OAH 2008030731-2008040643August 08, 2010
Student v. Modesto City Schools, Modesto City Schools v. School - Split Decision
OFFICE OF ADMINISTRATIVE HEARINGS
STATE OF CALIFORNIA
In the Consolidated Matters of:
PARENTS on behalf of STUDENT,
MODESTO CITY SCHOOLS
OAH CASE NO. 2008030731
MODESTO CITY SCHOOLS,
PARENTS on behalf of STUDENT.
OAH CASE NO. 2008040643
This hearing convened in Modesto, California, on May 20-23, June 10-13, and June 26, 2008, before Administrative Law Judge (ALJ) Suzanne Brown, Office of Administrative Hearings (OAH).
SELPA director Virginia Johnson attended the hearing on behalf of the District.
1 As detailed further in the May 15, 2008 Order Following Prehearing Conference, pursuant to the joint request of the parties, the ALJ conducted this hearing concurrently with the hearing regarding Student’s twin brother in OAH Consolidated Case No. 2008030735/2008040702. However, the respective cases for each pupil remain separate.
2 Previous OAH orders had identified Modesto City Schools Special Education Local Plan Area (SELPA) and the District separately. However, at hearing the District clarified that it is the only school district in the SELPA, and thus that there need be no distinction drawn between the two agencies for purposes of this proceeding. Thus, all references to the District also include the SELPA.
3 Student initially named both the District and VMRC as parties. However, in an order dated April 14, 2008, OAH dismissed VMRC as a party because VMRC is not a local educational agency (LEA) subject to special education due process hearings under California Education Code section 56501, subdivision (a).
4 The issues in a due process hearing are limited to those identified in the written due process complaint. (20 U.S.C. § 1415(f)(3)(B); Ed. Code, § 56502, subd. (i).) Student’s Complaint alleged that the District had failed to offer appropriate occupational therapy (OT) services. However, during the hearing, the parties settled their dispute regarding that issue, and filed a stipulation that the OT issue was resolved. Accordingly, this Decision does not address that issue.
5 During the hearing, the parties made legal arguments regarding taking official notice of these documents. Following those arguments, the ALJ took this evidentiary matter under submission.
6 This section of the APA is applicable to special education due process hearings. (Cal. Code Regs., tit. 5, § 3089.)
7 Both Dr. Jones and the previous examiner, Dr. Arnold Herrera, made the same DSM-IV diagnoses for Brother.
8 The IEP team members also participated in an IEP meeting for Brother on the same date.
9 Ms. Johnson’s letter reflects a date of October 26, 2006. However, testimony at hearing established that the actual date of the letter was October 26, 2007.
10 Because Student’s transfer occurred over the summer, it is not clear whether the District was obligated to offer a placement comparable to Student’s last approved IEP from SCCOE, or could have treated Student as a new pupil pursuant to Code of Federal Regulations, title 34, part 300.323.
11 VMRC is not an LEA under the Individuals with Disabilities in Education Improvement Act (IDEA), and is instead governed by the Lanterman Act of the California Welfare & Institutions Code.
12 Notably, the FBA conducted by Ms. Miller and Ms. Morrison identified the functions of each problem behavior. Their independent FBA also proposed replacement behaviors that required the same or less effort than Student’s problem behaviors.
13 Ms. Benevides testified prior to Ms. Morrison and Ms. Miller. However, the District did not seek to recall Ms. Benevides to rebut the later testimony, nor did the District put on any other evidence to rebut the testimony regarding the deficiencies in the District’s FBA.
14 Most of the legal requirements for the conduct of an assessment were not in dispute here. In any event, the evidence indicates that the speech-language assessment met those requirements.
15 Autism is not a low incidence disability.
16 In any event, the local NPAs that provide intensive ABA instruction within the region have agreed that they will not accept privately funded pupils, pursuant to the co-funding partnership with VMRC. Hence, even if Parents could have afforded to pay for a private program for Student, they likely could not have secured a program for him.
17 Moreover, when Parents requested an NPA’s EIBT program at Student’s September and October 2007 IEP meetings, District staff readily explained how Student would be referred for that type of program through the VMRC interest list, but never mentioned any concerns that such a program might be inappropriate for Student. Instead, at Brother’s October 2007 IEP meeting, the Garrison SDC teacher acknowledged that an EIBT program provided by NPAs through VMRC is a “great program.”
18 However, because these Findings address only the limited question of placement, this order does not include all required components of an IEP.
