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OAH 2020020090

July 24, 2020

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Garden Grove Unified School District v. Student - District Prevailed

BEFORE THE
OFFICE OF ADMINISTRATIVE HEARINGS
STATE OF CALIFORNIA

CASE NO. 2020020090

GARDEN GROVE UNIFIED SCHOOL DISTRICT,
v.
PARENTS ON BEHALF OF STUDENT.

DECISION

JULY 24, 2020

On February 3, 2020, the Office of Administrative Hearings, called OAH, received a due process hearing request from Garden Grove Unified School District, naming Student. On February 13, 2020, OAH granted Garden Grove Unified School District’s request to continue this matter. Administrative Law Judge Jennifer Kelly heard this matter by videoconference in California on June 2, 3, 4 and 10, 2020.

Attorney Tracy Petznick Johnson represented Garden Grove Unified School District, called Garden Grove. Garden Grove’s Assistant Superintendent Valerie Shedd attended all hearing days. Parent represented Student and attended all hearing days. Student did not attend the hearing.

At the parties’ request, OAH continued the matter to June 29, 2020, for written closing briefs. The record was closed, and the matter was submitted on June 29, 2020.

ISSUE

Was Garden Grove’s initial Multidisciplinary Assessment and report appropriate and conducted in accordance with applicable law such that Student is not entitled to independent educational evaluations in speech and language and psychoeducation at public expense?

JURISDICTION

This hearing was held under the Individuals with Disabilities Education Act, its regulations, and California statutes and regulations. (20 U.S.C. § 1400 et. seq.; 34 C.F.R. § 300.1 (2006) et seq.; Ed. Code, § 56000 et seq.; Cal. Code Regs., tit. 5, § 3000 et seq.) The main purposes of the Individuals with Disabilities Education Act, referred to as the IDEA, are to ensure:

• all children with disabilities have available to them a free appropriate public education that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment and independent living, and

• the rights of children with disabilities and their parents are protected. (20 U.S.C. § 1400(d)(1); See Ed. Code, § 56000, subd. (a).)

The IDEA affords parents and local educational agencies the procedural protection of an impartial due process hearing with respect to any matter relating to the identification, assessment, or educational placement of the child, or the provision of a free appropriate public education, referred to as FAPE, to the child. (20 U.S.C. § 1415(b)(6) & (f); 34 C.F.R. § 300.511; Ed. Code, §§ 56501, 56502, and 56505; Cal. Code Regs., tit. 5, § 3082.) The party requesting the hearing is limited to the issues alleged in the complaint, unless the other party consents, and has the burden of proof by a preponderance of the evidence. (20 U.S.C. § 1415(f)(3)(B); Ed. Code, § 56502, subd. (i); Schaffer v. Weast (2005) 546 U.S. 49, 57-58, 62 [126 S.Ct. 528, 163 L.Ed.2d 387]; and see 20 U.S.C. § 1415(i)(2)(C)(iii).) Garden Grove, as the filing party, had the burden of proof in this matter. The factual statements in this Decision constitute the written findings of fact required by the IDEA and state law. (20 U.S.C. § 1415(h)(4); Ed. Code, § 56505, subd. (e)(5).)

Student was 12 years old and in sixth grade at the time of hearing. Student resided with her parents within Garden Grove’s geographic boundaries at all relevant times. Student struggled in the general education curriculum in the areas of reading comprehension, math reasoning and math calculations. Parent was concerned Student had dyslexia, dysgraphia and dyscalculia, and visual and auditory processing deficits.

ISSUE: WAS GARDEN GROVE’S INITIAL MULTIDISCIPLINARY ASSESSMENT AND REPORT APPROPRIATE AND CONDUCTED IN ACCORDANCE WITH APPLICABLE LAW SUCH THAT STUDENT IS NOT ENTITLED TO INDEPENDENT EDUCATIONAL EVALUATIONS IN SPEECH AND LANGUAGE AND PSYCHOEDUCATION AT PUBLIC EXPENSE?

Garden Grove contended its May 13, 2019, multidisciplinary assessment of Student and report was comprehensive and complied with all legal requirements. Therefore, Garden Grove was not obligated to fund independent speech and language and psychoeducation evaluations.

Parent disagreed with Garden Grove’s initial multidisciplinary evaluation and believed that independent educational evaluations would provide better recommendations for Student’s eligibility.

GENERAL REQUIREMENTS FOR ASSESSMENTS

Before any action is taken to place a student with exceptional needs in a program of special education, an assessment of the student’s educational needs must be conducted. (20 U.S.C. § 1414(a)(1)(A); 34 C.F.R. § 300.301; Ed. Code, § 56320.) An individualized education program is referred to as an IEP. Evaluations assist the IEP team in determining the type, frequency, and duration of specialized instruction and related services required. (34 C.F.R. §§ 300.303, 300.320(a)(4), 300.324(a)(1)(iii) & (iv).) The IDEA uses the term “evaluation,” while the California Education Code uses the term “assessment,” but the two terms have the same meaning and are used interchangeably in this Decision. (34 C.F.R. § 300.300; Ed. Code, § 56381.)

The school district must ensure “the child is assessed in all areas of suspected disability.” (20 U.S.C. § 1414(b)(3)(B); Ed. Code, § 56320, subd. (f).) The evaluation should include, if appropriate, health and development, vision, hearing, motor abilities, language function, general intelligence, academic performance, communicative status, self-help, orientation and mobility skills, career and vocational abilities and interests, and social and emotional status. (20 U.S.C. § 1414(b)(2)(C); 34 C.F.R. § 300.304(c)(4); Ed. Code, §§ 56320, subd. (f).) Assessments must be conducted by individuals who are both “knowledgeable of [the student’s] disability” and “competent to perform the assessment, as determined by the local educational agency.” (20 U.S.C. § 1414(b)(3)(A)(iv); 34 C.F.R. § 300.304(c)(1)(iv); Ed. Code, § 56322.)

A local educational agency must use a variety of assessment tools and strategies to gather relevant functional, developmental, and academic information. (20 U.S.C. § 1414(b)(2)(A)). No single procedure may be used as the sole criterion for determining whether the student has a disability or determining an appropriate education program for the student. (20 U.S.C. § 1414(b)(2)(B); 34 C.F.R. §§ 300.304(b)(2); Ed. Code, § 56320, subd. (e).) The assessments used must be: selected and administered so as not to be discriminatory on a racial or cultural basis; provided in a language and form most likely to yield accurate information on what the child knows and can do academically, developmentally, and functionally; used for purposes for which the assessments are valid and reliable; administered by trained and knowledgeable personnel; and administered in accordance with any instructions provided by the producer of such assessments. (20 U.S.C. §§ 1414(b)(2) -(3); Ed. Code, § 56320, subds. (a) & (b).) The determination of what tests are required is made based on information known at the time. (See Vasheresse v. Laguna Salada Union School Dist. (N.D. Cal. 2001) 211 F.Supp.2d 1150, 1157-1158 [assessment adequate despite not including speech/language testing where the concern prompting the assessment was reading skills deficit.].)

The local educational agency must use technically sound testing instruments that demonstrate the effect that cognitive, behavioral, physical, and developmental factors have on the functioning of the student. (20 U.S.C. § 1414(b)(2)(C); 34 C.F.R. § 300.304(b)(3).) The IEP team must consider the assessments in determining the child’s educational program. (34 C.F.R. § 300.324(a)(1)(iii)).

The evaluation must be sufficiently comprehensive to identify the child’s needs for special education and related services whether or not commonly linked to the disability category in which the child has been classified. (34 C.F.R. § 300.304(c)(6).) Anything less would not provide a complete picture of the child’s needs. (Timothy O. v. Paso Robles Unified School Dist. (9th Cir. 2016) 822 F.3d. 1105, 1119.) A disability is “suspected,” and a child must be assessed, when the district is on notice the child has displayed symptoms of that particular disability or disorder. (Id. at 1119.) A district’s failure to conduct appropriate assessments or to assess in all areas of suspected disability constitutes a procedural violation that may result in a substantive denial of FAPE. (Park v. Anaheim Union High School District. (9th Cir. 2006) 464 F.3d 1025, 1032- 1033.)

Nothing in the IDEA requires children to be classified by their disabilities. (20 U.S.C. § 1412(a)(3)(B).) As long as a child remains eligible for special education and related services, the IDEA does not require the child be categorized in the most accurate disability category. (Ibid.)

