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OAH 2018030964-2018020332

June 27, 2018

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Carlsbad Unified School District v. Student, Student v. Carlsbad Unified School District

BEFORE THE
OFFICE OF ADMINISTRATIVE HEARINGS
STATE OF CALIFORNIA

In the Consolidated Matters of:

CARLSBAD UNIFIED SCHOOL DISTRICT,
v.
PARENTS ON BEHALF OF STUDENT ,

OAH Case No. 2018030964

PARENTS ON BEHALF OF STUDENT,
v.
CARLSBAD UNIFIED SCHOOL DISTRICT.

OAH Case No. 2018020332

DECISION

Student filed a due process hearing request (complaint) with the Office of Administrative Hearings on February 6, 2018, naming Carlsbad Unified School District.On March 22, 2018, District filed a complaint naming Student. On March 26, 2018, OAH consolidated Student’s case with District’s case. OAH continued this matter for good cause on March 27, 2018. Administrative Law Judge Linda Johnson heard this matter in Carlsbad, California, on May 1, 2, and 3, 2018.

Justin Shinnefield, Attorney at Law, represented District. Brent Nielsen, District’s Coordinator of Special Programs, attended on behalf of District.

Student’s Parents represented Student and attended all three days of the hearing. Student did not attend the hearing.

At the parties’ request, OAH continued this matter to May 21, 2018, for closing briefs. Upon timely submission of written closing briefs, the record was closed and the matter was submitted for decision.

ISSUES

District’s Issue

1. Did District’s October 16, 2017 Individualized Educational Program, as amended on October 17, 2017, and January 17, 2018, offer Student a free and appropriate public education in the least restrictive environment?

Student’s Issues

2. Did District’s October 16, 2017 IEP, as amended on October 17, 2017, and January 17, 2018, fail to offer Student a FAPE in the least restrictive environment?2

1District filed its response to Student’s complaint on February 16, 2018, which permitted the hearing to go forward. (M.C. v. Antelope Valley Unified Sch. Dist. (9th Cir. 2017) 858 F.3d 1189, 1199-1200.)

2Student alleged in his closing brief, for the first time, that District failed to assess in all areas of suspected disability. This was not alleged prior to the hearing, nor was it litigated during hearing; therefore, this decision does not address an alleged failure to assess in all areas of suspected disability.

3. Did District deny Student a FAPE by committing material procedural errors or defects in connection with timely developing an IEP for Student in fall 2017?

4. Did District deny Student a FAPE by failing to consider applicable evaluations presented to the IEP team by Parents in fall 2017?

SUMMARY OF DECISION

District did not prove that the October 16, 2017 IEP that was amended on October 17, 2017, and January 17, 2018, offered Student a FAPE in the least restrictive environment. Student had a behavioral feeding disorder that was not adequately addressed in the IEP. Conversely, Student met his burden of proving that the IEP did not offer him a FAPE because it failed to adequately address his behavioral feeding disorder. The IEP failed to contain an adequate feeding support plan and failed to contain a goal to address Student’s feeding disorder. Student did not prove that there were any other deficiencies in the IEP offer.

Student also did not prove that District committed material procedural errors or deficits in connection with the timely development of the IEP. District assessed Student and held parts one and two of the IEP team meetings within the 60 day timeline. Although the IEP was not completed until January 17, 2018, District tried to reconvene the IEP team for a third meeting with Parents. The reason for the delay in completing the IEP was Parents’ refusal to participate in further IEP team meetings.

Student did not prove that District failed to consider his outside evaluations. District reviewed Student’s records as well as met with Parents to gather relevant information, included additional participants in the IEP team meetings, and offered additional assessments.

FACTUAL FINDINGS

1. At the time of the hearing Student was an eight-year-old male who resided with Parents within District’s boundaries. Student moved with his parents into District’s boundaries in the spring of 2017.

2. Student has a diagnosis of Autism Spectrum Disorder, Pediatric Acute Neuropsychiatric Syndrome3, a seizure disorder, and a behavioral feeding disorder. Student received services in a clinic based setting and a private school; however, as of the time of the hearing, he had never attended public school or had an IEP.