19 “Low incidence disability” means a severe disabling condition of hearing impairment, vision impairment, and severe orthopedic impairment, or any combination thereof. (Ed. Code, § 56026.5.)
On March 18, 2008, OAH received Student’s due process hearing request, identified as Case No. 2008030731.
1. Did the District procedurally deny Student a free appropriate public education (FAPE) by:
A. Denying his parents (Parents) a meaningful opportunity to participate in the individualized education program (IEP) process;
B. Failing to consider a continuum of placement options;
C. Pre-determining that Student would not be offered a placement in an intensive one-to-one applied behavior analysis (ABA)/discrete trial training (DTT) program prior to his September 10, 2007 and October 22, 2007 IEP meetings?
2. Did the District deny Student a FAPE by failing to offer him a program with intensive one-to-one ABA/DTT services?
3. Did the District fail to develop an appropriate functional behavioral assessment (FBA) with an appropriate behavior support plan?
4. Did the District fail to conduct an appropriate speech-language assessment, which failure denied Student a FAPE and entitles Parents to an IEE?
5. Did the District deny Student a FAPE by failing to offer him appropriate speech-language services?
6. Are Parents entitled to reimbursement for an independent educational evaluation (IEE) in the area of functional behavior because:
A. Parents properly requested an IEE and the District failed to file for due process without unnecessary delay;
B. The District improperly attempted to limit Parents’ choice of assessors for the IEE?
1. Did the District offer Student a FAPE for the 2007-2008 school year, so that the proposed IEP may be implemented over Parents’ objections?
2. Did the District conduct an appropriate speech-language assessment of Student?
3. Is the District entitled to conduct a Picture Exchange Communication System (PECS) assessment of Student?
4. Are Parents entitled to an IEE in the area of speech-language?
5. Did the District conduct an appropriate FBA?
6. Are Parents entitled to reimbursement for an IEE in the area of functional behavior?
1. On May 9, 2008, the District requested that OAH take official notice of three documents: (1) California State Senate Bill 527, introduced by Senator Steinberg on February 22, 2007, with subsequent amendments; (2) California State Senate Bill 1563, introduced by Senators Steinberg and Perata on February 22, 2008, with subsequent amendments; and (3) a September 2007 report from the California Legislature’s Blue Ribbon Commission, entitled “An Opportunity to Achieve Real Change for Californians with Autism Spectrum Disorders.”
California Evidence Code section 452 lists what a court may, within its discretion, accept for judicial notice. Among the items for which a court has the discretionary option to take judicial notice are “[o]fficial acts of the legislative, executive, and judicial departments of the United States and of any state of the United States.” (Evid. Code, § 452, subd. (c).)
3. In the present case, the California State Senate bills concern proposals to create programs similar to the partnership between the Valley Mountain Regional Center (VMRC) and other agencies and stakeholders within VMRC’s geographical area, as partly described in the Early Intensive Behavioral Training (EIBT) Procedures and Program Guidelines (PPGs) that were admitted into evidence in this case. Because of the nature of Student’s claims, the ALJ admitted evidence regarding the PPGs; however, ultimately the PPGs had limited relevance to the issues for determination at hearing. The California State Senate Bills under consideration here are not relevant to the hearing issues, and there is no need to take official notice of those documents.
4. The California Legislature’s Blue Ribbon Commission Report on “An Opportunity to Achieve Real Change for Californians with Autism Spectrum Disorders” contains findings from the Commission regarding topics including appropriate programs and services for pupils with autism. Given that those topics are at issue in the present case, the Commission’s report is relevant to the hearing issues. Accordingly, the ALJ takes official notice of this document.
1. Student is 4 years and 9 months old. During all times at issue in this case, he was a resident within the boundaries of the District, where he lives with family, including his identical twin brother (Brother). Student has been diagnosed with autism and is eligible for special education services under the category of autistic-like behaviors.
2. In 2006, Student was determined eligible for and began receiving Early Start special education services pursuant to an individual family service plan (IFSP) from San Andreas Regional Center in Santa Cruz County, where Student and his family resided.
3. In November 2006, Student turned three years old, and began receiving special education services from the Santa Cruz County Office of Education (SCCOE), pursuant to an IEP. Student and Brother both received related services and attended SCCOE’s Chrysallis program, a special day class (SDC) which primarily serves preschoolers on the autistic spectrum.
4. On or about August 7, 2007, Student and his family moved to Modesto, California, within the boundaries of the District. In late August 2007, Parents contacted the District regarding provision of special education services for Student. Also in August 2007, Student was evaluated by Dr. Michael Jones, licensed clinical psychologist. Dr. Jones confirmed a previous examiner’s diagnosis of Autistic Disorder, pursuant to the criteria of the Diagnostic and Statistical Manual, Fourth Edition (DSM-IV).
