OAH 2017031162-2017020218July 27, 2017
Student v. Tehachapi Unified School District, Tehachapi Unified School District v. Student - Student Prevailed
OFFICE OF ADMINISTRATIVE HEARINGS
STATE OF CALIFORNIA
In the Consolidated Matters of:
PARENTS ON BEHALF OF STUDENT,
TEHACHAPI UNIFIED SCHOOL DISTRICT
OAH Case No. 2017031162
TEHACHAPI UNIFIED SCHOOL DISTRICT,
PARENTS ON BEHALF OF STUDENT.
OAH Case No. 2017020218
District filed a due process hearing request with the Office of Administrative Hearings, State of California, on February 3, 2017. On March 17, 2017, OAH granted the parties’ initial joint request to continue the dates in District’s case. On March 24, 2017, Student filed a due process hearing request, naming District. On April 4, 2017, OAH consolidated both cases. OAH continued the consolidated cases for good cause, and ordered that the timeline for issuance of the decision in the consolidated cases be based on the filing date of Student’s case.
Administrative Law Judge Laurie Gorsline heard this matter in Tehachapi, California on May 23, 24, and 25, 2017.
Attorney Goriune Dudukgian represented Student. Parents attended all days of hearing. Student did not attend the hearing. Attorneys Darren Bogie and Christina Oleson represented District. Dennis Ferrell, District’s Director of Programs, attended all days of hearing.
At the parties’ request, OAH continued the hearing to June 15, 2017, for written closing arguments. Upon timely receipt of the written closing arguments, the record was closed and the matter was submitted for decision.
1. Did District fail to appropriately assess Student in all areas of suspected disability, specifically, occupational therapy,1 after:
1 Student’s complaint and the prehearing conference order included social skills in this issue. During the hearing, Student withdrew his claim that District failed to appropriately assess him in the area of social skills training.
a. District’s October 28, 2015 psychoeducational evaluation; and
b. The October 24, 2016 individualized education program team meeting and the request of Student’s second grade teacher?
2. Is District required to fund an independent educational evaluation of Student in the area of psychoeducation?
1. Was District’s October 28, 2015 psychoeducational assessment appropriate, such that Student is not entitled to an independent educational evaluation?
SUMMARY OF DECISION
Student proved District failed to assess Student in all areas of suspected disability, specifically occupational therapy. The information obtained during District’s October 2015 psychoeducational evaluation triggered District’s obligation to conduct an occupational therapy assessment, which District never conducted. On November 15, 2016, Student’s second grade teacher and the IEP team referred Student for an occupational therapy assessment. District failed to timely send Parents an assessment plan, and never conducted the assessment. District’s failure to conduct an occupational therapy assessment significantly impeded Parents’ opportunity to participate in the decision making process.
The evidence established that Student was entitled to an independent psychoeducational evaluation because District’s psychoeducational assessment was inappropriate. District unreasonably delayed in filing for due process to defend its assessment. The evidence also established that District’s assessment was not appropriate because it was not conducted in accordance with the law and failed to include required information in the report. District’s failure to conduct an appropriate psychoeducational evaluation and timely file to defend its assessment, significantly impeded Parents’ opportunity to participate in the decision making process.
Student proved District significantly impeded Parents’ opportunity to participate in the decision making process. District did not prove the October 28, 2015 psychoeducational assessment was appropriate.
1. Student was an 8-year-old male at the time of the due process hearing. Student was eligible for special education and related services as a child with a primary eligibility of other health impairment. Student resided within District with Parents.
2. Parents adopted Student when he was four days old. While in preschool, child psychiatrist Salvador Ronald Del Rosario, M.D. diagnosed Student with attention deficit hyperactivity disorder.
3. Student moved to District in 2014. Student attended District’s Golden Hills Elementary School for kindergarten during the 2014-2015 school year. Student was initially found eligible for special education services in November 2014 and received speech and language services. Accommodations and interventions included seating close to the instructional area and an aide. The aide was faded out in spring 2015 after Student responded favorably and no longer required tangible reinforcement to follow classroom procedures.
2015-2016 School Year – First Grade
4. Dawn Roach was District’s school psychologist since 2011. She held a master’s degree in school psychology and a pupil personnel services credential, which allowed her to conduct psychoeducational assessments. She was not member of the American Psychological Association. She conducted around 50 to 75 assessments per year since 2011. She worked with Student in kindergarten.
THE OCTOBER 28, 2015 PSYCHOEDUCATIONAL ASSESSMENT
5. On August 21, 2015, Ms. Roach received a referral for assessment of Student from the Student Study Team and Student’s teacher. Areas of concern were attention deficits and below level academics, including difficulty reading sight words and counting. Student’s strengths were identified as being active and hands on, playing outside, and improved behavior on the playground.
6. On August 21, 2015, Ms. Roach sent Parents an assessment plan, a Parent Questionnaire, parent rating scales and Notice of Procedural Safeguards and Parents’ Rights. Neither party offered the contents of the assessment plan into evidence.
7. Between August 26 and October 14, 2015, Ms. Roach conducted a psychoeducational assessment of Student, and thereafter prepared a written assessment report. At the time of the assessment, Student was six years and eight months old and had completed kindergarten. Ms. Roach prepared an Assessment Workflow in which she tracked Student’s assessment by recording notes about the assessment, including what she did and the dates she sent and obtained information.
8. On August 26, 2015, District received the completed Parent Questionnaire from Mother. Mother reported Student’s primary language was English and he was White. He had a tumor removed at six months old. Student had been diagnosed with ADHD and was taking medication on a regular basis. Student was evaluated for autism spectrum disorder in 2015, and the results were negative. Mother had no medical concerns regarding Student. He saw a counselor for assistance with managing ADHD and a psychiatrist for medication management of ADHD. Student was loving and compassionate. He got along well with other children and loved playing with his friends. He responded to discipline by getting upset. When asked, he completed his chores. Student required prompting on every homework task, complained, was easily frustrated, and was usually able to complete his homework when he had assistance. He had difficulty focusing and absorbing and retaining information taught at school. Mother reported Student had success in kindergarten when he had individual assistance to help him stay on task, was getting along socially at school, but that Student was below the academic level of his peers and was unable to read. As a preschooler, Student had a lot of difficulty going to sleep at night and was taking melatonin to sleep. His temper at home was difficult but was not a problem at school. Mother’s most significant concern at school regarding Student’s behavior was his inability to focus in the classroom setting.
STUDENT INTEREST INVENTORY
9. Student reported he did not worry about anything and nothing made him feel scared. He did not know what made him happy, sad, or angry. He did not know what he would change about himself or what he would change about school. He reported he did not like school, it was boring and all subjects were hard for him. He enjoyed riding bikes with his friends.
THE SCHOOL PSYCHOLOGIST’S OBSERVATIONS OF STUDENT
10. On August 26, 2015, Ms. Roach conducted one classroom observation of Student in the general education setting. After conducting a nine-minute anecdotal observation, she began momentary time sampling of Student’s behavior. She took behavior data at the top of each one-minute interval, comparing Student’s behavior to a same gender neuro-typical peer in the average range. She concluded Student was on-task 33 percent of 21 intervals as compared to his neuro-typical peer, who was on-task 86 percent of the time. At hearing, Ms. Roach explained that if Student was only maintaining on-task behaviors in 33 percent of intervals, it was very difficult for him to access the curriculum. Ms. Roach’s report cited to a 1990 article from the Journal of Applied Behavior Analysis as authority for conducting momentary time sampling to collect data on behavior.
11. Ms. Roach’s Assessment Workflow notes an observation of Student on August 28, 2015. There was no information in the psychoeducational assessment report about an August 28, 2015 observation. At hearing, she claimed she believed she only conducted one observation, but her testimony was equivocal. She did not observe Student in an unstructured setting during her assessment. According to Ms. Roach, an observation in that setting was unwarranted since she had prior experience working with Student in kindergarten where she observed him and took notes regarding his behaviors. Her prior experience working with Student factored into her assessment of him in October 2015, but that prior experience and her prior observations of Student while he was in kindergarten were not included in her report.
THE TEACHER REPORTS
12. Student’s kindergarten teacher reported Student had a rough start, finished the year with better behavior, and his fine motor skills needed work.
13. Student’s first grade teacher reported he performed approximately five percent of his seatwork and ten percent of whole group instruction. His outbursts were difficult for his peers to handle. He was unable to focus on the points of instruction on any given worksheet without individual instruction from the teacher, and his impulsiveness distracted the entire class. He was socially accepted, but had some difficulties in how to approach friends and engage in social talk on the playground and in class. Without direct one-to-one assistance, he was unable to function at grade level in first grade.
THE MEDICAL REPORTS
14. On September 2, 2015, Student’s psychiatrist wrote a letter to District stating that Student had a current diagnosis of ADHD and that Student’s medication regime consisted of Ritalin every morning and at 3:00 p.m.
15. On September 25, October 9, and October 12, 2015, an optometrist examined Student. In an October 12, 2015 letter to District, the optometrist explained that she was changing her recommendations based on the examination conducted on October 12, 2015. According to the letter, at the October 12, 2015 examination, Student was able to concentrate better and was more cooperative with reading the eye chart. The optometrist concluded that Student did not need glasses, was only mildly nearsighted, and his ability to read the board in the classroom depended on how well he was able to concentrate.
THE ACADEMIC ASSESSMENT
16. On September 4, 2015, Sarah Randle, a District resource support specialist, conducted an academic assessment, which included the Test of Early Reading Ability, Third Edition; the Test of Early Written Language, Third Edition; and the Test of Early Mathematics Ability, Third Edition. Ms. Randle prepared a written report, which included the test results and findings. According to the report, rapport was easily established with Student and he was cooperative throughout the assessment. No test modifications were made and the results were assumed to be valid. Student was slightly distracted, but he was able to stay on task long enough to complete all required testing. Student’s overall reading ability fell in the Very Poor range, with a score of 68; his overall writing ability fell in the Very Poor range with a score of 64; and his overall math ability score fell in the Below the Broad Average range with a score of 68.
17. Pursuant to a written stipulation, Student did not challenge the sufficiency of the psychoeducational assessment based on the sufficiency of the academic assessments or the inclusion in the psychoeducational report of the data from the academic assessment.
THE SCHOOL PSYCHOLOGIST’S PSYCHOEDUCATIONAL TESTING
18. In conducting her psychoeducational evaluation, Ms. Roach considered information obtained from Student’s records, observations, interviews, the Parent Questionnaire, and test results. She did not review the academic assessment report prepared by Ms. Randle, but she did review Student’s scores on the three academic tests administered by Ms. Randle. She offered no persuasive explanation why she did not review Ms. Randle’s report in conducting her assessment. She did not consult with Student’s psychiatrist or counselor, or obtain Student’s medical records.
19. Her assessment included both standardized and informal measures, including the Wechsler Intelligence Scale for Children, Fifth Edition; the Test for Nonverbal Intelligence, Fourth Edition (which was referred to as the TONI); the Beery Developmental Test of Visual-Motor Integration, Sixth Edition; the Test of Auditory Processing Skills, Third Edition; the Motor-Free Visual Perception Test, Third Edition; Conners Rating Scales-Third Edition; the Vineland Adaptive Behavior Scales, Second Edition; a clinical interview of Student; a teacher interview; review of records; and observation of Student. District’s assessments were conducted in Student’s native language, English. The tests were not discriminatory or culturally biased. The effects of environmental, cultural, and economic factors were taken into account and were not considered the sole contributors to Student’s difficulties.
20. Ms. Roach administered the Wechsler and the TONI to determine Student’s cognitive levels. At hearing, she explained that the Vineland was also correlated with the cognitive assessments because it looked at problem-solving and reasoning, and adaptive behaviors. She was inconsistent and unclear in her testimony as to whether she relied on the Vineland for the purposes of determining Student’s cognitive abilities.
21. The Wechsler was a comprehensive clinical instrument for assessing the intelligence of children. It was comprised of 10 primary subtests that were grouped to provide five composite scores and designed to give an overall composite score that represented general intellectual ability, i.e., a full scale intelligence quotient. On the Wechsler, Ms. Roach reported that Student’s composite scores all fell in the Extremely Low range, and his Full Scale IQ score was 51, in the Extremely Low range. Ms. Roach concluded that Student’s score may not accurately depict Student’s overall cognitive and problem-solving abilities due to his behaviors during testing and that “extreme caution” should be used in interpretation of his score. Ms. Roach did not disclose in her report Student’s subtest scores, describe his specific behavior during each subtest or how that behavior affected his score on each subtest.