PARENTAL CONSENT

A student’s parent must provide informed consent to a proposed assessment plan. (20 U.S.C. § 1414(a)(1)(D)(i); Ed. Code, § 56321, subd. (a).) Notice of a proposed assessment consists of the proposed assessment plan and a copy of parental rights and procedural safeguards under the IDEA and related state law. (20 U.S.C. §§ 1414(b)(1), 1415(b)(3) & (c)(1); Ed. Code, § 56321, subd. (a).) The assessment plan must be provided in a language easily understood by the public and in the native language of the parent; explain the types of assessments to be conducted; and notify parents no IEP will result from the assessment without the consent of the parent. (Ed. Code, § 56321, subd. (b)(1) -(4); see also 34 C.F.R. § 300.300(a)(ii).)

A parent has at least 15 days from the receipt of the proposed assessment plan to arrive at a decision and the assessment may begin immediately upon receipt of the parent’s consent. (Ed. Code, § 56321, subds. (a) & (c)(4).) This notice is essential to ensure a parent is fully aware of the assessments to be administered, consents to the proposed evaluations and advised of their rights under the IDEA and applicable state law.

A district is required to give the parent of a child with exceptional needs prior written notice a reasonable time before the district proposes to change, or refuses to initiate or change, the identification, assessment, or educational placement of the child, or provisions of a free appropriate public education. (Ed. Code, § 56500.4. subd. (a).) The procedures for written notice, “are designed to ensure that the parents of a child with a disability are both notified of decisions affecting their child and given an opportunity to object to these decisions.” (C.H. v. Cape Henlopen School Dist. (3d. Cir. 2010) 606 F.3d 59, 70).)

DEVELOPMENT OF ASSESSMENT PLAN

Student resided within Garden Grove during all relevant times. Student attended Marshall Elementary school, a public school operated by Garden Grove, from kindergarten through third grade. Student attended Magnolia Science Academy within the Santa Ana Unified School District for fourth grade until April 10, 2019, at which time she transferred back to Marshall Elementary where she completed fourth and fifth grades. Parent removed Student from Marshall Elementary and enrolled her in the Santa Ana Unified School District pursuant to an inter-district transfer for the 2019-2020 school year, sixth grade.

Parent testified at hearing. During Student’s fifth grade, Parent requested Garden Grove assess Student for special education eligibility by letter dated February 6, 2019. Parent sent the letter to Lorrie Klevos, the principal of Marshall Elementary School. Parent was concerned Student was reading behind grade level and might have dyslexia, a learning disability relating to decoding words. Parent was worried about Student being behind grade level in mathematics and writing and requested Garden Grove assess Student to rule out dyscalculia, a learning disability related to math calculation, and dysgraphia, a learning disability related to writing.

Garden Grove timely provided Parent a comprehensive assessment plan on February 19, 2020, to determine Student’s present levels of performance and eligibility for special education. The assessment plan was written clearly and in language easily understood by the general public and provided in Parent’s native language of English. The plan explained the types of assessments to be conducted and indicated no educational placement or services would result from the assessment without Parent’s written consent. The plan explained the areas of assessment, including academic achievement, health, intellectual development, language and speech, motor development, social emotional behavior, occupational therapy and assistive technology. The assessment plan identified the professionals assigned to conduct the assessment for each area, including teachers, the school psychologist, the speech and language pathologist and school nurse. It explained the tests and procedures to be conducted would include classroom observations, rating scales, interviews, record review, one-onone testing, or some other types or combinations of tests.

Parent did not consent to the original assessment plan. Instead, on February 26, 2019, Parent sent a second letter to Ms. Klevos requesting only reading and math evaluations. Ms. Klevos forwarded Parent’s February 26, 2019 letter to Kristi Jacobs, a Program Supervisor at Garden Grove. Ms. Jacobs testified at trial. She worked as a Program Supervisor at Garden Grove since 2016. Her responsibilities included supervising the pre-kindergarten to twelfth grade special education programs and collaborating with principals and site teams to ensure implementation of students’ individualized education programs. She was responsible for communicating with parents about Garden Grove’s decisions for students’ individualized education program. Ms. Jacobs sent Student’s revised assessment plan, prior written notices and other written communications to Parent. She attended Student’s IEP team meetings to facilitate communications between Parent and the other members of the IEP team.

In response to Parent’s February 26, 2019 letter, on March 13, 2019 Garden Grove sent a prior written notice to Parent confirming she had declined the initial comprehensive assessment plan. The letter included a new assessment plan to assess Student in the areas of suspected need, including academics, intelligence, motor planning, and health. Garden Grove advised Parent assessments in these areas were necessary to address Parent’s concerns about possible dyslexia, dysgraphia and dyscalculia and clarified the assessments in the areas of visual-motor integration and perceptual motor skills would address these areas. Other processing issues would be evaluated under the intelligence assessments. Garden Grove included a copy of the procedural safeguards.

Parent and Theresa Miguel, Student’s general education teacher, held a parent teacher conference on March 19, 2019. Ms. Miguel testified at trial. Ms. Miguel had taught elementary education for 15 years and had significant experience teaching phonics instruction and reading fluency to students identified as below-grade level. Student mastered key phonics skills and demonstrated proficiency in decoding words. She was eager to learn and volunteered to read aloud in class. Student struggled with test performance and reading comprehension. When Parent initially requested Student be evaluated, Student was reading independently at the third grade level, between the 2.8 – 4.1 grade level. Ms. Miguel persuasively testified Student’s reading level was not outside the range of her general education fifth grade peers. Intervention strategies were used to support Student, including small group and individual instruction, extra tools for math independent work time and tests, pairing with a peer partner and individual conferencing with the teacher for writing.

Ms. Miguel encouraged Parent to consent to a special education assessment for Student to provide more information about Student’s learning capabilities and determine what additional supports, if any, were needed. Parent signed the original comprehensive version of the assessment on March 19, 2019, and sent the signed consent to Garden Grove on March 23, 2019. Garden Grove received the signed consent on March 25, 2019. However, Garden Grove calculated its timelines for completion of the assessment from March 19, 2019; the date Parent signed the consent form and gave itself 60 days from March 19, 2019 to complete the assessments and hold an IEP team meeting to review the assessments.

At hearing, Parent produced a different version of the February 26, 2019 letter than the copy submitted by Garden Grove. Unlike Garden Grove’s copy, Parent’s version included a request for vision and auditory processing evaluations by an optometrist and audiologist, respectively. Garden Grove disputed it received this version of the letter. Garden Grove asserted it first learned of this request through a Parent email dated March 26, 2019. However, whether or not Garden Grove received Parent’s version of the letter is not dispositive because Garden Grove’s psychoeducational assessment included testing for visual and auditory processing deficiencies.

On March 26, 2019, Garden Grove sent a prior written notice to Parent declining her request for evaluations by an optometrist and audiologist. Garden Grove explained it did not have reason to suspect visual or auditory processing deficits or weaknesses, but pursuant to the agreed upon assessment plan the school nurse would conduct vision and hearing screenings of Student and the school psychologist would assess Student’s auditory and visual processing functions as part of the comprehensive initial evaluation. In the event the initial evaluation determined the need for advanced visual or auditory processing testing by outside providers a referral could be made, if necessary.

Garden Grove sent another prior written notice on March 29, 2019, confirming its understanding Parent did not consent to assessments of Student in the areas of assistive technology and occupational therapy.

The final assessment plan consented to by Parent provided the general education teacher and school psychologist would assess Student’s academic achievement; the school nurse would gather health information and testing affecting school performance; the school psychologist would assess Student’s intellectual development, academics, motor development and social emotional/behavior, and the school language pathologist would assess Student’s use of speech and language.

MAY 13, 2019 INITIAL MULTIDISCIPLINARY ASSESSMENT AND REPORT

Garden Grove contended it conducted a comprehensive assessment of Student’s needs in all areas of suspected disability, which gathered functional, developmental and academic information for the IEP team. Parent contended Garden Grove’s assessment was inadequate because Student was not assessed by an optometrist and audiologist. The IEP team has the obligation to determine whether a student is eligible for special education and related services. (20 U.S.C. § 1414(b)(4)(A); 34 C.F.R. § 300.305(a)(2)(i)(A); 300.306(a)(1).)

The personnel who assess the student must produce a written report of each assessment to aid the IEP team in determining eligibility. The report must include:

1. Whether the student may need special education and related services;

2. The basis for making that determination;

3. The relevant behavior noted during observation of the student in an appropriate setting;

4. The relationship of that behavior to the student’s academic and social functioning;

5. The educationally relevant health, development and medical findings, if any;

6. A determination of the effects of environmental, cultural, or economic disadvantage, if appropriate; and

7. Consistent with superintendent guidelines for low incidence disabilities, the need for specialized services, materials, and equipment.

