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OAH 2020020591

April 06, 2020

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Corona-Norco Unified School District v. Student - District Prevailed

BEFORE THE
OFFICE OF ADMINISTRATIVE HEARINGS
STATE OF CALIFORNIA

CASE NO. 2020020591

CORONA-NORCO UNIFIED SCHOOL DISTRICT,
v.
PARENTS ON BEHALF OF STUDENT.

DECISION

APRIL 6, 2020
On February 14, 2020, the Office of Administrative Hearings, called OAH, received a due process hearing request from Corona-Norco Unified School District, naming Parents on behalf of Student. Administrative Law Judge Alexa Hohensee heard this matter in Norco, California on March 10, 2020.
Summer Dalassandro, attorney at law, represented Corona-Norco. Dawn Rust,
Special Education Local Plan Area administrative director, attended the hearing on
Corona-Norco’s behalf. Neither Parent appeared for the hearing. OAH called Parents to
inquire about their attendance, but the call went to voicemail and the voicemail box was
full, so no message could be left. Ms. Dalassandro represented that she had also made
calls and sent email messages to Parents over the preceding week, which had not been
answered. The hearing was continued for 30 minutes, and went forward when Parents
still did not appear.
At Corona-Norco’s request, the matter was continued to March 23, 2020, for
submission of written closing argument. On March 11, 2020, OAH informed Parents on
behalf of Student of their right to submit a closing brief. Corona-Norco submitted a
closing brief on March 23, 2020, and Student did not submit a closing brief. The record
was closed, and the matter was submitted on March 23, 2020.

ISSUE

Does Corona-Norco have the right to conduct the assessments of Student
proposed in its November 25, 2019 assessment plan, without parental consent?

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.) All
references to the Code of Federal Regulations are to the 2006 version unless otherwise
specified. The main purposes of the Individuals with Disabilities Education Act, referred
to as the IDEA, are to ensure:
• all children with disabilities have available to them a free appropriate public
education that emphasizes special education and related services designed to
meet their unique needs and prepare them for further education, employment
and independent living, and
• the rights of children with disabilities and their parents are protected.
(20 U.S.C. § 1400(d)(1); see Ed. Code, § 56000, subd. (a).)
The IDEA affords parents and local educational agencies the procedural
protection of an impartial due process hearing with respect to any matter relating to the
identification, assessment, or educational placement of the child, or the provision of a
free appropriate public education, referred to as FAPE, to the child. (20 U.S.C.
§ 1415(b)(6) & (f); 34 C.F.R. § 300.511; Ed. Code, §§ 56501, 56502, and 56505; Cal. Code
Regs., tit. 5, § 3082.) The party requesting the hearing is limited to the issues alleged in
the complaint, unless the other party consents, and has the burden of proof by a
preponderance of the evidence. (20 U.S.C. § 1415(f)(3)(B); Ed. Code, § 56502, subd. (i);
Schaffer v. Weast (2005) 546 U.S. 49, 57-58, 62 [126 S.Ct. 528, 163 L.Ed.2d 387]; and see
20 U.S.C. § 1415(i)(2)(C)(iii).) Here, Corona-Norco 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).)
Student was nine years old and would have been in third grade at the time of
hearing if attending school. Student resided within Norco-Corona’s geographic
boundaries at all relevant times. Student was eligible for special education under
categories of autism and specific learning disability.

ISSUE: DOES CORONA-NORCO HAVE THE RIGHT TO CONDUCT THE
ASSESSMENTS OF STUDENT PROPOSED IN ITS NOVEMBER 25, 2019
ASSESSMENT PLAN, WITHOUT PARENTAL CONSENT?

