “angry” face.
Ms. Yi noted Student’s previous diagnoses of autistic spectrum disorder, attention
deficit hyperactivity disorder, and disruptive mood disorder. She concluded that, while
Student may exhibit some attentional issues at school, he had not exhibited the
aggressive, emotionally dysregulated types of behavior often directed towards his
siblings. She recommended continued individual counseling as well as family therapy to
address his lack of emotional management and coping skills in order to maximize his
performance in school. She noted that a therapeutic behavior services referral had been
recently submitted by Student’s therapist and Ms. Yi believed this type of support in the
home would best address the concerning behaviors reported by Student’s family.
Ms. Yi’s report did not state that she conducted any standardized assessments.
Ms. Yi recommended IEP goals in two areas, to be modified by the IEP team as
needed. In the social-emotional behavior area, Ms. Yi recommended Student be
required to identify situations and conditions in which he experienced a given emotion
with 90 percent frequency, and to use learned methods of coping skills to reduce stress
in real situations with 90 percent frequency.
In the self-awareness and self-esteem area, she recommended Student state his
feelings by using affective vocabulary and non-verbal cues with 90 percent frequency,
and make positive statements about his qualities and accomplishments 80 percent of
the time.
Castro Valley convened an IEP team meeting on March 5, 2019, to discuss the
educational mental health services assessment and whether it was necessary to amend
the October 29, 2018 IEP. The IEP team included Castro Valley Elementary School
Services Coordinator Yoko Ostreicher; Castro Valley staff Ms. Keller, Ms. Martin,
Ms. Lopez, Ms. Lindgren, Ms. Pham, and Mr. Hansen-Schmitt; Mother; Regional Center
Case Manager Ms. Ramsey; a representative from Fred Finch Youth and Family Services,
and County Behavioral Health Clinical Manager Linda Hunt, who presented the
assessment. Castro Valley’s resource specialist, behavior specialist, and occupational
therapist were excused from the meeting.
Mother emailed the team with an outline she created of incidents from the past
year, and a letter from Colette Warden, a psychiatric/mental health nurse practitioner
from Eden Children’s Services, Student’s mental health provider. Mother’s outline was
not offered into evidence. Ms. Warden’s letter described Student’s diagnoses and
symptoms, and informed the team that despite behavioral therapy and psychotropic
treatment, Student continued to present with irritability and explosive behaviors at
home that were a significant safety concern. She wrote, “He required constant
monitoring while at home, as he has often endangered himself and his young siblings.
Student has been hospitalized on two occasions due to aggressive and uncontrollable
behaviors, including hitting, pinching, and biting his younger siblings and parents.
Student struggled to empathize and showed little remorse for his behaviors.”
Ms. Warden noted Student received intensive outpatient behavioral services since a
young age yet continued to struggle with understanding social reciprocity empathy, and
the ability to manage frustrations/limit setting. Her letter detailed Student’s needs at
home, but did not mention any behaviors or events at school.
Ms. Hunt presented Ms. Yi’s educational mental health services assessment to the
IEP team. The information described Student as having many difficulties at home, and
not the same type of difficulties at school. At school he had attention issues and
impulsivity, but he was able to do his work, compliant, and interacted well with others.
The March 5, 2019 IEP notes stated, “No difficulties at school, but conflicts with siblings
at school.” Based upon the assessment report and the context of this sentence, the last
reference to school should read “home.”
Ms. Yi’s educational mental health services assessment report concluded that
Student’s attention and impulsivity issues at school could be addressed through
individual school-based counseling. It also recommended therapeutic behavior services
at home. Ms. Hunt would follow up to help arrange those services. The representative
from Fred Finch social services agency strongly recommended therapeutic behavior
services as well, and she also agreed to follow-up.
Mother’s advocate mentioned that the assessor did not reference input from the
speech and language pathologist and the teacher, and a home observation was not
completed. Parent asserted that the educational mental health services assessment was
not complete and requested an independent educational evaluation. Mother
mentioned concerns in the Schilling assessment regarding the teacher’s responses in the
clinically significant range on the Behavior Assessment Scales. Mother had significant
and serious concerns about Student’s behavior at home.
Parent shared that things were happening at school that Student was not able to
cope with, so he was holding his emotions inside and exploding at home. Parent
believed Student needed to live somewhere outside of the home to learn skills to avoid
hurting other people.
Ms. Keller shared that at the beginning of year Student was angrier and more
hesitant to follow directions. As he became better acquainted with Ms. Keller and
learned to trust her, things became better. She did not see the same child now that she
saw at the beginning of the year. She described how well he performed and behaved in
class and interacted with his peers. He used to misinterpret imaginative play as real, but
he no longer mentioned at school that such play bothered him. He was meeting gradelevel standards and making academic progress. The inattention and impulsive behaviors
Ms. Keller observed in the classroom did not impede Student’s ability to learn or her
ability to teach. She wanted Student to work more towards his potential, and to
understand other children’s perspectives and feelings.
Ms. Martin described Student’s progress with lunch bunch. She felt he enjoyed
being in lunch bunch, and his peers liked to be there with him. He and his peers
communicated with each other, and during lunch bunch Student made introductions,
worked on follow-up questions, and showed interest. They were working on reading
body language, and having conversations about what they thought other people would
want to know. Ms. Martin believed her concerns about Student did not affect his ability
to participate at school.
Mr. Hansen-Schmitt shared two minor behavior referrals and a referral for
organization. His last uh-oh was in November 2018, four months earlier.
Ms. Pham discussed Student’s eight weeks of school counseling following the
Safety Plan generated by Student’s hospitalization in November 2018.
Mother commented that Student was able to identify coping strategies but she
did not observe Student having the ability to use coping skills at home. She mentioned
a recent incident at home that led to hitting, kicking, and being aggressive towards
Parent. Parent called crisis response and they spoke to Student over the phone and
calmed him down, but once off the phone Parent stated Student escalated again.
Parent noted one of Student’s sisters was impulsive and antagonized Student, and that
Student could not acknowledge when he did something wrong.
The team was advised the regional center considered putting Student in a group
home, but believed it would be detrimental and not appropriate for Student.
The team discussed the school-based counseling recommended by Ms. Yi. Two
of the three goals Ms. Yi suggested, and part of the third goal, that Student identify
when he experienced a given emotion, use learned coping skills, and express his
feelings, were already addressed by Student’s counseling plan with Ms. Pham, and he
had met them. Ms. Keller reported Student used coping strategies in the classroom,
such as using the class calm down box. Student liked to draw and created small paper
figures as coping skills.
Mother was concerned with Students’ executive functioning skills, such as
planning and organizing. The resource specialist was providing services to address
executive functioning such as focus and attention. Even with the attention and focus
difficulties, Student was making gains and academic progress. Ms. Keller commented
Student did not need prompting more frequently than other students.
Mother expressed she would like Ms. Yi’s proposed counseling goal and
recommended services added to Student’s IEP. The team feared that changing
Student’s counselor from school counselor Ms. Pham to one of the special education
counselors would create a harmful inconsistency. The school psychologist and
counselor agreed to join efforts, such that the counselor would provide services, and the
school psychologist would report progress.
School staff had not observed Student struggle to accept responsibility for his
actions. The team noted Student had no incidents that warranted discipline at the afterschool program he attended. This program was not related to Castro Valley. Student’s
behavior at school was different than what Parents saw at home.
The team agreed to draft a baseline for behavior in the educational setting to
create a goal, since they did not believe the three goals recommended by Ms. Yi were
appropriate. Student had met two of the goals, and part of the third goal. As for the
remainder of the third goal, which required Student to make positive statements about
himself, neither Ms. Pham or Ms. Keller observed Student making negative statements
about himself as of the time of the meeting, so they believed that the proposed goal
was not appropriate.
Mother requested Student receive more than a consultation for the executive
functioning goals. She also requested services to support Student in the development
of coping skills, perspective-taking skills, advanced social skills, as well as push-in
services to work on generalizing social skills. She also requested residential placement,
and stated Student could not say in the home. She wanted Student to learn skills and
she needed to protect her other children.
Castro Valley’s staff focused on placing Student in the least restrictive
environment, that provided educational benefit socially and academically. They believed
Student was gaining academic and social benefit in general education, and his behavior
did not impede the learning of himself or others. Castro Valley staff were willing to
create goals and services for the areas of need discussed, but they needed time to
consider what goals and services would be appropriate. No changes were made to the
October 29, 2018 IEP during this meeting, as the triennial IEP team meeting was
scheduled for the following week.
Castro Valley assessed Student in preparation for his triennial IEP review. It
performed Student’s triennial assessment in February and March, 2019, and generated a
report dated March 4, 2019. The members of the assessment team were school
psychologist Laura Lopez, Ms. Martin, and Kathryn Carson, the resource specialist. The
three assessors collaborated on the assessment report.
Ms. Lopez received her bachelor’s degree in psychology from San Diego State
University in 2004, and her master’s degree in school psychology from National
University in November 2009. She received her pupil personnel services credential in
school psychology in 2009, and expected to become a board certified behavior analyst
in 2021. She has been a school psychologist since 2010, and employed as such by
Castro Valley since August 2017.
The report described Student’s home and health background based upon a
questionnaire that Mother completed for the assessment. The report noted Student’s
diagnoses of disruptive mood dysregulation disorder, autism spectrum disorder, and
attention deficit hyperactivity disorder—combined type, and medications.
The assessment report also summarized information obtained from Mother and
school staff. Mother described Student’s behavior at home as ranging from sweet,
creative, and calm to irritable and explosive. His reaction to frustration and limits or
demands was immediate and extreme. He demonstrated extreme aggression. He
frequently misinterpreted social interactions and that led to paranoid thinking and
anxiety. He expressed frustration and boredom with first-grade. Mother reported he
would not do well with same-aged peers.
Ms. Keller described Student to the assessors as intelligent and a good reader.
He quickly grasped new concepts in math and had good reasoning skills. He could
complete class work quickly, but lacked neatness. His weaknesses were being
inattentive, lacking empathy, not seeing the perspectives of others, and being hesitant
to share ideas or feelings. He got along with peers and had several friends. He liked
chase games with imaginative settings.
Mr. Hansen-Schmitt described Student as highly intelligent. He was learning to
see others’ perspectives. He was easy to correct and accepted information easily. He
seemed to make friends easily, and he regularly played with two close friends.
Ms. Pham described Student as bright, creative, self-motivated, friendly, and social. He
needed to work on building positive coping skills and accessing them when frustrated
or upset at home, as well as being able to identify feelings in the moment. At hearing,
Ms. Pham noted that everyone should continue to work on such skills.
The site director for Student’s after-school program reported Student was
creative, imaginative, and friendly. His weaknesses included his temper, communication
skills, one-sided conversations, and difficulty problem solving. He eloped and avoided
talking about things. He required daily reminders, time-outs, and parent conferences.
Student tended not to communicate problems or issues he had. He required daily
reminders of appropriate behavior, he exhibited a temper, and seemed unaware of
unkind acts towards him.
Ms. Lopez performed a records review, and listed Student’s uh-ohs and other
behavior incidents at school. Ms. Lopez observed Student in the classroom and on the
playground on February 25, 26, and 27, 2019. She observed him across multiple
settings, during math instruction, English language arts instruction, small group
instruction, whole group instruction, and during recess. Additionally, she observed him
on two other days, when she administered assessments to him. Student was able to
express his needs and wants. He participated in the class activities during whole group
and small group instruction. At times, he required redirection to the task because he
was talking to peers. In addition, she observed him leaving his seat without permission.
He fidgeted and wiggled in his seat. He appeared to allot himself short breaks by
requesting to use the restroom. He followed his teacher’s instructions. However, at
times he engaged in silly, off-task behavior. During recess he interacted appropriately
with his peers and engaged in pretend play. In addition, he easily ran around the
playground and accessed the play equipment and structures.
Ms. Lopez was a credentialed school psychologist qualified and trained to
administer the assessment instruments used in the evaluation. The materials and
procedures used for the assessment were selected and administered so as not to be
racially, culturally, or sexually discriminatory. Testing and assessment materials and
procedures were used for the purposes for which the assessments or measures were
valid and reliable. The assessments were conducted in English, Student’s primary
Student came willingly to the testing sessions. He attempted all the items
presented to him and put forth good effort. He occasionally volunteered information
and conversed. He required verbal reminders to continue to focus, and was wiggly and
fidgeted with items on the table. At times, he lay the top half of his body on the table;
at other times he stood by the table while responding to the test items. He sometimes
hummed as he worked, or sang his answer choice. The assessor provided multiple
breaks. When Student found a test difficult, he hesitated to say he did not know the
answer. His motivation improved when told that he was not expected to know all of the
answers. He demonstrated good problem-solving strategies, and he would self-correct.
He asked clarifying questions, and related abstract designs to something familiar.
During multiple choice items, he considered all of the answer choices. He took his time
responding to the items. He frequently asked whether his response was correct. At
times, he responded to the items prior to listening to the instructions. During one
testing session, Student came willingly to the testing room, but then began to cry. After
the assessor persisted in finding out why he was crying, Student said that his class was
going to draw and he wanted to be there to draw also. The assessor gave him the
option to return to class, but Student said he wanted to continue testing. The assessor
agreed to give him time to draw prior to returning to class.
Ms. Lopez summarized some of Student’s previous assessment results. She
assessed Student’s cognitive abilities. His scores ranged from average to the upper
extreme range.
On tests of Student’s language processing and comprehension skills, his scores
fell within the average to above average range and presented no concerns. Student’s
index score was in the below average range for visual memory, but Ms. Lopez asserted
that the result should be interpreted with caution, as there were significant differences
in Student’s performance on the various subtests used to create the visual memory
index. His index scores on other tests of memory and learning fell in the average range.
Ms. Lopez administered the Developmental Neuropsychological Assessment-II to
Student, which was designed to assess neuropsychological development to obtain
information regarding academic, social, and behavioral difficulties. Student scored in
the average range on all of the subtests scored. His scores could not be calculated on a
portion of the timed inhibition subtest, which measured attention and executive
functioning, because Student stopped the examiner’s stopwatch when Student made an
error, despite the verbal instruction not to touch the stopwatch.
Ms. Lopez submitted the Vineland Adaptive Behavior Scales, 3rd Edition, for
Mother and Ms. Keller to complete. Student’s overall level of adaptive functioning was
reflected by Mother’s composite ratings in the low range, and by Ms. Keller’s ratings in
the moderately low range. Overall, Mother’s ratings were lower than Ms. Keller’s ratings.
Ms. Lopez determined that Student demonstrated better communication and daily living
skills at school. However, both Mother and Ms. Keller’s ratings reflected concerns
regarding Student’s social skills.
Ms. Lopez administered the rating scales of the Behavior Assessment for Children,
Third Edition, to Mother and Ms. Keller. The validity indicators of their ratings were in
the acceptable range. The Behavior Assessment measured social emotional adjustment.
A score in the clinically significant range suggested a high level of maladjustment.
Mother rated Student in the clinically significant range in the areas of hyperactivity,
aggression, conduct problems, adaptability, and activities of daily living. Mother’s
composite ratings were in the clinically significant range in eternalizing problems, the
behavioral symptoms index, and adaptive skills. Ms. Keller rated Student in the clinically
significant range in the areas of depression, somatization, atypicality, withdrawal,
adaptability and social skills. Ms. Keller’s composite ratings in internalizing problems
and the behavioral symptoms index fell in the clinically significant range.
Ms. Lopez administered to Student the self-report interview of the Behavior
Assessment for Children. Student’s answers placed him in the average range.
Ms. Lopez administered the Conners, Third Edition, rating scales to Mother and
Ms. Keller. The Conners is a focused assessment of Attention Deficit Hyperactivity
Disorder and its most common co-morbid problems and disorders in children. Mother’s
ratings fell in the very elevated range in the areas of inattention,
hyperactivity/impulsivity, executive functioning, defiance/aggression, and peer relations.
Ms. Keller’s ratings were only in the very elevated range in the area of peer relations.
Their ratings were within normal limits of validity.
