OAH 2013050308

¹ For the record, District’s brief has been marked for identification as Exhibit D-55, and Student’s brief has been marked as Exhibit S-5. All other non-confidential documents filed with OAH in this matter, including OAH’s order dated November 19, 2013, granting an extension, are part of the official record even though they have not been marked in evidence.

2 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).)

³ District’s original wording of this issue included the question whether the assessment was “appropriate.” However, the ALJ has changed the wording consistent with the legal requirements. This change of wording does not change the issue.

⁴ A SELPA is often several school districts that pool their resources to coordinate services for special education students in the districts. Some school districts are their own SELPA, which is a separate entity from the district’s special education division.

⁵ District presented evidence that Student’s secondary category of eligibility listed in her IEP’s, beginning in 2009, should have been Speech and Language Impairment, not Specific Learning Disability.

⁶ Ms. Harris was aware Student had previously shown deficient to low average cognitive ability and an uneven learning profile when she was two and three years of age. Ms. Harris verified with Student’s teacher, Mrs. Bonnie Halsey, that Student, at age six, had strong academic skills.

⁷ It is not necessary to resolve the discrepancies in scoring results on any of these surveys in order to determine whether District’s assessments complied with the law. Rather, the differing survey results are relevant to the issue of eligibility.

⁸ Effective July 1, 2013, the Diagnostic Manual was replaced by a fifth edition.

⁹ Ms. Ellis’ academic assessment report was incorrectly dated based on using an earlier 2010 report as a template and should have been dated for April 11, 2013.

¹⁰ Father is fluent in English and testified during the hearing in the English language without an interpreter. At Student’s request, OAH provided a Pashto interpreter for Mother when she testified and Mother’s testimony was translated from Pashto to English by the interpreter. Mother’s demeanor and other evidence established that Mother speaks and understands some English, although to what extent was not determined.

11 Newport-Mesa Unified School District v. State of California Department of Education (2005) 371 F.Supp.2d 1170.

¹² In Volume Two of District’s exhibits, District produced copies of Student’s test protocols for the standardized assessment tests used by Ms. Harris in connection with her psychoeducational assessment, containing Student’s personally identifiable information, teacher and parent rating forms, and Ms. Harris’ scoring results. Student did not question or challenge Ms. Harris’ scores to demand to see the publisher’s scoring protocols for any of those assessments. Student had no interest in Volume Two, District withdrew the binder at the end of the hearing, and none of its exhibits were marked for identification or moved into evidence.

Compliance with Independent Educational Evaluation Requirements

74. Student claims that the District’s 2013 triennial assessment must be invalidated in its entirety because District failed to follow legal requirements to disclose to Parents pertinent information about their rights to an independent educational evaluation (IEE), including where to obtain an IEE and its agency criteria for such an evaluation.

75. If a parent disagrees with an assessment obtained by the pubic local education agency (LEA), the parent has the right to obtain an IEE at public expense under certain circumstances. However, whether District violated the IEE laws is not at issue in this proceeding, and is not relevant to the discrete issue whether the District’s assessments complied with the law. Student, represented by legal counsel, has the right to file a request for a due process hearing to present any claims she may have and has not done so.

76. In this case, District presented its triennial assessment reports to Father for the first time at the April 11, 2013 IEP team meeting. During the meeting, Father orally disagreed with the assessment results, including the psychoeducational assessment, and disagreed with the recommendations of other team members that Student was no longer eligible for special education. Father refused to sign his name as a participant attending the IEP team meeting, and did not provide any written consent for the IEPs offer to exit Student from special education and related services.

77. At that IEP team meeting, Father orally requested an IEE based on his disagreement with the assessment tests and results. In response, Ms. Hedin showed Father the IEE section of the Stanislaus SELPA Notice of Procedural Safeguards provided to him at the beginning of the meeting. A few days after the meeting, District scheduled another IEP team meeting for April 24, 2013, to discuss Parents’ concerns and clarify the family’s request for an IEE. That notice did not in any way suggest that District was interested in reconsidering the determination of ineligibility or the offer to exit Student from special education. On April 19, 2013, Father confirmed in an email that Parents intended to attend, but on April 24, 2013, Father notified the District that Mother was sick and he was unable to attend the IEP team meeting in order to care for her and their two children.

78. On May 2, 2013, District mailed a prior written notice letter signed by Dr. Elgen and addressed to Parents, along with another copy of the Notice of Procedural Safeguards.¹³ In the letter, Dr. Elgen explained that the District denied Father’s request for an IEE and intended to file a request for a due process hearing to defend its triennial assessment. On May 9, 2013, District filed its complaint with OAH. Since District chose to request a hearing to defend its assessments rather than fund an IEE, District’s failure to disclose IEE criteria, if any, is a not relevant defense to the validity of its assessments.

79. Even assuming District’s failure to timely disclose IEE information to Parents were found to constitute a procedural violation, the violation would not rise to the level of invalidating District’s assessments. Student did not present any evidence that she suffered a loss of educational benefit or a denial of FAPE as a result of such a procedural violation because District did not elect to fund an IEE. In addition, since Student is not eligible for special education, she is no longer entitled to a FAPE.

80. Student also argued that the District was required by law to fund an IEE and present the results of such an independent, “second opinion” at another IEP team meeting as a prerequisite to recommending Student’s exit from special education or filing a request for a due process hearing. The law simply does not require this. Instead, the law required the District to fund an IEE or file a request for a hearing after Father requested the IEE “without unnecessary delay.” In fact, District filed its due process request with OAH within a week of issuing its prior written notice to Parents, and that letter was issued within three weeks of Father’s request for an IEE at the April 11, 2013 IEP team meeting. Based on the foregoing, District timely elected to file a request for due process rather than fund an IEE and any noncompliance with the IEE requirements did not invalidate its assessments.

81. Based on the above findings, District’s triennial assessment of Student complied with all applicable legal requirements and appropriately assessed Student in all areas related to her suspected disabilities. Student’s defenses and objections did not establish that any portion of the triennial assessment was materially flawed or invalidated.

Student’s Eligibility for Special Education

Procedural Validity of the April 2013 IEP Team Meeting

82. Once made eligible for special education and related services, a pupil may not generally be found ineligible without either revocation of parental consent or an IEP team meeting in connection with the school district’s determination and offer to exit the pupil from the program. Procedural issues may invalidate an IEP determination.