Corona-Norco seeks permission to conduct comprehensive assessments of
Student without parental consent to determine his current need for special education
and related services. Corona-Norco contends that it has complied with all statutory
requirements for notice of proposed assessment and made repeated, documented
efforts to obtain parental consent. It asserts that reassessment is necessary to prepare
for Student’s three-year review of his individualized education program, called an IEP.
Parents did not respond to Corona-Norco’s due process hearing request.
In general, a child eligible for special education must be provided access to
specialized instruction and related services, that are individually designed to provide
educational benefit through an IEP reasonably calculated to enable a child to make
progress appropriate in light of the child’s circumstances. (Board of Education of the
Hendrick Hudson Central School Dist. v. Rowley (1982) 458 U.S. 176, 201-204; Endrew F.
v. Douglas County School Dist. RE-1 (2017) 580 U.S. ____ [137 S.Ct. 988, 1000].) Parents
and school personnel develop an IEP for an eligible student based upon state law and
the IDEA. (20 U.S.C. §§ 1401(14), 1414(d)(1); and see Ed. Code, §§ 56031,56032, 56341,
56345, subd. (a), 56363 subd. (a); 34 C.F.R. §§ 300.320, 300.321, 300.501.)
School district evaluations of students with disabilities under the IDEA serve two
purposes:
1. identifying students who need specialized instruction and related services
because of an IDEA-eligible disability, and
2. helping IEP teams identify the special education and related services a student
requires.
(34 C.F.R. §§ 300.301, 300.303.) The first refers to the initial evaluation to determine if
the child has a disability under the IDEA, while the latter refers to the follow-up or
repeat evaluations that occur throughout the course of the student’s education.
(See 71 Fed. Reg. 46,640 (Aug. 14, 2006).)
The IDEA provides for reevaluations, referred to as reassessments in California
law, to be conducted no more frequently than once a year, but at least once every three
years, unless the parent and school district agree otherwise. (20 U.S.C. § 1414(a)(2)(B);
34 C.F.R. § 300.303(b); Ed. Code, § 56381, subd. (a)(2).) A reassessment must be
conducted if the school district “determines that the educational or related services
needs, including improved academic achievement and functional performance, of the
pupil warrant a reassessment, or if the pupil’s parents or teacher requests a
reassessment.” (20 U.S.C. § 1414(a)(2)(A)(i); 34 C.F.R. § 300.303(a)(1); Ed. Code, § 56381,
subd. (a)(1).)
Without updated information from a reassessment, it may be difficult to develop
an educational program that would ensure a student’s continued receipt of a FAPE.
(Cloverdale Unified School Dist. v. Student (March 21, 2012) OAH Case No. 2012010507.)
A substantial change in the student’s academic performance or disabling condition is an
example of conditions that warrant a reevaluation. (Gilroy Unified School Dist. v.
Student (June 5, 2018) OAH Case No. 2018031204.)
Reassessment generally requires parental consent. (20 U.S.C. § 1414(c)(3);
Ed. Code, § 56381, subd. (f)(1).) To start the process of obtaining parental consent for a
reassessment, the school district must provide proper notice to the student’s parent.
(20 U.S.C. §§ 1414(b)(1), 1415(b)(3) & (c)(1); Ed. Code, §§ 56321, subd. (a), 56381, subd.
(a).) The notice consists of the proposed assessment plan and a copy of parental rights
and procedural safeguards under the IDEA and companion State law. (Id.) The
assessment plan must be in language easily understood by the general public, and
provided in the native language of the parent. It must explain the types of assessments
the district proposes to conduct, and state that an IEP will not result from the
assessment without the consent of the parent. (Ed. Code, § 56321, subds. (b)(1)-(4); see
also 34 C.F.R. § 300.304(a).)
In addition, the proposed written assessment plan must include a description of
any recent assessments conducted, including available independent assessments. It
must include any assessment information the parent requests to be considered, and
information indicating the pupil’s primary language and the pupil’s language proficiency
in the primary language. (5 Cal. Code Regs. § 3022.)
The assessment plan must be accompanied by notice that advises parents that an
IEP team meeting will be scheduled to discuss the assessment results and
recommendations. (Ed. Code § 56329, subd. (a)(1).) The notice must also explain
limitations on eligibility for special education and related services, and that parents will
receive a copy of the assessment report and documentation of the determination of
eligibility. (Ed. Code, § 56329, subds. (a)(2), (3).) It must state that a parent has the right
to obtain, at public expense, an independent educational assessment under certain
circumstances, and explain the procedure for requesting such an assessment. (Ed. Code,
§ 56329, subd. (b).) It must explain the due process hearing procedure that a school
district may initiate to defend against an independent assessment at public expense,
and the rights of a school district to observe a student in a proposed publicly financed
nonpublic school placement. (Ed. Code, § 56329, subds. (c), (d).)
The school district must give the parent 15 days to review, sign, and return the
proposed assessment plan. (Ed. Code, § 56321, subd. (a).)
If a parent does not consent to a reassessment plan, the school district may
conduct the reassessment without parental consent if it shows at a due process hearing