22. At hearing, Ms. Roach claimed she did not break standardization to administer the Wechsler. She followed the protocols and the manual in administering the Wechsler and was trained in administering it. She selected this test because she wanted a broadband assessment of Student. She was not able to determine Student’s problem-solving and reasoning abilities. She claimed she struggled to complete the Wechsler because of Student’s inattention, and she did not believe the results were accurate because Student’s inattention prevented him from completing the tests with fidelity. She did not write Student’s name on any of the Record Forms for the Wechsler subtests, and at hearing, she was cavalier in addressing this failure.
23. On the Wechsler Block Design subtest, Student did not get two in a row correct, so Ms. Roach had to discontinue the test. In her opinion, Student’s score on the Block Design subtest was not a reflection of Student’s abilities, because he wanted to play. She made a note on the Record Form of “motor shaky” when she observed Student’s hands shaking during the test. Ms. Roach was evasive in her testimony as to whether Student had exhibited a hand tremor, and failed to explain why she did not include this observation in her report. She did not believe that an occupational therapy assessment was warranted at the time of her assessment, but she was unable to articulate any reason for her opinion.
24. Student’s score on the Similarities subtest did not reflect his abilities because he did not participate. He got a raw score of zero. Student’s score on the Matrix Reasoning subtest did not reflect of his abilities because of his inattention. According to Ms. Roach, her findings were the same on the remaining subtests.
25. A “basal” was a stage in a test achieved by meeting a minimum preset protocol criterion on an ability test that contained increasingly difficult items. If a student did not correctly answer enough consecutive questions at the bottom of the scale, there was no valid “basal.” Ms. Roach did not include in her report that Student did not achieve a basal on three of the Wechsler subtests. Repeatedly throughout her testimony, Ms. Roach refused to directly or candidly answer the questions posed to her and she was unable to comprehensively explain the subtest results, which negatively impacted her credibility.
26. The TONI measured a specific component of intelligent behavior by testing an individual’s ability to solve problems without overtly using language. It was ideal for people with linguistic difficulties or who were culturally different. Student obtained a standard score of 74, within the Poor range of intellectual ability. Ms. Roach concluded that attentional difficulties may have negatively impacted Student’s performance. In her report, Ms. Roach’s interpretation of the TONI consisted of two conclusory lines, without any description of Student’s behavior during the administration of the TONI or analysis of the impact of that behavior on the scoring.
27. Ms. Roach administered the TONI because she was usually able to obtain more cooperation from students with attention issues since it was more engaging and shorter. She often paired it with the Wechsler and was trained in its administration. She did not break standardization during testing and followed protocols, but after conducting the assessment, she attempted additional questions, using item-by-item reinforcement in an attempt to obtain cooperation from Student. Student did not achieve a basal of five correct consecutive items. Ms. Roach did not note in her report this after-testing attempt utilizing reinforcement or that Student did not achieve a basal. Student’s scores were not an accurate reflection of his abilities because he refused to participate with fidelity. Ms. Roach was defensive in her answers, which negatively affected her credibility.
28. The Beery provided an estimate of Student’s visual motor processing ability. A student’s performance on this test was often linked to fine motor control, handwriting, and ability to copy information from a book or blackboard. Ms. Roach reported that Student had a raw score of 14 and a standard score of 83, which put him in the Below the Broad Average range in visual motor abilities. At hearing, she explained she was trained in its administration, did not break standardization, and followed protocols. With respect to the score, she believed it was a reasonably accurate reflection of Student’s abilities.
29. The Visual Perception Test was a norm-referenced measure of visual perceptual ability without any motor involvement needed to make a response. Ms. Roach reported Student had a raw score of 14 and a standard score of less than 55, which put him in the Very Low range for visual perceptual ability. Ms. Roach concluded that based on the optometrist’s report, visual acuity was not likely responsible for the low results and that attentional difficulties could not be ruled out as having a negative impact on the results. At hearing, she explained she was trained in the test administration, did not break standardization during testing, and followed protocols. She was not certain if Student’s scores were an accurate reflection of his abilities.
30. The Test for Auditory Processing measured auditory skills necessary for the development, use, and understanding of language commonly utilized in academic and everyday activities. Based on the testing, Ms. Roach concluded that Student did not have the prerequisite attentional skills to participate in a meaningful way. She reported that she discontinued the test because she was unable to administer the test with fidelity. At hearing, she explained she could not determine whether Student had auditory processing difficulties or not. She agreed that a child with an auditory processing disorder could exhibit some of the same behaviors as a student with ADHD, including frustration, attention difficulties, and being distractible.
31. The Vineland measured personal and social capability and covered areas of communication, daily living skills, socialization, and motor skills. On the parent rating scale completed by Parent, Student scored in the Low range in communication and fine motor skills, and his adaptive behavior composite score was in the Moderately Low range. On the teacher rating scale, Student scored in the Low range in communication, Moderately Low in fine motor skills, and his adaptive behavior composite score was in the Low range. These results were included in Ms. Roach’s report.
32. According to Ms. Roach, students who have ADHD scored lower on the Vineland than on the Wechsler, as compared to their typical peers. Student’s score was higher on the Vineland than on the Wechsler, which was unusual. She did not explain this in her report. The entire interpretation of Student’s Vineland scoring was copied and pasted from a computer-generated scoring program, not written by Ms. Roach. Ms. Roach refused to directly respond to a question as to whether it was appropriate practice not to include her own interpretation of the Vineland in her report. Ms. Roach opined that Student had more skill than was reflected on either the Wechsler or the Vineland, and she refused to directly answer the question as to which of these test results was a more accurate reflection of Student’s abilities. Ms. Roach’s testimony was evasive and defensive, and this negatively affected her credibility.
33. The Conners Rating Scale was an assessment of attention deficit/hyperactivity and problem behavior. Both teacher’s and Parent’s responses indicated that Student had Very Elevated scores in the areas of inattention, hyperactivity/impulsivity, and learning problems. Student also had a Very Elevated score for defiance and aggression based on Parent’s response, and a Very Elevated score for peer relations based on his teacher’s response.
34. Ms. Roach administered the Wechsler, the TONI, the Beery and the Visual Perception Test all on the same day despite the difficulties she claimed to have had with Student’s inattention during testing. In her report, Ms. Roach noted that Student’s cooperation waxed and waned throughout the testing process. At times, Student was highly distracted. He looked about the room, and asked questions about items in the room. He vacillated between sitting and standing, shifted posture frequently in the chair, and asked off-topic questions. She did not describe exactly when Student’s attention waxed and when it waned, and during what portions of the testing or on which days Student was highly distracted. Other than general statements about Student’s behavior, Ms. Roach did not provide specific details or analysis regarding Student’s behavior in her report.
35. At hearing, Ms. Roach explained that during testing Student was very friendly and eager, but wanted to play and was very distracted. Ms. Roach claimed she offered Student incentives, used constant redirection and had reinforcement strategies in place during testing; however, this testimony was not believable. This information was not in her report. Her testimony was also inconsistent with her testimony on this point regarding the TONI, where she claimed to have only used reinforcement strategies after Student finished the test.
36. Ms. Roach agreed that distractibility and impulsivity are hallmarks of inattention. She was evasive in her testimony as to whether there were standardized tests to measure attention and whether she administered directly to Student any standardized tests of attention. She agreed that the Wechsler was not a standardized assessment designed to measure attention.
THE FINDINGS REGARDING ELIGIBILITY AND RECOMMENDATIONS
37. Ms. Roach summarized her findings regarding eligibility in her report. She found Student met eligibility criteria for other health impairment due to ADHD based on the Conners Rating Scales; observations of Student; the Parent and teacher interviews, and Student’s medical diagnosis of ADHD.
38. At hearing, Ms. Roach explained that she “primarily” suspected ADHD as Student’s disability, but initially refused to identify any other disabilities she also suspected. She inexplicably claimed she wanted to see the assessment plan in order to determine what disabilities she suspected, as opposed to just reviewing her own report. She ultimately admitted she considered specific learning disability as an eligibility category and wanted to rule out intellectual disability.
39. In her report, Ms. Roach concluded that standardized testing did not reveal a severe discrepancy between achievement and intellectual ability, and that it was exceptionally difficult to determine if Student had a learning disability because attention deficits greatly impacted his ability to meaningfully participate in the assessment process. She did not describe in her report what measure she used for determining Student’s intellectual ability or specifically explain how she was able to conclude that a discrepancy did not exist in light of the unreliability of the results obtained on both the Wechsler and the TONI.
40. At hearing, Ms. Roach explained that one method of determining whether a student had a specific learning disability was by determining if there was a discrepancy between ability and achievement and a processing deficit that explained it. She denied she ruled out that Student had a specific learning disability, and admitted she was unable to make this determination. Ms. Roach claimed she used the standardized testing instruments of the Wechsler and the TONI in applying the discrepancy model, the results of which were both unreliable. Her testimony was unclear as to whether she also relied on alternative means to determine if Student had a specific learning disability. She initially offered that she also looked at adaptive functioning, which she admitted was an alternative measure for measuring intellectual ability, but later contradicted that testimony. She was also tentative in her responses as to whether it would have been appropriate to rely on the Vineland to measure intellectual ability for purposes of determining whether Student had a specific learning disability. According to Ms. Roach, in order to reach an accurate finding as to whether Student had a specific learning disability, she would have required results with fidelity on all tests where attention significantly impacted Student’s ability, including Wechsler, the TONI, the Visual Perception Test, and the Test of Auditory Processing. With the benefit of hindsight, Ms. Roach did not know whether she would have administered different assessments to Student to get reliable scores of intellectual ability. She agreed that the cognitive tests were more engaging than academic tests. Ms. Roach was flippant, sarcastic, or evasive in some of her responses, which negatively affected her credibility.
41. Ms. Roach considered intellectual disability as an eligibility category. In her report, she stated that although Student met eligibility criteria for intellectual disability, including low cognitive scores and deficits in adaptive behavior, the testing results may not have accurately depicted Student’s problem-solving and reasoning skills due to extremely high levels of distractibility. At hearing, Ms. Roach was evasive as to whether she ruled out intellectual disability as an eligibility category, but claimed she did not believe it was “the issue” and had no difficulty making that determination because she had a lot of experience with Student.
42. Ms. Roach did not consider anxiety disorder or an adjustment disorder as suspected disabilities. At hearing, she admitted Student’s difficulty sleeping at night, outbursts, defiance, and aggression could be a symptom of anxiety disorder or adjustment disorder or could be suggestive of ADHD. She also agreed that the Conners Rating Scales did not differentiate between ADHD and other disorders, and that there were other behavioral assessments that differentiated between these disorders.
43. Student’s educational needs could not be met without special education and related services. In her report, Ms. Roach made educational programming recommendations. Ms. Roach refused to directly answer the question posed to her and appeared evasive in her response as to whether she was able to gather enough information from her assessment to make educational programming recommendations regarding Student. She also agreed she might have made different educational recommendations if she had found Student had a specific learning disability. She was also initially very hesitant in responding to the question as to whether at the time of the October 2015 IEP there was sufficient information in her report for the IEP team to make decisions regarding Student’s needs. Ms. Roach’s evasiveness and hesitancy in answering the questions posed to her adversely impacted her credibility.
44. On October 23, 2015, Ms. Roach sent a copy of the draft of her psychoeducational report to Parents. Ms. Roach also spoke to Mother, but could not recall what she said during this conversation.
THE OCTOBER 28, 2015 IEP TEAM MEETING
45. Student’s Triennial IEP was held on October 28, 2015. All required members of the IEP team attended. Parents received a copy of the Notice of Procedural Safeguards and Parents’ Rights. The IEP team reviewed Ms. Roach’s psychoeducational assessment report dated October 28, 2015, and discussed Student’s eligibility, services, goals, and placement. District’s offer of special education and related services included placement in a special day class at Cummings Valley Elementary School, mainstreaming for 29 percent of the school day during unstructured time and some academics, 60 minutes per month of speech and language services, and extended school year services. Mother consented to the IEP.
THE SPECIAL EDUCATION CLASS AT CUMMINGS VALLEY
46. Barbara Johnston was Student’s special day class teacher at Cummings Valley for both first and second grades. She had been a special day class teacher with District since 2015. She held a master’s degree in special education, a certificate in autism, and credentials to teach students with mild to moderate and moderate to severe disabilities. Prior to working for District, she was a special education teacher for three years and a special education aide for five years.
47. Ms. Johnston’s first grade class consisted of students in kindergarten through second grade. There were about 14 students. There were two full-time aides in the classroom. Student was fun loving and determined. He preferred giving verbal responses as opposed to written responses, lost interest in anything that was time consuming and preferred tasks with rewards. In Ms. Johnston’s opinion, Student’s handwriting was illegible when he rushed through his assignments, but when he took his time and was quickly rewarded, he was able to write appropriately to his age and grade level. Ms. Johnston testified inconsistently as to whether she had concerns related to Student’s handwriting or fine motor skills, which adversely affected her credibility.