Dr. Jones also gave Student a provisional DSM-IV diagnosis of Mild Mental Retardation.
5. On September 10, 2007, the District convened an IEP meeting for Student.
Based upon Student’s previous IEP from SCCOE, the District offered a 30-day interim placement at an autism SDC at the District’s Garrison Elementary School (Garrison) for 30 hours per week. The IEP also offered related services of speech-language therapy twice a week for 30 minutes per session, and occupational therapy (OT) delivered in the SDC twice a week for 30 minutes per session. During this IEP meeting, Parents signed their consent to the District’s proposed assessment plan, which proposed assessing Student in the areas of academics, speech-language, and OT/motor skills.
6. Also during the September 10, 2007 IEP meeting, Parents stated that they were interested in placing Student and Brother in an intensive one-to-one ABA program. District staff explained that, for the upcoming 30-day period, the law required the District to offer an SDC placement similar to the one Student and Brother attended in Santa Cruz County. However, District staff agreed that they would make a referral to VMRC for Student and Brother to be placed on an “interest list” for an intensive one-to-one ABA program operated by a non-public agency (NPA). VMRC and local educational agencies (LEAs) in the region have an agreement to co-fund EIBT programs for young children with autism. Once a child becomes eligible for an EIBT program through VMRC, the District IEP team then determines whether that program would be appropriate for the child.
7. The EIBT PPGs distributed by VMRC define EIBT in part as an intensive one-to-one ABA program provided by an NPA to children with autism. The PPGs state that EIBT programs are “highly structured, typically in-home or center-based program[s],” wherein “[c]hildren receive instruction from trained tutors for 35 to 40 hours a week (20 to 30 hours a week for children under age 3)” for 47 weeks a year. The PPGs distinguish EIBT programs from SDCs operated by public schools. In contrast, the District defines EIBT more broadly. The District’s special education director explained that, while VMRC uses the term “EIBT” to mean only programs delivered by NPAs, the District defines EIBT to include all intensive behavioral programs for preschool students with autism, not just programs provided by NPAs.
8. On September 13, 2007, Parents signed their consent to the District’s IEP, but wrote that they agreed to the IEP with the understanding that it was a 30-day interim placement while they waited for placement in an EIBT program.
9. On September 17, 2007, Student and Brother began attending the Garrison SDC. Subsequently, Student missed days of school due to illness. On October 2, 2007, Brother fell from a 5-foot play structure on the school playground. Thereafter, except for a few days, Student no longer attended the Garrison SDC due to Parents’ concerns about the safety and educational benefit of the class.
10. On October 16, 2007, Brother’s IEP team convened to review the 30-day administrative placement. In part due to the absences of Student and Brother from the Garrison SDC, District staff had not completed the boys’ assessments. Parents agreed that Student and Brother would temporarily return to the Garrison SDC for half-days, until the assessments were completed. During the meeting, Parents explained their concerns about why they believed the Garrison SDC was inappropriate; although the meeting specifically concerned Brother, Parents’ concerns applied equally regarding Student’s placement at the SDC. District staff again discussed with Parents the process of obtaining placement in an EIBT program through the VMRC co-funding option, but warned Parents that VMRC had at least a three-month wait for such placement.
11. On October 22, 2007, the IEP team convened to review Student’s 30-day interim placement. During that meeting, the participants continued to discuss the process of obtaining placement in an NPA EIBT program through VMRC. Parents requested an FBA for Student, due to concerns about tantrums and other behaviors. The District agreed to conduct an FBA, and Parents signed an assessment plan. Parents did not sign their consent to the IEP, and instead wrote that they disagreed with the IEP because it would be inappropriate to make an SDC placement at Garrison before the District’s assessments were completed.
12. During this time period, the parties also communicated by telephone, electronic mail (e-mail), and formal correspondence regarding educational programs for both Student and Brother. For example, in a letter dated October 22, 2007, Parents requested several changes to Brother’s October 16, 2007 IEP, including that both Student and Brother be placed in a general education preschool with a behaviorally trained aide. In a letter dated October 23, 2007, Parents requested that the IEP team consider an intensive one-to-one ABA program for 35 to 40 hours per week, or a general education setting with supplemental aids, supports, and services. The District’s special education director, Virginia Johnson, responded with a letter stating in part that, regarding the Parents’ for an ABA program provided by an NPA, “the District must defer a more specific response until the agreed-upon assessments are completed.” 9
Ms. Johnson’s letter further explained that the IEP team will reconvene once the assessments are completed, and that IEP meeting “will provide an opportunity to discuss your request for ABA services through an NPA.”