(Ed. Code, § 56327.) The report must be provided to the parent after the assessment. (20 U.S.C. § 1414(b)(4)(B); Ed. Code, § 56329, subd. (a)(3).) Garden Grove assessed Student in April and May 2019. The team consisted of school psychologist Angela Kim, speech and language pathologists Krystal Petrasanta and Judy Meckna, and school nurse Jaydee Choompoo. Ms. Kim, Ms. Petrasanta, Ms. Meckna and Mr. Choompoo testified at hearing. All were competent and wellqualified to conduct the assessments. The assessment tools were used for their intended purpose, valid and reliable, and administered in accordance with any instructions provided by the producer of the assessment. The assessment materials were selected so as to not be racially, culturally or sexually discriminatory. The effects of environmental, cultural, or economic disadvantage were considered in the selection and administration of the instruments used. The materials and procedures were administered in Student’s native language of English and were validated for the specific purpose for which they were used. A variety of tools and strategies, including Parent and teacher input, were used to assess student. No single procedure was used as the sole criterion for determining recommendations of an appropriate educational program. (20 U.S.C. § 1414, subds. (b) & (c); 34 C.F.R. § 300.304(c)(1)(iv) & (v); Ed. Code, § 56320, subds. (a) & (b).)

The assessors conducted multiple observations of Student at school and an afterschool program, on different days and different times, during formal testing, and during the school day. The assessors considered this information in forming their opinions and making recommendations.

Garden Grove’s assessments resulted in a 50-page Initial Multidisciplinary Report, dated May 13, 2019, subsequently revised on May 26, 2019, that provided the IEP team with accurate and sufficiently comprehensive information on Student’s functional, developmental, and academic performance to identify all of Student’s special education and related service needs. The report was developed within 60 calendar days of Parent’s signed consent and was timely. (Ed. Code, § 56043(f)(1).) The initial multidisciplinary assessment report included detailed assessment results, health records and current progress reports, and the assessors considered this information in forming their opinions and making recommendations. Parent interpreted the information gathered by Garden Grove differently, but did not show that further assessment was needed to inform the IEP team on Student’s unique educational needs.

HEALTH AND DEVELOPMENT

Health examinations must be performed by a credentialed school nurse or physician. (Ed. Code, § 56324, subd. (b).) Registered school nurse Jaydee Choompoo assessed Student’s health and development. He was a registered nurse who was a school nurse with Garden Grove since 2014. He obtained his bachelor of science degree in nursing in 2013, and held a School Nurse Services credential since 2013. As part of his job he regularly conducted health assessments of students.

Mr. Choompoo reviewed Student’s educational files, provided Parent a health inventory, screened Student for vision and hearing, and conducted a dental screening. Student was in overall good health and was not taking any mediations. Student had no health or medical concerns that required the services of a nurse inside or outside of school. Mr. Choompoo wrote a health assessment report which was incorporated into the Initial Multidisciplinary Assessment report dated May 13, 2019.

Garden Grove reviewed the health report with Parent during the IEP team meeting on June 11, 2019. All necessary school staff were present, including school psychologist Angela Kim, who reviewed the health report with Parent. Parent did not question Mr. Choompoo’s qualifications or the validity of the health report during the IEP team meeting. Neither Parent, nor any other IEP team member, requested additional testing in health at that time. At hearing, Student submitted no evidence which impugned the qualifications of the school nurse, school psychologist, or the validity of the health report. Student failed to offer any evidence showing Student required further testing in an area which fell under the purview of a school nurse. Parent argued in her closing brief she was deprived of the ability to question Mr. Choompoo at hearing about Student’s visual processing abilities. Parent participated in all four days of the due process hearing and was provided live-stream, simultaneous transcription of the entire proceeding by a certified court reporter and accessed the videoconference for the entirety of the proceeding through Microsoft Teams. Parent voluntarily elected at times to not participate because she claimed to be “too busy.” Multiple attempts were made to accommodate Parent including taking breaks, waiting for Parent to rejoin the hearing and recalling witnesses. Parent refused to appear timely after breaks, turn on her web camera or respond when called upon by the Administrative Law Judge. In short, Parent chose not to question Mr. Choompoo, but then argued she wanted to ask him whether he evaluated Student for a visual processing disorder. Moreover, Student’s argument is misplaced since visual processing did not fall under the purview of a school nurse. (Cal. Code Regs., tit. 5, § 3051.22.)

PSYCHOEDUCATIONAL ASSESSMENT

A psychological assessment of a pupil must be conducted by a credentialed school psychologist who is trained and prepared to assess appropriate cultural and ethnic factors. (Ed. Code, §§ 56322, 56324, subd. (a).). School psychologist Angela Kim conducted the psychoeducational assessment. Ms. Kim was a credentialed school psychologist. She had been employed as a school psychologist at Garden Grove since 2005. She held a pupil personnel services credential in school psychology, and a master’s degree in school psychology. Her responsibilities as a school psychologist included performing initial and triennial psychoeducational evaluations, including cognitive, educational and social-emotional assessments. She had conducted between 750 to 1500 initial evaluations and triennial assessments over the past 15 years. At the time of hearing, around 25 percent of the initial assessments conducted by Ms. Kim involved students suspected of having a specific learning disability. She was trained and experienced in the areas she assessed and her testimony was thoughtful and measured. Ms. Kim’s education, credentials and substantial experience qualified her to conduct Student’s psychoeducational and academic assessments, administer standardized tests, interpret the results and prepare the report. Accordingly, her testimony was given substantial weight.

Ms. Kim reviewed Student’s education records, interviewed Student, observed Student two times in the general education classroom and during formal testing procedures. She solicited input from Student’s teacher, Ms. Miguel, Garden Grove’s Special Education Resource Specialist, Jill Choi, and obtained information from Parent through responses to a questionnaire. She reviewed and incorporated into her report Student’s health evaluation by the school nurse and the speech and language assessment by Ms. Petrasanta.

Parent reported Student was eager to learn and described her as a visual learner. Parent expressed concern about Student’s reading fluency and comprehension, test taking, writing, spelling and math computation skills. Parent also relayed her concerns Student might have dyslexia, dyscalculia and dysgraphia.

Ms. Miguel reported Student read independently at the third grade level and had a solid understanding of phonics. Despite her best efforts, Student was not meeting grade level reading standards. Student also struggled in mathematics in the areas of division and fractions. Student displayed a relative strength in writing, and could follow instructions with guidance.

Ms. Choi testified at trial. She had worked as a credentialed Special Education Resource Specialist at Garden Grove for approximately nine years. She conducted informal assessments of Student for the purpose of establishing Student’s academic baselines. She assisted the IEP team by communicating with the team, conducting an informal phonics survey of Student, collaborating with the IEP team to establish goals and preparing the initial IEP. She credibly opined based upon her experience that Student mastered key phonics skills in vowels and consonants, consonant digraphs and advanced constants, and therefore Student did not exhibit areas of concern in the area of decoding. Ms. Choi communicated her findings to Ms. Kim.

Ms. Kim reported Student’s educational history. Student was in fifth grade at the time of the assessment. Ms. Kim summarized all schools Student attended from kindergarten through the present and reported on Student’s grade reports in Student’s cumulative school record. Ms. Kim’s report listed Student’s previous general education interventions at school to help her be successful, including small group instruction and additional time on tasks.

Ms. Kim observed Student in the general education classroom on two occasions. Each observation last approximately 25 minutes. Ms. Kim’s observations were thorough, detailed and perceptive. During observations at school, Student listened to her teacher, followed directions, volunteered to read aloud, and worked cooperatively with her peers. Ms. Kim observed Student during the formal assessments. Student came willingly to the office and engaged in appropriate conversation. Student was well-mannered and used appropriate conversational skills and use of vocabulary. Student was ready to work during the assessments, was diligent in completing the assessments, and was polite. Student used appropriate eye contact, sat at the table for the duration of the assessments and did not request a break even when one was offered by the assessor. Student self-corrected on certain items, took her time before responding and showed thoughtfulness in her responses. Due to Student’s level of cooperation, compliance and diligent effort, Student’s test results were valid measures of their intended purposes and a fair representation of Student’s abilities.