2016-2017 School Year – Second Grade
THE SPECIAL EDUCATION CLASS AT CUMMINGS VALLEY
48. Ms. Johnston’s second grade class consisted of students in kindergarten through third grade. There were 13 students and two to four aides. The curriculum was much more advanced in second grade as compared to first grade and more was expected of Student in second grade. He preferred puzzles to working on academics. Ms. Johnston was able to successfully redirect Student, more on some days than on other days.
49. At hearing, Ms. Johnston unpersuasively claimed she had no concerns about Student’s fine motor skills in second grade. She admitted Student’s handwriting became progressively worse after first grade. Her testimony was also inconsistent as to whether Student’s handwriting samples were reflective of Student’s current handwriting ability. Her testimony was confusing as to whether Student’s behaviors and the level of redirection he required were typical of a child with ADHD. She claimed that when Student took his medication his ability increased, but her testimony was not convincing because she could not recall any specific instance Student did not take his medication during the school week. She did not believe Student required occupational therapy services, but was uncertain if he could tie his shoes or unbutton his shirt. The contradictions in Ms. Johnston’s testimony and her unfamiliarity with some of Student’s abilities adversely impacted her overall credibility.
THE GENERAL EDUCATION CLASSROOM AT CUMMINGS VALLEY
50. Keely Loe was Student’s second grade general education teacher at Cummings Valley. She had a bachelor’s degree in Social Science Field Studies from University of California at Berkeley, and had a multiple subject teaching credential from University of California at Irvine. She had been employed with District since 1995, and had also taught first and third grades.
51. Between September and November 15, 2016, Student was mainstreamed in Ms. Loe’s general education classroom accompanied by an aide for 30 to 90 minutes per day. He worked on academics, physical education, and computer laboratory. There were 24 students in the classroom and one teacher. Student was very distractible during academic work. Ms. Loe did not spend a lot of time working one-on-one with Student on his handwriting, but because he spent 20 percent of his time in the classroom writing, she was able to observe his handwriting skills. Student was not easy to redirect, but both Ms. Loe and his aide had some success in redirecting him.
PARENTS’ REQUEST FOR AN INDEPENDENT EDUCATIONAL EVALUATION
52. In September 2016, Ms. Johnston told Mother that Student was working at a kindergarten level. After conducting research, Mother learned she could ask for an independent educational evaluation. Because the October 2015 psychoeducational assessment report stated that the testing results were “highly suspect,” Mother had concerns about the reliability of the scores. She did not believe the October 2015 psychoeducational assessment was an accurate representation of Student’s abilities and thought it was important for Student’s goals to reflect his true abilities.
53. Dennis Ferrell had been District’s Director of Programs since February 2016. His duties included oversight of District’s special education department, including Ms. Roach. From 2004-2016, he worked as a program manager for the special education division for the Bakersfield City School District, and from 1989 to 2004, he was a District high school special education teacher. He held a master’s degree in special education and credentials in special education and administrative services. He never worked directly with Student and was only familiar with Student through review of educational records.
54. On October 4, 2016, Parents sent an email to Mr. Ferrell requesting an independent psychoeducational evaluation based on Parents’ disagreement with the results of District’s October 2015 psychoeducational assessment. Parents quoted from Ms. Roach’s report that the test results should be considered “highly suspect” due to Student’s significant distractibility during testing. Parents stated they would like an accurate report and requested a postponement of Student’s IEP team meeting scheduled for October 24, 2016 IEP until after completion of the independent assessment.
55. On October 5, 2016, Mr. Ferrell responded by email acknowledging receipt of Parents’ request for an independent assessment. He informed Parents that District had a reasonable amount of time to respond the request, and that it could elect to either fund the independent assessment or file for due process to defend District’s assessment. He also informed Parents that an independent assessment was not warranted if Parents’ request was based on their belief that Student had “particular additional areas of suspected disabilities.” Instead, he explained that the IEP team would convene and discuss those concerns and move forward as appropriate. He stated that he would contact Parents as soon as District made a decision about Parents’ request for an independent evaluation, unless Parents requested an IEP meeting.
56. On October 6, 2016, Parents informed Mr. Ferrell that they did not suspect additional disabilities, but that Student had not made progress in school, and reiterated that an independent evaluation was necessary because the test results were inconclusive.
57. By email dated October 6, 2016, Mr. Ferrell asked Parents to clarify what they meant in asserting that the test results were inconclusive. By email the same day, Parents responded by informing Mr. Ferrell that they disagreed with District’s assessment, that there was no other disability to be assessed, and they requested, for the third time, an independent educational evaluation.
58. At hearing, Mr. Ferrell testified inconsistently as to his understanding of why Parents objected to District’s psychoeducational assessment. He claimed he had no understanding as to why Parents disagreed with the assessment, but later stated he understood that Parents objected because they believed District’s assessment was inconclusive and Student had not made progress in his current placement. He unpersuasively claimed that Parents’ response confused him, that he did not understand why Parents wanted an independent evaluation if there were no further disabilities to be assessed. He also testified evasively as to whether assessments were used to determine matters other than eligibility and placement. Mr. Ferrell’s testimony was not believable, and the inconsistencies in his testimony together with his evasiveness negatively impacted his overall credibility.
59. On October 18, 2016, Parents sent an email to Mr. Ferrell inquiring about the status of their request for an independent evaluation. By separate email the same day, Parents requested that within five days, District produce copies of Student’s educational records and other records that personally identified Student.
60. On October 18, 2016, Mr. Ferrell sent Parents an email informing them that District had not yet made a decision regarding Parents’ request for an independent evaluation and asked if Parents intended to take legal action against District.
61. On October 20, 2016, Parents sent an email to Mr. Ferrell informing him that they were anxious to begin the independent evaluation. They explained that the sooner they obtained answers, the better chance Student had to catch up to his peers and that they were seeking Student’s records to accurately track his progress. They also informed Mr. Ferrell that since they were all on the same team, they had not thought about retaining counsel, but asked him if it was something they needed to do.
62. To respond to Parents’ request for an independent educational evaluation, Mr. Ferrell spoke to Ms. Roach and reviewed Student’s October 2015 assessment and IEP. He sent a copy of the assessment report to District’s counsel and spoke to District Superintendent Susan Andreas-Bervel. The Superintendent was the final decision maker regarding all parents’ requests for independent educational evaluations. Mr. Ferrell met with the Superintendent weekly and made recommendations as to whether District should file for due process to defend its assessments or fund independent evaluations.
63. District was a member of the Kern County Consortium Special Education Local Plan Area. The Kern County Consortium SELPA published Independent Educational Evaluation Guidelines. The Guidelines stated that the public agency may ask for the parent’s reason for objecting to the public evaluation; however, the explanation could not be required and the public agency could not unreasonably delay either providing the independent evaluation at public expense or initiating a due process hearing to defend the public agency’s evaluation. The suggested cost for a multidisciplinary independent assessment was listed in the Guidelines as $3,500, and there was otherwise no suggested amounts listed for any other type of assessments.
64. On November 4, 2016, District sent a Prior Written Notice to Parents, refusing Parents’ request for an independent evaluation because District believed its assessment was complete and accurate. Included with the Prior Written Notice was a Notice of Procedural Safeguards and Parents’ Rights.
65. According to Mr. Ferrell, he was familiar with the timelines for responding to requests for independent educational evaluations. He stated that District had 15 calendar days to respond in writing to Parents’ request, either agreeing to fund an independent evaluation by offering an assessment plan, or issuing a prior written notice denying the request and filing for due process to defend its assessment within a reasonable period of time. His testimony that District complied with the 15-day deadline he described at hearing was inconsistent with the documentary evidence and therefore, was not credible.
THE OCTOBER 24, 2016 IEP
66. On October 24, 2016, District members of the IEP team met to convene Student’s IEP team meeting. The team waited for Mother to attend, and attempted to reach her by telephone. The team agreed to continue the meeting to a mutually agreeable date.
67. On November 15, 2016, Student’s annual IEP team meeting was convened with Parents in attendance. District provided Parents a Notice of Procedural Safeguards and Parents’ Rights. The team discussed Student’s present levels of performance, goals, placement, removal of aide during mainstreaming, and the amount of mainstreaming. Mother did not raise concerns regarding District’s 2015 psychoeducational assessment.
68. The IEP team discussed concerns regarding Student’s handwriting, spacing, and legibility. Ms. Loe reported that Student still struggled in writing composition, printing, and neatness and stated that Student should be assessed by an occupational therapist. Ms. Loe was alarmed with Student’s printing. The size of Student’s printing was larger than she typically observed in second graders and he did not adhere to the writing line. At hearing, she explained that by second grade, students knew where to place letters on a line. The IEP team agreed that District’s occupational therapist would be consulted for an assessment.
69. Mother credibly testified that District Administrator Traci Minjares told Parents that Student would be assessed in the area of occupational therapy within 60 days of Parent’s written consent for the evaluation. Her testimony was corroborated by Ms. Loe, who recalled that Ms. Minjares told Parents that the screening by the occupational therapist would occur shortly after the IEP team meeting.
70. According to Mr. Ferrell, District’s practice was for a student’s case manager to contact Mr. Ferrell regarding the IEP team recommendation, so that he could contact the occupational therapist, who would conduct observations and make a recommendation as to whether a formal assessment was necessary. Mr. Ferrell was never contacted by any member of the IEP team.
71. The IEP team discussed mainstreaming. The team decided it was not appropriate for Student to be in the general education classroom for common core academic curriculum subjects like reading. In addition, because of District’s change to a block schedule, an aide during mainstreaming was no longer necessary since Student did not require an aide for mainstreaming in other subjects within the activity block.
72. The IEP was dated October 24, 2016. District’s offer of FAPE included placement in a special day class at Cummings Valley, mainstreaming for 57 percent of the school day for electives, field trips, assemblies, and unstructured time, along with speech and language services and consultation, and extended school year. Parents consented to the IEP.
DISTRICT’S DUE PROCESS FILING
73. District’s Thanksgiving break took place November 23 through 27, 2016, and there was no school during this period.
74. By email dated November 23, 2016, Mother acknowledged that on November 4, 2016, she received District’s denial of her request for an independent educational evaluation and inquired whether District would file a due process complaint.
75. On November 25, 2016, Mr. Ferrell sent an email informing Mother that District was required to file for due process to defend its assessment unless she withdrew her request for an independent evaluation. The email also stated that District was still willing to reassess Student’s IQ as an option to Parents’ request for an independent assessment. At hearing, Mr. Ferrell claimed that prior to November 4, 2016, he had offered to have District reassess Student’s IQ.
76. By email dated November 28, 2016, Mother requested that Mr. Ferrell inform her as to when District intended to file for due process so she had time to research the due process procedure. Mr. Ferrell replied the same day, informing Mother that the matter had already been referred to District’s legal counsel for filing and he did not know exactly when the case would be filed. He also informed her that because of her disagreement with District’s assessment and her refusal to allow District to complete additional testing, District was required to file for due process. He offered to meet with Mother to discuss the due process procedure and answer her questions.
77. On February 3, 2017, District filed a due process complaint to defend its psychoeducational assessment.
DISTRICT’S OCCUPATIONAL THERAPIST’S OBSERVATIONS
78. In April 2017, Sara Ortiz-Davitt received a request from Mr. Ferrell to conduct an observation of Student. Ms. Ortiz-Davitt had been District’s occupational therapist since August 2016. She held a master’s degree in occupational therapy and she had been a licensed occupational therapist since 2008. As an occupational therapist, she had reviewed hundreds of writing samples.
79. On May 1, 2017, Ms. Ortiz-Davitt spoke to Mother about her concerns regarding Student’s fine motor skills, including Student’s handwriting. She reviewed some of Student’s handwriting samples created during the period from March 2016 to April 2017.
80. Ms. Ortiz-Davitt spoke to Ms. Johnston, reviewed Student’s work samples, and conducted an informal observation of Student in the occupational therapy room on May 2, 2017. Student demonstrated good manual dexterity and was able to perform the three pinched grasp patterns in functional activities. In her opinion, Student wrote with above 80 percent consistency in letter formation, legibly, and on the line with consistent spacing. When he worked independently, his handwriting was “more illegible” and the spacing and line orientation was inconsistent.