that conditions warrant reassessment of the student and that it is lawfully entitled to do
so. (20 U.S.C. § 1414(c)(3); 34 C.F.R. § 300.300(c)(ii); Ed. Code, §§ 56381, subd. (f)(3),
56501, subd. (a)(3).) Therefore, a school district must establish both that the educational
or related services needs of the child warrant reassessment of the child, and that the
district has complied with all procedural requirements to obtain the parent’s informed
consent.
The school district must also demonstrate that it has taken reasonable measures
to obtain informed consent, but the parent has failed to respond. (20 U.S.C. § 1414(c)(3);
Ed. Code, § 56381, subd. (f)(1).) “Consent,” as defined in title 34 of the Code of Federal
Regulations, part 300.9(a), means the parent has been fully informed, in the parent’s
native language, of all information relevant to the activity for which consent is sought.
Reasonable measures require the school district to keep detailed records of telephone
calls, copies of correspondence and any responses received, and records of visits made
to the parent’s home or place of employment and the results of those visits, and the use
of interpreters, as appropriate. (Ed. Code, § 56381, subd. (f)(2), 34 C.F.R. § 300.322(d).)
REASSESSMENT WARRANTED
Student’s last assessment was conducted for a three-year review IEP team
meeting, called a triennial review, on December 5, 2016. Student’s next triennial review
was due on or before December 5, 2019. Parents and Corona-Norco did not agree to
forego reassessment in preparation for Student’s December 2019 IEP. Accordingly, both
the IDEA and California law mandated that Corona-Norco reassess Student.
In addition, Parents pulled Student and his siblings out of school on
February 13, 2019, for alleged safety concerns. Parents asserted that on
February 12, 2019, a staff member at Student’s school tugged on Student’s shirt to pull
him into the front office when Student was being disciplined for disruptive conduct after
school. Parents characterized this as physical assault. Multiple investigations were
made in response to Parents’ complaints, including by Corona-Norco and the Riverside
County Sheriff’s Department, and each found Parents’ claims unsubstantiated. In
response to another Parent complaint, the California Department of Education found
Corona-Norco was not out of compliance with California law by not revising Student’s
IEP to address Parents’ safety concerns. Despite these findings, Parents kept Student at
home and by October 2019, Student had been out of school for eight months. The
effects of months of missed instructional content and possible regression were concerns
that warranted reassessment by October 2019, whether or not Student’s triennial review
was due.
REASONABLE MEASURES TAKEN AND DOCUMENTED TO OBTAIN
CONSENT
On September 11, 2019, Corona-Norco received a request from an attorney for a
copy of Student’s educational records. The request included an authorization signed by
Parent for release of records to this attorney. During a telephone call with one of
Student’s IEP team members on October 1, 2019, documented in the notes of the
October 1, 2019 IEP, Parent directed Corona-Norco to schedule IEP team meetings
through Student’s attorney.
Corona-Norco routinely conducted comprehensive assessments of students for
their triennial reviews. On October 3, 2019, Corona-Norco prepared and emailed a
proposed assessment plan to Parent. Despite being sent on October 3, the assessment
plan was dated October 5, 2019, and will be referred to in this Decision as the
October 5, 2019 assessment plan. The October 5, 2019 assessment plan was written in
English. English was Parents’ native language. That assessment plan proposed to assess
Student in the areas of cognitive processing, academic achievement, social emotional
functioning, and speech and language. It indicated that a psychologist would test
Student for perceptual/motor development, and a nurse would assess Student’s health
and development. It also proposed a records review for educationally-related mental
health services. The assessment plan and email indicated that the assessment was
necessary for Student’s triennial review in December 2019.
On October 15 and November 4, 2019, Corona-Norco’s counsel sent written
letters and emails to the attorney identified by Parent to schedule an IEP team meeting.
Both letters also sought Parents’ consent to the October 5, 2019 assessment plan, which
was attached. However, that attorney did not respond to letters, emails, or telephone
calls from Corona-Norco’s counsel about Student. Accordingly, Corona-Norco
reasonably questioned whether Student was represented by counsel regarding
assessment, and properly continued to email and mail requests for consent to assess
directly to Parents.
On November 25, 2019, Corona-Norco mailed and emailed Parents a revised
assessment plan in English, a copy of parental rights and procedural safeguards, and a
copy of its counsel’s October 15, 2019 letter to the attorney identified by Parent. The
revised assessment plan added assessments in occupational therapy and educationally
related mental health. It indicated that the occupational therapy assessment, including
perceptual/motor development, would be conducted by an occupational therapist. The
occupational therapy assessment, in conjunction with the psychoeducational
assessment, would evaluate Student’s visual-motor processing, visual-perceptual skills
and visual-motor integration abilities, which were areas of concern for Parents.
Student had also been receiving educationally related mental health services, and
assessment in that area would confirm continued eligibility for that related service. The