Ms. Kim administered the following norm referenced assessments to Student for the following purposes:

• Wechsler Intelligence Scale for Children, Fifth Edition, a norm-referenced test of intelligence for children 6 years to 16 years;

• Wechsler Individual Achievement Test, Third Edition, an assessment measuring the achievement of students in Pre-kindergarten through 12th grade in the areas of listening, speaking, reading, writing and mathematics skills;

• Gray Oral Reading Tests, Fifth Edition, a test measuring oral reading ability including rate, accuracy, fluency and comprehension;

• Beery-Buktenica Developmental Test of Visual-Motor Integration to assess Student’s ability to coordinate visual stimuli with fine-motor skills;

• Woodcock-Johnson IV Tests of Achievement, a comprehensive set of individually administered tests to measure educational achievement in the areas of reading, mathematics, written language, oral language, academic skills, fluency and applications;

• Woodcock-Johnson IV Tests of Oral Language, an assessment which determines strengths and weaknesses in oral language skills and linguistic abilities; • Test of Auditory Processing, Third Edition, a measure of auditory skills necessary for the development, use and understanding of language commonly used in academic and every day activities;

• Motor Free Visual Perception Test, Fourth Edition. A test, a motor-free test designed to assess overall visual perceptual ability; and

• Behavior Assessment System for Children, Third Edition, to evaluate Student’s behavior and self-perceptions.

All of the enumerated assessments were standardized and used for the purpose intended. Ms. Kim was qualified to administer these assessments. She correctly followed the protocols for testing, used valid and properly normed testing materials, and conducted the testing in English, in a racially unbiased manner. Ms. Kim selected and scored all of the assessments. During hearing, Ms. Kim persuasively testified in support of her testing and report.

COGNITIVE ABILITY

Ms. Kim administered the Wechsler Intelligence Scale for Children, Fifth Edition to assess Student’s overall intellectual and cognitive abilities. This assessment was a nationally standardized test designed to assess intellectual ability in children ages 6 to 16 years. It provided a measure of general intellectual function through scores in verbal comprehension, fluid reasoning, working memory and processing speed. Taken together, this assessment generated a full scale intelligence quotient, which estimated an individual’s intellectual abilities. Assessment standard scores had a mean of 100, with a standard deviation of 15. Standard scores between 85-115 were considered in the average range, with standard scores of 30 or more below 100 indicating a significant delay. Student’s full-scale intelligence quotient score was 81, within the low-average range. Her verbal comprehension, visual comprehension and visual spatial skills were in the low-average range.

Student showed relative areas of strength in the ability to hold and work with short-term memory information, called working memory. She scored a 91 in working memory, within the average range. This measured Student’s speed and accuracy in visually processing information. This tool also assessed Student’s speed of processing information, which is vital to reading performance and development, as well as learning in general. Student scored 98 on the processing speed subtest, within the average range.

Student’s verbal comprehension score of 89 fell in the low-average range. This indicated a weakness in word knowledge, retrieving acquired information and verbal expression. Student scored 84, in the low-average range, on the visual spatial subtest, which measured Student’s ability to evaluate visual details and understand visual spatial relationships.

Student’s lowest index score on the Wechsler Intelligence test was her fluid reasoning index score of 74, which fell in the low range. The fluid reasoning index measured Student’s ability to detect underlying conceptual relationships of visual information and apply reasoning to identify unfamiliar patterns. Ms. Kim considered Student’s low score on the fluid reasoning index to reflect a significant weakness for Student, as it was substantially lower than her other index scores on the Wechsler Intelligence test. She explained deficits in fluid reasoning are manifested by difficulty understanding instructions and directions, generalized learning skills and solving novel problems.

Ms. Kim explained the subtests were combined to obtain Student’s full-scale intelligence quotient. Although Student’s mean score was 87.2, her performance on the fluid reasoning subtest was significantly lower and pulled down the overall score. Ms. Kim credibly opined Student’s weakness in fluid reasoning was the probable reason for Student’s struggles with reading comprehension and math. The results of the cognitive assessments she administered to Student were a valid and reliable representation of Student’s cognitive abilities. At hearing, Student did not contend otherwise.

ACADEMIC ACHIEVEMENT

Ms. Kim conducted the academic portion of the assessment. She observed Student in the classroom, obtained input from Ms. Miguel, Ms. Choi and Parent, interviewed Student and reviewed Student’s academic records.

Ms. Kim administered the Woodcock-Johnson IV Tests of Achievement, to evaluate Student’s reading, math and hand written language skills. The Woodcock-Johnson was a nationally normed standardized assessment that measured academic skills through a series of brief tests. It evaluated academic skill levels in broad reading, basic reading, reading comprehension, reading fluency, broad mathematics, math calculation, math problem solving, broad written language, written expression, and overall academic fluency. Student’s basic reading skills, reading comprehension and math scores fell in the low-average range. Student’s written expression was an area of relative strength and Student scored in the average range. Student’s standard score of 104 placed her in the 62nd percentile compared to her same age peers.

Ms. Kim explained she administered a second assessment tool, the Wechsler Individual Achievement Test, Third Edition, to obtain additional information about Student’s abilities in the areas of listening, speaking, reading, writing and mathematics skills. Standard average scores ranged between 90-110. Student scored in the below–average range in reading comprehension, word reading, pseudo-word decoding, oral reading fluency, math problem solving and numerical operations. Ms. Kim credibly explained this assessment required more complex processes than the Woodcock-Johnson test, and Student’s scores on both the Wechsler Individual Achievement Test and Woodcock-Johnson were commensurate with her overall cognitive ability. These scores also coincided with Student’s class performance and Ms. Kim’s observations.

Ms. Kim administered the Gray Oral Reading Tests, Fifth Edition, to evaluate Student’s oral reading ability in the areas of rate, accuracy, fluency and comprehension. Rate, accuracy, fluency and comprehension use scaled scores with a mean of 10 and a standard deviation of 15. Student scored within the below-average range in each of these areas. The Oral Reading Index used a standard score with a mean of 100 and a standard deviation of 15. Student scored 73, which fell within the poor range. Ms. Kim credibly explained at hearing Student’s low score on this assessment reflected Student’s weakness in the area of reading comprehension, and did not lead her to suspect Student had dyslexia. She opined, based upon her years of experience, students with dyslexia achieve lower scores than did Student in reading rate, accuracy and fluency. Ms. Kim assessed Student in the area of phonological processing through the Woodcock-Johnson IV Tests of Oral Learning. This assessment measured various aspects of oral language, including listening comprehension, oral expression, vocabulary, phonological testing and speed of word access. Student’s cluster scores on this assessment indicated areas of strengths and weaknesses. Student scored in the average range in the phonetic coding and oral expression clusters. She demonstrated weakness in listening comprehension, where she scored in the low to low-average range.

The oral expression cluster generally measured short-term working memory, as well as listening ability and comprehension. Student performed in the average range on this cluster, and was able to repeat information with accuracy as well as identify vocabulary words from pictures. The listening comprehension cluster is comprised of segmentation and understanding directions. The segmentation was an auditory processing and phonetic coding task and required a student to listen to words and identify word parts. The understanding direction’s test measured short-term working memory for oral language. Student’s performance on this cluster fell within the lowaverage range. Ms. Kim credibly explained Student’s performance on the segmentation test demonstrated Student’s s average auditory processing and phonetic coding ability, but she had difficulties in understanding directions for independent, multi-stepped tasks.

The phonetic coding cluster was comprised of segmentation and sound blending. Sound blending was an auditory processing test that measured an individual’s skills in synthesizing phonemes, or speech sounds. Student performed in the average range on this cluster. She also scored in the average range on the speed of lexical access cluster. Ms. Kim interpreted these results at the IEP team meeting and at hearing. She convincingly explained this assessment evaluated Student’s auditory processing ability in part by measuring her skills in synthesizing speech sounds and blending them into words. Student scored in the average range in the phonetic coding clusters, which included sound blending and segmentation. Ms. Kim did not suspect Student had a phonological processing issue, such as dyslexia, because she demonstrated relative strength in the area of sound blending and segmentation.

Ms. Kim persuasively explained Student’s difficulty in understanding and following multi-step directions was consistent with her deficits in fluid reasoning skills, and was not reflective of an auditory processing deficit. Student’s weakness in listening comprehension resulted in Student having difficulty understanding and responding to multi-step directions that required her to use short-term working memory and fluid reasoning to process complex information.