13. On November 20, 2007, Brother’s IEP team convened to review the assessment results and discuss Brother’s placement and services. Following presentation of the assessment results, the District offered the Garrison SDC as Student’s placement, and offered various related services including OT services, OT consultation, speech-language therapy, speech-language consultation, one-to-one aide supervision during recess, and behavioral consultation by the school psychologist. The District’s proposed educational program offered Brother a total of 30 hours of instruction per week. Parents did not agree to the District’s offer.
14. In late October, 2007, Parents stopped bringing Student to the Garrison SDC altogether. For the remainder of the 2007-2008 school year, Mother and her sister home-schooled Student and Brother, primarily using strategies Mother learned from attending 40 hours of ABA training.
15. On December 5, 2007, Student’s IEP team convened. The District proposed the same placement and services for Student at the Garrison SDC that it had proposed for Brother at the November 20, 2007 IEP meeting. During the meeting, Parents disagreed with the results of the FBAs for both Student and Brother, and requested that the District fund IEEs for both boys in the area of functional behavior.
Parents’ Meaningful Participation In IEP Process
16. Student argues that the District denied Parents meaningful participation in the IEP process because District staff failed to consider the possibility of placing Student in a one-to-one ABA program operated by an NPA. The District argues that Parents meaningfully participated in the IEP process, and that District staff fully considered Parents’ opinions and responded to Parents’ requests.
17. Parents of a child with a disability must be afforded an opportunity to participate in meetings with respect to the identification, assessment, educational placement, and provision of a FAPE to their child. An LEA must fairly and honestly consider the views of parents expressed in an IEP meeting. An LEA that does not consider the parents’ requests with an open mind has violated the parents’ right to participate in the IEP process.
18. When a special education student with an approved IEP transfers from one California district to a new California district in a different SELPA within the same academic year, the receiving district must provide the student services comparable to those described in his previously approved IEP. Within the 30-day period the receiving district must also adopt the previously approved IEP or develop, adopt, and implement a new IEP that is consistent with federal and state law.
19. Because Student began the 2007-2008 school year as a pupil transferring from another California school district in a different SELPA, District staff offered the Garrison SDC as a 30-day interim placement comparable to the SDC placement identified in his last approved IEP from SCCOE.
Student does not dispute that, at this meeting, the District was only obligated to offer a 30-day administrative placement comparable to his IEP from his previous school district, and was not yet obligated to develop his IEP for the 2007-2008 school year. Moreover, Parents participated in this meeting, and District staff responded to their questions and made adjustments to the interim placement based upon Parents’ input. Parents accepted the Garrison SDC as the interim placement.
20. When developing each pupil’s IEP, the IEP team shall consider the pupil’s strengths, the parents’ concerns, the results of the most recent assessments, and the academic, developmental, and functional needs of the pupil. At the time of Student’s October 22 IEP meeting, the District’s new assessments of Student were not completed, and his past assessments did not provide sufficient current information about his needs to support development of a new IEP. Because Student’s October IEP team did not yet have his assessment results, the District reasonably sought to extend Student’s interim placement and delay a formal offer for his placement for the 2007-2008 school year, until the assessment results were available.
21. The September and October 2007 IEP teams discussed potential NPA placement only as it could be obtained through the VMRC co-funding process; despite Parents’ stated interest in an NPA placement, District staff did not inform Parents that they could request such placement through the District’s IEP process. The lack of such discussion suggests that the District staff did not have an open mind about offering an NPA placement through the IEP process. However, because the IEP team’s FAPE offer for the 2007-2008 school year was not yet being determined at either the September or October 2007 meetings, the IEP team members did not need to discuss all placement options at that point. Moreover, because an interim placement was warranted at that time, any failure to discuss future placement options would not have affected Student’s placement from September 10 to December 5, 2007. Nonetheless, while Parents meaningfully participated in the September and October 2007 IEP meetings, the District’s failure to inform Parents that they could request NPA placement through the IEP process is pertinent to the eventual placement offer made at the December 2007 meeting, as discussed further below.