3Pediatric Acute Neuropsychiatric Syndrome is a disorder in which the antibodies a person’s body creates to fight off an infection or inflammation start attacking the person. That attack creates a neuropsychiatric response, such as becoming obsessive compulsive or aggressive. The neuropsychiatric response is temporary.

Initial Request and Assessment for Special Education

3. Parents requested an initial assessment for special education on April 26, 2017. Gigi Ostrowsky, a program specialist assigned to District from the special education local plan area, communicated with Parents and created an initial assessment plan dated May 14, 2017.

4. Parents did not initially sign the assessment plan as they had concerns about cognitive testing. District held a student study team meeting on June 5, 2017, to discuss Parents’ concerns. Parents met with Ms. Ostrowsky, Jenny Zaboori, occupational therapist, Christine Belcher, adaptive physical education teacher, Cosette Aguirre, speech and language pathologist, Eun Park, school psychologist, Nancy Ann Hensch, educational specialist, T.J. Wiesler, first grade teacher, and Tressie Armstrong, principal. The team discussed Student’s areas of strength, school history, and Parents’ concerns. Parents requested revisions to the assessment plan; however, District declined to make any modifications to the plan. Parents signed the assessment plan on August 31, 2017, and District began the assessment.

5. As part of the initial assessment District conducted a psychoeducational assessment, speech and language assessment, occupational therapy assessment, and an adaptive physical education assessment. As part of the assessment each assessor reviewed the records that Parents provided, spoke to Parents, and observed Student during the testing.

6. Mr. Park conducted the psychoeducational portion of the assessment. Mr. Park attempted to administer the Kaufman Assessment Battery for Children and the Comprehensive Test of Nonverbal Inelegance; however, Student did not appear to understand the directions so the results were invalid. Mr. Park was able to use the Psychoeducational Profile, Third Edition; the Developmental Profile Three; the Autism Spectrum Rating Scales; the Achenbach Child Behavior Checklist; and the Adaptive Behavior Assessment System, Third Edition to assess Student’s cognitive functioning and social and emotional behavior. Student had significant safety concerns due to elopement and feeding difficulties. Student’s functioning ranged between 25 months and three years, 11 months. Student met the special education eligibility categories of autism and other health impairment.

7. Ms. Hensch administered the Brigance Inventory of Early Development Three, Academic Skills and Cognitive Development to assess Student’s academic achievement levels; however, Student was not able to complete all subtests. Student’s instructional range was between the age of two years, 10 months and three years.

8. Ms. Aguirre conducted the speech and language portion of the assessment. She used the Expressive Vocabulary Test, Second Edition and the Peabody Picture Vocabulary Test Three informally as Student was not attending or following directions. Ms. Aguirre also used the Evaluating Acquired Skills in Communication, Third Edition and the Communication Matrix to determine Student’s communication abilities. Student had significant expressive, receptive, and social communication needs; and met the eligibility category for speech and language impairment.

9. Ms. Zaboori conducted an occupational therapy assessment. Ms. Zaboori could not use standardized assessments due to Student’s inattention and noncompliance, but she was able to gage Student’s abilities and needs based on observations, skill demonstration, and information from Parents. Ms. Zaboori recommended occupational therapy services.

10. Ms. Belcher conducted an adaptive physical education assessment using the Brigance Inventory of Early Development Three. Ms. Belcher was able to observe and assess Student’s gross motor skills, draft a goal, and recommend services.

11. In addition to the multidisciplinary team report District created, school nurse Julia Hart-Lawson drafted two individual school healthcare plans for Student; one for Pediatric Acute Neuropsychiatric Syndrome and the other for the behavioral feeding disorder. When Ms. Hart-Lawson first reached out to Parents regarding the healthcare plans she incorrectly identified that she was assigned with writing a feeding protocol. However, she later clarified that she was not able to write a behavioral feeding plan for Student, but she was identifying health and safety issues for Student and instructions for his teachers and aides.