Ms. Kim concluded Student’s academic achievement was commensurate with her low-average cognitive ability. She scored in the average range in the working memory and processing indexes. She was below average in verbal comprehension, visual spatial skills and fluid reasoning. Academically, Student performed within the average range in written expression, and in the low-average range in math calculations, math problem solving, word reading, reading fluency and reading comprehension. She demonstrated average oral expression skills and phonetic coding. At hearing, Student did not contest the accuracy, reliability or comprehensiveness of the academic assessment conducted by Garden Grove.

PSYCHOLOGICAL PROCESSING

Ms. Kim administered several standardized tests of processing skills to Student. These tools assess how well a person processes information presented visually and auditorily.

Ms. Kim assessed Student’s motor skills and visual motor integration skills, usually referred to as “hand-eye coordination,” through the Beery-Buktenica Test of Visual Motor Integration. This assessment provided information about how accurately an individual can copy a series of increasingly complex designs and was designed to assess the extent to which individuals integrate visual and motor abilities. Student’s overall score on this assessment fell within the average range.

Ms. Kim administered the Motor-Free Visual Perception Test, Fourth Edition, to measure various aspects of Student’s visual-perceptual skills in five areas: visual discrimination, spatial relationships, visual memory, figure ground, and visual closure. Student earned an overall score of 105, which fell within the average range. This reflected Student’s ability to correctly complete tasks when processing and discriminating visual information. She also performed adequately in the ability to remember and recognize items after a brief interval, known as verbal memory. She scored below average in the area of spatial relationships. This score reflected Student had difficulties with awareness of directional differences between visual forms. Ms. Kim credibly testified at hearing Student’s average score on the phonological processing index reflected Student ability to discriminate phonemes, segment words into groups of sound and blend parts of words into words. She opined Student’s average phonological abilities did not lead her to suspect Student had dyslexia.

Student’s low average score on the memory index reflected some weakness in Student’s basic memory processes, including sequencing. Student’s average score on the auditory cohesion index reflected Student’s average abilities in higher order linguistic skills that required her to draw information or make inferences regarding spoken information. Ms. Kim assessed Student’s auditory processing skills by administering the Test of Auditory Processing Skills, Third Edition. This instrument measured Student’s ability to understand and remember information presented verbally. The subtests provided information in the following areas: phonological awareness, auditory memory, and auditory cohesion (comprehension and reasoning). Student’s overall standard score of 89 fell within the upper end of the low-average range. Her index scores ranged from average in phonological processing and cohesion to low-average in memory skills. Student did not dispute the accuracy or reliability of the psychological assessment at hearing.

SOCIAL/EMOTIONAL BEHAVIOR

Ms. Kim assessed Student’s social emotional functioning by interviewing Student and obtaining rating scales from Student, Parent and Student’s teacher through the Behavior Assessment System for Children, Third Edition. This assessment tool was designed to aid in diagnosis and classification of emotional and behavioral disorders. The Behavior Assessment System consisted of rating scales completed by individuals who had knowledge about a student’s behavior and social-emotional functions, such as parents, teachers and the student.

Parent’s overall reporting of Student fell within the average range in the area of externalizing problems, behaviors and adaptive skills. She scored Student at-risk in the area of internalizing problems and reported Student sometimes displayed behaviors stemming from anxiety and somatization. Ms. Miguel’s reporting of Student also fell in the average category overall, although she rated Student as at-risk in the category of internalizing problems. She reported Student was sometimes withdrawn, pessimistic or sad. Ms. Kim interviewed Ms. Miguel about these concerns. Ms. Miguel noted this behavior was infrequent and Student continued to follow directions and complete her school work. Student self-reported feelings of loneliness and social anxiety. Her familial and interpersonal relationships were not an area of concern. Overall, the raters indicated Student was not at-risk overall, but did show as being at-risk in anxiety, somatization and internalizing problems.

Ms. Kim interpreted the rating scales in conjunction with her interview and observation of Student and input from Parent and Ms. Miguel. Student expressed interest in hobbies and socializing with friends. She reported sometimes feeling sad and lonely. She reported being close to her family. Ms. Miguel described Student as obedient and responsible. She worked well with others and had friends. Parent described Student as creative and eager to learn. She noted Student became frustrated and anxious when she struggled with homework.

Student did not present any evidence at hearing showing Student’s social and emotional functioning was not comprehensively assessed, nor that Student’s social-emotional needs negatively impacted her ability to access her educational program.

SPECIFIC LEARNING DISABILITY

A student with a specific learning disorder is eligible for special education services. (Ed. Code, § 56026; Cal. Code Regs., tit. 5, § 3030, subd. (b)(10).) A specific learning disability is a disorder in one or more of the basic psychological processes involved in understanding or in using language that may manifest in the inability to listen, think, speak, read, write, spell or do mathematical calculations. (Ed. Code, §56337, subd. (a); Cal. Code Regs., tit. 5, § 3030, subd. (b)(10).) Basic psychological processes include attention, visual processing, auditory processing and cognitive abilities. (Id.) Certain conditions, including perceptual disabilities and dyslexia, fall within the eligibility category of specific learning disability. (Id.)

A school district may determine whether a student has a specific learning disability using two methods. First, it may consider whether the student has a severe discrepancy between intellectual ability and achievement in oral expression, listening comprehension, written expression, basic reading skill, reading comprehension, mathematical calculation or mathematical reasoning. (Ed. Code, § 56337, subd. (b): Cal. Code Regs., tit. 5, § 3030, subd. (b)(10)(B).) The mathematical formula for determining whether a severe discrepancy exists is set forth by regulation and is complex. (Cal. Code Regs., tit. 5, § 3030, subd. (b)(10)(B)(1).) In brief, the difference between the student’s standardized achievement test scores and intellectual ability test scores are compared against common standard scores to measure whether there is a severe discrepancy between the two, when such discrepancy is corroborated by other assessment data, which may include other tests, observations and work samples. (Cal. Code Regs., tit. 5, § 3030, subd. (b)(10)(B)(1).)

The second method of determining whether a student has a specific learning disability whether or not a student exhibits a severe discrepancy evaluates a student’s progress in meeting age or State-approved grade-level standards. (Cal. Code Regs., tit. 5, § 3030, subd. (b)(10)(C)(1).) This approach may be applied where the student does not achieve adequately for his age or meet State-approved grade level standards in one or more of the following: oral expression, listening comprehension, written expression, basic reading skills, reading fluency skills, reading comprehension, mathematics calculation, or mathematics problem solving. (Id.) In addition, the student fails to make sufficient progress to meet age or State-approved grade-level standards in one or more of the preceding areas when either: (1) using a process based on the student’s response to scientific, research-based intervention; or (2) the student exhibits a patterns of strengths and weaknesses in performance, achievement, or both, relative to age or intellectual development, that is determined by the group to be relevant to the identification of a specific learning disability, using appropriate assessments, consistent with 34 C.F.R. sections 300.304 and 300.305. (Cal. Code Regs., tit. 5, § 3030 subd. (b)(10)(C)(2)(i) & (ii).) The findings under subdivisions (b)(10)(C)(1) and (2) of this section may not primarily be the result a visual, hearing, or motor disability; intellectual disability; emotional disturbance; cultural factors, environmental or economic disadvantage or limited English proficiency.

Ms. Kim explained in detail in her report and at hearing Student did not qualify for eligibility for a specific learning disability using the severe discrepancy method. However, Student was eligible using the pattern of strengths and weaknesses model. Ms. Kim carefully and persuasively opined Student exhibited a pattern of cognitive or processing strengths, indicated by a pattern of abilities in the average or above-average range, in her processing speed and short-term working memory. Student exhibited significant cognitive weakness in the area of fluid reasoning, which fell within the psychological process of conceptualization within cognition. Student demonstrated below-average academic achievement in math calculations and problem solving in standardized assessments, as well as below benchmark classroom performance. Ms. Kim opined there is a research-based link between the cognitive weakness of fluid reasoning and academic weakness in reading comprehension and mathematics. Student was not meeting grade level standards in math and reading comprehension based upon Student’s grades and performance on statewide and standardized assessments. Ms. Kim concluded, therefore, Student met the eligibility requirements of a specific learning disability.