81. Based on her informal observation of Student, she concluded that a formal occupational therapy assessment was warranted. At hearing, Ms. Ortiz-Davitt explained that her observation was not a formal assessment of Student. She never spoke to Ms. Loe and conducted no standardized tests. Her recommendation for a formal assessment was related to Student’s overall handwriting in order to be thorough, and to examine underlying factors that could be affecting Student’s handwriting in regards to spacing and line orientation, especially because his attention was so poor. She also agreed that line orientation and spacing could be a visual perception issue, deficits in this area could impede learning, and that an occupational therapy assessment should include measures to test Student’s visual perception skills and visual motor skills.
82. Ms. Ortiz-Davitt reviewed the October 2015 psychoeducational evaluation. She agreed that Student’s October 2015 score on the Visual Perception Test could have been part of a reason to suspect an occupational therapy condition and that further investigation was necessary to determine if Student had a deficit in the area of visual perception. According to Ms. Ortiz-Davitt, the combination of the following information from the October 2015 psychoeducational assessment should have raised a suspicion of a deficit in the area of occupational therapy: Student’s score on the Visual Perception Test; the kindergarten teacher’s comment that Student’s “fine motor need work”; the parent and teacher fine motor scores on the Vineland; Student’s score on the Beery; and the “motor shaky” note on the Wechsler protocol.
Student’s Expert – Dr. Gary Scott Katz
83. Gary Scott Katz was an associate professor at California State University Northridge since 1998. He had a doctorate degree in clinical psychology. He taught graduate classes in child psychological assessment, child psychopathology, and behavior analysis. He had been licensed as a clinical psychologist in California since 2001 and maintained a private practice since that time, specializing in children, adolescents and families with a range of learning, emotional and behavioral concerns. He had been an independent educational evaluator since June 2015 and had conducted approximately 10 independent educational evaluations. Dr. Katz did not hold any credentials and had no teaching experience at the elementary school level.
84. Parents asked Dr. Katz to render an opinion on District’s 2015 psychoeducational evaluation. He did not conduct an independent evaluation of Student. In rendering his opinion, he reviewed District’s psychoeducational report and speech assessment, educational records, and test protocols. He had concerns about Ms. Roach’s cognitive assessment results, the behavioral observations during testing, and the classroom observations. District’s assessment was also unnecessarily narrow in scope and did not cover other possible co-occurring concerns such as anxiety.
85. In Dr. Katz’s opinion, it was exceptionally rare for a child Student’s age to have cognitive scores as low as Student’s scores that are valid. It could not be determined from reading the assessment report if Student’s scores were low because the testing was invalid or Student had low ability, or both. It was unclear from reading the report how much Student’s inattention impacted testing and in what manner it impacted the testing. It was unusual not to report the subtest scaled scores. The standard of practice was to describe how distractibility impacted the subtest scores if a student was highly distractible, which Ms. Roach did not do. Attention waxing and waning had different effects on each of the Wechsler subtests. Because Ms. Roach did not provide a comprehensive description of Student’s specific behavior during each subtest and how Student’s behavior impacted each score, the impact of Student’s inattention during testing was unknown.
86. As compared to academic testing, most children found the cognitive testing more interesting and it was easier to obtain their cooperation during cognitive testing. Since Student was able to stay on task to complete academic testing, this suggested that it was possible for Student to stay on task long enough to obtain reliable cognitive scores. Dr. Katz persuasively explained that because Ms. Roach administered four of the tests on the same day, Student may have been fatigued, which could have suppressed his scores, as would distractibility not immediately addressed before further testing. For example, test breaks and other reinforcement strategies should have been employed to help Student sustain attention in order to obtain reliable and valid scores. Dr. Katz assumed Ms. Roach did not take breaks because there was no documentation in Ms. Roach’s report to this effect. In addition, Ms. Roach could have administered a direct test of attention before administering the cognitive tests to determine if Student had the requisite level of attention that day for intelligence testing. If not, the cognitive tests should have been administered on another day. Instead of administering the cognitive tests on the same day, Ms. Roach could have administered the Wechsler or the TONI or additional cognitive tests on another day when Student might have been more focused. However, Dr. Katz was unconvincing that Ms. Roach should have delayed her cognitive assessment until after Student’s medical treatment was optimized, because he did not address assessment timelines.
87. According to Dr. Katz, because Student failed to obtain a basal on the TONI and on three of the Wechsler subtests, there was no meaningful measure of Student’s ability, which placed at issue the validity of the cognitive tests as a whole. Ms. Roach should have reported Student’s failures to obtain a basal and the additional testing she conducted on the TONI. Obtaining a basal during testing was critical in determining if there was an adequate sampling of Student’s intellectual ability during testing.
88. Dr. Katz was critical of the methodology Ms. Roach employed during her classroom observation during momentary time sampling, but his testimony on this issue was largely unconvincing. His testimony that Ms. Roach failed to include operational definitions for on-task behaviors in her report and that she improperly relied on a 1990 article regarding momentary time sampling was not persuasive. He was uncertain of the interval examined in the 1990 article, and the more recent 2016 research he found more convincing was published after Ms. Roach conducted her assessment. He agreed Ms. Roach’s one minute sampling methodologically was reasonably done, and he did not know if the interval she chose was appropriate for Student because he had never seen Student.
89. In Dr. Katz’s opinion, Ms. Roach should have assessed Student for a generalized anxiety disorder or an adjustment disorder, i.e., was there a particular stressor that made Student feel anxious or depressed or made him more active. Parent’s concerns with Student’s temper at home should have alerted Ms. Roach that Student might have a co-occurring condition of anxiety or an adjustment disorder. More often than not, students with ADHD had a co-occurring condition. Some symptoms of anxiety disorder could have looked like symptoms of an attention disorder. The Conners Rating Scales were designed to be a narrowly focused measure of predominantly attention disorders, peer relations, learning problems, executive functions, defiance, and aggression. The Conners did not measure anxiety. There were better measures than the Conners, such as the Achenbach System of Empirically Based Assessment, which measured attention concerns and broadly captured other social emotional concerns such as anxiety.
90. Although Ms. Roach considered specific learning disability and intellectual disability eligibility categories, Dr. Katz did not believe either disability was properly ruled out by Ms. Roach. For example, since Ms. Roach failed to obtain a valid measure of Student’s cognitive ability, it was not possible for her to measure the differential between ability and achievement.
91. Dr. Katz was persuasive in his criticism of Ms. Roach’s interpretation of the Vineland. The interpretation largely consisted of a boilerplate interpretation of numbers, and did not comprehensively describe what Student could do in the different areas of adaptive functioning. For example, the test protocols consisted of individual items that made up play and leisure time; however, the report merely stated that play and leisure time was a weakness for Student as compared to other socialization skills, but did not describe what Student was doing during play and leisure time. Because intellectual disability was a suspected disability, Student’s strengths and weaknesses should have been specifically documented in the report.
92. Dr. Katz had administered the Beery and the Visual Perception Test, and was generally familiar with what these tests were designed to measure. The Beery, the Visual Perception Test, and observations with motor shakiness were relevant to whether Student had fine motor control of his hands, which had educational implications for handwriting and other hands-on classroom activities. Student should have been referred for assessment by an occupational therapist in October 2015 based on the comments from Student’s kindergarten teacher recorded in the assessment that his “fine motor needs work;” Parent’s Low and Student’s teacher’s Moderately Low Vineland scores for fine motor skills; Student’s scores on the Beery and the Visual Perception Test; and Ms. Roach’s notation of “motor shaky” on the Block Design subtest Wechsler Record Form. In Dr. Katz’ opinion, handwriting issues regarding legibility or spacing further supported referral to an occupational therapist.
District’s Expert – Steven D. Shapiro
93. Steven D. Shapiro had been a school psychologist for Kern County Superintendent of Schools since 1999. He held a master’s of education degree in school psychology and a pupil personnel services credential. He had been an adjunct professor at the graduate level at National University since 2006. Ms. Roach was one of his students. He had conducted 3,000 to 4,000 assessments.
94. Mr. Shapiro reviewed Ms. Roach’s assessment, the due process complaint, the Parent Questionnaire and the Wechsler protocols. According to Mr. Shapiro, given Student’s ADHD diagnosis, a school psychologist assessing Student should have considered the possibility he might qualify for special education under other health impairment, and explored Student’s ability to concentrate and sustain attention in school. The ADHD diagnosis would not necessarily have caused an assessor to suspect comorbidity, such as an anxiety disorder or adjustment disorder, because those conditions do not always occur together. He agreed that behavior problems could have been reflective of different disabilities and that children with ADHD had a high incidence of comorbidity, such as specific learning disability. A determination of whether those were areas of concern would be obtained through observation and interviews with a student’s parents and teacher. In Mr. Shapiro’s opinion, nothing stated in Ms. Roach’s report about the unstructured observation or in the Parent Questionnaire would have caused suspicion of anxiety. He later contradicted that testimony, admitting that the behaviors Parents reported at home could have been suggestive of an anxiety disorder and that anyone placed in Student’s situation would have been anxious. According to Mr. Shapiro, Student demonstrated frustration, which appeared tied to his lower skills, lower cognitive ability, and problems with attention; and he unpersuasively opined that until these problems were rectified, it was not appropriate to look at rating scales which measured anxiety. He agreed that the Conners was not used to rule out an anxiety disorder; however, there was a section on the Conners that assessed behavioral disorders such as an adjustment disorder.
95. Mr. Shapiro credibly testified that it was not appropriate to wait for medication optimization before Student was assessed because school districts were tasked with determining a student’s present levels of performance.
96. In Mr. Shapiro’s opinion, momentary time sampling in one-minute intervals was appropriate. Ms. Roach adequately defined off-task behavior and a description of on-task behavior was not required in her report because the focus was on off-task behavior.
97. Mr. Shapiro unconvincing opined that administration of the Wechsler and the TONI on the same day was appropriate because Student likely completed the Wechsler very quickly. He was hesitant when asked if Ms. Roach’s selection of the Wechsler was appropriate, and conceded that the Wechsler was probably too long. He admitted that students with ADHD preferred cognitive tests to academic testing and there were strategies that could have been employed to obtain intelligence scores that were not highly suspect, including the correct setting, breaks or conversations during the assessment. Based on Student’s ability to focus and attend during Ms. Randle’s academic testing, he admitted it was possible to conclude that Student was capable of the level of attention required for cognitive testing, and more emphasis should have been placed on estimates of Student’s ability and functioning on the days he was more focused. Mr. Shapiro was evasive, inconsistent and unpersuasive in his testimony as to whether Ms. Roach should have and did conduct a direct test of attention prior to her administration of the cognitive assessments to determine if Student had the requisite level of attention for administration of cognitive testing. This negatively affected his credibility on this issue.
98. Mr. Shapiro agreed that Student’s Wechsler and TONI scores were highly suspect. An IQ of 51 was exceptionally rare. The TONI was probably a better measure of Student’s cognitive level because it was a shorter test and therefore removed some of the attentional problems. He was uncertain whether Student’s Wechsler score of 51 was a valid measure of Student’s cognitive abilities, but later admitted there was considerable evidence that Student’s IQ was at least 74, the score Student obtained on the TONI. He agreed that Student’s IQ could be higher than 74 given Ms. Roach’s interpretation that attentional difficulties may have negatively impacted Student’s performance on the TONI.
99. Ms. Roach’s interpretation of the TONI in her report was insufficient. Mr. Shapiro typically included a more thorough interpretation of cognitive tests like the TONI than that provided by Ms. Roach, to make the material more accessible to parents. Mr. Shapiro’s initial testimony on this issue was not candid and it appeared he did not want to find fault with the brevity of Ms. Roach’s interpretation of the TONI, which lessened his overall credibility.
100. Ms. Roach’s interpretation of the Vineland was insufficient. Although Mr. Shapiro was reluctant to criticize Ms. Roach’s report, he admitted that Ms. Roach’s use of a computer-generated interpretation of the Vineland without including her own analysis of the results was inappropriate. The computer-generated interpretation was merely a collection of Student’s scores and did not otherwise provide specific individual information about Student.
101. Ms. Roach’s omission from her report of Student’s Wechsler subtest scores and the failures to obtain a basal was inappropriate. Although Mr. Shapiro claimed that Ms. Roach’s omission of Student’s Wechsler subtest scores was appropriate, he was impeached on this point. He agreed that the scaled scores on the subtests should have been reported when there was subtest scatter, i.e. performance was uneven or where there were hidden strengths or weaknesses. He admitted there was some scatter on Student’s subtests, and was unable to comprehensively or persuasively explain why the subtest scores were appropriately left out of the report. He also stated that a raw score of zero on a subtest was always relevant and should always be reported, although he later attempted to contradict that testimony. In reviewing an assessment report, Mr. Shapiro would have wanted to know if the child did not achieve a basal on a given test. The fact that no basal was obtained on the TONI might have affected reliability of the score. If a student was unable to reach a basal level on three of the ten Wechsler subtests, it was important to report this in the assessment report and explain it to a student’s parents. When a student did not have basal level, it was unknown if the student understood what was being asked of him, and there was no reliable estimate of the student’s ability.