12. Student’s behavioral feeding disorder manifested in Student pocketing food; at times the pocketing would last for over an hour. When Student pocketed food he would put a bite of food in his mouth, but instead of swallowing the food, he would put it in the area between his cheek and gum. Student might move the food around and move it to the other side of his mouth, but he would not swallow the food. The pocketing of food created a safety issue for Student as he could aspirate on pocketed food and it also created a dental issue for him keeping food in his mouth for so long. Parents notified District of Student’s behavioral feeding disorder during the assessment process, they provided numerous documents regarding the feeding disorder to District, and District observed Student pocketing food. During Student’s adaptive physical education and occupational therapy assessment Mother brought Student to school for the assessment while he was pocketing food. At the start of the assessment Student had been pocketing food for over an hour and he continued to pocket the food throughout the assessment. Both Ms. Zaboori and Ms. Belcher observed Student pocketing the food, move it around in his mouth, but he did not swallow the food. Parents also notified District that Student would receive a feeding evaluation at Rady Children’s Hospital in November 2017.

13. Michael Doria, a special education program specialist for District, contacted Dr. Howard Taras and asked him to consult with District regarding Student’s health needs. Dr. Taras reviewed the healthcare plans and made recommendations. Dr. Taras recommended that District base its feeding plan on what Rady Children’s Hospital recommended. Dr. Taras recommended that if District wanted to get Student in school before the feeding study District should look for older instructions from other doctors about how to address Student’s feeding disorder if the instructions were still valid. If there were not older instructions that could be used Dr. Taras recommended that District not feed Student in school and ask Parents if they would volunteer to come in to feed Student or have Student on a modified day so feeding was not an issue at school. Dr. Taras also recommended looking closely at the feeding instructions from InSteps, Student’s in-home applied behavior analysis provider, and base the feeding plan off of those instructions. InSteps had previously developed a feeding plan for Student that Parents shared with District during the assessment process. Finally, Dr. Taras recommended that District staff observe Parents feeding Student and write a plan based on what District staff observed. Dr. Taras also recommended that District ask Student’s doctor to sign off on the plan before it was implemented.

14. Prior to the IEP team meeting Mr. Doria took Parents on a tour of several classrooms at different elementary schools within District. Parents were able to see the classrooms and ask questions, however, there were no students present in all the settings. Parents did observe the special day class at Hope Elementary.

October 17, 2017 IEP Team Meeting

15. The IEP team met on October 17, 2017, to review the assessments and draft Student’s initial IEP. Ms. Zaboori, Ms. Belcher, Ms. Aguirre, Mr. Park, and Ms. Hensch attended the meeting; in addition, Lorelei Kelleher, general education teacher, and Mr. Doria attended as did Parents. The team did not have time to complete the IEP, however, the team did agree on eligibility. Student qualified for special education services under the primary eligibility category of autism and secondary eligibility category of speech or language impairment.

October 18, 2017 IEP Team Meeting

16. The team met again on October 18, 2017, to continue the IEP discussions. All the same IEP team members were present except Ms. Kelleher who was excused during part one of the IEP team meeting, and Dr. Howard Taras who participated in the meeting via phone. This time the team reviewed present levels of performance and discussed goals; however, the team did not finalize the goals or discuss services or placement.

PRESENT LEVELS OF PERFORMANCE

17. Student had some pre-academic skills such as imitating the alphabet when provided a verbal model, flipping through a book, blending two words into one, and sorting familiar colors. Student could start to say numbers if he was presented with a visual and verbal prompt.

18. Student’s communication skills were limited; he primarily used body movement, sounds, facial expressions, visual behavior, and gestures to communicate. He had emerging skills that Parents saw at home, but which District had not observed during its assessment of Student.

19. Student had both gross and fine motor needs. Student could not imitate gross motor movements and needed adult support to stay on task. Student needed to develop prewriting skills and required verbal and physical prompting to remain seated to work

20. Student had high anxiety, difficulty transitioning, and difficulty sustaining attention to a task. Student needed assistance with toileting and handwashing. Student also had significant health needs; including the behavioral feeding disorder and Pediatric Acute Neuropsychiatric Syndrome. Dr. Taras opined that Student’s behavioral feeding disorder could preclude him from school if his doctors that were currently managing his care did not have a chance to review District’s healthcare plans and offer input.

21. The IEP team discussed audiological concerns and after the IEP team meeting District sent Parents an assessment plan for an audiological assessment to determine Student’s need for a frequency modulated system. District also contacted Paola Gonzalez, a Fred Finch Youth Center board certified behavior analysist, and asked her to participate in the next IEP team meeting and conduct a functional behavior assessment. District also sent Parents an assessment plan for the functional behavior assessment. Parents did not consent to either assessment.