83. Student contends that the April 11, 2013 IEP team meeting denied her a FAPE because Parents requested copies of the triennial assessment reports at least a week prior to the team meeting and District’s failure to comply with this request significantly impeded Parents’ rights to meaningfully participate in the IEP decision-making process.

84. The parents of a child with a disability are critical members of the IEP team. The parents must receive adequate notice and opportunity to attend the meeting. When a pupil is assessed, a written assessment report must be provided to the parents and the IEP team is required to discuss the assessment report at the IEP team meeting, required to be held within 60 days of consent for assessment. Although the law does not require the delivery of information and reports to the parents in advance of an IEP team meeting, the educational agency should accommodate the parents’ needs on an individual basis.

85. Student’s prior IEP team meetings are relevant to evaluate the April 2013 IEP team meeting. As found above, Student’s first IEP team meeting was held on November 5, and 18, 2009. District’s initial assessment report was a Stanislaus County interdisciplinary report dated October 22, 2009. Mother and Father both attended those meetings, along with representatives from Valley Mountain, BEST, Stanislaus SELPA, and Stanislaus County Office of Education. The IEP team meetings were held in the English language. Because Father spoke both English and Pashto, he was available to translate for Mother if needed and no Pashto interpreter was requested or present.

86. Father’s testimony was uncontroverted that he requested to receive the reports a week before the IEP meeting and the public agencies complied with that request. In addition, BEST issued a quarterly report dated October 21, 2009, detailing Student’s progress in her Early Intensive program and goals.¹⁴ Parents’ advance receipt of the reports enabled them to review them with each other in Pashto and English at home and prepare to meaningfully participate in the IEP team meeting. Father tended to be gone at least two weeks of most months for his job. While the evidence suggested Mother spoke and understood more English than she appeared to at hearing, her native language was Pashto and she required some translation to understand oral and written English. Father also credibly established that the public agencies and BEST thereafter provided Parents with copies of relevant reports in advance of other IEP team meetings prior to the April 2013 meeting. Parents did not ask for any of the reports to be translated from English to Pashto because Father was sufficiently proficient in English to perform that function.

87. For the spring 2013 triennial IEP team meeting, Father contacted Ms. Hedin in advance of the meeting and inquired where the assessment reports were because Parents needed to review them in advance of the meeting. Ms. Hedin told Father the reports had not been prepared yet. Since the actual assessments had been completed earlier, in February and March 2013, there was no explanation at hearing as to why the reports were not prepared and available earlier. Father was required to travel for his job, and the IEP team meeting was continued from a date not in the record to April 11, 2013. At no time prior to the IEP team meeting did District or BEST send copies of the assessment reports to Parents so they could review them in Pashto and English prior to the meeting. Parents were aware during this time that both District and BEST staff were reporting significant progress for Student. Review of the assessment reports in advance of the meeting was reasonably necessary due to the language impediments and complexity of the assessment tests and results and Parents’ request for this accommodation was not based on mere preference.

88. It was District’s practice not to give copies of assessment or other reports to parents prior to an IEP team meeting because it had found that parents could often become confused. District personnel preferred to guide the parents through the pages of each report by presenting the report for the first time during the IEP team meeting. Then, if the parents still needed more time to review the reports, the District could offer to continue the IEP team meeting and hold a second meeting to conclude the IEP and make an offer. That did not occur in this case.¹⁵

89. Father attended the April 11, 2013 IEP team meeting without having received copies of any of the assessment and progress reports in advance as he had requested, and without having had an opportunity to review the reports individually or with his wife. Father immediately objected and refused to sign the IEP participation sign-in page and someone wrote in the signature line: “refused to sign due to not getting assessment reports 1 week in advance.” The IEP team meeting lasted over three hours and was facilitated by Ms. Hedin from the Stanislaus SELPA. As each assessor presented his or her information, Ms. Hedin handed that report to Father for the first time, and he followed along in the report as they explained the results. The team then reviewed the eligibility criteria for Autistic-Like-Behaviors, Specific Learning Disability, and Speech and Language Impairment.

90. Neither District nor the Stanislaus SELPA offered to continue the IEP team meeting to another date in order to provide Parents an opportunity to review the assessment reports prior to reaching the discussion and determination of Student’s eligibility for special education. District had accommodated Parents’ past requests for advance review of reports, and offered no explanation at hearing, other than its generic policy, for its decision not to honor Parents’ request.

91. Based on the foregoing, District committed a procedural violation when it did not honor Parents’ requested accommodation and continue the IEP team meeting to permit Parents to review the assessment reports. Father did not have the opportunity to translate or convey the meaning and significance of the reports in the Pashto language to Student’s Mother, prior to having the IEP team consider those reports and determine Student’s eligibility or lack thereof for continued special education services. These actions significantly impeded Parents’ rights to have the opportunity to participate in the IEP process in a meaningful way.

92. As previously noted, procedural violations do not require a finding of a denial of a FAPE unless the violation results in a loss of educational opportunity. Here, although District’s actions impeded Parents’ rights to participate in the decision-making process regarding Student’s then-existing IEP, she did not suffer a loss of educational opportunity to which she was then entitled. Father was able to and did express his opinions and concerns about Student’s unique needs related to her autism at the IEP team meeting and again at hearing. Although Mother did not attend the IEP team meeting, she also testified at hearing and expressed her concerns about exiting Student from special education.

93. Regardless, any procedural violation related to the Parents’ need for additional time to understand the reports and communicate their concerns based on enhanced understanding of the reports was cured by the time of the hearing. Had the evidence shown that the District’s assessments were materially flawed, or that the IEP team members incorrectly considered the assessment information, in light of the Parents’ testimony and other evidence adduced at hearing, then the procedural violation would have resulted in a denial of FAPE. However, the evidence at hearing established that the assessments generally met legal requirements, and to the extent that they did not, the shortcomings did not limit Parents’ participation in the process. Most importantly, Student is no longer eligible for special education and is therefore not entitled to a FAPE under special education law. Therefore District’s procedural violation did not deny Student a FAPE.

Substantive Eligibility

94. The determination of eligibility for special education is not made by a school administrator, medical doctor, or psychologist, but is made in the first instance by the pupil’s IEP team. Whether a pupil remains eligible on an annual or triennial basis depends, first, on whether the pupil still has an impairment as defined by any of the statutory eligibility categories, and, second, on whether that impairment still adversely impacts the pupil’s academic or functional performance in school enough to require special education.