102. Mr. Shapiro claimed he did not believe it was necessary for Ms. Roach to describe Student’s individual behavior during each subtest because Student’s behavior did not vary during the administration during the Wechsler; however, he was unable to explain why he believed Student’s behavior did not vary during administration of the subtests, and then he appeared to retract his prior statement. Mr. Shapiro’s inability to comprehensively explain his opinions and the inconsistencies in his testimony regarding the reporting on subtests negatively impacted his overall credibility.
103. In Mr. Shapiro’s opinion, Student’s scores on the Beery were insufficient to support a referral for an occupational therapy assessment. Mr. Shapiro’s opinion was not persuasive in establishing that an occupational assessment was not warranted in October 2015 because his opinion was not based on the totality of information available to District in October 2015.
104. Mr. Shapiro agreed with Ms. Roach’s opinions regarding eligibility and that educational programming recommendations might differ depending on a student’s eligibility and unique needs. He agreed that he could not determine from Ms. Roach’s report which cognitive test she relied upon for purposes of determining specific learning disability, or whether she relied on adaptive measures. If he had conducted the assessment, he would have compared the results of the TONI to Student’s academic achievement and disregarded the Wechsler results.
LEGAL AUTHORITIES AND ANALYSIS
Introduction – Legal Framework under the IDEA2
2 Unless otherwise indicated, the legal citations in the introduction are incorporated by reference into the analysis of each issue decided below.
3 All references to the Code of Federal Regulations are to the 2006 version.
1. This hearing was held under the Individuals with Disabilities Education Act, its regulations, and California statutes and regulations intended to implement it. (20 U.S.C. § 1400 et seq.; 34 C.F.R. § 300.1 (2006)3 et seq.; Ed. Code, § 56000, et seq.; Cal. Code. Regs., tit. 5, § 3000 et seq.) The main purposes of the IDEA are: (1) to ensure that all children with disabilities have available to them a free appropriate public education that emphasizes special education and related services designed to meet their unique needs and prepare them for employment and independent living, and (2) to ensure that the rights of children with disabilities and their parents are protected. (20 U.S.C. § 1400(d)(1); see Ed. Code, § 56000, subd. (a).)
2. A FAPE means special education and related services that are available to an eligible child at no charge to the parent or guardian, which meet state educational standards, and conform to the child’s individualized education program. (20 U.S.C. § 1401(9); 34 C.F.R. § 300.17.) “Special education” is instruction specially designed to meet the unique needs of a child with a disability. (20 U.S.C. § 1401(29); 34 C.F.R. § 300.39; Ed. Code, § 56031.) “Related services” are transportation and other developmental, corrective, and supportive services that are required to assist the child in benefiting from special education. (20 U.S.C. § 1401(26); 34 C.F.R. § 300.34; Ed. Code, § 56363, subd. (a).) In general, an IEP is a written statement for each child with a disability that is developed under the IDEA’s procedures with the participation of parents and school personnel that describes the child’s needs, academic and functional goals related to those needs, and a statement of the special education, related services, and program modifications and accommodations that will be provided for the child to advance in attaining the goals, make progress in the general education curriculum, and participate in education with disabled and non-disabled peers. (20 U.S.C. §§ 1401(14), 1414(d); Ed. Code, § 56032.)
3. In Board of Education of the Hendrick Hudson Central School Dist. v. Rowley (1982) 458 U.S. 176, 201 [102 S.Ct. 3034, 73 L.Ed.2d 690] (“Rowley”), the Supreme Court held that “the ‘basic floor of opportunity’ provided by the [IDEA] consists of access to specialized instruction and related services which are individually designed to provide educational benefit to” a child with special needs. Rowley expressly rejected an interpretation of the IDEA that would require a school district to “maximize the potential” of each special needs child “commensurate with the opportunity provided” to typically developing peers. (Id. at p. 200.) Instead, Rowley interpreted the FAPE requirement of the IDEA as being met when a child receives access to an education that is reasonably calculated to “confer some educational benefit” upon the child. (Id. at pp. 200, 203-204.) The Ninth Circuit Court of Appeals has held that despite legislative changes to special education laws since Rowley, Congress has not changed the definition of a FAPE articulated by the Supreme Court in that case. (J.L. v. Mercer Island School Dist. (9th Cir. 2010) 592 F.3d 938, 950 [In enacting the IDEA 1997, Congress was presumed to be aware of the Rowley standard and could have expressly changed it if it desired to do so.].) Although sometimes described in Ninth Circuit cases as “educational benefit,” “some educational benefit” or “meaningful educational benefit,” all of these phrases mean the Rowley standard, which should be applied to determine whether an individual child was provided a FAPE. (Id. at p. 951, fn. 10.) In a recent unanimous decision, the United States Supreme Court also declined to interpret the FAPE provision in a manner that was at odds with Rowley’s analysis, and clarified FAPE as “markedly more demanding than the ‘merely more than the de minimus test’ . . .” (Endrew F. v. Douglas School Dist. RE-1 (2017) 580 U.S.___ [137 S.Ct. 988, 1000].) School districts must “offer a cogent and responsive explanation for their decisions that shows the IEP is reasonably calculated to enable the child to make progress appropriate in light of his circumstances.” (Id. at p. 1002.)
4. The IDEA affords parents and local educational agencies the procedural protection of an impartial due process hearing with respect to any matter relating to the identification, evaluation, or educational placement of the child, or the provision of a FAPE to the child. (20 U.S.C. § 1415(b)(6), (f); 34 C.F.R. § 300.511; Ed. Code, §§ 56501, 56502, 56505; Cal. Code Regs., tit. 5, § 3082.) The party requesting the hearing is limited to the issues alleged in the complaint, unless the other party consents. (20 U.S.C. § 1415(f)(3)(B); Ed. Code, § 56502, subd. (i).) Subject to limited exceptions, a request for a due process hearing must be filed within two years from the date the party initiating the request knew or had reason to know of the facts underlying the basis for the request. (20 U.S.C. § 1415(f)(3)(C), (D); Ed. Code, § 56505, subd. (l).) At the hearing, the party filing the complaint has the burden of persuasion by a preponderance of the evidence. (Schaffer v. Weast (2005) 546 U.S. 49, 56-62 [126 S.Ct. 528, 163 L.Ed.2d 387]; see 20 U.S.C. § 1415(i)(2)(C)(iii) [standard of review for IDEA administrative hearing decision is preponderance of the evidence].) In Student’s case, Student, as the complaining party, bears the burden of proof, and in District’s case, District bears the burden of proof.
Student’s Issue 1(a): Failing To Appropriately Assess Student In The Area Of Occupational Therapy After District’s October 2015 Psychoeducational Evaluation.
5. Student contends that the October 28, 2015 psychoeducational evaluation put District on notice that Student was exhibiting symptoms in the areas of fine motor, visual-perceptual skills and/or visual-motor skills, and the totality of the information obtained should have caused District to suspect a disability and perform an occupational therapy assessment. Student argues that District’s failure to assess him deprived Parents of vital information necessary for meaningful participation in the IEP process.
6. District contends that it assessed Student in all areas of suspected disability. District argues that the results of the Beery and Visual Motor Integration tests did not warrant an occupational therapy assessment, and given Student’s attention difficulties, there was no reason to believe Student’s low scores were related to occupational therapy factors affecting his educational performance.
7. Before any action is taken to place a student with exceptional needs in a program of special education, an assessment of the student’s educational needs must be conducted. (20 U.S.C. § 1414(a)(1)(A); Ed. Code, § 56320.) An assessment may be initiated by request of a parent, a State educational agency, other State agency, or local educational agency. (20 U.S.C. § 1414(a)(1)(B); Ed. Code, §§ 56302, 56029, 56506, subd. (b).)
8. The district must ensure that “the child is assessed in all areas of suspected disability.” (20 U.S.C. § 1414(b)(3)(B); Ed. Code, § 56320, subd. (f).) A disability is “suspected,” and a child must be assessed, when the district is on notice that the child has displayed symptoms of that disability or that the child may have a particular disorder. (Timothy O. v. Paso Robles Unified School Dist. (9th Cir. 2016) 822 F.3d 1105, 1119.) Such notice may come in the form of concerns expressed by parents about a child’s symptoms, opinions expressed by informed professionals, or other less formal indicators, such as the child’s behavior. (Id. at pp. 1119-1121 [citing Pasatiempo by Pasatiempo v. Aizawa (9tH Cir. 1996) 103 F.3d 796 and N.B. v. Hellgate Elementary School Dist. (9th Cir. 2008) 541 F.3d 1202].) Once a school district has notice that a child has displayed symptoms of a covered disability, the district cannot circumvent its responsibility to assess by way of informal observations, nor can the subjective opinion of a staff member dispel such reported suspicion. (Timothy O., supra, 822 F.3d at p. 1119.)
9. The threshold for suspecting that a child has a disability is relatively low. (Department of Educ., State of Hawaii v. Cari Rae S. (D. Hawaii 2001) 158 F.Supp. 2d 1190, 1195.) A school district’s appropriate inquiry is whether the child should be referred for an evaluation, not whether the child actually qualifies for services. (Ibid.) The actions of a school district with respect to whether it had knowledge of, or reason to suspect, a disability must be evaluated in light of information that the district knew, or had reason to know, at the relevant time. It is not based upon hindsight. (See Adams v. State of Oregon (9th Cir. 1999) 195 F.3d 1141, 1149, citing Fuhrmann v. East Hanover Bd. of Educ. (3rd Cir. 1993) 993 F.2d 1031, 1041.)
10. No single procedure may be used as the sole criterion for determining whether the pupil has a disability or whether the pupil’s educational program is appropriate. (20 U.S.C. § 1414 (b)(2)(B); Ed. Code, § 56320, subds. (e) & (f).) The assessment must be sufficiently comprehensive to identify all of the child’s special education and related services needs, regardless of whether they are commonly linked to the child’s disability category. (34 C.F.R. § 300.304(c)(6).) The determination of what tests are required is made based on information known at the time. (See Vasheresse v. Laguna Salada Union School Dist. (N.D. Cal. 2001) 211 F.Supp.2d 1150, 1158 [assessment adequate despite not including speech/language testing where concern prompting assessment was deficit in reading skills].)
11. There are two parts to the legal analysis of a school district’s compliance with the IDEA. First, the tribunal must determine whether the district has complied with the procedures set forth in the IDEA. (Rowley, supra, 458 U.S. at pp. 206-207.) Second, the tribunal must decide whether the IEP developed through those procedures was designed to meet the child’s unique needs, and reasonably calculated to enable the child to receive educational benefit. (Ibid.)
12. The IDEA’s procedural safeguards are intended to protect the informed involvement of parents in the development of an education for their child. (Winkelman v. Parma City School Dist. (2007) 550 U.S. 516, 524 [127 S. Ct. 1994, 167 L.Ed.2d 904].) “[T]he informed involvement of parents” is central to the IEP process. (Ibid.) Protection of parental participation is “[a]mong the most important procedural safeguards” in the Act. (Amanda J. v. Clark County School Dist. (9th Cir. 2001) 267 F.3d 877, 882.)
13. Procedurally, the parents of a child with a disability must be afforded an opportunity to participate in meetings with respect to the identification, evaluation, and educational placement of the child; and the provision of FAPE to the child. (34 C.F.R. § 300.501(b); Ed. Code, §§ 56304, 56340-44.) A parent has meaningfully participated in the development of an IEP when he or she is informed of the child’s problems, attends the IEP 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; Fuhrmann v. East Hanover Bd. of Educ., supra, 993 F.2d 1031, 1036.)
14. A failure to properly assess is a procedural violation of the IDEA. (Department of Educ., State of Hawaii v. Cari Rae S., supra, 158 F.Supp. 2d 1190, 1196; Park v. Anaheim Union High School Dist. (9th Cir. 2006) 464 F.3d 1025, 1032.) However, a procedural error does not automatically require a finding that a FAPE was denied. A procedural violation results in a denial of a FAPE only if the violation: (1) impeded the child’s right to a FAPE; (2) significantly impeded the parent’s opportunity to participate in the decision making process; or (3) caused a deprivation of educational benefits. (20 U.S.C. § 1415(f)(3)(E)(ii); 34 C.F.R. § 300.513(a); Ed. Code, § 56505, subds. (f)(2) & (j); W.G. v. Board of Trustees of Target Range School Dist. No. 23 Missoula, Mont. (9th Cir. 1992) 960 F.2d 1479, 1484, superseded in part by statute on other grounds [“. . . procedural inadequacies that result in the loss of educational opportunity, [citation], or seriously infringe the parents’ opportunity to participate in the IEP formulation process, [citations], clearly result in the denial of a FAPE.”].)