At hearing, Student did not dispute her eligibility for special education under the category of specific learning disability, nor did Student understand that visual and auditory processing issues fall under this category. Instead, she argued additional evaluations should have been done by an audiologist and optometrist. However, no evidence was submitted that showed Student had deficiencies in these areas. At hearing, Ms. Kim persuasively explained Student’s cognitive weakness in fluid reasoning combined with her academic weakness in reading comprehension and mathematics made her eligible for special education under specific learning disability, and that visual and auditory processing deficiencies fell under the umbrella of this category. She further effectively explained why visual and auditory processing were not areas of concern for Student. She interpreted the results from the cross-battery of assessments and concluded for educational purposes Student did not have visual processing deficits. She opined Student’s low-average visual spatial capability and average working memory, visual-motor integration, and perceptional processing did not suggest a visual processing deficit. Student’s average ability in auditory discrimination, segmentation, sound blending and phonetic coding did not reflect an auditory processing deficit. Student’s low-average to average scores on the phonologic, memory, and cohesion indexes of the Test of Auditory Processing Skills 3, also did not support an auditory processing deficit.

Ms. Kim documented the basis for her findings in the Initial Multidisciplinary Assessment report, and the IEP team reviewed Ms. Kim’s recommendation at the IEP team meeting. During hearing, Student presented no evidence that impugned the credibility of Ms. Kim’s testimony or the validity of her testing.

SPEECH AND LANGUAGE ASSESSMENT

A student is eligible for special education and related services when they demonstrate difficulty understanding or using spoken language to such an extent it adversely affects their educational performance and cannot be corrected without special education and related services. (20 U.S.C. § 1401(26); Ed. Code, § 56333.) A language, speech and hearing specialist determines whether a student is entitled to services based upon difficulty in understanding or using spoken arising from a variety of disorders, including articulation disorders, abnormal speech, fluency difficulties or inadequate acquisition, comprehension or expression of spoken language significantly below the language performance level of their peers. (Ed. Code, § 56333, subds. (a)-(d).) Speech pathologist Krystal Petrasanta conducted the speech and language assessment of Student and prepared a written assessment report. During the 2018-2019 school year, she was supervised by Judy Meckna. Ms. Meckna and Ms. Petrasanta testified at hearing.

Ms. Meckna worked as a speech and language pathologist for Garden Grove. She was a credentialed speech and language pathologist for nine years. She held a certificate of clinical competency through the American Speech-Language-Hearing Association. Ms. Meckna mentored Ms. Petrasanta during the 2018-2019 school year while Ms. Petrasanta was earning her certificate of competency through the American Speech-Language-Hearing Association. Ms. Meckna observed Ms. Petrasanta’s assessments and speech therapy sessions, consulted with her regarding appropriate assessment tools and protocols, supervised her report writing, and communicated with her regularly. Ms. Meckna reviewed and approved Ms. Petrasanta’s speech and language assessment of Student.

Ms. Petrasanta held bachelor’s and master’s degrees in speech-language pathology. She was credentialed and licensed as a speech-language pathologist in California since 2016. At the time of the hearing, she had worked for Garden Grove for two years. She was licensed to conduct assessments and provide speech and language services during the 2018-2019 school year. She had conducted around 10 to 30 initial assessments of students.

Ms. Petrasanta’s education, credentials and experience qualified her to conduct Student’s speech and language assessment, administer standardized tests, interpret the results and prepare the report. She consulted with Ms. Meckna regarding assessment protocols and scoring. Ms. Petrasanta’s testimony regarding the assessments and her conclusions were thoughtful and well-reasoned. Ms. Petrasanta’s testimony was credible based on her education, training and experience, and her confident demeanor at hearing.

Ms. Petrasanta’s language and speech assessment was thorough and comprehensive. It consisted of a review of Student’s records and background information, a review of Student’s health history, consideration of input from Parent, observations of Student in the general education classroom and the Boys & Girls Club afterschool program, assessment tools she administered herself, as well as some assessment tools and information from Ms. Kim’s psychoeducational assessment. She interviewed Parents and consulted Student’s teacher, took a language sample, and used the following instruments for the following purposes:

• Goldman-Fristoe Test of Articulation, Third Edition, a standardized assessment to measure speech sound abilities in the area of articulation in individuals ages two to 21 years and 11 months old that compared an individual’s intelligibility in connected speech with others of the same gender and age or grade;

• Receptive One-Word Picture Vocabulary Test, Fourth Edition, to assess a student’s ability to comprehend words;

• Expressive One-Word Picture Vocabulary Test, Fourth Edition, to assess a student’s ability to generate words and produce speech;

• Comprehensive Assessment of Spoken Language, Second Edition, referred to as CASL-2, to assess Student’s oral language function;

• Test of Narrative Language, Second Edition, to evaluate a student’s ability to use language to engage in discourse;

• Language Processing Test, Third Edition, to assess a student’s language processing abilities;

• Systematic Analysis of Language Transcripts, used to measure the number and intelligibility of utterances produced; and

• Pragmatic Language Skills Inventory, a standardized teacher-rating instrument used to rate a student’s pragmatic language skills.

Ms. Petrasanta was trained and knowledgeable about the assessments and administered them in accordance with any instructions provided by the producer of such assessments. (20 U.S.C. § 1414, subds. (b) & (c); 34 C.F.R. § 300.304(c)(1)(iv) & (v); Ed. Code, § 56320, subds. (a) & (b).) She consulted with Ms. Meckna to review the assessment protocols and test results.

Ms. Petrasanta conducted two observations in the general education setting. The first observation lasted approximately 20 minutes during recess. Student talked and laughed with friends, engaged in appropriate eye contact and turn taking. She spoke to her friends about a future outing and played a hand clapping game.

The second observation lasted approximately 25 minutes during math and English language arts. Student worked with a small group of students on long division math problems. Ms. Miguel reviewed a problem with the group. She prompted Student to use a multiplication chart to help her solve the problem. The class then transitioned to English language arts. Student took out her textbook and sat with her designated small group. Student flipped through the pages engaged in conversations with her classmates about what the text was going to include. She listened to her peers’ comments and contributed to the discussion.

The third observation took place at the Boys and Girls Club, a private afterschool program, and lasted about 20 minutes. Student laughed and pretended to pose for pictures with her friends. She listened to and followed directions, talked and laughed with her friends, patiently waited her turn, and said thank you to the adult supervisor. Ms. Petrasanta performed an informal structural-functional examination of Student’s oral structures, which included a visual inspection of the oral mechanism and assessed mobility and function. Student presented with adequate structure and function.

Ms. Petrasanta administered the Systematic Analysis of Language Transcripts, an informal assessment which evaluated a 100-utterance language sample by the Student. This assessment measured the number and length of words and utterances, types of words, general intelligibility and use of grammar from a 100-utterance language sample by Student. Ms. Petrasanta concluded the results of the sample demonstrated Student’s ability to use language to express her needs, wants and ideas. Student was able to produce sentences of varied length and complexity, and used conjunctions, pronouns and verbs effectively. Student’s speech was intelligible.

Ms. Petrasanta administered the Goldman-Fristoe Test of Articulation, Third Edition, to obtain qualitative data about Student’s articulation and phonological system. Standard scores between 85-115 were considered to be in the average range for an individual’s speech sound production. Student scored 104 with a percentile rank of 61 when compared to chronological age and same sex peers. Ms. Petrasanta did not note any sound errors in Student’s speech during the observations and assessments. She rated Student’s speech as being 100 percent intelligible overall. She also confirmed with Ms. Miguel that Student’s speech was intelligible within the general education classroom.

Ms. Petrasanta also administered standard assessments of Student. She administered the Receptive One-Word Picture Vocabulary Test, Fourth Edition, to measure Student’s receptive vocabulary using a picture-matching paradigm. Standard scores range from 85-115. Student scored 90, reflecting she had average expressive vocabulary skills.

The Expressive One-Word Picture Vocabulary Test, Fourth Edition evaluated a student’s ability to produce meaningful speech by accessing and retrieving words from memory. Average standard scores ranged from 85-115. Student scored 90, which was within the average range, and demonstrated age-appropriate semantics.

Ms. Petrasanta administered the CASL-2 to assess Student’s oral language skills in the areas of receptive vocabulary, sentence expression, grammaticality judgment, nonliteral language, and double meanings. The CASL-2 consisted of a battery of 14 stand-alone tests, each of which measured a specific oral language skill. Average standard scores ranged from 85-115.

Student scored in the average range in receptive vocabulary skills, generating sentence structures with appropriate grammar and word order, accurately judging and correcting grammatical errors, understanding the meaning of spoken sentences and comprehending indirect requests, figurative language and sarcasm, and understanding words having multiple meanings. She scored within the average range on the General Language Ability Index, which reflected Student’s ability to understand meanings of vocabulary and syntax and to use language. She demonstrated strength in understanding and using grammar both receptively and expressively.