Speech and Language Impairment

95. A pupil is eligible for special education under the category of Speech and Language Impairment if the pupil has difficulty understanding or using spoken language under specified criteria, and that difficulty both adversely affects her educational performance and cannot be corrected without special education services. The pupil’s communication deficits must meet the criteria for one of the following: (a) an articulation disorder, (b) an abnormal voice, (c) a fluency disorder, or (d) a language disorder.

96. For a language disorder: the pupil must be shown to have an expressive or receptive language disorder by scoring at least 1.5 standard deviations below the mean, or below the seventh percentile, for his or her chronological age or developmental level, on two or more standardized tests in one or more of the following areas of language development: morphology, syntax, semantics, or pragmatics.

97. Student was eligible for special education under the secondary category of Speech and Language Impairment even though it was mislabeled in her initial and subsequent IEP’s. This eligibility was based on the criteria for a language disorder. The 2009 assessment found that Student, at the age of two years and 11months old, obtained profoundly low scores on the Preschool Language Scales tests, including a two percentile rating on the auditory comprehension subscale (with a standard score of 69), and a three percentile rating on the expressive communication subscale (with a standard score of 72). District began providing Student with annual expressive and receptive language goals in her IEP’s in conjunction with BEST’s behavior and communication-based goals.

98. During the 2013 triennial speech and language assessment conducted by Ms. Hardy, Student scored solidly in the average range on the Expressive and Receptive tests, the picture vocabulary subtest of the Language Development test, and in a Pragmatics survey. However, Student obtained below average scores on all other Language Development subtests: in the 16th percentile on the relational vocabulary subtest, and in the ninth percentile on the oral vocabulary, syntactic understanding, sentence imitation, and morphological completion subtests.¹⁶

99. However, the seventh percentile is a mandatory component for this educational disability category and Student did not score at least one point five (1.5) standard deviations below the mean score or in the seventh percentile or less for her chronological or developmental age on any of the standardized tests administered. Student’s low scores at the ninth percentile, while of concern, do not meet this requirement. Ms. Hardy persuasively established that Student did not meet the criteria for any statutory Speech and Language Impairment disorder, and therefore did not qualify for speech and language eligibility or services.

100. Ms. Hardy did make recommendations which may be implemented in the general education setting, including providing a language-rich environment, and opportunities for Student to summarize information and make inferences about information she has heard; providing encouragement; modeling appropriate grammar for Student in a positive way; allowing Student an opportunity to correct without penalty; checking for her understanding during conversation and reading tasks; and challenging Student with more difficult word meanings to continue her vocabulary growth. District would be well advised to follow these recommendations.

Specific Learning Disorder

101. Eligibility for special education in the category of Specific Learning Disability requires proof of the existence of two things. First, the pupil must have a disorder in one or more of the basic psychological processes involved in understanding or in using language, spoken or written, which may manifest itself in the imperfect ability to listen, think, speak, read, write, spell, or perform mathematical calculations. The eligibility requirements use as examples conditions such as perceptual disabilities, brain injury, minimal brain dysfunction, dyslexia, and developmental aphasia. Second, eligibility requires a showing that there is a severe discrepancy between intellectual ability and achievement in one or more academic areas. The existence of such a discrepancy must be determined by a complicated formula or an alternative, documented IEP team decision.

102. As set forth in Factual Findings 11 through 31, the evidence established that Student was never eligible for special education under this category. Her assessments have consistently shown that she performs academically at or above her cognitive abilities. Therefore, Student is not eligible for special education on this basis and District’s records in this regard are incorrect.

Autistic-Like Behaviors

103. A pupil is eligible for special education under the criteria for Autistic-Like Behaviors if the pupil is found to exhibit any combination of autistic-like behaviors, including but not limited to: (1) an inability to use oral language for appropriate communication; (2) a history of extreme withdrawal or relating to people inappropriately and continued impairment in social interaction from infancy through early childhood; (3) an obsession to maintain sameness; (4) extreme preoccupation with objects or inappropriate use of objects or both; (5) extreme resistance to controls; (6) peculiar motoric mannerisms and motility patterns; and/or (7) self-stimulating, ritualistic behavior. The pupil must also establish that the disorder adversely affects his or her educational performance to the extent that special education is required.

104. It is undisputed that Student was medically diagnosed with autism in early 2009. It is also undisputed that her autistic-like behaviors adversely affected her educational performance and qualified her for special education in November 2009, when she was three years old. The IEP team at the November 2009 meeting, including Parents, agreed that Student displayed autism-related behaviors that interfered with her access to educational benefit and qualified under all seven autistic-like criteria and had significantly delayed skills, including communication skills that were delayed by least a year below her age level.

105. As of the April 11, 2013 IEP team meeting, when Student was over six years old and in kindergarten, the District, the Stanislaus SELPA, and BEST members of the IEP team reviewed the triennial assessment information and all agreed that Student no longer met any of the autistic criteria. At that time, Father disagreed with most of their conclusions. Although Ms. Harris’ March 2013 psychoeducational assessment report did not contain a section providing her recommendation based on analysis of the autistic criteria, she provided an oral analysis at the IEP team meeting, as did the other assessors. The criteria and related evidence are evaluated below:

106. Inability to use language for appropriate oral communication: All IEP team members except for Father agreed that Student no longer exhibited any qualifying language deficits and that Student was able to use language for appropriate oral communication. Ms. Harris testified that Student communicated orally in an appropriate manner both on the playground and in the classroom with her peers and teachers in a class of about 30 kindergarteners. Student was seen to initiate conversations, and respond orally with others over a one-hour period of observation. However, the record is not clear whether Ms. Harris was close enough to actually hear the content of Student’s conversations. Mrs. Halsey, who saw Student daily in class and three or more times a week at recess, concluded that Student had age-appropriate social skills, was not withdrawn or isolated, and was able to engage in on-topic conversations and follow the kindergarten class routines. On the other hand, Student’s current first grade teacher, Lisa Lok, reported that Student was “shy,” and did not speak a lot. However, at the time of the hearing, school had only been in session a few weeks.