Mother and Ms. Keller completed the ratings scales on the Behavior Rating
Inventory of Executive Function, Second Edition. Mother’s ratings placed Student in the
clinically elevated range for behavior regulation, emotion regulation, and executive
functioning. None of Ms. Keller’s index or composite ratings fell in the clinically elevated
range. Both Mother’s and Ms. Keller’s ratings were within the acceptable range of
Mother and Ms. Keller also completed the Autism Spectrum Rating Scales,
designed to measure behaviors of children reported by parents or teachers that are
associated with autism spectrum disorder. Both Mother’s and Ms. Keller’s ratings were
consistent with Student’s diagnosis of autism spectrum disorder. Ms. Lopez summarized
Mother’s and Ms. Keller’s responses, which reflected Ms. Keller’s observations that
Student had poor social skills and difficulty with pragmatics, and several other negative
characteristics related to Student’s disabilities as a student with autism.
Finally, Mother and Ms. Keller completed the rating scales of the Emotional
Disturbance Decision Tree, which is designed to assist in the identification of children
who qualify for the special education category of emotional disturbance. The total score
of Parent’s ratings fell into the very high clinical classification and Ms. Keller’s ratings
was classified as moderate clinical. The overall results suggested that Student was
demonstrating significant behavioral concerns in his home environment. However, at
school Student demonstrated fewer behavioral concerns. Ms. Lopez postulated that the
difference might be due to the structure and routines the school setting provided.
The cluster scores on the emotional disturbance scales were screening devices as
to whether Student demonstrated characteristics of attention deficit hyperactivity
disorder, social maladjustment, and possible psychosis/schizophrenia, and the level of
severity of problem behaviors. Mother’s ratings on the clusters were high clinical for
attention deficit hyperactivity disorder, and moderate clinical for social maladjustment
and possible psychosis. Ms. Lopez’s report suggested Mother share her concerns in the
latter area with Student’s psychiatrist and therapist. Mother’s level of severity rating was
in the moderate severity range in other areas. Ms. Keller’s scores on these scales were
mild at risk for attention deficit hyperactivity and possible psychosis, and normal for
social maladjustment.
Ms. Keller also rated Student on the educational impact cluster, which focused on
the school setting, and incorporated items that addressed work completion, compliance
with teacher direction/instruction, quality of work, behavior-related absences, the
capacity for working without redirection, behavior-related suspensions, counseling, and
behavior intervention plans, and whether these interventions were effective. Ms. Keller’s
ratings in this area fell in the mild impact range. A mild impact score was more likely to
reflect problems that needed only mild support.
At hearing, Ms. Lopez affirmed that Ms. Keller’s elevated ratings on some of the
areas assessed did not necessarily mean Student needed a particular service or a
particular placement. Rather Ms. Lopez was required to take into account all of the
information she gathered during the assessment.
Ms. Martin conducted the speech and language portion of the triennial
assessment, and her findings were included in the triennial assessment report.
Ms. Martin is a licensed California speech and language pathologist, who has
been employed as a speech and language pathologist by Castro Valley since 1988. She
received her bachelor’s and master’s degrees in speech and language pathology from
California State University, Hayward. She received a Certificate of Clinical Competence
from the American Speech Language Hearing Association.
Ms. Martin reported Student’s school-based therapy focused on the area of
pragmatic language. At the beginning of the 2018-2019 school year, she served
Student in a small group, and Ms. Martin went to the playground during lunch recess
twice a week to help facilitate Student’s social interactions and help Student repair any
communication breakdowns. After three weeks, Ms. Martin noticed that Student was
successfully navigating peer interactions on the playground and there were no
opportunities for her to model. Therefore, the services delivery mode changed to a
lunch bunch group, which excited Student. At lunch bunch, Student was accompanied
by two peers to the speech room twice a week during lunch to eat and practice
conversational skills along with game etiquette, negotiating, and taking turns. Initially,
Student chose the peers, but later, after a peer became resentful that Student had not
chosen him for lunch bunch, Ms. Keller randomly chose the peers. Activities included
making formal introductions, discussing the plan as outlined by the therapist, and using
conversation cube starters. Student and his peers enjoyed lunch bunch and Student
conversed and participated well.
Ms. Martin also described Student’s smell sensitivity and his dislike of sitting in
the lunchroom, which Student solved by choosing to eat lunch on a bench just outside
the door. Other students joined him there. When other children ate foods that
triggered his scent sensitivities during lunch bunch, he handled it politely. Sometimes it
sparked a conversation about smells that the other children disliked too. Overall,
Student was successful using his social skills on the playground and in small groups.
Ms. Martin observed Student enjoyed the testing. He typically chose drawing as
his break activity, and was cooperative through several testing sessions. Ms. Martin
administered an in-depth test of Student’s oral language skills. His subtest scores
ranged from average to exceptional, and his index scores were all in the above average
range. Student’s receptive and expressive language skills across a wide variety of tasks
were an area of considerable strength.
Ms. Martin administered a test designed to examine six critical-thinking and
problem solving skills. It measures a student’s ability to use language to express his or
her thoughts and ideas about the completion of each situation. Student’s index score
on these skills placed him in the average range. Student’s ability to read a situation
based on visual cues and use that information to infer, predict, negate, and determine
cause and outcome was at a level commensurate with his peers.
Finally, Ms. Martin had Ms. Keller complete a rating scale to help identify
pragmatic language disabilities. Ms. Keller’s rating placed Student’s overall pragmatic
abilities in the average range. She rated Student as slightly below average only in the
area of personal interaction. Ms. Keller reported that Student had below average skills
compared to his peers with regard to expressing feelings of empathy and sorrow,
complimenting self or others, expressing affection both nonverbally and verbally, and
using appropriate nonverbal gestures to communicate. Ms. Martin noted that
Ms. Keller’s perspective was based on Student’s performance in a large group, and was
also an area of concern expressed by Mother. Ms. Martin reported that she observed
Student in smaller groups showing affection, appropriately engaging in nonverbal
games, and comfortable enough to dance when he was off to the side.
Ms. Martin concluded that Student did not meet the eligibility criteria for speech
and language impairment. However, given his autism eligibility and his challenges in
expressing empathy, nonverbal communication skills, and personal social skills, she
recommended that he continue to receive twice weekly services in this area.
Kathryn Carson, the resource specialist, performed the academic assessment, and
the results were included in the triennial assessment report. She administered the
Woodcock-Johnson IV. Student’s scores ranged from high average in basic reading and
reading comprehension to average in all other areas of reading, as well as math, and
written expression.
The report summarized the assessment results. The assessors noted Student
performed poorly on a memory subtest on the Wide Range Assessment because he had
difficulty attending to the visual stimulus card, despite prompting, and he also had
difficulty delaying his response. Ms. Lopez attributed his poor performance to his
difficulty sustaining his attention for the required amount of time, and not to a visual
processing disorder or deficit. Further, although Student’s performance on the
Attention/Concentration Index on the Wide Range Assessment was classified as average,
Ms. Lopez noted contrary data. Mother’s and Ms. Keller’s ratings on several measures,
as well as observations, reflected that Student demonstrated behaviors consistent with
attention deficit hyperactivity disorder and trouble with executive functioning skills,
particularly when he had to inhibit a response and self-monitor his behavior. This
difficulty was also demonstrated on the Neuropsychological Assessment, when Student
touched Ms. Lopez’ stopwatch and required her to discontinue the test.
The assessors found Student did not appear to meet the eligibility criteria for
specific learning disability. They also found that Student did not meet the eligibility
criteria for emotional disturbance, and noted Student demonstrated very different
behaviors at home than at school. The assessors concluded although Student
demonstrated some inappropriate, impulsive behaviors at school, they were not
demonstrated to a marked degree and did not appear to adversely affect Student’s
educational performance.
The assessors determined that Student did not meet eligibility standards for
speech or language impairment.
The assessors found that Student appeared to meet the eligibility category under
autism. The team also determined Student appeared to meet eligibility standards for
other health impairment, as he demonstrated limited vitality or alertness due to the
behavioral characteristics associated with his attention deficit hyperactivity disorder,
which adversely affected Student’s educational performance.
The assessors concluded the report with a variety of recommendations. They
suggested that goals be drafted in the areas of social skills and executive functioning
skills. Student should continue to be provided with a work space away from
distractions. He might benefit from checklists and direct instruction on how to monitor
his own behavior, and continue to have access to the calm down box. His teachers
might allow Student to take on leadership tasks, which would allow him to take
movement breaks and further develop his social skills and leadership skills. Student
should be allowed to take short breaks as needed, and be given preferential seating. He
should continue to participate in the lunch bunch group. He should be provided a box
with activities to access when he completed his work quickly.
The triennial assessment also included an assessment to determine whether
Student needed a one-to-one behavior aide at school. Elise Brown performed this
assessment during February and March 2019, and wrote a report dated March 7, 2019.
Ms. Brown received her bachelor’s degree in psychology from the University of Missouri,
Kansas City, in 2008, and her master’s degree in applied behavior analysis from the
Chicago School of Professional Psychology in 2014. From 2017 to the present she has
been employed as a behavior specialist with Castro Valley. She is a board certified
behavior analyst. She had training from the Crisis Prevention Institute, and was a Crisis
Prevention Institute trainer for Castro Valley.
Ms. Brown conducted a series of 15-minute observations of Student over the
course of nine days, at various times of day, during structured and unstructured times.
She sent input forms requesting information from Ms. Keller, Ms. Martin, and Mother.
She also reviewed an applied behavior analysis assessment, goals, and behavior plan
developed by Student’s in-home behavior support provider.
Ms. Martin reported Student was meeting grade-level standards in the general
education classroom, and described the speech services and resource support he
received. Ms. Keller described the class schedule posted for both daily and weekly
activities, which Student independently followed. He enjoyed going to lunch bunch.
Student performed at or above grade-level and had potential to do much more. He did
well doing his work, turning it in, and then starting another task with little or no
prompting. Student currently did not need any accommodations or modifications to
complete classwork or participate in lessons. At the beginning of the year, he had a few
behavioral issues, such as arguing with peers, and displaying frustration when others did
not share his views. He became upset if others did not know as much as he did.
Student had not displayed any challenging behavioral issues since the first part of the
year, over six months ago. At the time of the assessment, Ms. Keller reported Student
was able to appropriately share his thoughts and had not displayed any concerning
behaviors, although he still had difficulty appreciating the viewpoints of others. When
explaining and processing conflict or social situations, he needed thoughts to be broken
down into small parts so he could process them. He displayed appropriate interactions
with peers. At the beginning of the year he was very shy and played by himself more,
but at the time of the assessment he interacted and played with others. He smiled
much more and displayed trust and happiness with peers and staff. Academically, he
was very disorganized at the beginning of the year and could not always find his work
so he could turn it in. His desk was still messy at times, but he knew how to find
everything. He turned in work on time and stayed engaged in lessons and activities. He
moved himself to alternative seating if necessary to help him concentrate. He still
needed to work on perspective taking and organization of his work space.
Mother reported the medication Student took had significant side effects. She
reported that Student used a significant amount of energy each day at school trying to
hide things that may be challenging to him because he did not want to ask for help.
Mother reported that due to this occurring at school, Student displayed higher levels of
aggression and challenging behaviors at home. Student struggled with emotional
regulation and had a low tolerance for feelings of frustration. He also struggled with
attention/focus and impulse control. Student would be very rigid with his thinking and
could easily get frustrated if things did not go the way he anticipated them going.
Mother reported that at times he became delusional and paranoid.
Mother also reported that since starting applied behavior analysis therapy
two-and-one-half years ago, Student had shown some growth in social/emotional
behavior. Academically, he improved his willingness to do work he did not like, but still
struggled in completing homework without a severe meltdown. She noted he was able
to complete work in the classroom. Student improved his ability to have reciprocal
conversations, and improved the ability to accept the viewpoints of others that differed
from his own. Mother wanted Student to continue to work and grow in a variety of
areas, including the areas of executive functioning and social emotional.
During Ms. Brown’s observations, Student followed the class schedule and was
aware of and flexible with changes. He navigated the classroom and school grounds.
Student followed group instructions the first time. He raised his hand and participated
in class activities. He raised his hand to ask for teacher assistance. He moved himself to
alternative seating when necessary to increase his attentiveness. He appropriately
interacted with peers in social situations across environments at school. He turned in
completed work and would begin another task that was appropriate and not disruptive.
She observed no challenging or concerning behaviors. He was very respectful to those
around him and independently engaged in social activities where he displayed
age-appropriate behavior.
Ms. Brown acknowledged Mother’s report that Student displayed challenging
behavior at home. However, Student was currently succeeding in the general education
setting and required minimal individual prompts to complete work or stay on task. She
observed no challenging behaviors. She concluded that Student did not need to receive
additional one-to-one support from a paraeducator during the school day. Ms. Brown’s
recommendations included continuing monitoring of Student’s behavior within the
school setting, considering the use of an individual daily schedule that Student could
learn to fill out himself, and that the IEP team consult with counseling team members to
develop visual supports to help with social emotional processing that may be a trigger
to challenging behavior.
As part of the triennial assessment, Christina Davis, a Castro Valley occupational
therapist, conducted an occupation therapy evaluation of Student.
At the time of this assessment, Ms. Thomas, Student’s occupational therapist, was
providing 100 minutes of occupational therapy consultation to address his sensory
needs. Ms. Thomas reported to Ms. Davis there were some sensory concerns, but that
Student used strategies, such as eating lunch outside the cafeteria and folding origami
in class, to manage those needs. In the area of sensory processing, Mother was
concerned about Student’s ability to know what was going on with his body. He liked
origami and used it as a tool, but she was not sure he knew when to use it for it to be
most effective. Ms. Keller reported that Student’s sensory processing challenges did not
appear to affect his ability to participate in the classroom. His needs required a certain
level of understanding to meet, but Student was not the only Student that required
support. As part of her assessment, Ms. Davis observed Student’s performance in class.
She did not observe Student engage in any maladaptive behaviors, and he had positive
peer interactions.
Ms. Davis concluded Student did not demonstrate a need for direct occupational
therapy. She recommended Student have access to breaks when overwhelmed by
sensory input; an alternative setting for lunch if the lunchroom were too loud; the option
to use headphones or sit near the back if assemblies were too loud; access to alternative
seating in the classroom with reduced sensory input, monitoring of pain in his thumb,
and offering pencil grip if Student were interested.
On the evening of March 6, 2019, the day following the IEP team meeting to
discuss the educational mental health services assessment, Mother took Student to the
Children’s Hospital emergency room. Student was out of control, and repeatedly
punched one of his younger sisters in the chest and stomach. The emergency room
held Student overnight, and discharged him at around noon on March 7, 2019. Mother
then brought him to the Kaiser Oakland hospital emergency room late in the afternoon
of March 7, 2019, because he was explosive and aggressive, despite the presence of
several at-home therapists and service providers. Kaiser placed him on a three-day
psychiatric hold, and sought in-patient psychiatric treatment for him. On the next day,
March 8, 2019, Kaiser transferred Student to the children’s unit of a psychiatric facility in
Vallejo. Mother advised Mr. Hansen-Schmitt of all of these events by email, as they
occurred. The Vallejo facility was not within the district boundaries of Castro Valley.
Nevertheless, while Student was in the Vallejo facility, Castro Valley offered to provide
Student some educational materials. Parents declined the offer, and there was no
evidence Parents made any effort to obtain educational services for Student from the
responsible educational agency in Vallejo.
Student’s triennial IEP team meeting occurred over the course of three separate
dates: March 12, 2019, March 25, 2019, and May 15, 2019. The IEP team members at the
March 12, 2019 meeting were Mother, Student’s Regional Center case manager,
Ms. Davis, Ms. Brown, Mr. Hansen-Schmitt; Ms. Keller, Ms. Martin, Ms. Carson, Ms. Lopez,
and marriage and family therapist Angela Hicks from the Fred Finch social services
The completed IEP document reflected Student’s primary eligibility remained
autism, but the team changed his secondary eligibility to other health impairment,
based upon the triennial assessment results and his attention deficit hyperactivity
disorder. Student exhibited social pragmatic difficulties which might impact his ability
to participate in and maintain peer relationships. Student also exhibited low vitality or
alertness due to behavioral characteristics of attention deficit hyperactivity disorder.
Parent reported that at home, Student was more flexible, and went to school
without displaying behavioral issues. His ability to converse improved, and he was more
tolerant when his opinion differed from that of others. Mother continued to be
concerned about emotional regulation, impulse control perspective taking, rigidity, and
moments of delusion and paranoia.