15. Student established by a preponderance of evidence that District denied Student a FAPE by failing to appropriately assess Student in all areas of suspected disability, specifically, occupational therapy, after District’s October 28, 2015 psychoeducational evaluation.
16. The evidence established that District should have conducted an occupational therapy assessment based on the information obtained during the psychoeducational evaluation completed on October 28, 2015.
17. Significantly, District’s occupational therapist Ms. Ortiz-Davitt admitted there was reason to suspect an occupational therapy disability based on the October 2015 assessment results, specifically, Student’s scores on the Beery, the Visual Perception Test, and the Vineland, the teacher’s comments noted in Ms. Roach’s report that “fine motor needs work,” and Ms. Roach’s “motor shaky” note on the Wechsler protocol. Ms. Ortiz-Davitt also admitted Student’s October 2015 score on the Visual Perception Test was part of a reason to suspect a deficit in the area of visual perception. Ms. Ortiz-Davitt’s testimony was credibly corroborated by Dr. Katz, who also concluded that based on the results of the psychoeducational assessment, a referral for an occupational therapy assessment was warranted as of October 28, 2015.
18. Ms. Roach’s opinion that an occupational therapy assessment was not warranted was not credible. She was unable to offer any reason for her opinion. Although she admitted that during her administration of the Wechsler protocols, she observed Student’s hands were shaky which caused her to note “motor shaky” on the protocol Record Form, she was evasive when asked if Student had exhibited a hand tremor. In addition, there was no persuasive evidence explaining Ms. Roach’s failure to include or address this issue in her report.
19. Although Mr. Shapiro opined that the results of the Beery did not warrant an occupational therapy assessment, his testimony was given little weight. He failed to persuasively explain his opinion, and his view about the necessity of an occupational therapy assessment was contrary to District’s occupational therapist, Ms. Ortiz-Davitt, who considered more than Student’s Beery scores in admitting that an occupational therapy assessment was warranted in October 2015. Likewise, Ms. Johnston’s testimony on this issue was not persuasive. She was not an occupational therapist, her testimony was inconsistent regarding whether she had concerns related to Student’s handwriting and fine motor skills, and she admitted Student’s handwriting became progressively worse. At hearing, she was also uncertain whether Student could tie his shoes or unbutton his shirt after being Student’s teacher for two years, which adversely affected her credibility on this issue. Because Ms. Ortiz-Davitt was an occupational therapist, her testimony was given more weight on this issue than either Mr. Shapiro’s or Ms. Johnston’s testimony.
20. Ms. Ortiz-Davitt’s post-observation opinion that a formal occupational therapy assessment regarding Student’s overall handwriting was warranted was also compelling corroborative evidence that an occupational therapy assessment should have been conducted after District’s October 2015 psychoeducational evaluation. More specifically, even without conducting a formal assessment or any standardized testing, Ms. Ortiz-Davitt concluded that a thorough assessment of Student’s handwriting was necessary to determine the factors that could be affecting it, especially because his attention was so poor. She agreed Student’s issues with line orientation and spacing could be a visual perception issue and that deficits in this area could impede learning.
21. An occupational therapy assessment was warranted after October 28, 2015, and the failure to conduct that assessment was a procedural violation of the IDEA.
22. District’s procedural violation significantly impeded Parents’ opportunity to participate in the decision-making process regarding the provision of a FAPE to Student. District’s failure to assess Student for occupational therapy deprived Parents and the IEP team of critical evaluative information about Student’s issues in the area of occupational therapy and whether such issues were impeding his learning. The failure to evaluate Student for occupational therapy deprived Parents of the information necessary to evaluate District’s IEP offers of FAPE and whether District recommended the appropriate goals, accommodations and services to address Student’s unique needs. District’s failure to assess Student in the area of occupational therapy denied Student a FAPE. Student’s remedies are discussed below.
Student’s Issue 1(b): Failing to Appropriately Assess Student in the Area of Occupational Therapy After the October 24, 2016 IEP Team Meeting.
23. Student contends that District failed to timely assess him for occupational therapy following the request Ms. Loe made at the November 15, 2016 IEP team meeting. Student argues that District failed to timely provide Parent with an assessment plan and assess Student in the area of occupational therapy. Student argues that District’s failure to assess him deprived Parents of vital information necessary for meaningful participation in the IEP process.
24. District contends that it had no reason to suspect a disability in the area of occupational therapy, and that District did not fail to appropriately assess Student in all areas of suspected disability.
25. Legal conclusions 7 through 22 are incorporated by reference
26. When a student is referred for special education assessment, the school district must provide the student’s parent with a written proposed assessment plan within 15 days of the referral, not counting days between the pupil’s regular school sessions or terms or days of school vacation in excess of five school days from the date of receipt of the referral. (Ed. Code, § 56321, subd. (a).) The parent has at least 15 days to consent in writing to the proposed assessment. (Ed. Code, § 56321, subd. (c)(4).) A school district has 60 days from the date it receives the parent’s written consent for assessment, excluding vacation and days when school is not in session, to complete the assessments and develop an initial IEP, unless the parent agrees in writing to an extension. (20 U.S.C. § 1414(a)(1)(C); Ed. Code, §§ 56043, subds. (c) & (f), 56302.1, subd. (a).)
27. Student established by a preponderance of evidence that District denied Student a FAPE by failing to appropriately assess Student in all areas of suspected disability, specifically, occupational therapy, after Student’s second grade teacher requested an occupational therapy assessment at the November 15, 2016 IEP team meeting.
28. The evidence established that during the November 15, 2016 IEP team meeting, Ms. Loe informed the IEP team that Student was still struggling with writing composition, printing, and neatness, and requested that District conduct an occupational therapy assessment. The IEP team agreed Student would be referred for an occupational therapy assessment and District Administrator Ms. Minjares told Parents that Student would be assessed within 60 days of Parents’ written consent to the assessment plan. District was required to send Parents an assessment plan within 15 days after the November 15, 2016 IEP team meeting, but never did. As a result, Student was never evaluated by an occupational therapist in accordance with the timelines mandated by the IDEA. As of the hearing, District had not formally assessed Student in the area of occupational therapy.
29. District’s practice to have an occupational therapist first observe Student and make a recommendation as to whether an occupational therapy assessment was warranted did not in any way satisfy or negate District’s obligation to provide Parents with an assessment plan within 15 days of the November 15, 2016 referral for assessment by Ms. Loe and the IEP team. Nor did this District practice eliminate its responsibility to timely conduct Student’s occupational therapy assessment and hold an IEP team meeting to review the assessment and develop an IEP.
30. In its closing brief, District unpersuasively argued that it had no reason to suspect Student had a disability in the area of occupational therapy. As set forth above in Issue 1(a), the preponderance of evidence established that District was on notice as of at least October 28, 2015 that Student had a suspected disability in the area of occupational therapy and should have conducted an occupational therapy assessment based on the information obtained during the psychoeducational evaluation completed on October 28, 2015.
31. By November 15, 2016, District had additional information that Student was displaying behaviors of a suspected occupational therapy disorder. Ms. Loe told the November 15, 2016 IEP team about her concerns and requested an occupational therapy assessment. District’s argument that Ms. Loe’s testimony was less persuasive because Student only spent 20 percent of his time writing during her class was not convincing. Student attended Ms. Loe’s classroom daily and she was believable when she testified she was able to observe Student’s handwriting. She was convincing when she testified she was alarmed by Student’s printing and that Student was beneath grade level in the size and placement of his letters on the page.
32. District’s reliance on Ms. Johnston’s testimony was not convincing. Although at one point Ms. Johnston claimed she was not concerned with Student’s fine motor skills in second grade, her testimony was inconsistent and unclear. She admitted Student’s handwriting got progressively worse after first grade. She also contradicted her testimony as to whether Student’s handwriting samples were reflective of his current ability and was uncertain if Student could unbutton his shirt or tie his shoes after attending her class for two years.
33. Similarly, District’s reliance on Ms. Ortiz-Davitt’s testimony that District should not have suspected an occupational therapy deficit to warrant an occupational therapy assessment was unimpressive. Although Ms. Ortiz-Davitt testified that based on her informal observation, Student wrote with above 80 percent consistency in letter formation, legibly and on the line with consistent spacing, she claimed she never conducted a formal assessment of Student. She never spoke to Ms. Loe and never conducted standardized tests regarding Student’s handwriting. Furthermore, as set forth with regard to Issue 1(a), Ms. Ortiz-Davitt unequivocally testified that based on her informal observations of Student in May 2017, a full occupational therapy was warranted; this testimony was powerful corroborating evidence that District failed to assess in all areas of suspected disability. District presented no persuasive evidence that after November 15, 2016, Student’s issues related to his handwriting had improved.
34. District’s failure to timely send Parents an assessment plan, conduct the occupational therapy assessment, and develop an IEP after reviewing the assessment were procedural violations of the IDEA.
35. District’s procedural violations significantly impeded Parents’ opportunity to participate in the decision-making process regarding the provision of a FAPE to Student. District’s failure to timely send Parents an assessment plan and assess Student for occupational therapy deprived Parents and the IEP team of critical evaluative information about Student’s issues in the area of occupational therapy and whether such issues were impeding his learning. Because District never conducted an occupational therapy assessment, it never held an IEP team meeting to review that assessment and develop an IEP. These failures by District necessarily deprived Parents of information about Student’s needs, thereby significantly impeding Parents’ opportunity to participate in the decision-making process and denied Student a FAPE. Student’s remedies are discussed below.
Student’s Issue 2 and District’s Issue 1: Is District Required to Fund an Independent Psychoeducational Evaluation of Student?
36. Because the evidence and law relating to both Student’s Issue 2 and District’s Issue 1 are intertwined, the two issues are analyzed together. Student has the burden of proof as to Issue 2. District has the burden of proof on District’s issue.
37. Student contends that he is entitled to an independent psychoeducational evaluation because District unreasonably delayed in filing for due process to defend its October 2015 psychoeducational evaluation. Student also argues District’s psychoeducational evaluation was inappropriate because Ms. Roach failed to obtain valid and reliable scores on the intelligence tests by, among other things, administering several of the tests in one day and failing to: administer any standardized tests of attention; ruling out comorbid conditions; conduct more than one observation; and include the subtest scores in her report. Student argues that District’s failure to appropriately assess him deprived Parents of vital information necessary for meaningful participation in the IEP process.
38. District contends Student is not entitled to a publicly funded independent psychoeducational evaluation because it met its obligation to timely file for due process to defend its assessment, and its assessment was appropriate. District argues it was in email communication with Parents regarding alternatives to the independent evaluation. There was no evidence of behavioral or social issues that would have warranted any further investigation into additional areas of suspected disability. District also claims Student took breaks during the administration of the assessment, and that the administration of cognitive tests on the same day was appropriate. District asserts the only alleged deficiency in the report Student was able to prove was the failure to include the subtest scores, but that would not have changed the results.
39. Legal Conclusions 7 through 22, and 26 are incorporated by reference.
40. The procedural safeguards of the IDEA provide that under certain conditions, a student is entitled to obtain an independent evaluation at public expense. (20 U.S.C. § 1415(b)(1); 34 C.F.R. § 300.502 (a)(1), (b)(1) & (2); 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).)
41. When a parent requests an independent evaluation at public expense, the school district must, “without unnecessary delay,” either initiate a due process hearing to show that its evaluation is appropriate, or provide the independent evaluation at public expense, unless the school district demonstrates at a due process hearing that the evaluation obtained by the parent did not meet its criteria. (34 C.F.R. § 300.502(b)(2); Ed. Code, § 56329, subd. (c).)
42. The school district may inquire as to the reason why parent disagrees with the independent evaluation, but cannot require parent to provide an explanation or unreasonably delay either providing the independent evaluation at public expense or filing its due process complaint to demonstrate the appropriateness of its assessment. (34 C.F.R. § 300.502(b)(4).) Further, except for requiring that an independent evaluation at public expense meet agency criteria regarding evaluations (to the extent those criteria are consistent with the parent’s right to an independent evaluation), the district may not impose conditions or timelines related to obtaining an independent evaluation at public expense. (34 C.F.R. § 300.502(e); Letter to Anonymous (OSEP 2010) 55 IDELR 106 [Districts may not require parents to provide written notice, to discuss the district’s evaluation at an IEP meeting, or to discuss their request at an IEP meeting before obtaining the evaluation].)