107. The triennial psychoeducational assessment showed Student has an auditory processing deficit. Student scored in the low average range on the Auditory Processing test, showing a lower than average ability compared to her peers in deriving information, using inferences, and making deductions. In addition, she had a significantly low score in the auditory reasoning subtest which showed a severe weakness in understanding inferences and abstractions in spoken language. Student therefore requires enhanced visual aids to supplement oral instruction and activities. Ms. Harris explained at hearing that she did not give Student’s scores on the Auditory Processing test great weight based on several factors. First, this was the last assessment test administered to Student after a lengthy assessment session and Student had shown signs of fatigue. Second, on the Wechsler cognitive assessment, Student obtained scores of average on the comprehension subtest of the verbal reasoning index. However, Ms. Harris’ reasoning was not persuasive on this point as she nevertheless recommended visual aids. In addition, the Wechsler comprehension subtest involved Student answering questions “based on an understanding of general principles and social situations.” The auditory reasoning subtest involved understanding “inferences and abstractions and . . . [coming] to logical conclusions” in spoken language. Ms. Harris failed to explain why the two tests could be comparable or in what manner. Further, in evaluating Student’s auditory processing weaknesses, Ms. Harris did not mention consideration of Student’s speech and language assessment results.

108. On the speech and language assessment, Student scored in the average range on both the Expressive and Receptive tests. On the Language Development test, however, Student scored in the average range on only one subtest, and scored in a significantly low range, at the ninth percentile, on most of the other subtests. This meant that 91 percent of Student’s peers had better oral vocabulary, syntactic understanding, sentence imitation, and morphological completion than Student in their communication. While the levels of these deficits do not meet the criteria for a speech and language disorder, as found below, they are significant and warrant concern.

109. BEST’s July 2013 update report showed that Student met most of her goals relating to communication. BEST facilitated play dates with Student and a peer during the school day and found that Student successfully engaged in conversations, including initiating a greeting, initiating conversations, responding appropriately to questions or statements from a peer, at or above 80 percent of opportunities. The data showed Student required “little to no prompting to engage in appropriate play and social interaction skills during these play dates.” In contrast, however, Student did not meet her goal in the area of reciprocal play and still required some prompting. Nevertheless, she engaged in a rate of cooperative play (60 percent) higher than that for a typically developing kindergarten peer (50 percent).

110. Overall, Student’s triennial assessment showed that she no longer displays most of the communication deficits she had shown three years earlier. Student has developed an ability to use language to orally communicate in an appropriate fashion in many settings in the classroom and in the community. While Student still displays some deficits as found above, there is no evidence that she has required significant prompting or intervention from either a BEST tutor or a teacher since the fall of 2012. Therefore, Student no longer displays sufficient deficits in the area of appropriate oral communication to meet this criterion.

111. History of extreme withdrawal or relating to people inappropriately and continued impairment in social interaction: District’s 2009 IEP found that Student qualified under this criterion, meaning she had a history of these characteristics. That history is undisputed. By April 2013, all IEP team members except for Father agreed that Student no longer exhibited any qualifying behaviors of continued impairment in her social interactions at school. Ms. Harris observed Student interact naturally with others, including initiating conversations with both boys and girls, and noted that, during the psychoeducational assessment, Student made good eye contact and was attentive. Student’s kindergarten teacher, Mrs. Halsey, consistently rated Student’s behaviors in the average range, including eye contact and socialization. On the other hand, Father reported in the assessment surveys that Student avoided eye contact, and engaged in extreme withdrawal behaviors. However, the autistic criteria must be observed across settings, in the school environment, and not just in the home. In addition, Father admitted to the IEP team that he rated Student based on her past autistic behaviors and not on her current behaviors. BEST data showed Student still displayed weaknesses in initiating and engaging in reciprocal play with other children as she was only successful (52 percent of the time in April 2013, and 48 percent of the time in July 2013). However, this isolated area of concern does not constitute significant evidence of autistic-related impairment in Student’s social interactions at school. As found above, the evidence demonstrated Student is successfully engaging in appropriate social interactions in the classroom and on the playground. Therefore, the evidence did not establish that Student’s social interaction skills were impaired to meet this criterion.

112. Obsession to maintain sameness: All IEP team members except for Father agreed that Student no longer exhibited any qualifying obsessions for sameness and was “very flexible.” In 2009, Kaiser’s autism assessment found Parents’ reported that Student had difficulty with changes in routine and would tantrum, for example, if there was a change in direction of travel. By April 2013, Student had met all of BEST’s goals that involved transition such as following the teacher’s directions. Ms. Harris observed Student transition to and from various activities at school with willingness and cooperation and there was no evidence that Student had any difficulties in transitions. Parents did not establish that Student displays any behaviors meeting this criterion.

113. Preoccupation with objects or inappropriate use of objects or both: All IEP team members, except for Father, agreed that Student no longer exhibited any qualifying preoccupation with objects. On the Vineland survey of Student’s adaptive behavior skills, Father rated Student’s behaviors as maladaptive, claiming she was obsessed with objects or activities such as repeating words or being preoccupied with mechanical objects “often.” However, all District and BEST witnesses who testified were persuasive that Student did not display these behaviors in the school setting. During the April 2013 IEP team meeting, Father admitted he had answered many of the survey assessment questions based on Student’s past behaviors instead of her present behaviors. In contrast, Mrs. Halsey reported most of Student’s behaviors in the average range. Father explained he was concerned about Student’s future years and did not want anyone to underestimate the history of her difficulties related to autism. The weight of the evidence established that Student did not display this criterion to any significant degree in the school setting.

114. Extreme resistance to controls: All IEP team members, including Father, agreed that Student no longer exhibited any qualifying extreme resistance to controls. The evidence established that Student was, overall, a happy, cooperative, and flexible pupil. Student therefore did not meet this criterion.

115. Peculiar motoric mannerisms and motility patterns: In addition, at the April 2013 IEP team meeting, all IEP team members, including Father, agreed that Student no longer exhibited any qualifying peculiar or odd motor movement. However, Father rated Student’s motor skills in the low range on the behavioral survey and described habits such as odd hand movements and holding a pen incorrectly. Prior assessments had shown Student’s fine motor skills to be below average and her gross motor skills to be in the average range, noting that she ran with her toes turned inward. In addition, at hearing, both Mother and Father expressed concerns that when Student is placed in the family’s automobile in a car seat, Student repeatedly shakes in a rocking motion instead of sitting quietly. However, the District and BEST witnesses who testified did not see these behaviors in the school setting, except for Student’s toe-turning on one foot when she walked. Rocking motions are autism-related behaviors. However, since Student did not engage in them during the school day, they do not meet this criterion.