22. As noted above in Factual Finding 12, on or about October 26, 2007, the District’s special education director, Ms. Johnson, responded to Parents’ request in a letter stating in part that “the District must defer a more specific response until the agreed-upon assessments are completed.” Ms. Johnson wrote that the IEP team will reconvene once the assessments are completed, and that IEP meeting “will provide an opportunity to discuss your request for ABA services through an NPA.” Ms. Johnson reiterated this position in a letter dated November 14, 2007.
23. On November 20, 2007, Brother’s IEP team convened to discuss the assessment results and decide upon Brother’s educational program for the 2007-2008 school year. When the IEP team discussed placement, the only options discussed were a general education classroom and the Garrison SDC. When Parents raised their request for an NPA program of intensive one-to-one ABA services, Ms. Johnson stated that the IEP team had to “stop there because we have to provide education in the least restrictive environment and this is the least restrictive environment that can meet [Brother’s] needs.” When Parents persisted in asking about an NPA program, the District members of the IEP team would not discuss whether that option was appropriate for Brother, and instead replied by emphasizing how the Garrison SDC was appropriate and in the least restrictive environment (LRE).
24. Brother’s IEP team is generally comprised of the same individuals as Student’s IEP team, and thus the members of Student’s IEP team were present at this meeting. While the November 20, 2007 IEP team convened to discuss Brother’s placement, the team members knew that the same concerns applied to Student’s placement. The District’s refusal to discuss or consider Parents’ placement request at Brother’s November 2007 IEP meeting is significant in weighing whether the District denied Parents meaningful participation at Student’s December 2007 IEP meeting.
25. On December 5, 2007, the IEP team met for Student’s IEP meeting. The team members discussed topics including the assessment results, Student’s levels of functioning in several areas, goals, and related services. The District offered placement at the Garrison SDC. The team members briefly discussed the possibility of adding mainstreaming in a general education setting. However, contrary to what Ms. Johnson had written to Parents on October 26 and November 14, 2007, the IEP team did not discuss Parents’ request for ABA services from an NPA. Mother raised the topic by referring to Ms. Johnson’s statement at Brother’s November 20 IEP meeting that placement in an NPA needed to be determined by the entire IEP team. Mother then asked whether the IEP team could now consider NPA placement, since all of the members were present. Ms. Johnson replied that “we’re not, we have presented our offer of FAPE.” When Mother reiterated her concerns, District members of the team reiterated that they believed that the Garrison SDC was appropriate and was the LRE. Thus, at this meeting, the District would not allow the IEP team to discuss the Parents’ proposed placement in an NPA, and would not consider that proposed placement for Student.
26. The District’s refusal to discuss or consider the Parents’ request for an NPA’s one-to-one ABA program deprived Parents of a fair opportunity to discuss that placement option with open-minded District representatives. Regardless of whether the District was correct that the Garrison SDC was appropriate for Student, the District was required to allow Parents to present their proposed placement to the IEP team, and was further required to fairly consider that proposal as an option for Student. Because Student’s IEP team had not reached agreement on whether placement in the Garrison SDC could meet Student’s needs, there was no consensus on whether that SDC was the LRE. IEP team members must consider and decide whether a placement constitutes the LRE for a particular pupil, based upon whether the placement is designed to meet the pupil’s unique needs. As Student correctly points out in his closing brief, if a school district could simply stop the discussion at the placement it felt was appropriate, in many instances parents would effectively lose the right to participate in the determination about placement.
27. The IEP team’s discussions about NPA placement through the VMRC interest list did not fulfill the District’s obligation to discuss Parents’ request for NPA placement, nor does the District contend otherwise. Regardless, placement through the VMRC co-funding process would not meet legal standards for offering a FAPE under the IDEA, because receipt of an EIBT program through the VMRC process is dependent on factors beyond the FAPE criteria, such as program availability and the date of the child’s autism diagnosis.
Moreover, portions of the FBA’s Proposed Treatment Plan appeared ineffective. For example, it proposed giving Student positive reinforcement with a reward if he is compliant after a one-hour interval. However, a four-year-old like Student typically will not remember what he did an hour ago; instead, Student would need immediate reinforcement. In addition, a portion of the FBA’s Proposed Treatment Plan did not follow the ABA principle that replacement behaviors should require the same or less effort than the problem behavior. Because of these limitations, the District’s FBA and resulting BSP may be ineffective at decreasing Student’s problem behaviors.
39. Ms. Benevides, Ms. Morrison, and Ms. Miller were each credible witnesses with expertise in behavior analysis related to pupils with autism. Nonetheless, neither Ms. Benevides’ testimony nor any other evidence addressed why her FBA lacked the necessary components identified by Ms. Morrison and Ms. Miller.