Private Placement

22. On December 19, 2017, Parents sent District a letter, via electronic mail, informing it that they believed that District was required to have completed Student’s IEP by November 15, 2017. Because District did not have a completed IEP to Parents by that date, Parents informed District that they refused to participate in any further IEP team meetings. Parents also informed District that Student had been accepted into the Institute for Effective Education’s Children’s Workshop in San Diego and gave District a 10-day notice of unilateral placement. Student did not start attending Children’s Workshop until April 2018; however, he began with a few hours of tutoring in February 2018.

23. Mother testified regarding Student’s behavior and feeding while at Children’s Workshop. Student did not attend a full day at Children’s Workshop until a feeding program was in place. Student had not had tantrums while at Children’s workshop and came home with an empty lunchbox. Children’s workshop worked closely with the pediatric feeding team at Rady Children’s Hospital and provided direct reinforcement for every bite of food Student consumed without pocketing. While Student was eating he was supervised by a board certified behavior analysist who provided feedback to Parents about behaviors and pocketing food.

January 17, 2018 IEP Team Meeting

24. District attempted to reconvene the IEP team meeting multiple times. District offered 13 different dates between October 25, 2017, and December 20, 2017, to hold part three of the IEP team meeting. On December 19, 2017, District offered two additional dates, January 10, 2018, and January 17, 2018. District also notified Parents that if it did not hear from them regarding Parents’ choice of a date, it would hold the IEP team meeting on January 17, 2018.

25. District convened the IEP team meeting on January 17, 2018, without Parents. Ms. Hensch, Mr. Doria, Ms. Aguirre, Mr. Park, Ms. Belcher, Ms. Zaboori, and Ms. Hart-Lawson, all attended the meeting; in addition, Dr. Taras and Ms. Gonzalez participated via phone. The team continued the discussion regarding goals, discussed accommodations, services, and placement, and completed the IEP.

PROPOSED GOALS, SUPPORTS, SERVICES, AND PLACEMENT

26. District developed 17 goals for Student in the following areas: one gross motor; one visual motor; two fine motor; one imitation; three task completion or attention to tasks; one following directions; three speech and language; one identifying objects and people; two following routines; one in emerging math skills; and one in emerging reading skills. The task completion, following directions, and following routines goals all addressed Student’s behavior; however, District did not draft a goal to address Student’s behavioral feeding disorder.

27. District offered Student individualized adult supervision by a behavior interventionist at all times. District also offered Student transportation to and from school accompanied by a certified nursing assistant. District indicated the certified nursing assistant would be available during, but not limited to, unstructured time, snack and lunch, recess, bathroom breaks, hand washing, and transitions at school. Both the individualized adult supervision and the certified nursing assistant were offered as accommodations.

28. District offered 60 minutes a month of consultation between a physician and services providers; and 120 minutes a month of consultation between a board certified behavior analysist, District staff, and services providers. District also offered 60 sessions of speech and language for 30 minutes each, 600 minutes a year of occupational therapy, and 30 sessions of adaptive physical education for 30 minutes each.

29. District offered 1840 minutes weekly of specialized academic instruction in a separate classroom. The proposed classroom was a special day class at Hope Elementary. Ms. Aguirre, Ms. Hensch, Ms. Zaboori, Mr. Park, and Mr. Doria were all familiar with the program at Hope Elementary. The proposed classroom had six to eight students at any given time and three to four adults. In addition to the small class size there were visual schedules in the classroom and different areas for students to work individually. There was also a sensory room connected to the classroom for students to use as necessary. Student would have access to general education peers during recess and lunch and have the opportunity to take special classes, such as art, with general education students.

30. During the hearing Parents expressed concern about Student’s safety at Hope Elementary as Mother had driven past the school several times and saw the front gate open. However, Ms. Belcher, who worked at Hope elementary, was there on a daily basis and never saw the gate open after children arrived at school in the morning until school was dismissed. Ms. Belcher’s testimony regarding the security of the campus was credible and given considerable weight as she is on campus on a daily basis.