116. As for the toe turning, Student presented evidence that in 2013, she was diagnosed by Children’s Hospital of Central California with an orthopedic hip/pelvic imbalance of the femur called “femoral anteversion,” which results in young children walking “pigeon-toed.” This orthopedic diagnosis is consistent with the evidence of Student’s occasional walking gait and sitting position in school.¹⁷ However, there was a secondary diagnosis of “sensory integration system,” which Father testified was the physician’s indication that the imbalance could be related to sensory problems associated with autism. The physician did not testify and the evidence did not otherwise support any finding that Student’s problem was a motoric mannerism related to autism. Student also presented evidence that in 2011, Kaiser noted a diagnosis that Student had “metatarsus adductus.” This condition is usually diagnosed at birth and causes the baby’s foot to turn inward. Here, however, the 2009 Kaiser assessment report did not note any such medical diagnosis at Student’s birth or in her prior medical history. That diagnosis is accordingly not given any weight. The evidence therefore established that Student did not meet the criterion of an autistic-like motoric mannerism in the school setting.

117. Self-stimulating, ritualistic behaviors: All IEP team members except for Father agreed that Student no longer exhibited any qualifying self-stimulating or ritualistic behaviors in the school environment, and the IEP notes stated that those Father reported were “mild.” Both Mother and Father emphasized that Student continued to make rocking or thrashing movements when placed in her car seat. Aside from the car seat behaviors, Father reported in the behavior surveys that Student frequently engaged in spinning. However, there was no evidence that either of these behaviors occurred during the school day and were therefore not exhibited across settings, in the school environment as well as at home. Accordingly, Student did not meet this criterion.

118. Based on the foregoing, Student did not meet any of the criteria for determining her eligibility based on Autistic-Like Behaviors. Even if Student’s oral communication deficits were found to be significant enough to meet that criterion, the law requires that there must be a combination of factors, and not just one factor in isolation. Because Student did not meet any other autistic criteria manifested in the school setting, she therefore no longer meets the first prong of the eligibility criteria to qualify for special education under this category.

Need for Special Education

119. Specially designed instruction is required when the pupil’s educational needs cannot be met with modification of the regular instruction program. Even if the evidence established that Student has displayed a combination of autistic-related behaviors under the criteria for Autistic-Like Behaviors, the next question would be whether she still requires specialized instruction and related services in order to receive educational benefit.

120. Mr. Bruno was emphatic and persuasive that Student no longer requires a behavioral tutor to be present with her during the school day to access her education at a level on par with other typically developing peers in her class. His recommended fading of Student’s known tutors between January and May 2013, was conservative and cautious. Mr. Bruno is familiar with the legal criteria for eligibility under Autistic-Like Behaviors. He reviewed those criteria in light of Student’s performance on her goals, and was persuasive that Student does not meet any of the criteria. She has met most of her goals and has not required any active supports for over a year.

121. Thus, the finding that Student is no longer eligible for special education under this category because she does not meet the criteria and no longer needs specialized instruction and supports to be successful in general education, is not based solely on one snapshot assessment of Student as of April 2013. When given a significant disability of autism, medically diagnosed when Student was 18 months old, and given the vital importance of early intervention programs that have been shown to be successful in helping children with autism improve and move from isolated or restricted, intensive classes and one-to-one services to partial or full inclusion in general education classrooms, the evidence of remediation should be significant and be measured over time. District did not present expert testimony regarding the research, if any, about exiting a first grader from special education just as she is demonstrating average competence in most, but not all areas of her academic and functional performance at school. Parents love Student very much and are validly concerned about the ramifications of exiting her from special education at this critical juncture

122. However, the clear weight of the evidence established Student no longer requires specialized instruction, tutoring, discrete trial training, behavioral goals, behavioral supports, or one-to-one aides focused on her autistic-related behaviors in order to access and obtain educational benefit in the school environment, either in class, at recess, or in any other campus activities. There is substantial evidence in the record to establish that Student has not required the specialized services of BEST’s behavioral program and tutors since shortly after she began kindergarten in the fall of 2012. Both of Student’s teachers established that the BEST tutors have done little or nothing in their classrooms to support Student. Instead, for the most part, the tutors have helped the classroom teacher with general class preparation tasks, read a book, observed Student, and taken data on her abilities to function independently. In Student’s case, both Mr. Bruno and Ms. Farris began recommending to the IEP team, in October 2012, the reduction of Student’s tutor services as of January 2013. By May 2013, the data clearly showed Student performed consistently without tutor support.

123. Mr. Bruno recommends fading BEST’s behavioral supports and tutors within 15 to 30 days. Since BEST is recommending a fade out period, as the nonpublic agency with expertise in delivering specialized autistic-related services, this recommendation should be followed in the absence of evidence that Student requires any longer or shorter period. Mr. Bruno also recommends that Parents stay in close touch with Student’s teachers. In addition, because Mother has reported to him that she has difficulties helping Student with her homework due to her own limited ability to read English, Mr. Bruno recommends some type of after-school homework support for Student.

124. Student’s progress over the past four years has been remarkable. It appears to be a testament to her strength, resilience and cognitive abilities, and the quality of services provided by Valley Mountain, BEST, the Stanislaus SELPA, and the District that many of her severe behaviors and symptoms related to her primary autistic disability have significantly diminished. However, it is equally undisputed that Student still has a medical diagnosis of autism and the District does not claim Student is free from impairment.

125. Based on the foregoing, Student is no longer eligible for special education under the category of Autistic-Like Behaviors because she does not meet any combination of the requisite criteria. Even if she met at least two criteria, the behaviors do not adversely impact her access to, or receipt of educational benefit and she therefore does not require special education and related services. Because Student has a medical disorder on the autism spectrum, it is possible she may meet the criteria for eligibility under this category in the future as she ages and the educational curriculum advances. District would be advised to monitor her closely and not permit any significant regression to occur before reconsidering her eligibility. Further, Student is no longer eligible for special education under any other category at issue in this case.

LEGAL CONCLUSIONS

Burden of Proof

1. Under Schaffer v. Weast (2005) 546 U.S. 49 [126 S.Ct. 528, 163 L.Ed.2d 387], the party who filed the request for due process has the burden of persuasion at the due process hearing. In this case, the District filed for a due process hearing and therefore bears the burden of persuasion.