43. A district cannot respond to a parent’s request for a publicly funded independent evaluation by proposing to reevaluate a student. (Fullerton Sch. Dist. (2012) Cal Offc. Admin. Hrngs. Case No. 2011061318.) WHen a parent seeks an independent evaluation, the district may not avoid either timely filing for due process or funding the evaluation by simply conducting the missing assessment. (Letter to Carroll (OSEP 2016) 68 IDELR 279.) When a parent disagrees with the evaluation because a child was not assessed in a particular area, the parent has the right to request an independent evaluation to assess the child in that area to determine whether the child has a disability and the nature and extent of the special education and related services that child needs. (Letter to Baus (OSEP 2015) 65 IDELR 81.)
44. Whether the length of time that has passed before a district initiates a due process hearing or provides the independent evaluation at public expense constitutes “unnecessary delay” is a question of fact, based upon the circumstances of the particular case. (J.P. v. Ripon Unified School Dist. (E.D. Cal., Apr. 15, 2009, No. 207CV02084MCEDAD) 2009 WL 1034993 (Ripon).) For example, in Ripon the court determined that the school district’s due process request filed more than two months after the request for an independent evaluation was timely, as the parties were communicating regarding the request for the evaluation in the interim, and did not come to an impasse on the issue until less than three weeks before the school district’s filing. (2009 WL 1034993, at pp. 7-8.) In contrast, in Pajaro Valley Unified School Dist. v. J.S. (N.D. Cal., Dec. 15, 2006, No. C 06-0380 PVT) 2006 WL 3734289, the school district did not file its due process complaint to defend its assessment until approximately 11 weeks after the student’s request for an independent evaluation. The school district offered no explanation as to why it delayed for 11 weeks in filing its complaint, or why that delay was “necessary.” The court found that the school district’s “unexplained and unnecessary delay in filing for a due process hearing waived its right to contest [s]tudent’s request for an independent educational evaluation at public expense, and by itself warrants entry of judgment in favor of [s]tudent and [parent].” (2006 WL 3734289, at p. 3.)
45. The term “unnecessary delay” as used in 34 C.F.R. § 300.502(b)(2) is not defined in the regulations. It permits a reasonably flexible, though normally brief, period of time that could accommodate good faith discussions and negotiations between the parties over the need for, and arrangements for, an independent evaluation. (Letter to Anonymous (OSEP 2010) 56 IDELR 175.) Some delay in the provision of an independent evaluation is reasonable if the school district and the parents are engaging in active communications, negotiations or other attempts to resolve the matter. (See Horne v. Potomac Preparatory P.C.S. (D.D.C. 2016) 209 F.Supp.3d 146, 153-155.) The determination of “unnecessary delay” is a fact-specific inquiry. The facts of each case are therefore critical. (Ibid.)
46. If a school district decides not to take a requested action, the district must provide parents with a prior written notice within a reasonable time period. (34 C.F.R. § 300.503.) The notice must include an explanation of why the agency proposes or refuses to take the action. (Ibid.)
47. The proposed assessment plan is required to contain certain information, including but not limited to, an explanation of the types of assessments to be conducted. (Ed. Code, § 56321, subd. (b).) The assessment may begin immediately upon receipt of the parent’s consent, but must completed within 60 days. (20 U.S.C. § 1414(a)(1)(C); Ed. Code, §§ 56043, subds. (c) & (f), 56302.1, subd. (a), 56321, subd. (c)(4).)
48. Assessment materials and procedures must be selected and administered so as not to be racially, culturally, or sexually discriminatory, and must be given in the student’s native language or mode of communication unless it is not feasible to do so. (Ed. Code, § 56320, subd. (a).) Assessments must also meet the following requirements: 1) be provided and administered in the language and form most likely to yield accurate information on what the pupil knows and can do academically, developmentally, and functionally, unless it is not feasible; 2) be used for purposes for which the assessments or measures are valid and reliable; and 3) be administered by trained and knowledgeable personnel in accordance with any instructions provided by the producer of the assessments. (Ed. Code, § 56320, subd. (b).) Assessments must also be selected and administered to best ensure that the test results accurately reflect the pupil’s aptitude, achievement level, or any other factors the test purports to measure and not the pupil’s impaired sensory, manual, or speaking skills unless those skills are the factors the test purports to measure. (Ed. Code, § 56320, subd. (d).) No single measure, such as a single intelligence quotient, shall be used to determine eligibility or services. (Ed. Code, § 56320, subds. (c) & (e).)
49. The personnel who assess the student shall prepare a written report that shall include, without limitation, the following: (1) whether the student may need special education and related services; (2) the basis for making that determination; (3) the relevant behavior noted during observation of the student in an appropriate setting; (4) the relationship of that behavior to the student’s academic and social functioning; (5) the educationally relevant health, development, and medical findings, if any; (6) for pupils with learning disabilities, whether there is such a discrepancy between achievement and ability that it cannot be corrected without special education and related services; (7) if appropriate, a determination of the effects of environmental, cultural, or economic disadvantage; and (8) consistent with superintendent guidelines for low incidence disabilities, the need for specialized services, materials, and equipment. (Ed. Code, § 56327.) The report must be provided to the parent at the IEP team meeting regarding the assessment. (Ed. Code, § 56329, subd. (a)(3).)
50. Student established by a preponderance of evidence that District is required to fund an independent educational evaluation of Student in the area of psychoeducation. District failed to prove by a preponderance of evidence that District’s October 28, 2015, psychoeducational evaluation was appropriate such that Student is not entitled to an independent psychoeducational evaluation.
TIMELINESS OF DISTRICT’S DUE PROCESS FILING
51. The weight of the evidence established District unnecessarily delayed in filing its due process complaint to demonstrate the appropriateness of its October 2015 psychoeducational assessment. Parents made their October 4, 2016 written request for an independent assessment based on Parents’ disagreement with District’s psychoeducational evaluation. They reiterated their request for an independent assessment on October 6, October 18, and October 20, 2016. On November 4, 2016, in violation of its 15-day deadline, District finally responded to Parents’ multiple requests for assessment by sending a Prior Written Notice refusing to agree to fund the independent evaluation. District then waited another three months to file its due process complaint, and offered no valid justification for this further delay.
52. District unpersuasively relied on Ripon and pointed to Mr. Ferrell’s email communications with Parents to justify its delay in filing for due process. In Ripon, the parties “continued to discuss provision of an IEE through series of letters” after the school received the IEE request. (2009 WL 1034993, at pp. 7–8.) The Court therefore concluded that the parties “did not come to a final impasse” with regard to the provision of the evaluation until three weeks before the school filed for due process. (Ibid.)
53. The facts of this case are distinguishable from Ripon because the parties reached a final impasse and there was no dispute left to resolve as of at least November 4, 2016. While Mr. Ferrell initially attempted to persuade Parents to withdraw their independent evaluation request, Parents made it unequivocally clear that they had no intention of withdrawing their request. On October 6, 2016, Parents told Mr. Ferrell in writing why they believed an independent evaluation was necessary and renewed their request. On October 18, 2016, Parents inquired about the status of their request. On October 20, 2016, Parents informed Mr. Ferrell that they were anxious to begin the evaluation and explained the importance of beginning the evaluation sooner rather than later.
54. Although Mr. Ferrell sent an email to Parents on November 25, 2016, offering to reassess Student’s IQ, Mr. Ferrell claimed this offer had already been made prior to November 4, 2016. Even assuming the offer to reassess was not made by District until November 25, 2016, District nonetheless unreasonably delayed in filing for due process because it had no valid justification for waiting another 10 weeks before filing. Furthermore, District could not avoid its obligation to timely file to defend its assessment by again offering to reassess Student’s IQ. There was no persuasive evidence of active communications or negotiations by Parents to resolve the matter after November 4, 2016. In fact, the weight of evidence established that from the beginning, Parents never negotiated with District, unequivocally asserting their request for an independent evaluation at the outset and in every communication with District about the independent evaluation. By November 4, 2016, it was clear that Parents were not withdrawing their request for an independent assessment and District had refused to fund it. As Mr. Ferrell acknowledged in his emails of November 25 and 28, 2016, Parents’ refusal to withdraw their request for an independent evaluation left District with one choice under the law: to file a due process hearing request to establish the appropriateness of its October 2015 evaluation without unreasonable delay. District had no valid justification for waiting until February 3, 2017, to file its due process complaint. District’s failure to promptly file for due process after sending its November 4, 2016 Prior Written Notice, was an unnecessary delay, entitling Student to an independent psychoeducational evaluation at public expense.
55. The facts of this case are consistent with cases finding unnecessary delay where the school allowed significant time to pass without explanation before responding to a parent’s request for an independent evaluation. (See, e.g., Pajaro Valley, supra, 2006 WL 3734289, at p. 3 [finding unnecessary delay where school district provided no explanation for its three month delay after the independent educational evaluation request before district filed for a due process hearing]; M.M. v. Lafayette School Dist. (N.D. Cal., Aug. 8, 2012, No. CV 09-4624) 2012 WL 3257662, at pp. 6, 10) [finding unnecessary delay where school district waited 74 days after the independent evaluation request to file for due process hearing].) Once a parent requests an independent evaluation, the law required District to act “without unnecessary delay” to either fund the independent evaluation or demonstrate that its evaluation was appropriate. (34 C.F.R. § 300.502(b)(1)-(4).) As explained by the Supreme Court, the IDEA ensures parents’ access to an expert who can evaluate all the materials that the school district must make available, and who can give an independent opinion. They are not left to challenge the government without a realistic opportunity to access the necessary evidence, or without an expert with the firepower to match the opposition. (Schaffer v. Weast, supra, 546 U.S. 49, 60-61.)
56. The IDEA and the Education Code do not specifically condition District’s obligations regarding requests for independent evaluations at public expense on a finding that Student required the independent evaluation to receive a FAPE or to allow Parents to meaningfully participate in Student’s IEP team meetings. However, violations of the IDEA’s procedural safeguards that significantly impede a parent’s ability to participate in the decision making process constitute a denial of a FAPE. In this case, Parents’ concerns regarding the quality and accuracy of District’s assessment report, and the unnecessary delay by District to timely respond to Parents’ request for an independent evaluation, significantly impeded Parents’ ability to understand Student’s unique needs, and therefore significantly impeded Parents’ ability to participate in the IEP decision making process.
57. District failed, without unreasonable delay, to offer Student an independent evaluation at public expense or file a due process complaint to defend the appropriateness of its psychoeducational assessment. District’s conduct deprived Student of a FAPE, because it significantly impeded Parents’ right to meaningfully participate in the IEP process. Consequently, Student is entitled to an independent psychoeducational evaluation at public expense.
APPROPRIATENESS OF DISTRICT’S ASSESSMENT
58. District failed to establish procedural compliance with the IDEA regarding the appropriateness of its psychoeducational assessment.
59. Foundationally, as part of its case, District was required to prove the assessment plan sent to Parents contained the required information to assess Student, including but not limited to, an explanation of the types of assessments to be conducted. Neither party offered the assessment plan as evidence.
60. The October 2015 psychoeducational assessment was inappropriate because the weight of the evidence established that the assessments were not selected and administered to best ensure that the test results accurately reflected Student’s aptitude or other factors the tests purported to measure. Ms. Roach should not have administered four of the tests on the same day. She knew Student was exhibiting a lack of attention, which was preventing her from obtaining reliable results, but she proceeded with the testing on that day anyway. The more persuasive evidence established that as soon as Ms. Roach determined that attention was an issue, she should have administered the other tests on another day or days when Student might have been more focused. Although his testimony was inconsistent, even Mr. Shapiro seemed to concede that the Wechsler may not have been an appropriate tool because it was too long.
61. Both Dr. Katz and Mr. Shapiro agreed that the academic assessment demonstrated that it was possible to obtain accurate cognitive data about Student’s intelligence. Both experts agreed that it was important to employ strategies during testing to assist Student in sustaining attention such that reliable cognitive scores could have been obtained. District failed to prove that Ms. Roach employed those strategies. Although Ms. Roach claimed she used reinforcers and frequent breaks during administration of the tests, her testimony was not believable. There was nothing mentioned in her report about the strategies she claimed to have used, and she could not even recall the order in which she gave the tests. Her testimony about the TONI undermined her testimony on this point because she only used reinforcers on the TONI after she concluded the part of the TONI she scored. In addition, Ms. Roach could have administered a direct test of attention before administering the cognitive tests to determine if Student had the requisite level of attention that day for intelligence testing.