31. Although Ms. Hart-Lawson drafted healthcare plans to be included in Student’s IEP, neither Dr. Taras or Ms. Hart-Lawson reviewed those plans with Student’s treating physicians. District did not ask Parents for the results of the feeding study at Rady Children’s Hospital or ask for a release of information to communicate with Rady Children’s Hospital directly.

LEGAL AUTHORITIES AND CONCLUSIONS

Introduction – Legal Framework under the IDEA4

4Unless otherwise indicated, the legal citations in the introduction are incorporated by reference into the analysis of each issue decided below.

5All subsequent 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)5et 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 and appropriate public education that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment and independent living, and (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, 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 nondisabled peers. (20 U.S.C. §§ 1401(14), 1414(d)(1)(A); Ed. Code, §§ 56032, 56345, subd. (a).)

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. Rowleyexpressly 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, Rowleyinterpreted 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.)

4. The Supreme Court recently clarified and expanded upon its decision in Rowley. In Endrew F. v. Douglas County School Dist., the court stated thatthe IDEA guarantees a FAPE to all students with disabilities by means of an IEP, and that the IEP is required to be reasonably calculated to enable the child to make progress appropriate in light of his or her circumstances. (Endrew F. v. Douglas County School Dist. (March 22, 2017, No. 15-827)580 U.S.____ [137 S.Ct. 988, 996, 197 L.Ed.2d 335]). The Ninth Circuit recently affirmed that its FAPE standard comports withEndrew F. (E.F. v. Newport Mesa Unified School Dist. (9th Cir. Feb. 14, 2018, No. 15-56452) ___ Fed.Appx. ___, 2018 WL 847744.)

5. 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).) 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]; see20 U.S.C. § 1415(i)(2)(C)(iii) [standard of review for IDEA administrative hearing decision is preponderance of the evidence].) By this standard, District had the burden of proof for the issues it alleged in this matter, and Student for the issue he alleged.

Issues 1, 2, 3, and 4: The October 16, 2017, IEP, as amended on October 17, 2017, and January 17, 2018, and Alleged Procedural Errors

6. District contends that the October 16, 2017 IEP which was amended on October 17, 2017, and January 17, 2018, offered Student a FAPE in the least restrictive environment such that District should be allowed to implement the IEP without Parent consent. Student contends that the IEP does not offer him FAPE because it is not tailored to address his individual needs. Student further contends District denied him a FAPE by failing to complete the IEP process in a timely manner and failing to give adequate consideration to all of Student’s outside evaluations.

GENERAL REQUIREMENTS FOR IEPS

7. 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 was reasonably calculated to enable the child to receive educational benefit. (Ibid.)

8. A school district must develop an IEP required as a result of an assessment no later than 60 calendar days from the date of receipt of the parent’s written consent to assessment, unless the parent agrees in writing to an extension. (Ed. Code, §56043, subd. (f)(1).) A meeting to develop an initial individualized education program for the pupil shall be conducted within 30 days of a determination that the pupil needs special education and related services pursuant to Section 300.323(c)(1) of title 34 of the Code of Federal Regulations. (Ed. Code § 56043(f)(2).)

9. Federal and State law require that parents of a child with a disability must be afforded an opportunity to participate in meetings with respect to the identification, assessment, educational placement, and provision of a FAPE to their child. (20 U.S.C. § 1414(d)(1)(B)(i); Ed. Code, §§ 56304, 56342.5.) A district must ensure that the parent of a student who is eligible for special education and related services is a member of any group that makes decisions on the educational placement of the student. (Ed. Code, § 56342.5.) Among the most important procedural safeguards are those that protect the parents’ right to be involved in the development of their child’s educational plan. (Amanda J. v. Clark County Sch. Dist. (9th Cir. 2001) 267 F.3d 877, 882.) Accordingly, at the meeting parents have the right to present information in person or through a representative. (Ed. Code, § 56341.1.)