November 25, 2019 assessment plan proposed assessments that would gather
information for Student’s IEP team to determine his educational or related services
needs, including improved academic achievement and functional performance.
Throughout December 2019, Corona-Norco made multiple unsuccessful attempts
to schedule an IEP team meeting with Parents. Corona-Norco held Student’s triennial
review on December 16, 2019 without Parents’ attendance and without a response from
Parents regarding the assessment plan.
On January 20, 2020, Corona-Norco sent Parents an email attaching another copy
of the November 25, 2019 assessment plan with the parental rights and procedural
safeguards, again requesting consent to assess. Parents did not respond.
On February 14, 2020, Corona-Norco filed its due process hearing request and
served Parents. On February 20, 2020. Parent responded to an email from
Corona-Norco’s counsel that all correspondence in this due process matter should be
directed to the attorney identified by Parent. The attorney identified by Parent did not
respond to counsel’s calls or correspondence on behalf of Corona-Norco, and did not
file a notice of representation in this matter.
Corona-Norco documented its attempts to obtain Parents’ consent to assess
Student, including emails and letters to Parents and the attorney identified as
representing them, on October 3, 2019, October 15, 2019, November 4, 2019,
November 25, 2019, and January 10, 2020. Although some of these attempts sought
consent to the October 5, 2019 assessment plan, the November 25, 2019 assessment
plan was merely a revision of the October 2019 plan, and the correspondence
demonstrated repeated attempts by Corona-Norco over many months to obtain
parental consent to a comprehensive reassessment of Student.
The October 1, 2019 IEP documented Parent’s refusal to speak with
Corona-Norco staff directly regarding Student. In light of Parent’s expressing refusal to
discuss the proposed assessment with Corona-Norco staff directly, Corona-Norco was
excused from making further attempts to contact Parent by telephone, or visiting Parent
at work or at home. Correspondence to Parents and the attorney identified by Parents
were reasonable measures taken by Corona-Norco to obtain Parents’ consent to assess
Student, and the copies of correspondence sufficiently documented Corona-Norco’s
reasonable efforts.
CORONA-NORCO COMPLIED WITH PROCEDURAL REQUIREMENTS
The November 25, 2019 email and letter to Parents contained the revised
assessment plan, a copy of parental rights and procedural safeguards under the IDEA
and State law, and a copy of the letter from Corona-Norco’s counsel to the attorney
identified by Parents. All of the documents were in English, Parents’ native language.
The November 25, 2019 assessment plan was in language easily understood by
the general public. It described the types of assessments Corona-Norco proposed to
conduct, using qualified assessors. It explained that assessments could include
classroom observations, rating scales, one-on-one testing, interviews, and records
review, including review of recent assessments, independent educational assessments,
and information requested by Parents to be considered. The November 25, 2019
assessment plan stated that an IEP would not result from the assessment without
Parents’ consent. It also corrected some minor typographical errors in the October 5,
2019 assessment plan. Both assessment plans specifically stated that they were for
triennial review purposes, and that was also clearly stated in the letters and emails that
accompanied the assessment plans.
The November 25, 2019 assessment plan did not include a description of recent
assessments because there were none. Student had not been assessed since 2016. The
assessment was requested by Corona-Norco, so did not include assessment information
provided by Parents. However, the occupational therapy assessment, in conjunction
with the assessment of perceptual motor development, was included to address
parental concern over Student’s visual motor processing. The assessment plan indicated
that Student’s language was English only, and that he was not an English language
learner with limited English language proficiency.
The October 5 and November 25, 2019 assessment plans were accompanied by a
notice of procedural safeguards and parents’ rights. That document gave Parents notice
of their rights in regard to assessment of Student. It explained that an IEP team meeting
would be held to discuss the assessment and determine eligibility. The notice stated
that parents were entitled to a copy of the assessment report and documentation of the
determination of eligibility. It explained the procedure and circumstances under which
parents could obtain an independent educational assessment at public expense, or at
their own expense. It gave information on the due process hearing that could be
requested by the school district to defend its assessment, and the scope of the school
district’s right to observe a student in a proposed new school setting.
Corona-Norco gave Parents 15 days to review, sign and return the
November 25, 2019 assessment plan.
In summary, Corona-Norco proved by a preponderance of the evidence that
Student’s educational or related services needs warranted reassessment. The November
25, 2019 assessment plan contained all required components and was accompanied by
the required notice. Corona-Norco complied with all procedural requirements to obtain
Parents’ informed consent, and took reasonable measures to obtain that consent, but
Parents failed to respond. Corona-Norco is entitled to assess Student without Parents’