Special attention shall be given to the unique educational needs including, but not limited to, skills and the need for specialized services, materials, and equipment consistent with guidelines for pupils with low incidence disabilities. 16
While there was evidence that Student made some educational gains from this instruction, there is no dispute that he suffered a loss of educational benefit because of his absence from a formal, specialized program taught by qualified personnel.
61. Placing Student back in an SDC operated by the District would not adequately compensate him for the loss of educational benefit he experienced from December 5, 2007, through the end of the 2007-2008 school year. However, there is sufficient evidence to find that prospective placement in a one-to-one, intensive EIBT ABA program operated by an NPA would meet Student’s needs and adequately compensate for the educational loss he suffered. This type of program would address Student’s unique educational needs and would allow him to receive educational benefit. While he agreed that an NPA was not the only setting where Student could receive an appropriate program, Dr. Michael Jones testified credibly that a one-to-one intensive EIBT ABA program provided by an NPA could be also an appropriate program for Student, if the program had high quality controls such as data collection, regular staff meetings, qualified staff, aide supervision, and parent consultation. 17
62. Based upon the above findings, for the 2008-2009 regular school year and 2009 extended school year (ESY), the District shall fund Student’s placement in an intensive EIBT program delivered by a state-certified NPA for a minimum of 30 hours per week of instruction. This program may be delivered through either an in-home model or school-based model, but shall include data collection, regular staff meetings, qualified staff, aide supervision, and consultation with Parents. Student’s OT and speech-language services may be included within the 30-hour per week minimum. Whether Student needs and can tolerate more than 30 hours per week shall be at the discretion of the NPA’s educational professionals involved in Student’s program, but under no circumstance shall the District be required to fund a program for more than 40 hours per week. Similarly, while the NPA’s EIBT program shall be based upon ABA principles and shall include DTT, it may potentially include other well-established methodologies, such as Floortime, at the discretion of the NPA’s educational professionals involved in supervising and delivering Student’s program. Given the limited availability of such EIBT programs, the District is encouraged but not required to place Student and Brother with the same NPA.
63. Only the District’s offer for the 2007-2008 school year was at issue in this hearing; the District’s offer for the 2008-2009 school year was not at issue, and therefore this Decision does not address what constitutes an offer of FAPE for the 2008-2009 school year. However, because of the nature, timing, and delivery of the compensatory education ordered herein, the EIBT program ordered here must necessarily encompass Student’s prospective placement for the 2008-2009 school year. Thus, the placement ordered in Factual Finding 62 constitutes both Student’s compensatory education for the 2007-2008 school year and his prospective placement for the 2008-2009 school year, including the 2009 ESY.
(Ed. Code, § 56320, subd. (g).)
15. An IEE is “an evaluation conducted by a qualified examiner who is not employed by the public agency responsible for the education of the child in question.” (34 C.F.R. § 300.502(a)(3)(i).) To obtain an IEE at public expense, the parent must disagree with an assessment obtained by the public agency and request an IEE. (Ed. Code, § 56329, subd. (b); 20 U.S.C. § 1415(b)(1); 34 C.F.R. § 300.502(b); see Ed. Code, § 56506, subd. (c).) Following the parent’s request for an IEE, the public agency must, without unnecessary delay, either: (i) File a due process complaint to request a hearing to show that its assessment is appropriate; or (ii) Ensure that an independent educational assessment is provided at public expense, unless the agency demonstrates in a hearing that the assessment obtained by the parent did not meet agency criteria. (Ed. Code § 56329, subd., (b); 34 C.F.R. § 300.502 (b)(2).) If the final result of the due process hearing is that the public agency’s assessment is appropriate, then the parent maintains the right for an independent educational assessment, but not at public expense. (Ed. Code, § 56329, subd. (c); 34 C.F.R. § 300.502 (b)(3).)
16. Based on Factual Findings 40-45, and Legal Conclusions 14 and 15, the District conducted an appropriate speech-language assessment of Student. The November 2007 evaluation assessed Student in all areas of suspected disability related to his speech and language needs, and accurately identified his needs and abilities at that time. Based on Factual Finding 52 and Legal Conclusion 15, because the District’s assessment was appropriate, Student is not entitled to an IEE at public expense in speech and language.
Did the District deny Student a FAPE by failing to offer him appropriate speech-language services?