10. The Ninth Circuit considered the issue of parental participation in IEP meetings in the case of Doug C. v. Hawaii Dept. of Ed.(9th Cir. 2013) 720 F.3d 1038. Doug C.involved a school district which held an annual IEP meeting despite the parent’s last-minute inability, due to illness, to attend the meeting on the day the meeting was scheduled, and despite parent’s statement that he wanted to participate in the IEP meeting. The school district held the meeting on the scheduled day because the parent was not able to definitely commit to attend the meeting on either of two other possible days upon which school district personnel were available and that were also within the deadline for holding the IEP meeting. At the meeting, the school district changed the student’s placement from a private facility to a local public school. Citing title 34 Code of Federal Regulations part 300.322(d), as well as Shapiro v. Paradise Valley Unified Sch. Dist.(9th Cir. 2003) 317 F.3d 1072, 1078 superseded on other grounds by20 U.S.C. § 1414(d)(1)(B), the court determined that the school district had committed a procedural violation of the IDEA and deprived Student of a FAPE, because parent did not affirmatively refuse to attend the meeting, nor was the school district unable to convince parent to attend. (720 F. 3d, at p. 1045.) The court also criticized the school district for prioritizing the schedules of its personnel over the attendance of the parent. (Ibid.) The Doug C.court concluded that the student was deprived of a FAPE both because parent’s opportunity to participate in the IEP formulation process was seriously infringed, and because the student was deprived of an educational opportunity because the merits of the private school he had been attending received insufficient consideration at the IEP team meeting.

11. An IEP team must include at least one parent; a representative of the local educational agency; a regular education teacher of the child if the child is, or may be, participating in the regular education environment; a special education teacher or provider of the child; an individual who can interpret the instructional implications of assessment results, and other individuals who have knowledge or special expertise regarding the pupil, as invited at the discretion of the district, the parent, and when appropriate, the student. (20 U.S.C. § 1414(d)(1)(B)(i), (iv-vi); Ed. Code, § 56341, subds. (b)(1), (5-6).)

12. A parent has meaningfully participated in the development of an IEP when she is informed of her child’s problems, attends the IEP meeting, expresses her disagreement with the IEP team’s conclusions, and requests revisions in the IEP. (N.L. v. Knox County Schs. (6th Cir. 2003) 315 F.3d 688, 693.) A parent who has an opportunity to discuss a proposed IEP, and whose concerns are considered by the IEP team, has participated in the IEP process in a meaningful way. (Fuhrmann v. East Hanover Bd. of Educ. (3d Cir. 1993) 993 F.2d 1031, 1036.)

13. Prior to the October 16, 2017 IEP team meeting, during the assessment process, Parents shared numerous documents with District. District’s assessors reviewed Student’s documents and consulted with additional professionals to develop the IEP. District considered Student’s documentation and took steps to address the health concerns. District consulted with a medical doctor and included him as part of the IEP team, as well as a board certified behavior analyst. District reached out to Student’s medical providers to gain additional information. District also offered an assessment plan to conduct a functional behavioral assessment and an audiological assessment.

14. Student argued that District did not consider the information Parents provided to District in a thoughtful way as the essential material was not reflected in the IEP. Student’s argument is not persuasive. The evidence established that District did consider the information, brought more IEP team members to the table as a result of the information, and tried to conduct additional assessments.

15. In formulating the October 16, 2017 IEP, District conducted the assessments and convened part one and two of the IEP team meetings within the required timeline. Student’s argument that District denied him FAPE by not completing the IEP by November 15, 2017, is not persuasive. District tried to complete the IEP within the required timeline for initial assessments. District offered 15 different dates for part three of the IEP team meeting. Although Parents were unavailable for the first few dates District offered, Parents refused to attend any IEP team meetings past November 15, 2017. District has an obligation to include Parents in the creation of Student’s IEP. By requiring District to complete the IEP, but refusing to participate in any further IEP team meetings, Student was asking District to prioritize strict compliance over parent participation. District’s actions are opposite of the school district in Doug C.; here District prioritized parent participation over strict compliance with the timeline, as it should. Student did not prove that District denied him FAPE by not completing the IEP by November 15, 2017.

CONTENTS OF IEPS

16. The IEP is the “centerpiece of the [IDEA’s] education delivery system for disabled children” and consists of a detailed written statement that must be developed, reviewed, and revised for each child with a disability. (Honig v. Doe (1988) 484 U.S. 305, 311 [108 S.Ct. 592, 98 L.Ed.2d 686]; 20 U.S.C. §§ 1401 (14), 1414 (d)(1)(A); Ed. Code, §§ 56032, 56345.) It is the “modus operandi” of the IDEA, “a comprehensive statement of the educational needs of a handicapped child and the specially designed instruction and related services to be employed to meet those needs.” (School Comm. of Town of Burlington, Mass. v. Department of Educ. (1985) 471 U.S. 359, 368 [105 S.Ct. 1996] (Burlington).)