62. Ms. Roach’s written report failed to comply with the law because it failed to include relevant observational data during testing. During the assessment, Ms. Roach noticed that Student’s hand was shaky. Although this observation was important enough for Ms. Roach to make a note of it on the protocol Record Form, she made no mention of it in her report. As set forth above regarding Student’s Issue 1(a), this information along with the results of the assessment put District on notice that Student had a suspected occupational therapy-related disability. Accordingly, it was improper for Ms. Roach to exclude this observational material from her report.
63. Although Ms. Roach generally reported that Student’s cooperation waxed and waned throughout the administration of the test, she did not specifically describe when Student’s attention waxed and when it waned. Dr. Katz credibly explained that inattention had different effects depending on each of the subtest tasks, and that it was impossible to know how, in what manner, and the extent to which Student’s inattention affected his scores because Ms. Roach failed to include this information in her report. Although Mr. Shapiro opined that it was unnecessary for Ms. Roach to detail Student’s individual subtest behavior in her report, his testimony on this issue was given no weight. He based his opinion on the belief that Student’s behavior during administration of the subtests never varied, but he could not state the basis for his belief, and then he appeared to retract his earlier statement.
64. Ms. Roach failed to include in her report all of the observations she relied upon in her assessment of Student. At hearing, Ms. Roach justified her failure to conduct an observation of Student in an unstructured setting, claiming she had observed Student in an unstructured setting during kindergarten and had taken notes during those observations. She admitted she relied upon these observations in assessing Student, but she did not include them in her report. In fact, she claimed that based on her wealth of experience with Student she had no difficulty reaching the determination that intellectual disability was not an issue, but that prior experience is not in her report. Also missing from the psychoeducational assessment was the August 28, 2015 observation Ms. Roach noted in her Assessment Workflow. Although at hearing she attempted to explain away this note as something she intended to do but never completed, her testimony was not convincing because it was equivocal and because of her demonstrated lack of credibility.
65. The more persuasive evidence established that Student displayed behaviors reflective of a possible anxiety disorder, but Ms. Roach never assessed Student in this area. The Conners did not measure anxiety and Ms. Roach failed to use any other assessment instrument, which would have captured other social emotional concerns such as anxiety. Mr. Shapiro’s opinion that anxiety should not have been assessed until such time as Student’s other issues were resolved, and that anyone in Student’s position would have been anxious, was nonsensical. Mr. Shapiro’s testimony that Ms. Roach had no reason to suspect an anxiety disorder was inconsistent and unpersuasive and as such, given little weight.
66. District’s assessment was inappropriate because Ms. Roach failed to report the subtest scores and Student’s failure to achieve a basal on the TONI and on three of the Wechsler subtests. Dr. Katz persuasively explained the importance of including this information in the report. Although Mr. Shapiro demonstrated a reluctance to criticize Ms. Roach, he admitted that the subtest scores should have been reported and that a raw score of zero on a subtest was always relevant and should always be reported. He also agreed that the failure to achieve a basal should have been reported and explained to Parents. This was never done.
67. Ms. Roach’s assessment was deficient because she failed to include her interpretation of the results of the Vineland in her report. She admitted that the entire interpretation of the Vineland was computer-generated boilerplate. Although Ms. Roach was evasive when asked if it was appropriate not to include her own interpretation of the results in her report, both Dr. Katz and Mr. Shapiro explained this practice was inappropriate because it failed to adequately describe Student’s adaptive functioning.
68. In her analysis regarding Student’s eligibility under the category of specific learning disability, Ms. Roach’s report stated that that there was no discrepancy between achievement and ability. However, in her report she failed to adequately explain this determination. Ms. Roach did not identify which cognitive measure she used, the Wechsler, the TONI, or the Vineland. She also failed to explain how she made this lack of a discrepancy determination given her inability to obtain accurate cognitive scores. Ms. Roach’s interpretation of the TONI was also faulty. It consisted of only two to three lines, and was nothing more than a conclusion without any specific supporting facts.
69. District’s failure to appropriately assess Student was a procedural violation of the IDEA. District’s procedural violations significantly impeded Parents’ opportunity to participate in the decision-making process regarding the provision of a FAPE to Student. District’s failure to appropriately assess Student deprived Parents of critical information, including information pertaining to Student’s needs, ability and adaptive functioning, such that Parents could have an informed discussion with the IEP team regarding appropriate goals and services required to enable Student to make progress appropriate in light of his circumstances. District’s failure to appropriately assess Student denied him a FAPE. Student’s remedies are discussed below.
70. Student prevailed on all issues by proving that District failed to timely assess him in the area of occupational therapy, that District unreasonably delayed in filing to defend its psychoeducational assessment and that its assessment was inappropriate. As a remedy, Student requests that District fund an independent psychoeducational evaluation, assess Student for occupational therapy, and award Student compensatory education. Student requests that the question of compensatory education be deferred until after the completion of the assessments because Student and the ALJ lack the necessary information to determine an appropriate compensatory education award.
71. District argues that Student is not entitled to an independent evaluation and that Student failed to present any evidence that would establish the need for an award of compensatory education. District argues that at the time of the hearing, Student had recently been referred for an occupational therapy assessment and District had recently provided Parents with an assessment plan, so there was nothing on which to base an award.
72. Under federal and state law, courts have broad equitable powers to remedy the failure of a school district to provide FAPE to a disabled child. (20 U.S.C. §1415(i); see School Committee of Town of Burlington, Mass. v. Department of Educ. of Mass. (1985) 471 U.S. 359, 369 [105 S.Ct. 1996, 85 L.Ed.2d 385].) This broad equitable authority extends to an ALJ who hears and decides a special education administrative due process matter. (Forest Grove School Dist. v. T.A (2009) 557 U.S. 230, 243-244, n. 11 [129 S.Ct. 2484, 174 L.Ed.2d 168].) When school district fails to provide a FAPE to a pupil with a disability, the pupil is entitled to relief that is “appropriate” in light of the purposes of the IDEA. (Burlington, supra, 471 U.S. 359, 369-370.) Remedies under the IDEA are based on equitablE Considerations and the evidence established at hearing. (Id. at p. 374.)
73. An ALJ can award compensatory education as a form of equitable relief. (Park v. Anaheim Union High School Dist., supra, 464 F.3d 1025, 1033.) Compensatory education is a prospective award of educational services designed to catch-up the student to where he should have been absent the denial of a FAPE. (Brennan v. Regional School Dist. No. Bd. of Educ. (D.Conn. 2008) 531 F.Supp.2d 245, 265.) The award must be fact-specific and be “reasonably calculated to provide the educational benefits that likely would have accrued from special education services the school district should have supplied in the first place.” (Reid v. District of Columbia (D.C. Cir. 2005) 401 F.3d 516, 524.) Compensatory education awards depend upon the needs of the disabled child, and can take different forms. (R.P. v. Prescott Unified School Dist. (9th Cir. 2011) 631 F.3d 1117, 1126.) Typically, an award of compensatory education involves extra schooling, in which case “generalized awards” are not appropriate. (Parents of Student W. v. Puyallup School Dist., No. 3 (9th Cir. 1994) 31 F.3d 1489, 1497.) “There is no obligation to provide a day-for-day compensation for time missed. Appropriate relief is designed to ensure that the student is appropriately educated within the meaning of the IDEA.” (Ibid.) An independent evaluation at public expense may also be awarded as an equitable remedy, if necessary to grant appropriate relief to a party. (Los Angeles Unified School Dist. v. D.L. (C.D. Cal. 2008) 548 F.Supp.2d 815, 822-823.)
74. The evidence established that District failed to timely assess Student for occupational therapy after the October 28, 2015 psychoeducational assessment and after Student’s second grade teacher requested that Student be assessed at the November 15, 2016 IEP team meeting. The evidence also established District unreasonably delayed in filing to defend its October 2015 psychoeducational assessment, and that its assessment was inappropriate. District’s failure to timely and appropriately assess, and its unreasonable delay significantly impeded Parents’ opportunity to participate in the decision-making process. Since District is already in the process of conducting a District occupational therapy assessment, but waited almost two years after its obligation to conduct such assessment was triggered to initiate it, Student is entitled to an order for an independent educational occupational therapy assessment. Student is also entitled to an independent psychoeducational evaluation. Since the only suggested cost for an assessment listed in the SELPA Guidelines was $3,500, Student shall be entitled to a comprehensive independent psychoeducational evaluation and an independent educational occupational therapy evaluation in a total amount not to exceed $7,000 for both assessments (including a written report for each of the assessments and three hours of participation [by telephone or in person] by each of the assessors at an IEP team meeting to review the assessors’ reports), which funding shall be allocated between the assessments at Parents’ option, but which are otherwise consistent with the SELPA Guidelines, to the extent the SELPA Guidelines are consistent with the law.
75. While Student met his burden of demonstrating that District significantly interfered with Parents’ opportunity to participate in the IEP process by failing to timely conduct an occupational therapy assessment, Student failed to establish he was eligible for occupational therapy services. Having failed to establish eligibility for occupational therapy services, Student failed to prove he lost educational benefits. Accordingly, Student is not entitled to an award of compensatory education.
76. Although the evidence did not support an award of compensatory education, it did support an order for special education training of District’s administrative and special education personnel, including District’s Superintendent, on District’s obligations to assess in all areas of suspected disability, the statutory timelines for assessing after a referral for assessment, the legal requirements for assessments and assessment reports, and District’s obligations after a parent requests an independent educational evaluation. Thus, as a remedy, District shall provide at least six hours of special education training on these topics to the persons identified in this paragraph. The training shall be provided by an independent agency or institution not affiliated with District and which specializes in special education training to school districts, and may not be provided by the law firm that represented District in the due process hearing. The training shall be completed by no later than January 1, 2018.
1. Except as otherwise specified in paragraph 3, District shall fund an independent educational occupational therapy evaluation to be performed by an assessor selected by Parents that meets SELPA Guidelines, to the extent the SELPA Guidelines are consistent with the law. Parents will provide District with the name of a qualified assessor to conduct the independent educational occupational therapy evaluation. Within 20 business days of its receipt of Parents’ selection, District shall contract with the assessor to perform the independent educational occupational therapy evaluation. District shall convene an IEP team meeting to review the independent educational occupational therapy evaluation within 30 school days of District’s receipt of the assessor’s report.
2. Except as otherwise specified in paragraph 3, District shall fund an independent psychoeducational evaluation to be performed by an assessor selected by Parents that meets SELPA Guidelines, to the extent the SELPA Guidelines are consistent with the law. Parents will provide District with the name of a qualified assessor to conduct the independent psychoeducational evaluation. Within 20 business days of its receipt of Parents’ selection, District shall contract with the assessor to perform the independent psychoeducational evaluation. District shall convene an IEP team meeting to review the independent psychoeducational evaluation within 30 school days of District’s receipt of the assessor’s report.
3. District shall compensate Student’s selected assessors up to a total of $7,000 for both the independent occupational therapy assessment and the independent psychoeducational assessment, including a written report for each of the assessments and three hours of participation (by telephone or in person) by each of the assessors at an IEP team meeting to review the assessors’ reports. The allocation of funding between the assessments shall be in amounts at Parents’ option. Parents shall be responsible to pay their chosen assessors’ costs beyond $7,000, if any. District shall pay for the independent evaluations within 45 calendar days of receipt of the independent assessor’s written demand for payment. The assessment reports shall include recommendations as to the frequency, duration, and delivery model of services Student requires, if any.
4. Within five days of District’s receipt of this Decision, District shall provide Student with the SELPA Guidelines for conducting the independent educational evaluations.
5. District shall provide six hours of special education training to all District administrative and special education personnel, including District’s Superintendent. The training shall include instruction on District’s obligations to assess in all areas of suspected disability, the statutory timelines for assessing after a referral for assessment, the legal requirements for assessments and assessment reports, and District’s obligations after a parent requests an independent educational evaluation. The training shall be provided by an independent agency or institution not affiliated with District and which specializes in special education training to school districts, and may not be provided by the law firm that represented District in the due process hearing. The training shall be completed by no later than January 1, 2018. Proof of completion of the training ordered in this Decision shall be provided to Parents within 10 days of completion of such training.
6. All other relief sought by Student is denied.
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. Here, Student prevailed on all issues in both Student’s and District’s cases.
RIGHT TO APPEAL
This Decision is the final administrative determination and is binding on all parties. (Ed. Code, § 56505, subd. (h).) Any party has the right to appeal this Decision to a court of competent jurisdiction within 90 days of receiving it. (Ed. Code, § 56505, subd. (k).)
DATED: July 27, 2017
Administrative Law Judge
Office of Administrative Hearings