Student’s strengths included that he was a bright and articulate child, who
enjoyed Pokémon, drawing, and learning in-depth facts about topics of interest. He was
a creative problem solver, and very loyal. He enjoyed school, had friends, and
completed classroom work in a timely manner.
At the March 12, 2019 team meeting, Mother expressed concern about Student’s
low tolerance at home for feelings of frustration, as well as his difficulties with
maintaining attention and focus. He also had impulse control issues. Student still
struggled with completing homework and she reported that this continued to cause
meltdowns. Mother expressed concerns regarding his placement, and that he possibly
needed a residential placement. She also expressed concern for the safety of others.
Mother advised that Vallejo and Kaiser were looking for placements for Student to be
discharged, because they did not feel Student should be discharged to home at this
time. Mother reported she met with a therapist from the Fred Finch social services
agency the day before the IEP team meeting to assist with decisions about next steps
after hospitalization. Mother was considering residential placements.
At the March 12, 2019 IEP team meeting, the team reviewed the triennial
assessment reports, addressed concerns Mother raised, and recorded information
Mother provided. As to the psychoeducational assessment report, which Castro Valley
had provided Mother prior to the meeting, Mother noted that there were some
interactions or incidents that occurred at school in the past which continued to upset
Student. During the discussion of the Behavior Assessment System rating scales, the
team noted that more externalizing behaviors were seen at home, and more
internalizing behaviors seen at school. Mother pointed out that what happened at
school was directly related to the behavior that was seen at home. Mother saw
contradictions in the results of the rating scales, questioned the impact of the rating
scales on the decisions regarding Student’s eligibility and services, and felt there were
some ratings that showed Student had more issues than were being reported. Mother
said Student could often be out of control at home. She also said Student was
uncomfortable sharing what happened at school. The team felt they were taking into
consideration the characteristics of autism and other health impaired along with what
was seen and reported at home and at school. Mother felt since the ratings showed
Student was internalizing problems at school and he was acting out at home, the team
should address the internalizing issues better.
The team was unable to complete the IEP at the meeting on March 12, 2019.
Castro Valley convened the second session of the IEP team meeting on March 25, 2019.
The IEP team included Mother, Mr. Hansen-Schmitt Ms. Hicks, Ms. Martin, Ms. Carson,
Ms. Lopez, Ms. Ostreicher, Ms. Keller, and Regional Center supervisor Kim Limato.
Counsel for Student and counsel for Castro Valley also attended the meeting. Mother
consented in writing to excuse the occupational therapist and behavior specialist.
Mother shared that Student was still hospitalized in Vallejo. The hospital
environment was calming, and he was not having behavior problems. Student liked the
structure there, and there were many preferred activities. She reported that he was not
doing schoolwork.
Student’s counsel reported that this was a family emergency. She explained
Student was about to be discharged, however, he could not return home and the family
did not have a placement for him. She advised the family was consulting with many
agencies to assist, and counsel also requested the school district to recommend and
fund or contribute to funding a residential placement. A discussion ensued regarding
how the meeting should proceed. Castro Valley’s counsel asserted the need to follow
the IEP process before discussing placement.
Therefore, Mother and Student’s attorney announced they would leave, stating
they did not have time to meet then because of the urgency to find Student a
placement. Castro Valley’s counsel explained that Castro Valley would proceed with the
IEP team meeting in their absence. Before Mother left, Castro Valley provided Mother
with the amended psychoeducational report with updates she requested, and a draft IEP
that the team would review in her absence. Student’s counsel requested that the IEP be
mailed to Parents. When Mother and Student’s counsel left, the social service agency
representatives also left the meeting.
The remaining team members audio-recorded the remainder of the IEP team
meeting to share the recording with Parents. They also decided to invite Parents back
to meet with the team for further discussion and input.
The team discussed Student’s strengths. Student did well when his schedule was
consistent. He always turned in work on time and then independently moved on to
other appropriate activities. Ms. Martin shared that Student had a lot of friends and
liked school. The team recalled Mother’s concerns, such as Student’s behaviors at
home, impulse control issues, and his struggles to complete homework. The team
noted that she was seeking a residential placement for Student and was concerned with
the safety of Student’s siblings.
The team summarized Student’s present levels. In the academic functional skills
area, Student met grade-level standards in English language arts and math. His current
report card showed he had progressed.
In the communication area, Ms. Martin, who worked with Student since the family
moved from Pittsburgh, reported Student came to lunch bunch with some of his peers
and really enjoyed it. In previous assessment interviews, Ms. Martin noted that Mother
reported he had difficulty with non-verbal communication. Ms. Martin said that in the
past Student sometimes talked only about preferred topics, but his recent interest in
Pokémon was a great catalyst for social opportunities. The occupational therapist had
earlier been excused from the meeting, but her information was shared. The team
discussed adding an accommodation that Student use headphones for assemblies,
based on the occupational therapist’s recommendation.
In the social emotional area, Ms. Keller and Ms. Martin reported Student made
great growth during the school year. He was well-liked by his peers and school staff.
Student used to get upset when others did now know what he knew, and he wanted to
constantly share his views, to the point of becoming argumentative. He was now able to
appropriately share his thoughts with teachers and peers. He had more confidence,
interacted appropriately in class, and appeared happy.
The team determined Student’s areas of need were social skills-pragmatic
language; executive functioning, specifically planning and using organization tools to
independently complete work; and social-emotional. Ms. Carson noted Student was
messy, but always able to find his supplies. Ms. Keller noted Student made a lot of
progress in the area of completing his work, but this was still a challenge for him.
Student’s behavior did not impede his learning or that of others. Ms. Keller
expressed Student was not disruptive in the general education environment. The team
discussed and drafted new goals in the areas of executive functioning and pragmatic
language to address those areas of need. The team expected the goals would likely be
revised at the next session of the IEP when Mother had reviewed them.
The team reviewed FAPE offer and the continuum of placements. The team
considered placements on the continuum of placement options, from general education
to general education with related services; therapeutic counseling-enriched small day
class; nonpublic school; and residential placement. Student was benefitting from the
services he currently received, and the current general education placement benefitted
him academically and socially. Ms. Martin felt that the general education setting with
speech and language and resource specialist support to address organizational skills
would best meet his needs in the least restrictive environment. Ms. Keller told the team
that she agreed based on Student’s progress in academics, socially, organization, work
completion, and socializing with other peers in a general education setting. Ms. Carson,
the resource specialist, told the team she also agreed. She reported that she worked
with Student on organization, and Student made progress. He seemed happy and
engaged with his peers both inside the classroom and at recess. He sat with a friend at
lunch outside the cafeteria and they had a nice relationship. He always greeted other
students and appropriately interacted with them. She observed that his performance
was average or above-average, and she recommended pull-out specialized academic
instruction to build specific skills in executive functioning. Ms. Martin reported that
Student had friends and engaged appropriately for his age. She agreed pull-out
sessions were appropriate because there were not as many teachable moments in a
busy general education classroom. The team noted that Student was more by himself at
the beginning of the year, but now Student became upset when he did not arrive at
school early enough to socialize with his peers before school, and he always engaged
with his peers in the classroom and at recess. His behaviors or need for prompts caused
no distractions in the classroom. The team members present felt that these factors
favored continued placement in the general education setting.
Ms. Carson discussed the potential harmful effects of more restrictive settings,
such as not having appropriate models, or access to typical peers, as children cannot
learn skills in isolation. She noted that often students learn better from peers than from
a teacher. She also noted that Student could be harmed by a more restrictive setting
because students can learn more negative behaviors in a more restrictive setting, such
as a special day class. The team believed Student was successful in the general
education class, and would be harmed by placement in a more restrictive setting.
The team discussed accommodations and modifications, which included use of a
graphic organizer for organizing thoughts and access to a calm down box or calm down
corner or special seating in the classroom to relieve anxiety or stress, as needed, to be
determined or scheduled by the school psychologist and classroom teacher.
Additionally, Student should have access to a break area or headphones during
assembly or school-wide events, and access to an alternate area for lunch, to
accommodate his sensory needs.
The team also discussed and agreed upon additional supports. Student would
have access to identified areas of interest as necessary to motivate and calm him during
transitions or times of anxiety or stress; verbal or nonverbal reminders to be given to
Student to maintain personal space; and use of positive and neutral communication with
peers and adults. Additionally, there was to be regular communication between home
and school to inform parents of any signs of anxiety, staying on task, and social
interactions that may have an impact at home. Student was also to have access to and
use of social stories to outline expected behaviors as situations arose.
The team discussed and concluded that the IEP would offer 100 minutes per year
of occupational therapy consultation services for sensory needs, and 30 minutes per
week of specialized academic instruction, to consist of group pull-out services to
develop skills to timely and accurately complete his work. When mastered
independently, the IEP would be amended to convert this services to a push-in model.
Student would receive 25 minutes for 7 times monthly of pull-out group speech and
language services, in the form of lunch bunch, as part of lunch recess.
The team discussed extended school year services, and decided Student did not
need them. None of Castro Valley’s team members had observed any significant
regressions over school breaks. The draft IEP placed Student in the general education
setting at Independent, where he would be in the regular class 94 percent of the time,
and the remaining 6 percent of the time he would receive resource services and
speech and language services. The meeting ended, but the remaining team members
agreed that the IEP would not be finalized until a meeting to include Mother could be
Castro Valley contacted Parents to schedule another meeting. Staff sent Parent
the audio recording of the March 25, 2019 team meeting session and the IEP documents
reviewed at the meeting.
Castro Valley convened the third and final session of the triennial IEP team
meeting on May 15, 2019. The team included Mother, her educational specialist,
Ms. Martin, Ms. Lindgren, Ms. Carson, Ms. Ostreicher, Ms. Davis, Mr. Hansen-Schmitt,
Ms. Keller, counsel for Castro Valley, Ms. Davis, and counsel for Student.
At the time of this meeting, Student had been at the psychiatric facility in Vallejo
for over nine weeks. The team learned Student had no educational program at the
Vallejo facility up to the time of this meeting. Student’s counsel believed Castro Valley
needed to offer a residential placement.
The team reviewed Student’s strengths, Mother’s concerns, and Student’s present
levels again.
Mother again reported behavioral issues at home, and that homework resulted in
meltdowns. Student told Mother he had a hard time at school and it makes him anxious
and upset. Mother stated that peer interactions that Student witnessed make him very
anxious. He was not always willing to share, but he did talk about some incidents.
Student reported to Mother he did not want anyone to know his difficulties. Mother
reported his reactions at home were extreme. The educational consultant commented
that when she interviewed Student, he stated he was a danger to others.
Mother again expressed her concern regarding the discrepancy between what
staff saw at school and what occurred at home. Mother saw Student react violently
when he had to do homework. She believed his behavior escalated when faced with
something difficult. Ms. Keller mentioned that the homework was review and should
not be a problem. The team agreed to add no homework as an accommodation.
At hearing, the evidence showed that homework in Student’s first grade class was
merely to practice skills which Student already possessed. Homework performance and
completion did not impact grades in Ms. Keller’s class.
The team reviewed the proposed goals. For Student to receive educational
benefit, the school team members developed goals to address Student’s needs in the
areas of social skills/pragmatic language; executive functioning, and social emotional.
The executive functioning goal addressed Student’s tendency to present his work
to the teacher without editing it or checking it for completion. The goal provided that,
when given an assignment with multiple steps and a work completion checklist, Student
would independently, with no more than one prompt, check his work for accuracy and
completion for three out of four assignments.
One of two pragmatic language goals was based upon Student rating a 1, on a
rating scale of 1 to 9, in the area of respectful language. He also did not give
compliments in lunch bunch. The goal required Student to give a compliment to a
teacher or peer at least once per session during structured activities, with 80% of
opportunity in four out of five sessions.
The second pragmatic language goal was based upon Student not understanding
when others were frustrated with his behavior. He also was not observed asking about
personal information during lunch bunch unless it was modeled for him. The goal
required Student to independently identify something he knew about an area of interest
or personal information about a peer in his group, a family member, or a teacher at least
once during his session, and make a good guess as to why they felt that way, with
80 percent of opportunity in 4 out of 5 sessions.
Teacher was asked why Student received such a low score in the area of
respectful language, and she responded he would blurt out a comment without thinking
about it, such as “Why don’t you know it?” With respect to the conversational
turn-taking goal, Student would be dismissive of a topic, for example, a Princess topic.
The social emotional goal was based on the Student’s behavior record at school,
which the baseline noted included 11 uh ohs. In fact, Student’s behavior records
showed six uh-ohs, including such conduct as having an unorganized desk, saying “bad”
words, being disrespectful, “fooling around,” and jumping on the custodian’s cart when
going to the bathroom, and five other behaviors recorded on Ms. Keller’s log. On a few
additional occasions, Student engaged in behaviors that did not break school rules but
warranted an email home and a discussion with Ms. Keller, and perhaps other school
staff, such as the school psychologist or Mr. Hansen-Schmitt. None of these incidents
occurred after November 15, 2018, and none of them required any discipline or
suspension. The goal required Student to implement an appropriate coping strategy
rather than engaging in an unexpected behavior with no more than one unexpected
behavior per month.
Student’s counsel believed Castro Valley should offer a residential placement
Mother felt she made it clear for over a year that Student was violent at home.
The team reviewed and discussed the continuum of placement options again.
Based on information provided by Mother and her educational consultant, who assisted
Student’s family in locating a residential placement at Intermountain, the team
discussed Intermountain in detail, including its use of restraints, the medical or other
need for the placement, and possible alternative placements by other agencies. Mother
reported that Student stated that he “will hurt people when he comes home.”
Mr. Hansen-Schmitt reported that defusing problematic behaviors through conversation
with Student was successful in getting Student back to class or on task. Castro Valley’s
team members expressed Student was happy and successfully in general education.
They expressed their concerns that Student’s education and social skills would be
stunted at a placement like Intermountain.
The IEP offered placement in general education at Independent. The services
offered were consultative occupational therapy for 100 minutes annually, to address
Students’ sensory needs; speech and language services in a group, for 175 minutes
monthly, as lunch bunch; specialized academic instruction for 30 minutes weekly to
focus on mastering work completion checklists to finish work independently; and
60 minutes per month of individual counseling, provided in four 15-minute sessions per
month, to support Student’s social emotional goal.
The team reviewed accommodations and modifications. The accommodations
and supports were the same as those discussed at the March 25, 2019 meeting session,
and the team added the modification of no homework.
At some point over the three IEP team meetings, Ms. Martin reported that as of
March 11, 2019, Student had met his previous pragmatic language goal to direct
positive comments toward peers during facilitated conversations given a daily verbal
reminder of lunch bunch rules, and repair any negative comment given a verbal prompt,
in 8 out of 10 occurrences, as measured by charting. Ms. Martin wrote on the progress
report that Student met the goal as he had not demonstrated negative comments
directed at peers during his time in lunch bunch. His teacher reported to her that
Student made negative comments less than once per week, and followed her direction
to amend his comments to peers. She also wrote that Student was showing more
flexibility and coping appropriately when others were not interested in the depth of his
knowledge of certain topics.
Mother and Student’s attorney requested another copy of the prior goals and
progress reports, as well as any data to support the progress reports.
In his closing brief, Student contended that Castro Valley continually and
intentionally withheld and misrepresented necessary information from Mother about
Student’s functioning at school, as alleged in Issue 1a, by not giving her requested data
and by misstating Student’s social emotional and behavioral functioning.
The record reflected that Mother asked for data to support Student’s pragmatic
speech goal at both the September 28, 2018 IEP team meeting, and also at the end of
the May 25, 2019 session of the triennial IEP team meeting. Since the issues in this case
only involve conduct from January 23, 2019, onward, due to the January 22, 2019
settlement agreement in which Mother waived all educational claims through that date,
Mother’s initial request for the information is not at issue here. Mother also requested
that she be sent data on the speech goals in the October 2019 IEP, discussed below, but
that request is not at issue here, either. At that time, Student was receiving his speech
and language services at Intermountain, where Student was unilaterally placed, and not
from Castro Valley.
Mother did not define “data” in her request. Mother testified at hearing she did
not receive “data” regarding Student’s progress on the speech and language goal. At
hearing, Ms. Martin explained that she believed that sometime after the triennial IEP
team meeting she was asked to submit her speech and language service logs to the
school district, and she did so. She assumed the logs were sent to Mother, but there
was no evidence as to whether they were.