Ms. Petrasanta also administered the Test of Narrative Language, Second Edition, to measure Student’s knowledge of language components to engage in functional conversation. Student scored above average on the comprehension subtest. This reflected Student’s relative strength in being able to listen to orally read stories and recall details about the story and make inferences. She scored in the superior range on the production subtest, which demonstrated Student’s ability to look at pictures and produce a complete, cohesive narrative. Student’s overall score on the Narrative Language Ability Index, which combined the production and narrative comprehension scores, was 124 with a percentile rank of 95, which placed her in the superior range compared to her same-aged peers. Ms. Petrasanta administered the Language Processing Testing. This test assessed language processing by evaluating the ability to attach increasingly more meaning to information received and then formulate a response. Student scored 111, in the average range. This demonstrated Student’s average language processing ability. Ms. Petrasanta administered the Pragmatic Scale Inventory to evaluate Student’s ability to communicate to achieve goals. This was a standardized teacher-rating instrument designed to rate a child’s pragmatic skills in classroom, social and personal interactions. Student’s score of 86 fell within the below-average range. Ms. Petrasanta reviewed the scores with Ms. Kim and concluded the low rating was based on a situational family issue Student was experiencing, and Student overall demonstrated skills to express her feelings and cope with emotions in a healthy manner.

Ms. Petrasanta administered the Pragmatic Language Subtest Two to obtain qualitative data about Student’s pragmatic language. Student’s scored in the average range, reflecting Student’s ability to use socially appropriate language. Ms. Petrasanta concluded Student did not have an articulation disorder or language disorder, and did not meet eligibility for the category of speech and language impairment. The results of Ms. Petrasanta’s speech and language assessment were written into the Initial Multidisciplinary Assessment report dated May 13, 2019. At hearing, Student argued Garden Grove’s speech and language assessment was flawed because Garden Grove did not administer the Clinical Evaluation of Language Fundamentals, Fifth Edition, referred to as CELF-5, to identify, diagnose and evaluate Student’s language skill deficits. However, the selection of particular testing or evaluation instruments is left to the discretion of the school district. As long as the statutory requirements for assessments are satisfied, parents may not put conditions on assessments; “selection of particular testing or evaluation instruments is left to the discretion of State and local educational authorities.” (Letter to Anonymous (OSEP 1993) 20 IDELR 542.) Garden Grove proved the CASL-2 standardized assessment was appropriate to evaluate Student’s oral language skills. Student did not present any evidence, such as expert testimony or a private speech and language assessment, to contradict the validity of the assessments or results.

MAY 13, 2019 IEP TEAM MEETING TO REVIEW RESULTS OF ASSESSMENTS

An IEP program to determine whether the child is an individual with special needs and to determine the educational needs of the child, must be developed within a total time not to exceed 60 calendar days. (Ed. Code, § 56043(f)(1).) California law requires the assessment report must be provided to the parent at the IEP team meeting to allow for discussion and explanation. (Ed. Code, § 56329, subd. (a)(3).)

The Initial Multidisciplinary Assessment and report was completed by May 13, 2019, less than 60 days from Parent’s signed consent on March 19, 2019. Garden Grove provided Parent the Initial Multidisciplinary Assessment and report, including the psychoeducational and language and speech assessments, and reviewed the assessments during Student’s IEP team meeting on May 13, 2019. Due to time constraints, the IEP team meeting reconvened on June 11 and 13, 2019, for further discussion and development. The three IEP team meetings are collectively referred to as the IEP team meeting.

Ms. Kim, Ms. Petrasanta, Ms. Miguel, Ms. Choi, Parent and all necessary participants attended the IEP team meeting. Parent was an active participant in the IEP team meeting. She asked detailed questions and provided her input. The team first considered Student’s present levels of academic and functional performance. Team assessors reported Student was a quiet, respectful student who got along well with others. Student positively interacted with peers and did not have any behavioral problems. Parent reported Student was eager to do new things and was a visual learner.

Parent expressed concern Student became frustrated when she was unable to read fluently. Academically, Student read 93 words accurately per minute from a fifth grade passage, which was below the 139 benchmark. Student read an average book level of 4.2 and passed comprehension quizzes with 70 percent accuracy. Ms. Miguel’s report and Student’s school records identified strengths in word decoding and writing coherent, multiple paragraph essays. She was not yet meeting benchmark standards in reading fluency and comprehension and math, and struggled in solving word problems involving division and fractions.

The team did not identify any problems in the areas of gross or fine motor development. At the time of the IEP team meeting, Student exhibited appropriate social and emotional development. She earned outstanding marks for following rules, respecting authority and accepting responsibility. She had friends inside and outside of class and was observed by the assessors socializing in class and at recess. Finally, Student passed all health screenings.

Ms. Kim shared her academic and cognitive assessments with the IEP team. She carefully explained each part of the report, and thoughtfully answered questions from Parent and her advocate. Ms. Kim explained why Student was eligible for special education under the category of specific learning disability. She also reviewed the auditory and visual processing components of the assessments, and explained why the results of the assessments did not lead her to suspect visual or auditory processing disorders. Parent asked questions at the IEP team meeting about the assessments in these areas.

Ms. Petrasanta reviewed and discussed her speech and language assessment and report. Student had age-appropriate articulation skills and was intelligible across all contexts. She demonstrated strengths in receptive and expressive vocabulary, as well as comprehension of stories and production of cohesive narratives. Student sometimes became withdrawn when she had disagreements with friends, but demonstrated socially appropriate social skills and pragmatic language skills. Ms. Petrasanta reported her findings and confirmed her conclusion Student did not meet the criteria for speech and language impaired. Parent did not challenge the validity or results of the assessments at the IEP team meeting.

Parent asked detailed questions about the assessments, including how Student’s scores on the standardized assessments compared with other students. Parent also requested certain comments made by Student to Ms. Miguel and Ms. Kim regarding her home life be removed from the report. The IEP team agreed, and Garden Grove removed the comments from the Initial Multidisciplinary Assessment and report and provided Parent the updated report on May 26, 2019, prior to the continued IEP team meeting scheduled for June 11, 2019.

Following the initial IEP team meeting, Parent requested additional assessments in the areas of visual and auditory processing, dyslexia, dyscalculia and dysgraphia through an email dated May 29, 2019. She questioned Ms. Kim’s qualifications to assess Student in these areas. Ms. Kim responded she was qualified to assess Student in these areas as it related to whether Student had a specific learning disability. She further explained Student’s assessments in phonological processing, visual processing, and visual-motor integration fell within normal limits and therefore she did not suspect Student suffered from dyslexia, dyscalculia or dysgraphia.

Parent persisted with this request, and on June 9, 2019, emailed Garden Grove and reiterated her request Student be evaluated in the areas of auditory and visual processing.

Parent, through her advocate, Peter Attwood, suggested at the June 13, 2019 IEP team meeting the assessment should have included advanced vision testing, including tracking and binocular vision. Mr. Attwood had not met Student at the time of the IEP team meeting and admitted he needed time to meet with Student. Parent and Mr. Attwood did not explain why this was an area of suspected concern for Student. Ms. Kim carefully explained Student’s assessments reflected average visual processing ability and there was no empirical evidence suggesting the need for further testing in this area. No additional information was presented by Parent or Mr. Attwood at the June 13, 2019 IEP team meeting, nor anytime thereafter.

Parent did not agree that Garden Grove’s assessment was comprehensive because it did not include evaluations by an optometrist and audiologist. Throughout her testimony and her examination of witnesses at hearing, Parent repeatedly expressed her concerns Student had dyslexia, dyscalculia or dysgraphia and was not properly assessed in these areas. Parent further challenged Ms. Kim’s qualifications to assess Student in the areas of visual and auditory processing. She examined Ms. Kim regarding whether she was familiar with convergence insufficiency, binocular vision disorder, magnocellular vision, central auditory processing disorder and other medical diagnoses not within the purview of a school psychologist. However, Parent did not present evidence showing Garden Grove failed to consider information available at the time of the assessments, or failed to properly administer the assessments. She did not establish only a trained optometrist and audiologist was qualified to determine whether Student had educational deficits related to visual and auditory processing disorders. On cross-examination, Parent conceded Student did not have an auditory processing disorder, but then unconvincingly tried to retract her testimony. The IEP team communicated to Parent throughout the assessment process Student’s visual and auditory processing abilities were evaluated through the psychoeducation assessment, and explained how the results of the assessments did not lead them to suspect deficiencies in these areas, and that, if warranted, they would have Student further assessed by specialists in these areas. Parent unpersuasively argued at hearing that Garden Grove did not listen or consider her concerns at the IEP team meeting. The parents of a child with a disability must be afforded an opportunity to participate in meetings with respect to the identification, evaluation and educational placement of the child. (34 C.F.R. § 300.501(b).) Parent meaningfully participated in the IEP team meeting. She was informed of the results of the assessments and expressed her disagreement regarding the IEP team’s conclusions. Garden Grove listened to and considered Parent’s request for additional assessments and concluded they were unnecessary in light of the results of Garden Grove’s Initial Multidisciplinary Assessment. After careful deliberation based upon valid assessments by qualified professionals, Garden Grove’s IEP team determined that Student met eligibility criteria for special education under the category of specific learning disability.