consent.
COMPETENT ASSESSORS
Reassessments must be conducted by persons competent to perform them, as
determined by the local educational agency. (20 U.S.C. 1414(b)(3)(A)(iv); 34 C.F.R.
§ 300.304(c)(1)(iv); Ed. Code, § 56322.) Any psychological assessments of pupils shall be
made in accordance with Education Code section 56320 and shall be conducted by a
credentialed school psychologist who is trained and prepared to assess cultural and
ethnic factors appropriate to the pupil being assessed. (Ed. Code, §§ 56322, 56324,
subd. (a).) A health assessment must be conducted by a credentialed school nurse or
physician. (Ed. Code, § 56324 subd. (b).)
The November 25, 2019 assessment plan stated that the assessment would be
conducted by qualified staff. It indicated that the psychological assessment, including
cognitive development, processing, academic achievement, perceptual/motor
development and social/adaptive/behavior/emotional functioning, would be conducted
by a psychologist. The health and developmental assessment would be performed by a
nurse, and the communication development assessment would be performed by a
speech language pathologist. The plan also noted that the educationally related mental
health services and occupational therapy assessments would be conducted by a
psychologist, speech language pathologist, and occupational therapist.
Accordingly, in addition to complying with the procedural requirements for an
assessment plan, Corona-Norco also informed Parents that it had appropriately
credentialed and competent staff available to conduct the proposed assessments.
CORONA-NORCO’S POST-ORDER REQUEST
Corona-Norco requests, in addition to an order permitting assessment without
parental consent, that Corona-Norco be absolved of its obligation to provide Student
with a FAPE if Parents do not make Student available for assessment at school.
Corona-Norco cites three cases in support of its request, only one of which is
precedent from the Ninth Circuit. However, that Ninth Circuit case does not support
Corona-Norco’s request.
In Gregory K. v. Longview School Dist. (9th Cir. 1987) 811 F.2d 1307 (Gregory K.),
the District Court heard an appeal of a state administrative law decision regarding a
student’s claim that his local school district had denied him a FAPE. Subsequently, the
school district filed a post-trial motion to compel an assessment of the student. The
District Court denied the motion. On appeal to the Ninth Circuit, the school district
argued that under Washington State law it was required to reassess the student at least
once every three years. The Ninth Circuit made the often quoted statement, included in
Corona-Norco’s closing brief, that “If the parents want [student] to receive special
education under the Act, they are obliged to permit such testing.” (Id. at p. 1315;
see DuBois v. Connecticut State Bd. of Ed., (2d Cir. 1984) 727 F.2d 44, 48.) But the
Ninth Circuit also stated that, under the facts of that case, “If the parents wish to
maintain [student] in his current private tutoring program, however, the District cannot
require a reassessment.” (Ibid.) The school district was not successful in compelling
testing of the student. Therefore, it would be overreaching to extend the limited impact
of Gregory K. to a blanket rule that school districts are absolved from providing students
with a FAPE if parents do not make their child available for assessment.
Special education due process hearings are limited to an examination of the time
frame pleaded in the complaint and as established by the evidence at the hearing and
expressly do not include declaratory decisions about how the IDEA would apply
hypothetically. (Gov. Code, § 11465.10-11465.60; Cal. Code Regs, tit. 5, § 3089; see also
Princeton University v. Schmid (1982) 455 U.S. 100, 102 [102 S.Ct. 867, 70 L. Ed. 2d 855]
[“courts do not sit to decide hypothetical issues or to give advisory opinions”];
Stonehouse Homes v. City of Sierra Madre (2008) 167 Cal.App.4th 531, 539-542 [court
deemed the matter not ripe for adjudication because it was asked to speculate on
hypothetical situations and there was no showing of imminent and significant
hardship].)
Here, Corona-Norco seeks an advisory opinion on how the IDEA will be applied in
the future if Parents do not make Student available for assessment. It seeks an order
that if Parents do not comply with this decision, it will no longer be obligated to provide
Student with special education and related services. However, whether or not
Corona-Norco is obligated to provide Student with a FAPE in the future is not an issue
in this due process proceeding. If Student files a post-decision due process complaint
alleging a failure to offer a FAPE, this decision does not bar Corona-Norco from raising a
failure by Parents to make Student available for assessment as an affirmative defense.
Corona-Norco’s request for an advisory declaration is denied.

CONCLUSIONS AND PREVAILING PARTY

As required by California Education Code section 56507, subdivision (d), the
hearing decision must indicate the extent to which each party has prevailed on each
issue heard and decided.
Corona-Norco may assess Student according to its November 25, 2019 assessment
plan without Parents’ consent. Corona-Norco prevailed on the sole issue in this case.

ORDER

1. Corona-Norco may assess Student pursuant to its November 25, 2019
assessment plan, without Parents’ consent.
2. All other relief sought by Corona-Norco is denied.

RIGHT TO APPEAL THIS DECISION

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

Alexa Hohensee
Administrative Law Judge
Office of Administrative Hearings