The speech logs did not contain a real-time tally or statistics regarding Student’s
progress on the pragmatics goal, as Ms. Martin did not feel it was appropriate to overtly
take data in a social skills situation. Instead, she observed Student working on and
meeting the goal throughout the lunch bunch sessions, just as she reported on the
progress report on the goal. He was not argumentative or sarcastic or engaging in eye
rolling, rather, he asked a question of a peer, and listened, and asked follow-up
questions. He did not make any negative comments toward peers, so there was nothing
to repair. Ms. Martin also generally discussed his progress on the goal when she
reported his present levels of performance at his IEP team meetings, and she reported
his conversational skills in her triennial speech and language assessment.
In any case, Student did not demonstrate that a procedural failure of
Castro Valley to provide the service logs impeded his right to a FAPE, caused a
deprivation of educational benefits, or significantly impeded Parents’ participation in the
decisionmaking process. The evidence was undisputed that Ms. Martin’s speech
services were reasonably calculated to enable Student to make appropriate progress,
and he did. The evidence demonstrated that Student met the goal, and engaged in
pleasant back-and-forth conversations with his peers in lunch bunch and elsewhere at
school. One entry in the speech log stated, “lots of positive talk.” Another entry
described Student helping his peers successfully play a game, and another showed
Student expressed tolerance for other children’s tastes and preferences. His
conversational skills were also reported by Ms. Martin in her triennial speech and
language assessment. Student received educational benefit from his speech services.
Accordingly, there was no evidence that any failure to provide “data” on Student’s
progress on the goal impeded Student’s right to a FAPE or caused a deprivation of
educational benefits. There was no evidence that he did not make the reported
Mother received copies of all of Student’s assessments conducted in
February and March 2019 in preparation for Student’s triennial IEP review. Mother was
present, sometimes with her advisors or attorneys, at two sessions of the triennial
meeting at which these assessments and Student’s speech and language present levels
of performance were discussed, with reports of progress by multiple school district team
members, including Ms. Martin. The IEP notes do not reflect Mother was inhibited at
any time from inquiring into details of Student’s progress or present levels of
There was no evidence that any failure of Mother to receive “data” significantly
impeded Parent’s right to participate in the decisionmaking progress regarding
Student’s IEPs, especially as Mother and her counsel had already predetermined that
Student required a residential placement because of his conduct at home. There was no
evidence as to what skills or training Parents possessed to interpret the data, or how it
would have made their participation more meaningful. Access to data underlying a
student’s progress report is not required to ensure a parent’s meaningful participation in
the IEP process. (T.K. by & through C.K. v. Mercer Island Sch. Dist. (W.D. Wash., Mar. 17,
2020, No. C19-556 MJP 2020 WL 1271519, at **6–7.)
Under these circumstances, Castro Valley did not deprive Student of a FAPE with
respect to any failure to provide “data” regarding Student’s progress on his speech and
language goal.
Student also contends that Castro Valley failed to provide “data” on Student’s
behavior. Student partially based this claim on the request Student made at the
September 28, 2018 IEP team meeting. However, as set forth above, that IEP meeting is
subject to Student’s waiver of educational all claims arising before January 23, 2019.
Regardless, to the extent that “data” refers to information as well as statistics, the
evidence reflected Mother received an abundance of data regarding Student’s
behaviors. First, Student’s behaviors were discussed in the many emails exchanged
between Mother and school personnel whenever Mother inquired about or mentioned
Student’s behaviors. Second, Student’s behaviors were discussed in Ms. Yi’s
February 2019 educational mental health services assessment report, and throughout
Ms. Lopez’s triennial assessment report, as well as in the assessment reports written by
Ms. Davis and Ms. Brown, the behavior specialist. Indeed, Ms. Brown’s report contained
actual statistical data regarding Student’s observed behaviors. Finally, Student’s
behaviors were discussed at all IEP team meetings convened after January 23, 2019.
Mother attended all of those meetings, except for the March 25, 2019 session of the
triennial meeting, and she was usually accompanied at those meetings by either her
lawyer or an advocate. There was no evidence that Mother was impeded from
participating in the IEP team discussions about Student’s behaviors.
Student contends that Mother particularly required Castro Valley to provide
behavioral information about Student because Student played chasing games on the
playground at school, and colored, drew, and folded origami in the classroom. These
activities were mentioned in the Safety Plans included in the Closing Crisis Progress
Notes written in November 2018, in connection with Student’s discharge from his
hospitalizations. The Safety Plans identified “I am being chased” as an indicator that
Student was getting upset, and coloring, drawing, and folding paper to make origamis
were coping strategies. Significantly, none of the individuals who treated Student
during his hospitalizations or who wrote the discharge reports regarding his
hospitalizations testified at hearing, so there was no definition of what the Safety Plan
meant by “I am being chased.” One would think that if the term encompassed the
typical chasing, racing, tag, and hide-and-go-seek games young children typically play
on school playgrounds and in parks and yards, the author of the Safety Plan would have
so specified. All testimony and reports from those who observed Student running
around with other children on the playground were that he was willingly participating in,
and enjoying, the typical play of first graders. Indeed, his running and chasing on the
playground was mentioned in assessment reports that were given to Parents. There was
no evidence that Student’s chasing other children, or being chased, on the playground,
signified that Student was experiencing any emotional distress or difficulty. Parents did
not demonstrate that they were unaware of this specific playground activity, or that
there was a need for anyone at Independent to take data regarding it.
Similarly, there was no evidence that Student’s interest in coloring, drawing and
folding origami at his desk was ever concealed from Parents, or that there was any need
to take data on it. These activities were mentioned in many of the assessment reports,
as well as at nearly all of the IEP meetings, and they were often mentioned in
conjunction with his sensory needs or as coping skills, but they were also mentioned as
things he enjoyed doing. Indeed, during the occupational therapist’s triennial
assessment, Mother commented that Student liked origami and used it as a tool.
The evidence did not reflect that Mother ever raised any concerns when school staff
mentioned these activities. Parents demonstrated no need for Student’s teachers to
take data on these frequent activities and report them, and they did not request the
school to do so.
Student’s claims relating to Castro Valley concealing or not reporting behavior
information are rooted in Ms. Keller’s responses to the rating scales in both the
Schilling and triennial assessments, which reflected that she observed Student displaying
elevated behaviors. Yet, Ms. Keller’s comments regarding Student’s behaviors as
reported in those assessments, and as recorded at IEP team meetings, reflected that
Student’s behaviors in her classroom were more mild than her ratings reflected, and not
nearly as elevated as the behaviors Parents observed at home.
Ms. Keller testified at hearing. She stated, consistent with the information she
provided at IEP team meetings, that Student’s behaviors at the beginning of the
semester, during the time of the Schilling assessment, were somewhat elevated, but
they improved as the school year proceeded, and they were never unmanageable.
She admitted that she was surprised that her responses to the rating scales on the
triennial assessment yielded results that showed Student’s behaviors in various areas
were in the clinically significant range, because she did not see such elevated behaviors
in the classroom, especially as the year progressed and at the time of the triennial
assessment. She commented that the time frame for the ratings she gave on the
Behavior Assessment rating scale during the triennial assessment, which requested that
she rate Student’s behaviors during “the last several months,” were unclear.
Significantly, Ms. Keller made no effort to change her answers to the rating scales after
she submitted them, and there was no evidence that Ms. Lopez, or anyone else from
Castro Valley, would have permitted her to do so. Ms. Keller confirmed at hearing that
Student’s behavioral infractions were minor, and he did not engage in dysfunctional,
disruptive, aggressive, or maladaptive behaviors whether in class or on the playground.
Ms. Keller’s testimony and narrative reports that Student’s behavior in her
classroom was not dysfunctional, disruptive, or maladaptive was supported by every
individual who observed Student in Ms. Keller’s class at Independent and on the
playground. He was observed by Dr. Schilling, Ms. Keller, Ms. Pham, Mr. HansenSchmitt, Ms. Carson, Ms. Lopez, Ms. Davis and Ms. Brown, on various days at various
times, and some of these observers conducted multiple observations. Not a single
person reported that they observed any disruptive, dysfunctional, aggressive, or
maladaptive behavior in the classroom or on the playground. None of those who
observed Student reported anything but normal play. All of the observations basically
described Student as a cooperative, compliant, and obedient first-grader, who
interacted well with peers and staff.
Further, Ms. Pham, Mr. Hansen-Schmitt, Ms. Lopez, Ms. Carson, Ms. Davis, and
Ms. Brown, all testified credibly at hearing regarding Student’s behaviors. None of them
reported Student engaged in dysfunctional, disruptive, aggressive, or maladaptive
behaviors whether in class or on the playground.
Additionally, Student’s educational records do not reflect that Student engaged
in disruptive or dysregulated and elevated behavior at school. Student had no
suspensions. He had no detentions. He displayed no aggression toward anybody while
at school. He did not disrupt the class. He was not a danger to himself or others, and
his behaviors did not interfere with his learning or that of others. He had a few uh-ohs
and other minor behaviors towards the beginning of the school year, but none after
November 15, 2018, and none of those incidents were out of the ordinary for a firstgrader. He never repeated his behavior with pointing pencils at himself, or drawing
“on himself with markers, after his discussions with Ms. Keller and Ms. Lindgren, the
school psychologist, that he should not engage in those activities.
There was no specific evidence as to why Ms. Keller rated Student as she did on
each item on the rating scales, such that her ratings, taken as a whole, reflected that
some of the behaviors she observed placed Student in the clinically significant range.
Student did not demonstrate that he engaged in any of the dysregulated and aggressive
behaviors at school that he engaged in at home. Student did not demonstrate that
Castro Valley engaged in, or could engage in, any cover-up of any such behaviors.
Indeed, if Student engaged in the impulsive and uncontrolled behaviors at school that
Student displayed at home, such as kicking, biting, and hitting others at the slightest
provocation, Student’s classmates would witness it and report it to their parents,
siblings, friends, and teachers. Such reports would reach Parents in short order. If
Student had attacked or injured another child at school as Student attacked or injured
his siblings, the child’s parents would report that to the school, and Parents would
ultimately learn about it. If Student were physically injuring his teachers, it is unlikely
that the teachers would keep that a secret from their co-workers or the principal, and
that Student would escape discipline. In short, if Student were behaving at school as he
behaved at home, Castro Valley would be unable to cover up or conceal such obvious
misdeeds. Further, there was no evidence that Castro Valley would be motivated to
cover-up or conceal any such behaviors.
Finally, the evidence reflected that, as the 2018-2019 school year progressed,
Student had good peer relationships at school. He played with his peers on the
playground, they sat with him outside the cafeteria at lunch, they joined him at lunch
bunch, and his classmates enjoyed being with him. If Student’s behaviors at school were
like those he displayed at home, it is likely that he would have no friends at school,
rather, his peers would purposely avoid him.
The evidence reflected that all of Student’s behaviors at school were set forth in
the assessment reports, “uh-oh” reports, or communications between the school and
Parents. Mother attended, often with an advocate or attorney, each IEP team meeting at
issue in this case during the 2018-2019 school year, at which the subject assessment
reports and Student’s school performance and behaviors were discussed, with the
exception of the March 25, 2019 IEP team meeting from which Mother absented herself.
There was no evidence that any behavioral information was concealed from Parents
such that they were unable to fully participate in those meetings. Student’s contentions
regarding this issue focus on the 2018-2019 school year when Student attended Castro
Valley; but there was also no evidence that Parents were unable to fully participate in
the October 2019 IEP team meeting, discussed in Issue 1c below, which was held after
Student had left Castro Valley to attend Intermountain.
Student also bases this claim on Ms. Yi’s allegedly deficient educationally related
mental health assessment, contending that it did not include sufficient information, and
therefore provided another example that Castro Valley withheld behavioral information
from Parent. The appropriateness of the educationally-related mental health
assessment is separately discussed in Issue 1b, below, and that discussion is
incorporated by this reference. For the reasons stated below in Issue 1b, Student did
not demonstrate that Castro Valley withheld behavior information from Student with
Ms. Yi’s assessment.
Student did not meet his burden of demonstrating that Castro Valley
intentionally withheld from, or misrepresent to, Parents necessary information about
Student’s social, emotional, and behavioral functioning at school from January 23, 2019,
through the 2019-2020 school year. Further, Student did not demonstrate that any lack
of providing “data,” had it occurred, impeded Student’s rights to a FAPE, caused a
deprivation of educational benefits, or significantly impeded Parents’ ability to
participate in the decisionmaking process as to Student’s education. Castro Valley did
not deprive Student of a FAPE on this ground.


In his complaint, Student contends that the educational mental health services
assessment was deficient and deprived Student of a FAPE because Ms. Keller, Ms. Pham,
and Ms. Martin, who had direct contact with Student during the school day, were not
available to the assessor. Castro Valley contends that the assessment incorporated
input from those individuals, and those individuals also provided input at the
March 5, 2019 IEP team meeting at which the assessment was discussed. Castro Valley
further contends that any procedural violation with respect to this assessment did not
deprive Student of a FAPE, because it did not impede Student’s right to a FAPE,
significantly impeded Parents’ ability to participate in the decisionmaking process, or
caused a deprivation of educational benefit.
The pupil must be assessed in all areas related to his or her suspected disability,
and no single procedure may be used as the sole criterion for determining whether the
pupil has a disability or whether the pupil’s educational program is appropriate. (20
U.S.C. § 1414 (a)(2), (3); Ed. Code, § 56320, subds. (e) & (f).) The assessment must be
sufficiently comprehensive to identify all of the child’s special education and related
service needs, regardless of whether they are commonly linked to the child’s disability
category. (34 C.F.R. § 300.306.)
As relevant here, 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 school district, county office, or special education local plan area.”
(Ed. Code, §§ 56320, subd. (g), and 56322; see 20 U.S.C. § 1414(b)(3)(B)(ii).)
In conducting the assessment, the assessor must use a variety of assessment
tools and strategies to gather relevant functional, developmental, and academic
information about the student. (20 U.S.C. § 1414(b)(2)(A)(i).)
Assessments must be selected and administered to best ensure that the test
results accurately reflect the pupil’s aptitude, achievement level, or any other factors the
test purports to measure and not the pupil’s impaired sensory, manual, or speaking
skills unless those skills are the factors the test purports to measure. (Ed. Code, § 56320,
subd. (d); 34 C.F.R. § 300.304(c)(3).) The determination of what tests are required is
made based on information known at the time. (See Vasheresse v. Laguna Salada Union
School District (N.D. Cal. 2001) 211 F.Supp.2d 1150, 1157-1158.)
The failure to appropriately assess a student is a procedural violation of the IDEA
and the Education Code. (Park v. Anaheim Union High School Dist. (9th Cir. 2006) 464
F.3d 1025, 1031.)
Ms. Yi, a licensed marriage and family therapist, and assessor with the County
Behavioral Health Care Services Department, was both knowledgeable of Student’s
disability and competent to perform the mental health assessment. However, her
assessment was not sufficiently comprehensive to identify all of Student’s mental health
needs as she did not include interviews with Ms. Keller, Ms. Martin, or Ms. Pham, three
individuals who had significant contact with Student at school. Without their input,
Ms. Yi failed to gather relevant functional information about Student’s social and
emotional functioning in his general education setting. The referral packet included
their reports, but their knowledge of Student and his behaviors at least merited personal
interviews, if not the completion of rating scale assessment instruments. Interview or
rating scale responses from Ms. Keller, Ms. Martin and Ms. Pham were necessary to
ensure that accurate information about Student’s school-based emotional and
behavioral functioning was obtained for the IEP team. Ms. Yi’ failed to appropriately
assess Student’s educationally related mental health needs.