The provision of FAPE

2. A child with a disability has the right to a FAPE under the IDEA. (Ed. Code, §§ 56000, 56026; 20 U.S.C. § 1412(a)(1)(A).) FAPE is defined as special education, and related services, that are available to the pupil at no cost to the parent, that meet the State educational standards, and that conform to the student’s IEP. (Ed. Code, § 56031; Cal. Code Regs., tit. 5 § 3001, subd. (o); 20 U.S.C. § 1401(9).) The term “related services” includes transportation and other developmental, corrective, and supportive services as may be required to assist a child to benefit from education. (Ed. Code, § 56363; 20 U.S.C. § 1401(26).)

3. There are two parts to the legal analysis of whether an LEA offered a pupil a FAPE. The first question is whether the LEA has complied with the procedures set forth in the IDEA. (Board of Educ. of the Hendrick Hudson Cent. School Dist. v. Rowley (1982) 458 U.S. 176, 206-07 [73 L.Ed.2d 690] (Rowley).) The second question is whether the IEP developed through those procedures was substantively appropriate. (Ibid, at p. 207.)

4. Procedural flaws do not automatically require a finding of a denial of FAPE. A procedural violation does not constitute a denial of FAPE unless the procedural inadequacy (a) impeded the child’s right to a FAPE; (b) significantly impeded the parent’s opportunity to participate in the decision making process regarding the provision of FAPE; or (c) caused a deprivation of educational benefits. (Ed. Code, § 56505, subd. (j); 20 U.S.C. § 1415(f)(3)(E)(i) & (ii).) (See also W.G. v. Board of Trustees of Target Range School Dist. No. 23 (9th Cir. 1992) 960 F.2d 1479, 1483-1484.)

Assessment

5. Before any action is taken with respect to the initial placement of a child with special needs, an assessment of the pupil’s educational needs shall be conducted. (Ed. Code § 56320.) Thereafter, special education students must be reassessed not more frequently than once a year, and shall be reassessed at least once every three years, unless the parent and the LEA agree otherwise. A reassessment shall be conducted if the LEA determines “that the educational or related service needs, including improved academic achievement and functional performance, of the pupil warrant a reassessment.” (20 U.S.C. § 1414(a)(2)(A); Ed. Code § 56381, subd. (a).)

6. The school district must select and administer assessment materials in the pupil’s native language and that are free of racial, cultural, and sexual discrimination. (20 U.S.C. § 1414(b)(3)(A)(i); Ed. Code, § 56320, subd. (a).) Further, a school district must provide and administer tests and other assessment materials in the language and form most likely to yield accurate information on what the pupil knows and can do academically, developmentally, and functionally, unless not feasible. (Ed. Code, § 56320, subd. (b)(1); see also 20 U.S.C. § 1414(b)(3)(A)(ii); 34 C.F.R. § 300.304(c)(1)(ii)(2006).)

7. 34 C.F.R.§ 300.29 defines “native language” as follows: when used with respect to a pupil who is identified with limited proficiency in English, native language means either: (1) the language normally used by the parents of a minor; or (2) for the minor, the language normally used in direct contact with the pupil in the home or learning environment.

8. Assessments must be conducted by individuals who are both “knowledgeable of the student’s disability” and “competent to perform the assessment, as determined by the school district, county office, or special education local plan area.” (20 U.S.C. § 1414(b) (3)(B)(ii); Ed. Code §§ 56320, subd. (g), 56322.) A credentialed school psychologist must administer psychological assessments and individually administered tests of intellectual or emotional functioning. (Ed. Code, §§ 56320, subd. (b)(3), 56324, subd. (a).) Tests and assessment materials must be selected and administered so as not to be racially, culturally, or sexually discriminatory; and must be administered in the pupil’s native language or mode of communication unless it is not feasible to do so. (Ed. Code, § 56320, subd. (a).) Assessment tests must be administered by trained personnel in conformance with the instructions provided by the producers of the tests. (20 U.S. C. § 1414(a)(2), (3); Ed. Code § 56320, subds. (a), (b).) The pupil must be assessed in all areas related to his or her suspected disability, and no single procedure may be used as the sole criterion for determining whether the student has a disability or an appropriate educational program. (20 U.S.C. § 1414(a)(2), (3); Ed. Code § 56320, subds. (e), (f).) If the evaluation procedures required by law are met, the selection of particular testing or evaluation instruments is at the discretion of the school district. (Off. Of Special Education Programs interpretative letter (September 17, 1993), 20 IDELR 542.)

9. The personnel who assess the pupil shall prepare a written report or reports, as appropriate, of the results of each assessment. The report must include, but is not limited to the following: whether the pupil may need special education and related services; the basis for making that determination; relevant behaviors noted during observation; a determination concerning the effects of environmental, cultural, or academic disadvantage; and other components. (Ed. Code, § 56327, subds. (a), (b), (c), and (g).)

10. An IEP team meeting must occur within 60 calendar days of receiving parental consent for the assessment. (56043, subd. (c); Ed. Code §§ 56302.1, subd. (a).) The 60-day time period excludes “days between the pupil’s regular school sessions, terms, or days of school vacation in excess of five schooldays, from the date of receipt of the parent’s written consent for assessment, unless the parent agrees, in writing, to an extension.” (Ibid; Ed. Code § 56344, subd. (a).) There are exceptions to the 60-day timeline that are not applicable in this case. (Ed. Code §§ 56302.1, subd. (b)(1) and (2).)

11. At the IEP team meeting, the team is required to discuss the assessment, eligibility, and educational recommendations. The IEP team is responsible to determine from the assessments whether the child is eligible for special education. (Ed. Code, § 56329, subd.(a)(1) and (2).)