17. The substantive analysis of whether an LEA offered a FAPE involves determining whether the IEP was designed to meet the child’s unique needs, was reasonably calculated to enable the child to receive educational benefit, and comported with the child’s IEP. (Rowley, 458 U.S. at pp. 206-07.) The IDEA does not require school districts to provide special education students with the best education available or to provide instruction or services that maximize a student’s abilities. (Rowley, 458 U.S. at pp.198-200; see, Seattle Sch. Dist. No. 1 v. B.S. (9th Cir. 1995) 82 F.3d 1493, 1500.) School districts are required to provide only a “basic floor of opportunity” that consists of access to specialized instructional and related services which are individually designed to provide educational benefit to the student. (Rowley, supra at p. 201.)
18. To determine whether the District offered Student a FAPE, the analysis must focus on the adequacy of the District’s proposed program. (Gregory K. v. Longview Sch. Dist. (9th Cir. 1987) 811 F.2d 1307, 1314.) The Ninth Circuit has also endorsed the “snapshot” rule, explaining that the actions of the school cannot “be judged exclusively in hindsight…an IEP must take into account what was, and what was not, objectively reasonable when the snapshot was taken, that is, at the time the IEP was drafted.” (Adams v. State of Oregon (9th Cir. 1999) 195 F.3d 1141, 1149 (citing Fuhrman v. East Hanover Bd. of Educ. (3d Cir. 1993) 993 F.2d 1031, 1041).)
19. The IDEA requires that an eligible student receive related services, such as transportation and developmental, corrective, and other supportive services, “as may be required to assist a child with a disability to benefit from special education.” (20 U.S.C. § 1401(a)(26).) In California, related services are called designated instruction and services (DIS), which must be provided if they may be required to assist the child in benefiting from special education. (Ed. Code, § 56363, subd. (a).)
20. Based on Factual Findings 46-50 and Legal Conclusions 1-2 and 17-19, the District’s November 2007 offer of speech-language services, including consultation and individual therapy, was appropriate.
Are Parents entitled to reimbursement for an IEE in the area of functional behavior because: (A) Parents properly requested an IEE and the District failed to file for due process without unnecessary delay; or (B) the District improperly attempted to limit Parents’ choice of assessors for the IEE?
21. Based on Factual Findings 51-52, and Legal Conclusions 12-15, Parents are entitled to reimbursement for the IEE in the area of functional behavior because the District’s FBA was not appropriate. Ms. Miller and Ms. Morrison of Imagine Consulting conducted an appropriate independent FBA, and Parents are entitled to reimbursement from the District for that independent FBA in the amount of $2,298.75. Because Parents are entitled to reimbursement on this basis, this Decision need not address the questions of whether the District is obligated to reimburse for the IEE due to a failure to timely file for due process or an improper attempt to limit Parents’ choice of independent assessors.
22. Appropriate equitable relief, including compensatory education, can be awarded in a due process hearing. (School Comm. of Burlington v. Department of Education (1985) 471 U.S. 359, 374; Student W. v. Puyallup Sch. Dist. (9th Cir. 1994) 31 F.3d 1489, 1496).) The right to compensatory education does not create an obligation to automatically provide day-for-day or session-for-session replacement for the opportunities missed. (Park, supra, 464 F.3d at p. 1033 (citing Student W. v. Puyallup Sch. Dist., 31 F.3d at 1496).)
23. Based upon Factual Findings 16-28 and 58-64, and Legal Conclusions 1-4, 7, and 22, the District shall provide Student compensatory education by funding his placement in an intensive EIBT program delivered by a state-certified NPA for a minimum of 30 hours per week of instruction. This program may be delivered through either an in-home model or school-based model, but shall include data collection, regular staff meetings, qualified staff, aide supervision, and consultation with Parents. Student’s OT and speech-language services may be included within the 30-hour per week minimum. Whether Student needs and can tolerate more than 30 hours per week shall be at the discretion of the NPA’s educational professionals involved in Student’s program, but under no circumstance shall the District be required to fund a program for more than 40 hours per week.
Did the District offer Student a FAPE for the 2007-2008 school year, so that the proposed IEP may be implemented over Parents’ objections?
24. Based upon Factual Findings 16-28 and Legal Conclusions 1-7, the District procedurally denied Student a FAPE as of December 5, 2007, by refusing to allow the meaningful participation of Parents in the IEP process regarding consideration of Student’s placement for the 2007-2008 school year. Because of this procedural denial of FAPE, the proposed IEP cannot be implemented over Parents’ objections.
Did the District conduct an appropriate speech-language assessment of Student?