A failure to appropriately assess is a procedural violation. However, a procedural
violation only constitutes a denial of a FAPE if it impeded a Student’s right to a FAPE,
significantly impeded the parent’s opportunity to participate in the decisionmaking
process regarding the provision of a FAPE, or caused a deprivation of educational
Student did not meet his burden of demonstrating that the inappropriate
educationally related mental health assessment deprived Student of a FAPE, because
Castro Valley took three effective steps to mitigate any harm caused by the deficiencies
in Ms. Yi’s assessment. First, Ms. Keller, Ms. Pham, and Ms. Martin attended the
March 5, 2019 IEP meeting at which Ms. Yi’s assessment was presented, and contributed
to the discussion. Moreover, their comments reflected that Student’s behavior was wellregulated in the school setting. Second, the triennial assessment, which was completed
at approximately the time of the March 5, IEP team meeting when Ms. Yi’s assessment
was discussed, explored sources of information missing from Ms. Yi’s assessment. The
triennial assessment, as discussed above, contained a plethora of information regarding
Student’s emotional and behavioral functioning. Ms. Keller reported to Ms. Lopez
during the assessment. Ms. Lopez also reported information provided to her by
Ms. Pham and the site director for Student’s after-school program on feedback forms.
The triennial assessment also included Ms. Martin’s speech and language assessment,
which included Ms. Martin’s report of Student’s social behavior during lunch bunch and
on the playground, and input from Ms. Keller on Student’s pragmatic language and
social skills. Additionally, the triennial assessment included Ms. Brown’s behavioral
assessment to determine whether Student required a paraeducator, and Ms. Brown’s
report included an interview with Ms. Keller about Student’s classroom behaviors, as
well as written information from Ms. Martin about Student’s progress.
Moreover, Ms. Lopez’s assessment included a variety of assessment instruments
to evaluate Student’s behaviors and social-emotional status, as well as assessment
instruments to assess executive functioning, autistic-like behaviors, and behaviors
consistent with the eligibility category of emotional disturbance. All of the triennial
assessments were discussed at the IEP team meeting on March 12, 2019, just days after
the March 5, 2019 team meeting where Ms. Yi’s assessment was discussed. The triennial
IEP that emerged from the three-part triennial IEP team meeting included several of the
goals and services Mother requested at the March 5, 2019, IEP meeting, such as
resource services to work on the executive functioning goal, a coping skills goal to be
addressed by counseling with the school psychologist, and a perspective-taking goal to
be worked on with Ms. Martin.
The information Ms. Pham, Ms. Keller, and Ms. Martin contributed to Ms. Lopez’s
triennial assessment, Ms. Lopez’s use of a variety of assessment instruments to evaluate
Student’s emotional and behavioral functioning, and Ms. Brown’s behavioral
assessment, all served to affirm and supplement Ms. Yi’s conclusions that Student was in
need of educationally related mental health services. The supplemental information
provided by these individuals and Ms. Lopez’s and Ms. Brown’s assessment also led to
the development of more appropriate goals than Ms. Yi proposed in her assessment.
Furthermore, Ms. Lopez, Ms. Martin, and Ms. Brown were present at the March 12, 2019,
session of the triennial IEP team meeting, along with Mother, and discussed their
assessment reports then.
Finally, Castro Valley granted Mother’s request, made at the March 5, 2019 IEP
meeting, for an independent educational mental health services assessment. Such an
independent educational mental health services assessment was part of Dr. Payson
Hays’s psychological assessment, discussed with respect to Issue 1c, below.
Due to the participation of Ms. Keller, Ms. Martin, and Ms. Pham at the
March 5, 2019 IEP meeting where Ms. Yi’s assessment was discussed; the comprehensive
examination regarding Student’s emotional and behavioral functioning which were
performed as part of the triennial assessments, which included information from
Ms. Pham, Ms. Keller, Ms. Martin, and others; the reporting of those assessments and
development of goals at the triennial IEP meeting sessions, and Mother’s participation in
the discussions at two of those meeting sessions, Parents had a full picture of Student’s
social emotional status as of the triennial IEP. Student did not meet his burden of
showing that the deficits in Ms. Yi’s mental health assessment significantly interfered
with Parent’s opportunity to participate in the IEP process. Parents may not have agreed
with the information in the triennial assessment, and they may have had questions and
concerns as to Ms. Keller’s responses on the ratings scales, but, as was discussed above
with respect to Issue 1a, there was no evidence that Castro Valley concealed from
Parents any information about Student’s behaviors or social-emotional functioning at
school. Rather, the evidence reflected that Mother fully participated in the mental
health discussions at the two segments of the triennial IEP team meeting which she
attended, and she would have been able to fully participate in the March 25, 2019
session of the triennial IEP meeting had she stayed.
Student not only failed to demonstrate that Castro Valley concealed or
misrepresented pertinent information, but also failed to demonstrate that Castro Valley
deprived Student of an educational benefit, impeded his rights to a FAPE, or significantly
impaired Parents’ ability to participate in the decisionmaking process pertaining to
Student’s IEPs.
Furthermore, as a result of Dr. Payson Hays’s psychological assessment,
combined with the information Castro Valley provided in the triennial assessment and
triennial IEP, Parents’ opportunity to fully participate in the decisionmaking process as to
Student’s October 18, 2019, IEP was not impeded. Mother may not have agreed with
the IEP, and Parents may have had different opinions than did Castro Valley regarding
how to address Student’s needs, but Parents had at least as much information as
Castro Valley had at that time regarding Student’s needs at Intermountain, and Mother
was able to fully participate in that IEP team meeting.
Student did not demonstrate that alleged the flaws in Ms. Yi’s educational mental
health services assessment impeded his right to a FAPE, caused a deprivation of
educational benefits, or significantly impeded Parents’ right to participate in the
decisionmaking process regarding Student’s IEPs. The flaws in Ms. Yi’s assessment were
mitigated and addressed, such that Castro Valley did not deprive Student of a FAPE.


Student contends that Castro Valley failed to provide sufficient goals, services,
and a residential placement to Student, despite the recommendations of outside
assessors and experts, and knowledge of Student’s intensifying social-emotional and
behavioral difficulties. Castro Valley contends that it consistently offered appropriate
goals in all areas of need, services which allowed Student to make reasonable progress
on his goals, and an appropriate placement in the least restrictive environment.
The factual findings regarding Student’s previous assessments and IEPs with
respect to Issue 1a and 1b are incorporated into this issue.
In developing the IEP, the IEP team shall consider the strengths of the child, the
concerns of the parents for enhancing the child’s education, the results of the most
recent evaluation of the child, and the academic, developmental, and functional needs
of the child. (20 U.S.C. § 1414(d)(3)(A); 34 C.F.R. § 300.324(a).) The IEP must also include
an assortment of information, including a statement of the child’s present levels of
academic achievement and functional performance, a statement of measurable annual
goals designed to meet the child’s needs that result from his disability to enable the
child to be involved in and make progress in the general education curriculum, and,
when appropriate, benchmarks or short-term objectives, that are based upon the child’s
present levels of academic achievement and functional performance. (20 USC
§ 1414(d)(1)(A)(i); 34 C.F.R. § 300.320.)
The IEP must target all of a student’s unique educational needs, whether
academic or non-academic. (Lenn v. Portland School Committee (1st Cir. 1993) 998 F.2d
1083, 1089.) A school district is required to provide educational instruction, specially
designed to meet the unique needs of a child with a disability, supported by such
services as are necessary to permit the child to benefit from the instruction. (Rowley,
supra, 458 U.S. 176, 188-189; County of San Diego v. California Special Education
Hearing Office (9th Cir. 1996) 93 F.3d 1458, 1468.) (San Diego.)
An IEP is evaluated in light of information available to the IEP team at the time it
was developed; it is not judged in hindsight. (Adams v. State of Oregon (9th Cir. 1999)
195 F.3d 1141, 1149.) “An IEP is a snapshot, not a retrospective.” (Id. at p. 1149, citing
Fuhrmann v. East Hanover Bd. of Education (3rd Cir. 1993) 993 F.2d 1031, 1041.) It must
be evaluated in terms of what was objectively reasonable when the IEP was developed.
(Ibid.) As the court noted in Endrew F., supra, 137 S.Ct. at p. 999, crafting an IEP required
a prospective judgment, and judicial review of an IEP must recognize that the question
is whether the IEP is reasonable, not whether it is regarded as ideal.
In resolving the question of whether a school district has offered a FAPE, the
focus is on the adequacy of the school district’s proposed program, not that preferred
by the parent. (Gregory K. v. Longview School Dist. (9th Cir. 1987) 811 F.2d 1307, 1314.)
In Gregory K., the court determined that if a school district’s program was designed to
address the student’s unique educational needs, was reasonably calculated to provide
the student with some educational benefit, and comported with the student’s IEP, then
the school district provided a FAPE, even if the student’s parents preferred another
program and even if the parents’ preferred program would have resulted in greater
educational benefit. (Ibid.)
Parents did not consent to the March 15, 2019 triennial IEP. At some point,
Castro Valley agreed to fund independent psychoeducational, educational mental
health, and speech and language assessments. The first two independent assessments
are discussed below; the independent speech and language assessment is not relevant
to this matter.
Student remained hospitalized in the Vallejo facility until May 21, 2019. At first
he was there on two involuntary psychiatric holds, a three-day hold and then a 14 day
hold. A few days into the 14-day involuntary psychiatric hold, Parents agreed to keep
Student in the Vallejo facility on a voluntary psychiatric hold. Parents agreed to the
voluntary hold because they did not believe they could control Student’s behaviors at
home and his siblings and the family would be endangered.
While Student was hospitalized, Parents attempted to locate residential
placements for him. On April 1, 2019, Parents retained an educational consultant to
assist them in their search, and they found Intermountain. Student’s application to
Intermountain stated his presenting problems were “Ongoing aggression at home with
siblings. Difficulty with emotional regulation and impulse control.” The application
described Student’s behaviors in school in milder terms: “Largely internalizing behaviors.
. . .Persistantly [sic] negative at times, rushes through tasks, but isn’t careful in his work. .
. .Can be silly to gain peer attention, especially at transitions.” Student was admitted to
Intermountain, and on May 2, 2019, Student’s counsel wrote Castro Valley’s counsel to
advise that Student would be attending Intermountain and Parents were seeking
reimbursement from Castro Valley.
Student never returned to Castro Valley. His Castro Valley report card for the
2018-2019 school year covered the first two trimesters, since he was not present for the
third trimester. His grades were all 2s, which signified proficient–meets first grade
standards, or 3s, which signified advanced–strongly meets first grade standards. His
behaviors were generally rated as good to satisfactory. He needed improvement in the
first trimester in managing time effectively, staying on task, demonstrating
organizational skills, and respecting people and property. In the second trimester, he
needed improvement in completing and returning homework on time, and
demonstrating organizational skills. Ms. Keller’s comments were positive for both
trimesters, but Ms. Keller noted in the first trimester he needed to focus more on his
work so he could complete his classwork faster.
Student enrolled at Intermountain on May 23, 2019., and remained there through
the hearing. Intermountain serves children from ages four to 13 with social-behavioral
difficulties. It provides a therapeutic environment, with 24-hour behavioral services
available. The children live in small groups in cottages, and Students at Intermountain
ordinarily attend its small school separate from the cottages. As a result of the worldwide coronavirus pandemic, Student’s education has also occurred in the cottage.
Student’s class when he entered Intermountain consisted of six to eight students,
with a teacher and two aides. Student was evaluated when he arrived, and his
therapeutic plan was developed. Student had two therapeutic goals when he enrolled,
both of which were based on Student’s verbal and physical reactions and aggressions
toward his parents and siblings. The initial treatment plan did not refer to school,
school-based behaviors, or peer interactions, and there was no evidence that Parents
gave Intermountain staff permission to speak to Castro Valley when Student was first
Children usually stay at Intermountain for 15 to 20 months. They progress
through recognizable stages during that time. At first there is a
“honeymoon/engagement” stage, and then there is a “working through” stage, during
which behaviors deteriorate while the students worked through issues in therapy. In
later stages, behaviors improve and the child is discharged.
Intermountain’s rate chart for July 2019-2020 shows the following rates:
Education at $182.50 per day for 210 school days per school year, Mental Health
support at $260.00 per day for 365 days, Room and Board at $50.00 per day for
365 days, and a one-time enrollment fell of $1,500. Services beyond instruction and
these residential services are available at an additional cost. Parents have thus far paid a
total of $148,997.32, which includes charges for Student’s educational consultant, round
–trip travel for family and Student between home and Intermountain, tuition and room
and board, and costs for IEP services. These expenses do not include charges for
residential treatment from February 28, 2020, through August 31, 2020, for which there
is insurance coverage.
Sally Payson Hays, Ph.D., performed an independent psychological and
educationally related mental health services assessment of Student at Intermountain, at
Castro Valley’s expense. Dr. Payson Hays received her bachelor’s degree in English and
history in 1985 from Tufts University, her master’s degree in educational psychology
from the University of Southern California in 1993, and her Ph.D. in education, cognitive
development, and school psychology from the University of California, Berkeley, in 2000.
She received her clear pupil personnel services credential in 2002, and became a
licensed psychologist in California in 2011. Since July 2019 she has been a faculty
lecturer in the School Psychology Program at the University of California, Berkeley
Graduate School of Education. Since August 2017, she has been the director of the
clinical school psychology training program and clinical supervisor for the
Jefferson Union High School District in Daly City, California. She also has maintained a
private practice since August 2011, which includes providing individual, group, and
family therapy, and psychological and educational assessments.
Dr. Payson Hays began her assessment of Student on June 25, 2019, when
Student had been at Intermountain for about five weeks, and she wrote a report of the
assessment dated September 17, 2019.
Dr. Payson Hays’s report provided a detailed narrative of Student’s health and
developmental history, his previous services and therapies, his educational history, his
previous assessments, and Mother’s and her advocate’s interpretations of events.
Dr. Payson Hays included a chronology of Student’s behaviors at home. She
summarized a report written by Vicki Young, Student’s therapist at Eden, dated October
29, 2018. Ms. Young noted that at school, and in his after school program, Student had
difficulty following directions, focusing on teacher directions, implementing those
directions, doing class work, organizing classwork, turning in his classwork,
understanding classroom exceptions, and social interactions with peers and educational
Ms. Young’s report described Student’s extreme home behaviors “Student has
severe difficulty at home with his peers. Due to his reactivity on physical and emotional
outbursts, he is triggered with long tantrums often. When triggered he hits or bites
family members. He has severe difficulty being contained.” She reported that Student
could easily be triggered by his younger siblings’ behavior, but his actions were extreme,
and included three hour tantrums, hitting, and aggression without being able to stop
without mother or father containing and intervening physically.
Dr. Payson Hays also cataloged an incident that occurred on February 26, 2019,
based on a Child Protective Services report. Student punched his younger sister in the
eye, which resulted in a slight bruise. A few days earlier, he hit his brother on the nose
and gave him a slight bruise. These incidents occurred a few days before the incidents
that resulted in Student’s hospitalizations at Kaiser and then in Vallejo, which were
described in Issue 1b, above.
Dr. Payson Hays described Student’s current educational functioning at
Intermountain. She described Intermountain’s program, and observed Student in class,
in his residential cottage, and during assessment. She interviewed Student’s teacher
Kathleen Slack, Student’s therapist in the cottage Ashley Van Dyke, and Parents. She
concluded that the difficulties Student demonstrated at Intermountain indicated that
while Student’s struggles may be setting-dependent, and worse in a non-structured
home environment than in a structured environment, they were not person-dependent,
not isolated to difficulties with his immediate family, as she stated that the evaluations
conducted by Castro Valley implied.
Dr. Payson Hays observed Student in his class. Student was always on task, and
was one of the more on-task students. He actively participated in whole class activities
and interacted with the teacher. There was little to no verbal peer interaction, and
Student generally ignored all peers.
Student and his peers largely engaged in parallel play on the yard. Student
seemed to desire contact both with adults and peers, but his efforts generally consisted
of drawing attention to his own interests. Student had few reciprocal interactions with
his peers, and few reciprocal interactions between or among his peers. Dr. Payson Hays
also reported on her observation of Student in the cottage.
Dr. Payson Hays reported Student was mostly cooperative during assessment, but
he expressed flashes of irritation throughout testing. He maintained a flat affect. He
was cooperative with testing, but occasionally he did not try. He could identify things
that made him angry, annoyed, or upset, but he could not describe in detail what made
him happy or relaxed. He seemed not to notice any physical manifestations of
emotions. He did not know why he was good at school and not at home, except that
family was harder to deal with. Overall, he demonstrated strength in expressive verbal
communication and vocabulary, and a rich imagination. He demonstrated weaknesses
in understanding how he affected others, his own emotionality, showing empathy,
understanding the perspectives of others, little social communicative reciprocity, and
hyper-focus on specific topics of self-interest.