Independent Educational Evaluation

12. Under certain conditions a pupil is entitled to obtain an IEE at public expense. (20 U.S.C. § 1415(b)(1); 34 C.F.R. § 300.502 (a)(1) (2006); Ed. Code, §§ 56329, subd. (b), 56506, subd. (c).) “Independent educational evaluation means 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)).) A pupil may be entitled to an IEE if he or she disagrees with an evaluation obtained by the public agency and requests an IEE at public expense. (20 U.S.C. § 1415(b)(1); 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 IEE as set forth in Ed. Code, § 56329]; see also 20 U.S.C. § 1415(d)(2) [requiring procedural safeguards notice to parents to include information about obtaining an IEE].) The provision of an IEE at public expense is not automatic however. In response to a request for an IEE, a school district must, without unnecessary delay, either: 1) file a due process complaint to request a hearing to show that its evaluation is appropriate; or 2) ensure that an independent educational evaluation is provided at public expense. (34 C.F.R. § 300.502(b)(2); Ed. Code, § 56329, subd. (b).)

13. In R.B. v. Napa Valley Unified School District (9th Cir. 2007) 496 F.3d 932, the Ninth Circuit Court of Appeals held that a procedural violation did not result in a denial of FAPE because the pupil was no longer eligible for special education. In that case, the school district committed a procedural violation by not including a special education teacher or provider of the child on the IEP team. The pupil had been found eligible for special education services in kindergarten. By fifth grade, the pupil’s parents placed her in a residential treatment facility and filed a due process complaint. The court upheld the determination of OAH’s predecessor, the California Special Education Hearing Office, that Student no longer qualified for special education, despite her behavioral deficits. While the court recognized that procedural violations often result in a denial of FAPE, the court distinguished those cases based on eligibility. It held that a procedural violation does not constitute a denial of FAPE if the violation fails to result in a loss of educational opportunity: “A child ineligible for IDEA opportunities in the first instance cannot lose those opportunities merely because a procedural violation takes place.” (Ibid, at 942.) (See M.L. v. Fed. Way Sch. Dist., (9th Cir. 2005) 394 F.3d 634, 652.)

Issue 1: Was District’s 2013 triennial assessment of Student in compliance with all legal requirements and did it appropriately assess her in all areas related to her suspected disabilities?

14. Overall, as set forth in Factual Findings 11 through 81, and Legal Conclusions 2 through 12, District’s triennial psychoeducational, academic, and speech and language assessments complied with the law and appropriately assessed Student in all areas related to her suspected disabilities of Autistic-Like Behaviors and Speech and Language Impairment, as well as the suspected disability of Specific Learning Disability, since it was so designated on Student’s past IEP’s. The evidence established that all of the assessment tests were conducted by qualified assessor, were valid and reliable for the purposes selected, were conducted according to the publisher’s protocols, and were selected and administered so as to not be racially or culturally discriminatory or negatively impacted by environmental, cultural, or economic disadvantage.

15. Although District’s psychoeducational assessment complied with the law, District committed a procedural violation because the assessor, school psychologist Ms. Harris, did not provide her opinion or recommendation regarding whether Student may need special education, and the basis of that determination under any category of eligibility, in her written report. The written report failed to expressly address and analyze any of the eligibility criteria and relate the assessment results to those criteria and denied the IEP team, including Parents, that written information. However, this procedural violation did not result in a denial of FAPE. Ms. Harris provided her opinion at the IEP team meeting and at hearing, it was included in the IEP, and the violation was cured. More importantly, since Student is no longer eligible for special education, she did not suffer a loss of educational benefit. Under the authority of the Ninth Circuit, as cited above, Student therefore was not denied a FAPE.

16. District’s academic assessment complied with the law and appropriately assessed Student’s academic performance using standardized assessment tools, in spite of some deficiencies. The assessor, resource specialist Ms. Ellis, did not provide her opinion regarding Student’s then-present classroom academic performance in the written report and failed to include her analysis comparing Student’s performance on various academic tests in the report. However, the deficits did not rise to the level of a procedural violation of law because there is no requirement that the written report must address anything other than the results of the standardized assessment tests, even though Ms. Ellis was required to report on Student’s then-present levels of performance at the IEP team meeting. In addition, since Student is no longer eligible for special education, she did not suffer a loss of educational benefit, and such a violation would not have denied her a FAPE.

17. District’s speech and language assessment complied with all legal requirements, appropriately assessed Student’s communication needs, and the written report addressed Student’s eligibility under this category as well as the basis for that determination.

Eligibility

Parental Participation

18. As noted above, the eligibility decision is to be made by the IEP team. A school district is required to conduct, not just an IEP team meeting, but also a meaningful IEP team meeting. (Target Range, supra, 960 F.2d 1479, 1485; Fuhrman v. East Hanover Bd. of Education (3d Cir. 1993) 993 F.2d 1031, 1036 (Fuhrman).) A parent has meaningfully participated in the development of an IEP when the parent is informed of the child’s problems, attends the IEP team meeting, expresses disagreement regarding the IEP team’s conclusions, and requests revisions in the IEP. (N.L. v. Knox County Schools. (6th Cir. 2003) 315 F.3d 688, 693; Fuhrman, at 1036.)

19. Withholding documents and important information from parents can impede their ability to participate in the IEP process. (Amanda J. v. Clark County Sch. Dist. (9th Cir. 2001) 267 F.3d 877, 890-891.) Further, although the federal regulations do not encourage the preparation of a draft IEP, it is noted in the Comments to the IDEA regulations that, if a draft IEP is prepared prior to the IEP team meeting, it should be provided to the parents prior to the date of the IEP team meeting to help the parents be prepared to fully participate. (71 Fed.Reg. 46678 (2006).)

Substantive Eligibility

20. Under the IDEA, only children with certain disabilities are eligible for special education. (20 U.S.C. § 1401(3)(A); Ed. Code § 56026, subd. (a).) For purposes of special education eligibility, the term “child with a disability” means a child with mental retardation, hearing impairments (including deafness), speech or language impairments, visual impairments (including blindness), serious emotional disturbance, orthopedic impairments, autism, traumatic brain injury, other health impairments, a specific learning disability, deaf-blindness, or multiple disabilities, and who, by reason thereof, requires instruction, services, or both, which cannot be provided with modification of the regular school program. (20 U.S.C. § 1402(3)(A)(ii); 34 C.F.R. § 300.8(a).) Similarly, California law defines an “individual with exceptional needs” as a pupil who is identified by an IEP team as “a child with a disability” pursuant to 20 U.S.C. section 1402(3)(A)(ii), and who requires special education because of his or her disability. (Ed. Code § 56026, subds. (a), (b).)