Student’s IEP team identified her areas of need as reading comprehension, reading fluency, writing, division, fractions and word problems. To meet those areas of need, the IEP team created five annual academic goals. The goals included information on Student’s baseline level of function in the areas targeted and short-term objectives. The reading, math and writing goals were measurable. Each identified the skill Student needed to demonstrate, how it would be measured, and the measurement tools. Parent did not agree to Student’s eligibility, nor did she consent to the IEP, and therefore at the time of the hearing Student was not receiving special education services.

PARENTS REQUEST FOR INDEPENDENT EDUCATIONAL EVALUATIONS

The procedural safeguards of the IDEA provide that under certain circumstances, a parent is entitled to an independent educational evaluation, called IEE, if they disagree with an evaluation obtained by the public agency and request an independent evaluation at public expense. (34 C.F.R. § 300.502(a)(1); Ed. Code, §56329, subd. (b) [incorporating 34 C.F.R. § 300.502 by reference]; Ed. Code, § 56506, subd. (c) [parent has the right to an independent evaluation as set forth in Ed. Code, § 56329].) An IEE is an evaluation conducted by a qualified assessor who is not employed by the school district responsible for the student’s education. (34 C.F.R. § 300.502(a)(3)(i).) A parent has the right to request an IEE at public expense if the parent disagrees with an evaluation obtained by the school district. (34 C.F.R. § 300.502(b)(1); Ed. Code, § 56329, subd. (b).) In response to a request to pay for an independent evaluation, the school district must, “without unnecessary delay,” either file a due process complaint to request a hearing to show its evaluation is appropriate; or ensure an independent evaluation is provided at public expense. (34 C.F.R. § 300.502(b)(2); see also Ed. Code, § 56329, subd. (c) (providing that a public agency may initiate a due process hearing to show that its assessment was appropriate).) When a school district declines to fund a request for an IEE at public expense, it must provide the parent prior written notice of its refusal. (20 U.S.C. § 1415(b)(3).)

Parent communicated at the conclusion of the IEP team meeting on June 13, 2019, she wanted Student independently evaluated, and indicated the same in her handwritten notes on the IEP signature page. Garden Grove declined to fund independent assessments and provided prior written notice to Parent on June 21, 2019 pursuant to title 34 Code of Federal Regulations section 300.503. Garden Grove informed Parent it would file a due process hearing to defend the appropriateness of its assessments in the areas of psychoeducation, which included visual and auditory processing, and language and speech.

Garden Grove filed a due process complaint with OAH on July 10, 2019, Case Number 2019070453, to defend the validity of the Initial Multidisciplinary Assessment and report. Parent filed a due process complaint with OAH on August 5, 2019, OAH Case Number 201908013. On August 29, 2019, OAH issued an order granting Garden Grove’s motion to consolidate the two cases, and designated Parent’s complaint, Case Number 201908013 as the primary matter.

Parent filed a dismissal of its complaint, Case Number 201908013, on September 16, 2019. Garden Grove filed a notice of case withdrawal, Case Number 2019070453, on October 14, 2019.

In a series of emails between Parent and Garden Grove on October 11 and 14, 2019, Parent confirmed her withdrawal of the requests for independent educational evaluations and her dismissal of the due process complaint. Garden Grove, in turn, communicated it would dismiss its complaint in light of Parent’s withdrawal of her request for independent educational evaluations. By email dated October 11, 2019, Garden Grove explained to Parent that withdrawing her request for independent educational evaluations and dismissing the due process complaint would not prevent Parent from requesting independent evaluations at a later time.

Parent enrolled Student within the Santa Ana Unified School District for the 2019- 2020 school year pursuant to an inter-district transfer. Parent requested Santa Ana Unified School District provide independent educational evaluations at public expense. Upon learning Garden Grove was the responsible district, Parent emailed Garden Grove on January 27 and 28, 2020, and renewed her request for independent educational evaluations.

On January 30, 2020, Garden Grove issued a prior written notice to Parent again declining her request to fund independent educational evaluations at public expense in the areas of psychoeducation and language and speech. The procedural safeguards were included with the prior written notice. On February 4, 2020, Garden Grove filed the current matter to defend the appropriateness of the Initial Multidisciplinary Assessment and report.

Garden Grove acted without unnecessary delay in responding to Parent’s request for independent educational evaluations. Garden Grove filed its initial complaint to defend the Initial Multidisciplinary Assessment on July 10, 2019; less than thirty days after Parent notified Garden Grove on June 13, 2019 of her request for independent evaluations. Parent withdrew her request for the evaluations on October 11, 2019, prompting Garden Grove to dismiss its case with OAH. Parent renewed her request for evaluations on January 27, 2020, and Garden Grove filed the present case within one week of the request. At no point did Garden Grove unnecessarily delay in filing to defend its assessment.

All portions of Garden’s Grove Initial Multidisciplinary Assessment, including the psychoeducational and language and speech assessment, met all legal requirements for assessments. The Initial Multidisciplinary Assessment was comprehensive and evaluated Student in all areas of suspected disability with input from Parent. The assessment plan was in language easily understood, in the native language of Parent, explained the types of assessments to be conducted, and notified Parent that no IEP would result from the assessment without her consent. Parent consented to the assessment plan.

Garden Grove’s Initial Multidisciplinary Assessment was conducted by trained and competent personnel, who were knowledgeable of Student’s disability. Each assessor contributed to the initial evaluation, and was qualified to conduct the assessment. Each assessment was appropriate to administer to Student, selected so as not to be discriminatory, and administered in accordance with test instructions. The assessors used a variety of valid and reliable assessment tools, both standardized and nonstandardized, and reviewed existing evaluation data. Parent contributed information about Student in a questionnaire provided by Ms. Kim, and her responses were consistent with and corroborated by the intellectual, academic, health and speech and language information considered by the assessors. There was no evidence the assessment batteries administered were insufficient or inappropriate, failed to reveal necessary information, or the IEP team lacked necessary information. No evidence was presented that a specific test that only an optometrist or audiologist could perform would have provided any better guidance or information.

Student was assessed in all areas of suspected disability within the psychoeducational assessment realm, health, and speech and language development. Garden Grove prepared a collaborative multidisciplinary report, which explained the assessment results, described Student’s strengths and weaknesses, and discussed Student’s need for special education and related services, and reviewed and discussed the results at the IEP team meeting. The IEP team reviewed all of the assessment reports, and no single measure or assessment was used as the sole criterion for determining Student’s eligibility or an appropriate educational program for Student. The IEP team had accurate, reliable, or sufficiently comprehensive assessment information before it to appropriately and fully considered whether Student had additional unique needs that needed to be addressed at that meeting. Therefore, Garden Grove’s Initial Multidisciplinary Assessment and report, including the information and conclusions in the psychoeducational, health, academic, and language and speech assessments, were appropriate.

Garden Grove proved by a preponderance of the evidence the Initial Multidisciplinary Assessment and report, including the psychoeducational and speech and language assessment of Student, was conducted in accordance with legal requirements. Garden Grove satisfied its burden of proof on these issues and Student is not entitled to independent evaluations at public expense in the areas of psychoeducation or speech and language.

CONCLUSIONS AND PREVAILING PARTY

As required by California Evidence 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: Was Garden Grove Unified School District’s initial Multidisciplinary Assessment and report appropriate and conducted in accordance with applicable law such that Student is not entitled to independent educational evaluations in speech and language and psychoeducation at public expense?

Garden Grove prevailed on this issue.

ORDER

Student is not entitled to independent educational evaluations at public expense in the areas of psychoeducation or speech and language.

RIGHT TO APPEAL THIS DECISION

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

Jennifer Kelly
Administrative Law Judge
Office of Administrative Hearings