Dr. Payson Hays interviewed Ms. Slack when Student was still in first grade, and
followed up with her when Student was in second grade and off of his medications.
Overall, Ms. Slack described Student as very smart, a fine reader who was good at math
and engaged in class activities. He was imaginative but had some highly restricted
interests. Although he had difficulty in perspective-taking, he was better at it than most
of his peers at Intermountain. He was academically on grade-level and had high
reading skills. In first grade, Ms. Slack reported Student was interested in others and
wanted to have friends. In the second grade follow-up, Ms. Slack noted Student
seemed to get along well with all of his classmates and enjoyed interacting with them.
His relationships with adults were fine. His behavior continued to be “great.” He
demonstrated no disruptive behaviors at school.
Dr. Payson Hays interviewed Ms. Van Dyke, Student’s therapist at Intermountain.
Ms. Van Dyke worked with Student in the “milieu” or cottage setting. Ms. Van Dyke
reported Student was mostly resistant to therapy, often refused to talk with her, and
often became angry when she attempted to get him to talk about his feelings.
Ms. Van Dyke said that Student struggled with lack of control and perseveration on
ideas. He was a black and white thinker and struggled to understand gray areas.
He continued to need to work on peer relationships. He demonstrated defiance,
impulsivity, angry outbursts, low self-esteem, poor self-image, nightmares, and low
frustration tolerance. He consistently struggled with adult control as well as lack of trust
in adults to meet his needs. He struggled with accountability and often blamed others.
Dr. Payson Hays interviewed Parents, including a structured interview with
Mother. Parents agreed that Student’s areas of difficulty were his poor impulse control
and emotional self-regulation and difficulty with empathy. Student had coping skills,
but had difficulty using them in moments of heightened emotionality. They believed
that Student was a black and white thinker who often felt persecuted by others.
Their greatest concern was that Student became dysregulated seemingly without
warning and could not be calmed. Mother reported that she heard he struggled with
bullies at Independent in Castro Valley, and believed that his difficulties after school
were due to him “keeping it together” there and then releasing his frustrations at home.
Because his behaviors were worse at home after Student had a difficult day, she
believed that Student’s challenges at home were related to school, that he did worse at
home during the school year, and his most extreme behaviors began after coming home
from school. Dr. Payson Hays noted that most of the reports from Child Protective
Services or visits to the emergency room during the previous 16 months occurred on
school days, there were no reports in summer, and Student seemed to have the most
difficulty at home during the time he was enrolled at school. Dr. Payson Hays failure to
acknowledge Student’s psychiatric hospitalization over Thanksgiving break in 2018 is
discussed below. Mother reported Student’s ongoing feeling of boredom, constant
irritability, and past and present aggression. She reported that ever since Student was
three years old, he had tantrums that could last hours, and those episodes included
screaming, hitting, kicking, and punching. He struggled socially, he had rigid ideas of
how others should behave and communicate, and he demonstrated deluded thinking
and perseveration. Mother reported symptoms consistent with anxiety, including
separation anxiety, and denied that Student demonstrated psychosis or suicidal
Student was capable cognitively and academically. Dr. Payson Hays concentrated
in areas that she believed were either not explored fully in previous assessments, or
were more subject to changes in environment or conditions, such as rating scales from
teachers and Parents, and assessments of social-emotional and behavioral functioning.
Dr. Payson Hays administered selective subtests of the Developmental
Neuropsychological Assessment, 2nd Edition. Student demonstrated significant
variability on the subtests in the memory and learning domain. Overall findings
reflected that Student may require more time for memory recall. He could suffer from a
cognitive overload as information became more complex and required him to tap into
visual and auditory memory simultaneously. This may frustrate Student, as he may not
be able to process information as expected given his intelligence.
Dr. Payson Hays assessed Student on auditory processing and language, and
visual and spatial processing. His scores did not raise any concerns. Dr. Payson Hays
assessed Student’s attention and executive functioning using the Behavior Assessment
System-Third Edition Executive Functioning Summary, the Neuropsychological
Assessment attention/executive functioning domain subtests, and the Comprehensive
Executive Function Inventory. She administered the Behavior Assessment System
Executive Functioning Summary ratings scales to Parents, and to Student’s therapist,
case manager, and teacher at Intermountain. The ratings reported by Parents, the
therapist, and the case manager reflected elevated to extremely elevated concerns in
one or more areas, whereas Student’s teacher, Ms. Slack, rated Student in the not
elevated range in all areas. Dr. Payson Hays noted there were some significant concerns
regarding Student’s executive functioning, but these difficulties might be less apparent
in a structured classroom setting than in less structured settings.
Student’s scores on the Neuropsychological Assessment attention and executive
functioning domain showed that he was weak in flexibility and in generating multiple
ways to understand and categorize visual information. The scores also generally
showed that Student’s inhibitory control was weak, but he was able to learn tasks and
did better with practice.
Dr. Payson Hays administered the Comprehensive Executive Function Inventory
to Parents and Ms. Slack. The ratings of Student’s Parents reflected Student was in the
well below average range, but Ms. Slack rated him in the superior range overall.
Dr. Payson Hays noted that Student’s class at Intermountain was highly structured with a
very low student-adult ratio, and Student was still taking medication at the time of her
assessment. More recent feedback from Ms. Slack, after Student’s medication was
discontinued, suggested that Student was struggling more with both initiation and
staying on task.
Dr. Hays assessed Student’s autism and adaptive behavior by administering the
Autism Spectrum Rating Scale and the Adaptive Behavior Assessment System–Third
Edition. Mother and Ms. Slack completed the Autism Spectrum Rating Scales. The
ratings reflected Student’s diagnosis of autism spectrum disorder was characterized
more by deficits in social understanding, reciprocity, and behavioral rigidity rather than
other characteristics of autism spectrum disorder. The results of the Adaptive Behavior
assessment reflected that Student continued to perform significantly lower than same
age peers for adaptive skills.
Dr. Hays assessed Student’s social emotional functioning by way of the Beck
Youth Inventories-2nd Edition; the Behavior Assessment System, Scales for Assessing
Emotional Disturbance—2nd Edition, and Projective Measures.
Student’s self-report on the Beck reflected that he did not rate himself as having
any emotional difficulties except extreme anger and disruptive behavior. Dr. Payson
Hays considered his responses consistent with Ms. Van Dyke’s observations that Student
did not truly appreciate and take responsibility for his experience. Dr. Payson Hays
considered it notable that Student did not see himself as anxious, in view of the
opinions of the professionals at Intermountain who worked with him.
Dr. Payson Hays administered the Behavioral Assessment Scale to Parents,
Ms. Slack, Ms. Van Dyke, and Student’s case manager in the cottage. She warned that
Mother’s response pattern and consistency patterns reflected that her responses should
be interpreted with caution. Additionally, Ms. Van Dyke’s responses were somewhat
inconsistent and should be interpreted with caution.
Dr. Payson Hays noted a fair amount of variability among the raters regarding
Student’s social-emotional functioning. Everyone except Ms. Slack rated Student as
demonstrating significant difficulty across domains. Ms. Slack only considered Student
as demonstrating difficulty in the area of withdrawal, for which she rated him in the
at-risk range, but otherwise rated Student in the normal range across all domains.
Ms. Slack wrote that Student had “a set of self-calming skills.” The scores of the other
four raters reflected Student may present as demonstrating symptoms consistent with
deficits in anger and emotional self-control, executive functioning deficits, negative
emotionality, and attention deficit hyperactivity disorder.
Dr. Payson Hays administered the Assessing Emotional Disturbance scales to
Ms. Slack, Ms. Van Dyke, and Student’s case manager. Ms. Slack rated Student in the
not indicative range for all indicators of emotional disturbance. His therapist and case
manager, who worked with Student in the cottage, rated him in the indicative range for
emotional disturbance in the areas of relationship problems and unhappiness or
depression. The case manager also rated Student in the indicative range of emotional
disturbance in the area of physical symptoms or fears.
Dr. Payson Hays administered a measure of social adjustment, and Student’s
responses did not reach a level typical of the truly socially maladjusted.
Dr. Payson Hays tested Student’ using the “Guess Why” game in which Student
was given a sentence about a boy who experienced something in his life at home or at
school, and Student was to explain why the event happened. Student demonstrated
significant difficulty with imaginative flexibility on this task, and he had an extreme, if,
brief, negative response to an item on the test that included a prompt such as
“Robert sometimes gets nervous and upset at school, why?” Student was infuriated at
the use of the ambiguous word “sometimes.” The remainder of his answers reflected
negative affect both at home and school. Also notably, Student endorsed a couple of
indicators of suicidality, but specific risk assessment led to the conclusion that Student
was not currently at high risk of self-harm. In answer to three wishes, Student wished to
be rich, to have superpowers, and to go home from treatment. Student told Dr. Payson
Hays that the cottage was harder for him than school and was more like home, and he
did “really bad there.”
Dr. Payson Hays summarized the results of Student’s social emotional
assessment. She reported they indicated significant anxiety, negative emotionality, and
hyper-reactivity in response to frustration. Student demonstrated much denial and
anger in response to difficulty, and a need for control over others, as well as brittle
self-esteem. Student was aware he did not do well at home and in the cottage, but
appeared not to be able to use techniques to stay calm. Prior to being at
Intermountain, Student’s self-regulation difficulties were most apparent in the home
setting. Dr. Payson Hays commented that in earlier assessments by the mental health
services evaluator and Castro Valley, Student’s lack of control was primarily an issue at
home due to weak parenting skills. Ms. Payton Hays felt the fact that Student struggled
at Intermountain in a milieu staffed by adults highly trained in social-behavioral support
indicated that Student was very ill-equipped to handle the expectations and challenges
of less-structured settings, regardless of who provided the discipline. She further
believed that while Student’s difficulty did not seem to be an issue at school in the early
grades, as he moved on to an academic setting where he was expected to operate more
independently and to handle less clear-cut messaging, the challenges currently seen at
home would likely also be seen at school.
Dr. Payson Hays summarized her conclusions. She reported that assessment
outcomes indicated that Student displayed significant inattention as well as impulsivity
and self-regulation difficulties at home and in the cottage setting, but less so at school.
In class, he demonstrated the ability to remain on task in comparison to his peers in
some classes more than in others, but he had more difficulty since going off all
medication. She noted weaknesses at home and in the school setting for adaptive
behavior, and emotional self-regulation, anxiety, depression, and negative emotionality
at home and in the milieu setting. She also determined that her findings supported
student’s diagnosis of autism, attention deficit hyperactivity disorder combined type,
and disruptive dysregulation mood disorder. She also believed that a diagnosis of
generalized anxiety disorder could be added. Dr. Payson Hays also confirmed Student’s
eligibility for special education under the criteria for autism and other health
impairment. Further, she believed that Student’s emotional difficulties warranted
specific goals in his IEP and services to address those areas of need.
Dr. Payson Hays’s recommendations included a smaller school setting; smaller
class sizes, and structured behavioral support in all academic subjects; and specific
measurable therapeutic goals written into his IEP; particularly regarding improving
coping skills to help him to deal with frustrating and ambiguous situations both socially
and academically. She also recommended Student remain in the therapeutic milieu
setting, although she did not specify that he required a residential treatment center.
Her other recommendations included school based therapeutic supports; and a
program to address his social-emotional needs while simultaneously supporting his
superior cognitive abilities and challenging his academic level.
Dr. Payson Hays’s recommendations were influenced by her opinions that Castro
Valley was likely “trying very hard” to draw a line between obligations for mental health
support at school and in the community, and that children, like most people, usually do
not have a clear boundary between their mental health functioning in one setting over
the other. She also believed that while it was “absolutely possible” for Student to hold it
together at school, as Mother asserted, the trajectory of his difficulties and the
indicators of his social-behavioral distress identified in her assessment suggested that
his difficulties were occurring regularly at Independent. In this regard, Dr. Payson Hays
criticized Ms. Lopez’s triennial assessment for discounting Ms. Keller’s ratings of
Student’s behaviors on the various rating scales which reflected that Student’s behaviors
were in the clinically significant or other elevated range. In her report Dr. Payson Hays
also focused on Ms. Lopez’s summaries of Ms. Keller’s responses to the rating scales
regarding Student’s difficulties with social communication and peer relations to support
her opinion that Student was regularly having behavioral difficulties at Independent.
Dr. Payson Hays’s opinions, however, were not necessarily well-founded.
Dr. Payson Hays did not interview anybody from Independent as part of her assessment.
This is particularly noteworthy, because Dr. Payson Hays freely criticized Ms. Lopez for
not obtaining input from other people, such as Student’s outside therapists, during the
triennial assessment. Additionally, Dr. Payson Hays believed Mother’s and Student’s
reports that Student was bullied at school, when there was no bullying. Dr. Payson Hays
had not observed Student at Independent. She demonstrated no knowledge of the
behavior supports that were embedded in Student’s classroom. She discounted or
ignored all of the information from everybody who observed Student at Independent,
including Dr. Schilling, that Student exhibited no dysfunctional, disruptive, or other
elevated behaviors at school. She discounted or ignored the fact that Student had no
detentions or suspensions, but only uh-ohs and a few additional minor behaviors that
occurred only once or twice. She ignored that fact that he did not have uh-ohs or any
other behavior incidents after November 15, 2018. She discounted Student’s comments
to her that he was “good” in school back in California, but not at home. Dr. Payson Hays
did not explain why she emphasized Ms. Keller’s ratings over Ms. Keller’s comments
about Student’s behaviors at school as reported in Student’s IEPs, and in the triennial
assessments performed by Ms. Lopez, Ms. Martin, and Ms. Brown, which were available
to Dr. Payson Hays. She did not explain why she considered Ms. Lopez’s summaries of
Ms. Keller’s responses on the rating scales regarding Student’s difficulties with social or
peer relations as an indicator that Student was not doing well at Independent, as
opposed to merely a description of a child with autism and attention deficit
hyperactivity disorder. She ignored and did not address the theory posited in the
Schilling assessment report that Student behaved at school because his behavior was
well-managed at Independent.
In support of Mother’s belief that Student’s behaviors at home were influenced
by what happened at school, Dr. Payson Hays stated that most of Student’s emergency
room visits and crisis incidents occurred on school days, but failed to address that
Student’s first two psychiatric hospitalizations in November 2018 were generated by
events that occurred at home over the Thanksgiving break.
Finally, Dr. Payson Hays’s implicit criticism that Castro Valley was “trying very
hard” to draw a line between its obligations for mental support at school and in the
community, betrayed a lack of knowledge of Castro Valley’s obligations under special
education law. As is explained below, the IDEA requires Castro Valley to be acutely
aware of that line.
For all of these reasons, Dr. Payson Hays’s opinions and recommendations were
not persuasive.
On March 12, 2020, while this matter was pending, Dr. Payson Hays prepared a
report of a second psychological evaluation of Student. The report updated Student’s
status at Intermountain. It did not contain any substantive changes to Dr. Payson Hays’s
opinions as expressed in her initial report.
The IEP team convened on March 5, 2019, to discuss Ms. Yi’s educational mental
health services assessment report. At that time, Student was doing well academically
and socially at Independent, and exhibited no maladaptive or negative behaviors. He
was also identifying negative feelings and implementing coping strategies, and met his
counseling goals with Ms. Pham. In view of the conclusion of the educational mental
health services report that Student was eligible for educational mental health services,
the team agreed to work on developing new social emotional goals based on the results
of the educational mental health services assessment. The goals proposed by the
assessment were either already met as a result of Ms. Pham’s services, or, with respect to
the proposed goal pertaining to self-talk, did not address a behavior that Castro Valley
staff observed at school. Therefore, the IEP team deferred making any changes to the
operative October 29, 2018 IEP, and agreed to gather baseline data and propose new
social-emotional goals at the upcoming triennial IEP scheduled for March 15, 2019. In
essence, then, the March 5, 2019 amended IEP served to confirm that Student was
entitled to educationally related mental health services, and was a precursor to the
triennial IEP of March 15, 2019, ten days later, at which Student’s educational mental
health needs, and goals, services, and placement were discussed.
The following day, Student was admitted to Kaiser, placed on a three-day
involuntary psychiatric hold, and ultimately transferred to a psychiatric facility in Vallejo,
outside of Castro Valley’s boundaries.