25. Based on Factual Findings 40-45, and Legal Conclusions 14-16, the District conducted an appropriate speech-language assessment of Student. The November 2007 evaluation assessed Student in all areas of suspected disability related to his speech and language needs, and accurately identified his needs and abilities at that time.
Is the District entitled to conduct a PECS assessment of Student?
26. Generally, an LEA must have the parent’s or guardian’s consent prior to conducting an assessment. (20 U.S.C. § 1414(a)(1)(C)(i); Ed. Code § 56321, subd. (c).) However, an LEA can overcome a lack of consent for an evaluation by establishing at a due process hearing that an assessment is necessary. (Ed. Code §§ 56321, subd. (c), 56506, subd. (e); 20 U.S.C. § 1414(a)(1)(C)(ii); 34 C.F.R. § 300.505(b).) Parents who want their child to receive special education services must allow reassessment if conditions warrant it. (Gregory K. v. Longview School Dist., supra, 811 F.2d at 1315; Andress v. Cleveland Independent. School Dist. (5th Cir. 1995) 64 F.3d 176, 178.)
27. Based on Factual Findings 54-57 and Legal Conclusions 14 and 26, the District is entitled to conduct a PECS assessment of Student. Communication is an area of disability for Student, and an assessment to determine his PECS level is warranted.
Are Parents entitled to an IEE in the area of speech-language?
28. Based on Factual Finding 53 and Legal Conclusions 14-16, Student is not entitled to an IEE at public expense in speech and language because the District’s assessment was appropriate.
Did the District conduct an appropriate FBA?
29. Based on Factual Findings 36-40 and Legal Conclusions 12-13, the District did not conduct an appropriate FBA. Because it lacked sufficient data, did not follow ABA principles regarding replacement behaviors, and did not clearly state the functions of the problem behaviors, the District’s FBA was not appropriate and did not sufficiently fulfill the requirement of providing relevant information to assist the IEP team in determining Student’s educational needs related to decreasing his problem behaviors.
Are Parents entitled to reimbursement for an IEE in the area of functional behavior?
30. Based on Factual Findings 51-52, and Legal Conclusions 12-15, and 21, Parents are entitled to reimbursement in the amount of $2,298.75 for the IEE in functional behavior conducted by Ms. Miller and Ms. Morrison of Imagine Consulting.
1. Within 45 days of the date of this Decision, the District shall reimburse Parents in the amount of $2,298.75 for the IEE in functional behavior conducted by Lindsay Miller and Katie Morrison of Imagine Consulting.
2. The District may conduct a PECS assessment pursuant to the December 14, 2007 proposed assessment plan. Parents shall make Student reasonably available for the assessment.
3. As compensatory education, the District shall fund Student’s placement in an intensive EIBT program delivered by a state-certified NPA for a minimum of 30 hours per week of instruction during the 2008-2009 school year, including the 2009 ESY. This program may be delivered through either an in-home model or school-based model, but shall include data collection, regular staff meetings, qualified staff, aide supervision, and consultation with Parents. Student’s OT and speech-language services may be included within the 30-hour per week minimum.
4. Whether Student needs and can tolerate more than 30 hours per week shall be at the discretion of the NPA’s educational professionals involved in Student’s program, but under no circumstance shall the District be required to fund this program for more than 40 hours per week.
5. Within 35 days of the date of this Decision, the IEP team shall convene to develop Student’s IEP for the 2008-2009 school year in conformity with this Decision. Student’s attendance at the NPA EIBT program shall begin no later than 45 days from the date of this Decision. The District shall provide timely advance notice to all IEP team members of the date and time of the IEP meeting.
6. Parents and their representatives shall cooperate with the District regarding scheduling the IEP meeting, developing the IEP, and arranging for the NPA placement. Parents shall also comply with the NPA’s requirements for parent participation in the EIBT program, consistent with the parent obligations identified in the EIBT PPGs.
Pursuant to 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. The following findings are made in accordance with this statute: The Student prevailed on Student’s Issues 1(A) and 3, and on District’s Issues 1, 5, and 6. The District prevailed on Student’s Issues 1(B), 1(C), 4, and 5, and on District’s Issues 2, 3, and 4. Because this Decision did not reach Student’s Issues 2 or 6, neither party prevailed on those issues.
RIGHT TO APPEAL THIS DECISION
The parties to this case have the right to appeal this Decision to a court of competent jurisdiction. If an appeal is made, it must be made within ninety days of receipt of this decision. (Ed. Code, § 56505, subd. (k).)
Dated: August 28, 2008
SUZANNE B. BROWN
Administrative Law Judge
Office of Administrative Hearings