21. California Code of Regulations, title 5, section 3030 includes a list of conditions that may qualify a pupil as an individual with exceptional needs and thereby entitle the pupil to special education if required by “the degree of the pupil’s impairment.” Thus, there are many children who have varying ranges of weaknesses, deficits, areas in need of improvement, and disability who do not qualify for special education because they do not meet the narrow categories specified by law for this federally funded program, including the requirement that the pupil’s instruction or services cannot be provided with modification of the regular school program.

Speech and Language Impairment

22. A student is eligible for special education and related services under the category of Speech and Language Impairment if she demonstrates difficulty understanding or using spoken language under specified criteria and to such an extent that it adversely affects her educational performance, which cannot be corrected without special education. (Ed. Code, § 56333.) The criteria are:

(a) Articulation disorder: the child displays reduced intelligibility or an inability to use the speech mechanism which significantly interferes with communication and attracts adverse attention;

(b) Abnormal voice: a child has an abnormal voice which is characterized by persistent, defective voice quality, pitch, or loudness;

(c) Fluency Disorders: a child has a fluency disorder when the flow of verbal expression including rate and rhythm adversely affects communication between the pupil and listener;

(d) Language Disorder: the pupil has an expressive or receptive language disorder, in pertinent part, when he or she scores at least 1.5 standard deviations below the mean, or below the seventh percentile, for his or her chronological age or developmental level, on two or more standardized tests in one or more of the following areas of language development: morphology, syntax, semantics, or pragmatics.

(Ed Code, § 56333; Cal. Code Regs., tit. 5, § 3030, subd. (c).)

Specific Learning Disability

23. Eligibility under the category of Specific Learning Disability requires that a pupil has a disorder in one or more of the basic psychological processes involved in understanding or in using language, which may manifest itself in the imperfect ability to listen, think, speak, read, write, spell, or perform mathematical calculations. The term “specific learning disability” includes conditions such as perceptual disabilities, brain injury, minimal brain dysfunction, dyslexia, and developmental aphasia. (20 U.S.C. §1401(30); Ed. Code, § 56337, subd. (a).) Basic psychological processes include attention, visual processing, auditory processing, sensory-motor skills, cognitive abilities including association, conceptualization, and expression. (Cal. Code Regs., tit. 5, § 3030, subd. (j)(1).) The criteria mandate the use of standardized achievement tests to measure the pupil’s levels of academic competence and require finding a severe discrepancy of at least 1.5 standard deviations between the cognitive ability of the pupil and his or her academic achievement. (Cal. Code Regs., tit. 5, § 3030, subd. (j)(4).)

Autistic-Like Behaviors

24. Pursuant to California Code of Regulations, title 5, section 3030, subdivision (g), a pupil meets the first prong of the eligibility criteria for Autistic-Like Behaviors if he or she exhibits any combination of the following autistic-like behaviors, including but not limited to: (1) an inability to use oral language for appropriate communication; (2) a history of extreme withdrawal or relating to people inappropriately and continued impairment in social interaction from infancy through early childhood; (3) an obsession to maintain sameness; (4) extreme preoccupation with objects or inappropriate use of objects or both; (5) extreme resistance to controls; (6) displays peculiar motoric mannerisms and motility patterns; and (7) self-stimulating, ritualistic behavior.

25. For the second prong of the criteria, a pupil must exhibit any combination of the above behaviors and also establish that the autistic disorder adversely affects his or her educational performance to the extent that special education is required. Only if both components are met does the pupil meet the educational eligibility criteria for Autistic-Like Behaviors. (20 U.S.C. § 1402; 34 C.F.R. § 300.8; Cal. Code Regs., tit. 5, § 3030, subd. (g).)

Issue 2: Beginning with the April 11, 2013 IEP team meeting, is Student no longer eligible for special education and related services?

26. As set forth in Factual Findings 11 through 14, and 101 and 102, Student never was eligible for special education under the category of Specific Learning Disability and that designation in Student’s IEP’s was and is incorrect.

27. As set forth in Factual Findings 11 through 14, 39 through 47, and 95 through 100, Student is no longer eligible for special education under the category of Speech and Language Impairment because the 2013 triennial assessment did not result in scores at or below the seventh percentile (or 1.5 standard deviations below the mean) as required to establish a language disorder. Student scored in the average range on the Expressive, Receptive, and Pragmatic communication assessment tests. While her scores on the Language Development test showed areas of significant concern, they did not meet the narrow requirements for a special education disability.

28. As set forth in Factual Findings 15 through 26, 39 through 53, and 103 through 118, Student is no longer eligible for special education under the category of Autistic-Like Behaviors. Her behaviors no longer meet the requisite criteria relating to an inability to use oral language for appropriate communication, continued impairment in social interaction, an obsession to maintain sameness, extreme preoccupation with or use of objects, extreme resistance to controls, motoric mannerisms, or self-stimulating, ritualistic behavior. While Student still has areas of weakness and deficit, particularly related to auditory processing, oral communication, and reciprocal play that should be monitored by the District, Student has not demonstrated any significant autistic-like behaviors in the school setting for over a year. Even if Student did exhibit such behaviors at school, there was no evidence that the behaviors have impeded her access to, or receipt of educational benefit, or that she requires specialized instruction and behavioral supports in order to obtain educational benefit. In these circumstances, in light of the period of time over which Student’s behaviors have been cautiously monitored, Student may be exited from special education.

ORDER

1. Since District’s 2013 triennial assessment of Student complied with the law and appropriately assessed her in all areas related to her suspected disabilities, District is not required to fund an IEE as requested by Parents.¹⁸

2. Student is no longer eligible for special education and related services.

3.District has the right to terminate Student’s IEP no later than January 1, 2014. District shall immediately begin to terminate Student’s operative IEP by implementing a fade back of Student’s tutors from BEST, to be completed prior to or by the end of the District’s 2013 school days before the winter break. The length of this fade back is within the sole discretion of BEST.

PREVAILING PARTY

Education Code section 56507, subdivision (d), requires that the hearing decision indicate the extent to which each party has prevailed on each issue heard and decided. District prevailed on all issues in this case.

NOTICE OF APPEAL RIGHTS

The parties are advised that they have the right to appeal this decision to a state court of competent jurisdiction. Appeals must be made within 90 days of receipt of this decision. A party may also bring a civil action in the United States District Court. (Ed. Code, § 56505, subd. (k).)

Dated: December 9, 2013

Deidre L. Johnson
Administrative Law Judge
Office of Administrative Hearings