Student’s triennial IEP team, over three sessions, identified Student’s needs based
on Student’s triennial assessment and team input. The team identified needs in the
areas of social skills/pragmatic language, executive functioning, and social emotional.
The IEP offered goals in these areas that were designed to meet those needs.
Ms. Martin’s triennial assessment result shows that Student was slightly below average
in the area of personal interaction on the pragmatic language skills inventory.
Ms. Keller, who completed that rating scale, reported Student had below average skills
compared to his peers in expressing feelings of empathy and sorrow, and
complimenting or praising self or others. Mother also expressed concerns about these
pragmatic language and social skills. Ms. Martin had never seen Student give a
compliment during lunch bunch. Therefore, pragmatic language goal number 1
required Student to give a compliment to a peer or teacher at least once per session.
Assessment also reflected that Student had weaknesses in conversational turn-taking,
and not understanding when others were frustrated by his behavior, and he had not
been observed asking for personal information during lunch bunch. On the Vineland,
both Mother and Ms. Keller scored Student as low in the interpersonal relationship
subdomain. Therefore, pragmatic language goal number 2 required Student to
independently identify something he knew about an area of interest/personal
information about a peer in his group, a family member, or a teacher, and make a good
guess as to why they might feel that way. The goal is directed at improving Student’s
ability to engage in conversational turn-taking about another person’s interests or
personal information and drawing inferences about the other person’s perspective
based on the conversation.
Student’s social-emotional goal was based on his uh-oh slips. The baseline was
not totally correct, as he had only six uh-ohs, not 11, but he had five additional incidents
noted on Ms. Keller’s behavior log and in Ms. Lopez’s assessment report that resulted in
conversations with Ms. Keller and/or other staff, and notification to Parent. Assessment,
including the Vineland, reflected Student had a weakness in coping skills, and this was
also a concern of Mother’s. Therefore, the goal was addressed to Student’s occasional
idiosyncratic or mildly inappropriate behaviors, and required him to implement an
appropriate coping strategy rather than engage in such behaviors.
Student’s executive functioning goal was based on classroom observations,
during which Student would present work to the teacher that he thought was complete,
only to be sent back to his desk to correct it or to complete the assignment. The
purpose of the goal was to improve Student’s ability to correctly complete his work, by
providing him a work completion checklist to use with one or less prompt to check his
work for accuracy and completeness.
The IEP offered services designed to help Student achieve these goals and meet
those needs. These services included lunch bunch, which contributed so much to
Student’s progress in pragmatic communication and social skills at the time of the IEP,
counseling to address coping skills, and specialized academic instruction to address his
executive functioning need to accurately complete his work. Based on all of the
information the IEP team had with respect to Student at the time of this IEP, the goals,
services, and supports in this IEP addressed Student’s identified needs. The IEP did not
include behavior goals, because, at the time of the IEP, Student did not demonstrate
negative behaviors in the school setting.
A central aspect of Student’s assertion that the goals and services in the triennial
IEP did not offer Student a FAPE, related to Ms. Keller’s responses to the rating scales
she completed during the triennial assessment, and Dr. Payson Hays’s opinion that
Student indeed displayed dysfunctional and negative behaviors at the school site.
Student asserts that the triennial IEP was deficient because it failed to include goals and
services to meet the behavioral and social-emotional needs that were reflected in
Ms. Keller’s responses to the rating scales and which Mother observed at home.
As was discussed above with respect to Issue 1a, however, Ms. Keller’s responses
to the rating scales on the triennial, for whatever reason, did not reflect Student’s
classroom behaviors at the time of the triennial assessment, as she reported at the three
sessions of the March 12, 2019 triennial IEP. Further, the classroom observations
performed by numerous individuals and included in the triennial assessments, as well as
the IEP team’s discussions of Student’s behaviors at school, supported that, at the time
of the IEP, the IEP team had no information that Student displayed any elevated,
dysfunctional, or disruptive behaviors at school. Under the snapshot rule, the IEP team
had no information that Student required any goals or services to address these
behaviors. Student did not demonstrate any elevated behaviors at school that required
any goals or services other than those that were included in his IEPs.
Student offered no specific or direct evidence that contradicted the reports of
numerous professionals that Student’s behavior at school was not aggressive, disruptive,
dysfunctional, dysregulated, or otherwise maladaptive. Mother posited at the IEP team
meetings and in emails to Independent staff that Student’s behaviors at school were due
to his suppressing his frustration, anger, and anxiety while at school, such that he would
lose control at home and explode when he came home. This belief was mentioned by
Dr. Payson Hays in her report, but her comment that it was “absolutely possible” did not
constitute full-throated support of Mother’s theory, and she only endorsed Mother’s
theory at hearing. However, there was no specific evidence to support Mother’s theory.
Indeed, Dr. Payson Hays’s theory, expressed in her report, that Student did not repress
his behaviors at school, but rather expressed them, tended to contradict Mother’s
Finally, Student generally contends that all of Student’s IEPs at issue from
January 23, 2019, and thereafter were deficient in that they failed to include goals,
services, and placement to address the social-emotional and behavioral deficits Student
manifested in the home setting. Parent relies solely on the case of L.J. v. Pittsburg
Unified School Dist. (9th Cir. 2017) 850 F. 3d 996 (L.J.) in support of this claim. However,
L.J. is distinguishable. L.J. involved an elementary school student who was diagnosed
with attention deficit disorder, oppositional defiant disorder, and bipolar disorder. He
had a history of demonstrating aggressive and disruptive behaviors at school over the
course of several years. Ultimately, by the time L.J. was in fifth grade, he had been
suspended from school several times. School staff had to call parent to pick him up
from school on numerous occasions. He had a suicidal ideation at school, and several
suicide attempts outside of school, and he had numerous psychiatric hospitalizations.
He injured or threatened to injure students and staff at school. When he was able to
attend school, his academic performance was satisfactory. The school district did not
find him eligible for special education both because student did not have any qualifying
disability and, if he did, he did not demonstrate a need for special education services
because his academic performance was satisfactory.
By the time the matter reached the Ninth Circuit, the critical issue on appeal was
whether student demonstrated a need for special education services. The court found
that many of the services and accommodations student received at school to help
manage his behaviors, such as a one-to-one aide, were in fact special education
services, not general education services, which was a clue that student indeed required
special education services. The court also noted that student’s emotional disturbance,
which resulted in numerous suicide attempts, interfered with school performance, even
though the suicide attempts occurred outside of school. The suicide attempts resulted
in psychiatric hospitalizations which caused him to be absent from school and interfered
with his academic performance and education. Student also had needs related to his
medications, and school counselors repeatedly expressed their concern regarding
student’s medication management and its effect on his school functioning.
In L.J., the court determined that whether student’s behavior occurred at home or
at school, the determining factor for eligibility purposes was whether his disability of
emotional disturbance interfered with his education and necessitated special services.
In this case, as opposed to the L.J. case, the issue was not eligibility, or whether
Student was entitled to special education and related services. Here, Student was found
eligible for special education long before he enrolled in Castro Valley. Castro Valley
always acknowledged that Student’s disabilities qualified him for special education
services, and that he required special education and related services. L.J. does not
address the issue here, which is whether Castro Valley was required to provide special
education services beyond those that it already provided to Student in the school
environment, for aggressive and dysfunctional behaviors that occurred only in the home
environment, and which, the evidence demonstrated, did not affect his school
Rather, this case is governed by San Rafael Elementary School Dist. v. California
Special Education Hearing Office (N.D. Cal. 2007) 482 F. Supp. 1152 (San Rafael). Citing
County of San Diego v. California Special Education Hearing Office, supra, the San Rafael
court stated that behavioral and emotional goals are properly addressed through an IEP
only to the extent that those problems affect the student’s educational progress. (San
Rafael, supra, 482 F. Supp. 2d 1152 at 1161.) “County of San Diego does not require a
school district to address all of the emotional or behavioral problems a student may
have, regardless of where and when those problems manifest.” (Ibid.)
Pursuant to San Rafael, the issue then simply becomes whether Student’s
dysfunctional home behaviors affected Student’s educational progress, such that he
needed additional goals and services included in his IEP to address them. Student did
not demonstrate that this was the case with respect to the triennial IEP. Rather, the
evidence was undisputed that Student made academic progress during the 2018-2019
school year at Independent. Student contends that Student’s education was impacted
by his psychiatric hospitalizations which were due to his at-home behaviors. There was
no evidence that Student’s psychiatric hospitalizations over Thanksgiving break in
November 2018, which caused him to miss two days of school, negatively affected
Student’s educational progress whatsoever. To assist in his transition back to school
after that absence, Castro Valley developed goals based upon Student’s hospital Safety
Plan and provided short-term general education counseling to Student.
Student’s next psychiatric hospitalization, on March 6, 2019, also caused him to
miss two days of school when he was initially hospitalized and placed on a three-day
psychiatric hold. Student was discharged on March 7, 2019, but Mother brought him
back to the emergency room later that day. On March 8, 2019, Student was transferred
from Kaiser to Vallejo, and was no longer within the boundaries of Castro Valley. He
was on a three-day involuntary psychiatric hold at Vallejo, and then placed on a 14-day
involuntary psychiatric hold. After a few days passed during the 14-day involuntary hold
period, Parents permitted Student to remain in Vallejo on a voluntary hold basis.
Student’s lack of school attendance for approximately nine weeks (not counting a school
vacation) while in Vallejo was largely the result of Parents’ refusal to let Student return
home, out of fear for the well-being of Student’s siblings and the safety of the family.
Parents housed Student in Vallejo while they sought a residential placement for him.
Consequently, the bulk of Student’s absence from school while he was at Vallejo was
due to Parent’s preference. If this extended absence impacted Student’s academic
progress, Student did not demonstrate that it was caused by his disabilities.
Further, special education students who are placed in a psychiatric hospital for
medical purposes are the educational responsibility of the local educational agency in
which the hospital is located. (Ed. Code, § 56167, subd. (a).) There was no evidence that
Parents contacted the school district in which Student was hospitalized to attempt to
obtain educational services for him so that he could keep up with his studies.
However, there was no evidence that Student’s voluntary nine-week stay outside
of Castro Valley’s district boundaries affected his educational progress. Immediately
upon leaving Vallejo, Student travelled to and was enrolled at Intermountain, where he
completed first grade. Ms. Slack, his teacher at Intermountain, affirmed Student was a
good student from the time he entered her class. She reported his academic
performance to be at grade-level, with high reading and good math skills. His
Intermountain report card at the end of the 2018-2019 school year showed he
performed at grade-level in all subjects, and he performed well on his Star Reading and
Math assessments. His study habits and work habits were rated excellent across all
categories, and his social behavior ranged from excellent to satisfactory.
Under these circumstances, Castro Valley had no obligation to develop goals and
services to address Student’s aggressive and dysfunctional behaviors at home. The
goals in Student’s March 15, 2019 triennial IEP appropriately addressed all areas of need,
and the services were designed to allow Student to make reasonable progress on his
On October 18, 2019, Castro Valley convened another IEP meeting, to consider
Dr. Payson Hays’s independent assessment. The IEP team included Ms. Ostreicher,
Mr. Hansen-Schmitt, Ms. Martin, Ms. Carson, Ms. Lopez, Ms. Davis, Castro Valley general
education teacher Diana Saliba, Intermountain case manager Jager Kechely;
Intermountain therapist Ms. Van Dyke; Student’s Intermountain teacher Ms. Slack, and
an Intermountain speech and language therapist. These Intermountain personnel
attended by phone. Student’s attorney and Castro Valley’s counsel also attended the
Intermountain staff reported on present levels. Student was settling in at
Intermountain. Twice he hit staff when frustrated, in the cottage setting. Student stated
he did not need counseling services. He threatened to elope. Student was doing well in
class. He followed directions, liked school, and was doing well academically. He
sometimes argued against following a direction, but was easily redirected and compliant
once the direction was explained. He was not disrespectful. He was taken off all of his
medication. When initially taken off his medication, he needed to adjust to focus and
self-start, but he was doing well with both at the time of the IEP team meeting. Socially,
he was willing to play alone or with others. He struggled with reading complex
directions and comprehending them. His handwriting was messy but legible. He
struggled a bit with appropriate boundaries, particularly with adults. He sometimes did
not raise his hand to gain the teacher’s attention. He tended to experience some
anxiety in the classroom when other students had a meltdown. He initially had some
anxiety in music class, but when he learned expectations he was fine. The Intermountain
speech and language therapist observed Student’s anxiety when he was presented with
a new game or task. His initial reaction was that he did not want to participate, but he
usually changed his mind when he understood the expectations and saw his peers
participating. He also demonstrated some anxiety when collaborating with classes of
older students.
His current classroom included second grade to fourth grade. There were eight
students in the class, with three adults. The program was highly structured, with a
predictable routine. Student were given notice when change was about to occur, and
there was a set transition routine. Ms. Van Dyke described his daily classroom schedule.
Ms. Van Dyke provided one hour of individual and family therapy weekly.
Dr. Payson Hays presented her report, and the team discussed her findings.
Castro Valley personnel said they did not see the same issues when Student was at
Castro Valley as Dr. Payson Hays raised in the report. Dr. Payson Hays stated that first
and second grade were latent periods for students on the autism spectrum. Third grade
was more challenging, as children have less structure and more abstract thinking.
Mr. Hansen-Schmitt noted that older grades have continued structure even as tasks get
more abstract or complex. He also noted that Student’s behaviors were on par with or
better than his peers while he attended Independent. Dr. Payson Hays agreed that most
of the behavioral concerns she mentioned were from when Student was in Pittsburgh.
The IEP team discussed amendments to the March 2019 IEP based on updated
present levels and Dr. Payson Hays’s report. The team added an accommodation to the
IEP, which gave Student more time to process complex multi-step directions and tasks.
Dr. Payson Hays noted in her assessment that was an area of weakness for Student.
Dr. Payson Hays said Student would need a social emotional goal. The team agreed to
modify the current coping skills goal to add an example of coping strategies and to
develop a new goal regarding identifying emotions. The team agreed to add additional
counseling to support the new goal.
Student’s amended social/emotional goal required Student to implement an
appropriate coping strategy that he learned during his counseling session, such as a
movement break, quiet space break, sensory break, access to fidgets, listening to soft
music, deep breathing, or going for a brief walk, rather than engaging in an unexpected
behavior, with no more than one unexpected behavior per month.
A new social emotional goal was added, based on Student’s active resistance to
verbalizing his emotions at Intermountain, and his visible discomfort when expected to
discuss his emotions. Student was only consistently able to identify or express feelings
of anger or annoyance. The goal required Student to accurately identify his
feelings/emotions when presented with real situations or what a person may be feeling
when presented with imagined situations in four out of five trials.
The team reviewed the continuum of placement options. Intermountain staff
recommended continued residential treatment center placement and said that a
discharge plan would be implemented and discussed several months before his
transition from Intermountain. Dr. Payson Hays raised the option of a smaller
environment near home that could meet Student’s autism spectrum disorder related
needs and also challenge Student academically. Castro Valley staff expressed concerns
about placing Student in a more restrictive environment given how well he was doing in
the school setting before he was removed because of issues at home. The Castro Valley
education specialist raised the option of a one-to-one aide in the general education
setting. Dr. Payson Hays felt that a one-to-one aide would be more restrictive and
inappropriate for Student given his autism spectrum disorder. The team discussed
home behaviors versus school behaviors. Castro Valley offered continued placement in
a general education classroom with special education supports.
Intermountain staff left the meeting. The team discussed the additional supports
needed for Student’s transition back to school. The team discussed adding a transition
plan with check-ins and check-outs in the morning and afternoon, and coordinating
with Intermountain regarding discharge plans for transition planning. The team also
discussed counseling services. Castro Valley offered to increase individual counseling
services from 60 minutes per month to 30 minutes per week. Dr. Payson Hays
recommended that the counseling provider have cognitive behavior therapy training.
Student’s attorney asked what counseling services would look like and the qualifications
of the school psychologist. Ms. Lopez discussed what counseling sessions would look
like and noted the qualifications of the school psychologist who served Independent,
which included cognitive behavior therapy training.
Dr. Payson Hays recommended being pro-active with Student’s supports to
promote well-being and growth across all settings and prevent future challenges.
The IEP offered placement in the general education class at Independent. The
team decided upon the same accommodations and program modifications as were
included in the triennial IEP of March 15, 2019, and added extra time to process and
complete multi-step tasks.
The IEP offered occupational therapy services of 100 minutes yearly, to be served
in consultation with staff for sensory needs; group language and speech for 175 minutes
monthly; specialized academic instruction for 30 minutes per week, to focus on mastery
of completing checklists to finish work independently, and individual counseling, of
30 minutes per week.
The IEP also offered transition activities to support Student’s transition from
Intermountain. Castro Valley would collaborate with Intermountain on a transition plan
and increased transitional supports. The plan would include increased check-in and
check-out, and increased time with the school psychologist and other support staff
upon Student’s initial return to Castro Valley.
Parents did not consent to the IEP. Mother sent a 12-page letter to Castro Valley
dated November 4, 2019, responding to the IEP. The first five pages of Mother’s letter
contained questions about the goals, and criticisms about numerous aspects of the IEP.
Many of her criticisms consisted only of Mother’s arguments and opinions, and many of
her objections were not presented as issues in Student’s complaint or at hearing.
Several of them were based on facts that were not supported by evidence at hearing,
especially as Mother did not testify regarding most of the matters raised in the letter. In
his closing brief, Student summarized the letter, but did not provide any details
regarding Mother’s objections and concerns raised in the letter, relate them to the
issues or evidence in this case, or cite any exhibits or law to support them. The letter
was considered in that it signified Mother’s lack of consent to the IEP, but the specific
contents of the letter will not be further addressed in this Decision. On
December 13, 2019, Castro Valley sent Parents a prior written notice letter responding to
Mother’s November 4, 2019 letter.
The amended IEP of October 18, 2019 contained appropriate goals to meet
Student’s areas of need of pragmatic language, social-emotional, and executive
functioning. The two pragmatic language goals of the triennial IEP remained to
promote Student’s social skills. As was discussed above, those goals were appropriate
at the time of the March 15, 2019 triennial IEP, and there was no information presented
to this IEP team that those goals were no longer appropriate. The executive functioning
goal of the triennial IEP targeting work completion also remained and, there was no
information presented to the IEP team that the goal was no longer appropriate. Indeed,
the team added an accommodation to the IEP to support the goal, by providing more
time for Student to process and complete multi-step tasks.
The IEP team determined that the social emotional goal in Student’s triennial IEP
should be amended, to include examples of coping strategies learned through
counseling, and the team developed an additional social emotional goal regarding
Student identifying his feelings and emotions. Dr. Payson Hays participated in the
discussion and development of these goals, and they were based on the information
provided by Intermountain and contained in Dr. Payson Hays’s report. Accordingly, the
goals in that IEP were appropriate. Again, this IEP did not include behavior goals,
because, based upon the information available at the time of this IEP meeting, including
Dr. Payson Hays’s assessment and Intermountain reports, Student did not demonstrate
significant behavioral problems in the school setting. The discussion above regarding
behavior goals with respect to the triennial IEP is incorporated here. Pursuant to
San Rafael, the October 18, 2019 IEP appropriately amended the triennial IEP to address
Student’s needs in the educational setting. Student was exhibiting good behaviors and
peer relationships in school at Intermountain at the time of this IEP. The goals in
Student’s October 18, 2019 amended IEP appropriately addressed all areas of need.
The IEP increased Student’s counseling services to 30 minutes per week to
address these changes, such that the services offered in support of Student’s social
emotional goals was appropriate. The speech and language and specialized academic
instruction services remained the same as in the triennial IEP. The speech and language
services consisted of lunch bunch, where Student learned and practiced social skills.
The specialized academic instruction services addressed Student’s executive functioning
skills. The IEP team had no information at the time of this IEP that those services
needed to be changed, and they remained appropriate.
Dr. Payson Hays’s recommendation at the IEP team meeting that team consider
Student’s possible future needs in developing his IEP was rightly rejected by Castro
Valley. An IEP is developed based on a Student’s present needs, not potential future
needs. For example, an IEP need only contain annual goals. (20 USC § 1414(d)(1)(A)(i);
34 C.F.R. § 300.320.)
The goals in Student’s October 18, 2019 IEP appropriately addressed all areas of
need, and the services were designed to allow Student to make reasonable progress on
his goals.
Both federal and state law required Castro Valley to provide Student special
education in the least restrictive environment appropriate to meet his needs. (20 U.S.C.
§ 1412(a)(5); 34 C.F.R. § 300.114(a)(2)(i); Ed. Code, § 56040.1.) This means that
Castro Valley must educate a special needs pupil with nondisabled peers “to the
maximum extent appropriate,” and the pupil may be removed from the general
education environment only when the nature or severity of the student’s disabilities is
such that education in general classes with the use of supplementary aids and services
“cannot be achieved satisfactorily.” (20 U.S.C. § 1412(a)(5)(A); 34 C.F.R. § 300.114(a)(2)(ii);
Ed. Code, § 56040.1.)
As a corollary to the requirement that a school district determine the least
restrictive environment, the school district must make available a continuum of
placement options. (34 C.F.R. 300.115.) In California, this includes, from least restrictive
to most restrictive: regular education programs; resource specialist programs; related
services; special classes; nonpublic, nonsectarian school services; and other listed
settings; to instruction in the home, in hospitals, and in other institutions. (Ed. Code,
§ 56361.) The continuum of placement options is to ensure that a child with a disability
is served in a setting where the child can be educated successfully in the least restrictive
environment appropriate for them. (71 Fed. Reg. 46,586-46,587 (Aug. 14, 2006).)
The Ninth Circuit Court of Appeals, in Sacramento City Unified School District v.
Rachel H. (9th Cir. 1994) 14 F.3d 1398 (Rachel H.), set forth standards to determine
whether a general education classroom is the least restrictive environment for a child
with a disability. The court adopted a balancing test that required the consideration of
four factors:
1. the educational benefits of placement full time in a regular class;
2. the non-academic benefits of such placement;
3. the effect the student would have on the teacher and children in the regular class;
4. the costs of mainstreaming the student. (Id. At p. 1403.)
If the IEP team determines that a child cannot be educated in a general education
environment, then the least restrictive environment analysis requires determining
whether the child has been mainstreamed to the maximum extent that is appropriate
considering the continuum of program options. (Daniel R.R. v. State Board of Ed. (5th
Cir. 1989) 874 F.2d 1036, 1050 (Daniel R.R.); B.S. v. Placentia-Yorba Linda Unified School
Dist. (9th Cir. 2009) 306 Fed.Appx. 397, 400.) Mainstreaming is a term used to describe
opportunities for disabled students to engage in activities with nondisabled students.
(M.L. v. Federal Way School Dist. (9th Cir. 2005) 394 F.3d 634, 640, fn. 7.)
In selecting the least restrictive environment, the IEP team should consider any
potential harmful effect on the child or on the quality of services that the child needs.
(34 C.F.R. §300.116(d).) A placement must foster maximum interaction between disabled
students and their nondisabled peers “in a manner that is appropriate to the needs of
both.” (Ed. Code, § 56000, subd. (b).) To the maximum extent appropriate, special
education students should have opportunities to interact with general education peers.
(Ed. Code, § 56040.1.)
The factual findings regarding Student’s previous assessments and IEPs with
respect to Issues 1a and b are incorporated here.
Student relies upon L.J., supra, to support his position that the March 15, 2019
and October 18, 2019 IEPs failed to offer him a FAPE because Castro Valley was required
to offer him a residential placement to address the aggressive and dysfunctional
behaviors he demonstrated at home. However, L.J. is not applicable here. L.J. addressed
standards for eligibility for special education services; it did not address the issue of
placement in a residential treatment center.
The IDEA provides that a student requires placement in a residential treatment
center if such placement is necessary to provide the student with special education and
related services. (34 C.F.R. § 300.104.) In the recent case of G.R., etc. v. Del Mar Union
School Dist., (S.D. Cal., Apr. 22, 2020, No. 319CV00132AJBMSB) 2020 WL 1939020 (G.R.),
the court discussed the law regarding when a residential placement is necessary. “The
Ninth Circuit has identified three possible tests for determining when to impose
responsibility for residential placements on the special education system: (1) where the
placement is ‘supportive’ of the pupil’s education; (2) where medical, social or emotional
problems that require residential placement are intertwined with educational problems;
and (3) when the placement is primarily to aid the student to benefit from special
education.’ Cty. of San Diego v. California Special Educ. Hearing Office, 93 F.3d 1458,
1468 (9th Cir. 1996). Additionally, in Clovis Unified School District v. California Office of
Administrative Hearings, 903 F.2d 635 (9th Cir. 1990), the Ninth Circuit ruled that
reimbursement under the IDEA for a residential placement depends on ‘whether [the
child’s] placement may be considered necessary for educational purposes or whether
the placement is a response to medical, social, or emotional problems that is necessary
quite apart from the learning process.’ Thus, the analysis for determining whether [a
residential treatment center] is appropriate ultimately centers on whether the placement
is necessary for educational purposes.” (G.R., supra, 2020 WL 1939020, at *5.)
In another recent case, N.G. v. Placentia Yorba-Linda School Dist. (9th Cir. 2020)
807 Fed.Appx. 648, the Ninth Circuit also applied the standard of whether placement in
a residential treatment center was necessary for educational purposes. The Ninth Circuit
upheld the school district’s denial of a student’s request for placement in a full-time
residential treatment program. Student’s parents wanted placement in the program
because the behavioral progress she had made at school in controlling her aggressive
and self-injurious behaviors was not reflected at home. At home, Student’s her selfinjurious and aggressive behavior continued and negatively affected her twin sister, who
also had significant disabilities. Student had been making significant educational and
behavioral progress at school prior to parents’ unilateral placement at the residential
treatment center. The court affirmed the ALJ’s decision that the school district offered a
FAPE, that Student did not require a residential placement for educational purposes, and
there was no relevant time when a residential placement of Student was necessary to
provide special education and related services.
The March 15, 2018 triennial IEP offered Student placement in a general
education classroom at Independent. Student contends that Student required
residential placement when he was discharged from Vallejo.
The least restrictive environment analysis of Rachel H., supra, supports placement
of Student in a general education setting, with related services. Rachel H. prescribes
consideration of four factors: the educational benefits of placement full time in a
regular class; the non-academic benefits of such placement; the effect the student
would have on the teacher and children in the regular class; and the costs of
mainstreaming the student.
Applying the Rachel H. factors to this case, a general education setting was
appropriate at the time of the triennial IEP. The evidence demonstrated that Student
received educational benefit while in the general education setting at Independent. His
pragmatic language skills improved, he performed well academically, and he accessed
grade-level curriculum.
Student also was unable to obtain non-academic benefits in the general
education classroom. He made friends, he learned to get along with peers and his
teachers, and being with typical peers provided social interaction and role models.
Turning to the third Rachel H. factor, Student’s behaviors were minor, and did not
adversely affect Ms. Keller’s ability to teach and the ability of the other students in his
general education classroom to learn.
There was no evidence pertaining to the fourth Rachel H. element, which is the
relative cost of the general education classroom with supports and services versus
placement at Intermountain. However, the evidence regarding the other factors
demonstrated that a general education environment with special education supports,
such as what Student had so successfully received at Independent, was suitable for
Student. Accordingly, the March 15, 2019 triennial IEP offering placement in the general
education setting offered Student a FAPE in the least restrictive environment.
Pursuant to G.R., supra, Student did not demonstrate that placement at
Intermountain, or any residential placement, was necessary for educational purposes, as
opposed to merely necessary quite apart from the learning process. The evidence
reflected that Student’s extreme, dysfunctional, and uncontrollable behaviors occurred
at home, where he frequently acted aggressively towards his siblings and his Parents.
Student did not demonstrate that any of the dysfunctional behaviors he demonstrated
at home occurred in the classroom and negatively affected his education. He also did
not demonstrate that his dysfunctional behaviors at home negatively affected his
education in Ms. Keller’s class such that it was necessary for him to attend Intermountain
for educational reasons. It is true his behaviors at home negatively affected his ability to
do homework, but the evidence was undisputed that his homework in first grade was
merely to practice his skills, and he did not need the practice. The triennial IEP provided
that Student would not have homework. His difficulty completing his homework did not
impact his grade, and there was no evidence that a lack of homework completion
impacted his educational progress. Further, as was discussed above, there was no
evidence that Student’s hospitalizations affected his educational progress.
Mother requested a residential placement from at least the time of Student’s
March 5, 2019, IEP, because Student’s behaviors at home were jeopardizing her family’s
safety. Parents kept Student at Vallejo for weeks because they feared for their family’s
safety. Further, Student’s initial goals at Intermountain were based on Student’s
emotional and behavioral dysregulation at home. The evidence demonstrated that
Student’s behaviors at home, and not any problems at school, prompted Mother’s
request for a residential placement. Under these circumstances, Student did not
demonstrate an educational need for a residential placement in the triennial IEP.
Furthermore, an IEP team must consider a parent’s input, but it need not
necessarily follow a parent’s wishes. As the court stated in Gregory K., supra, if a school
district offered a program that was designed to address the student’s unique
educational needs, was reasonably calculated to provide the student with some
educational benefit, and comported with the student’s IEP, then the school district
provided a FAPE, even if the student’s parents preferred another program and even if
the parents’ preferred program would have resulted in greater educational benefit.
Here, Parents preferred a residential placement, but they did not demonstrate that
Student required such a placement for educational purposes.
Based on the information available to the IEP team at the time of the IEP, the
March 15, 2019 triennial IEP was reasonably calculated to provide Student educational
benefit and make progress appropriate in light of his circumstances. The triennial IEP
offered Student a FAPE in the least restrictive environment.
The IEP team met on October 18, 2019, while Student was attending
Intermountain, to review Dr. Payson Hays’s independent assessment.
The October 18, 2019 IEP continued to offer placement in the general education
classroom at Independent, and the IEP team developed a transition plan to assist
Student in moving back to Independent from Intermountain.
Student again contends that this IEP did not offer an appropriate placement and
that he required a residential placement at Intermountain to address the behaviors and
challenges he demonstrated outside of school, but not in school. Therefore, the analysis
set forth above remains largely the same, and is incorporated here, as applicable.
Pursuant to Rachel H., supra, the least restrictive environment for Student at the time of
this IEP was a general education placement at Independent. Further, pursuant to G.R.,
supra, Student did not demonstrate that, at the time of this IEP, he required a residential
placement for educational purposes. Student’s therapeutic problems were still the same
problems that he was working on when he first arrived at Intermountain, and both of
those involved dysfunctional and dysregulated behaviors toward his family in the home
environment, not the school environment. Parents preferred a placement at
Intermountain, but, as was stated in Gregory K., supra, an IEP team need not follow a
parent’s wishes, as long as the IEP offers a FAPE.
For all of the reasons set forth above, based upon Castro Valley’s information at
the time of this IEP, the October 18, 2019 amendment IEP was reasonably calculated to
provide Student educational benefit and make progress appropriate in light of his
circumstances in the least restrictive environment. The October 18, 2019 amendment
IEP offered Student a FAPE in the least restrictive environment.


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.
Issue 1a: Castro Valley did not fail to provide Student a FAPE, from
January 23, 2019, through the end of extended school year 2019, and during the
2019-2020 school year by continually and intentionally withholding from and
misrepresenting to Parents necessary information about Student’s functioning at school.
Castro Valley prevailed on Issue 1a.
Issue 1b: Castro Valley did not fail to provide Student a FAPE, from
January 23, 2019, through the end of extended school year 2019, and during the 2019-
2020 school year, by conducting an inappropriate educationally related mental health
services assessment in February 2019. Castro Valley prevailed on Issue 1b.
Issue 1c: Castro Valley did not fail to provide Student a FAPE, from
January 23, 2019, through the end of extended school year 2019, and during the
2019-2020 school year, by failing to offer Student appropriate
i. Goals
ii. Behavioral services;
iii. Emotional services;
iv. Social services; and
v. Placement.
Castro Valley prevailed on Issue 1c, subsections i, ii, iii, iv, and v.


All of the relief sought by Student is denied.


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.

Elsa H. Jones
Administrative Law Judge
Office of Administrative Hearings