17. An IEP is a written statement that includes a statement of the present performance of the student, a statement of measurable annual goals designed to meet the student’s needs that result from the disability, a description of the manner in which progress of the student towards meeting the annual goals will be measured, the specific services to be provided, the extent to which the student can participate in regular educational programs, the projected initiation date and anticipated duration, and the procedures for determining whether the instructional objectives are achieved. (20 U.S.C. § 1414 (d)(1)(A)(i),(ii); 34 C.F.R. § 300.320(a)(2), (3); Ed. Code, § 56345, subds. (a)(2), (3).) In Union School Dist. v. Smith (1994) 15 F. 3d 1519, cert. den., 513 U.S. 965 (Union), the Ninth Circuit held that a district is required by the IDEA to make a clear, written IEP offer that parents can understand.

18. The IEP shall also include a statement of the program modifications or supports for school personnel that will be provided to the student to allow the student to advance appropriately toward attaining the annual goals, to be involved and make progress in the general education curriculum, and to participate in extracurricular activities and other nonacademic activities. (34 C.F.R. § 300.320(a)(4)(i), (ii); Ed. Code, § 56345, subds. (a)(4)(A), (B).)

19. In developing an IEP, the IEP team must consider the strengths of the child, the concerns of the parents for enhancing the child’s education, the results of the most recent evaluations of the child, and the academic, developmental, and functional needs of the child. (20 U.S.C. § 1414(d)(3)(A); 34 C.F.R. § 300.324 (a).) The “educational benefit” to be provided to a child requiring special education is not limited to addressing the child’s academic needs, but also social and emotional needs that affect academic progress, school behavior, and socialization. (County of San Diego v. California Special Educ. Hearing Office (9th Cir. 1996) 93 F.3d 1458, 1467.) A child’s unique needs are to be broadly construed to include the child’s academic, social, health, emotional, communicative, physical and vocational needs. (Seattle School Dist. No. 1 v. B.S. (9th Cir. 1996) 82 F.3d 1493, 1500.)

20. If a child’s behavior interferes with his learning or the learning of others, the IDEA requires the IEP team, in developing the IEP, to “consider the use of positive behavioral interventions and supports, and other strategies, to address that behavior.” (20 U.S.C. § 1414(d)(3)(B)(i); 34 C.F.R. § 300.324(a)(2)(i); Ed. Code, § 56341.1, subd. (b)(1).)

21. The October 16, 2017 IEP that was amended on October 17, 2017, and January 17, 2018, does not offer Student a FAPE. Although the IEP had present levels of performance based on the assessment data, 17 goals, and related supports and services, it did not address all of Student’s areas of need. Student established that behavioral feeding was an area of need; as such, the IEP should have contained a behavioral feeding goal and a behavioral feeding plan. Although District created an individual school healthcare plan, that plan was not reviewed by Student’s treating physician. Ms. Hart-Lawson drafted the healthcare plan without much information. She did not attend either of the first two IEP team meetings that Parents did, but she was relying on them for more information. In reviewing the healthcare plan, Dr. Taras specifically wrote draft on it and added a disclaimer that it should not be implemented until it was reviewed by Student’s treating physician. Dr. Taras also opined that the healthcare plan District developed looked more like a plan for choking than behavioral feeding. District also knew Student was scheduled for a behavioral feeding evaluation at Rady Children’s Hospital in November 2017, however, District did not ask Parents for the results of the evaluation. At hearing, Dr. Taras opined that the information from Rady Children’s Hospital would be helpful in creating a plan for feeding Student at school. Moreover, Dr. Taras concluded that it would not be safe for Student to eat at school until his feeding plan was reviewed by his treating physician. District did not take the steps necessary to create an appropriate behavioral feeding plan for Student so he could attend school all day safely.

22. Student did not establish that any of the goals that were included in the IEP were not appropriate. District developed goals in all other identified areas of need. The goals were based on Student’s present levels of performance as determined by the initial assessment. The goals were measureable and included baselines. Although Parents observed that Student had more advanced language skills than District noted, District had not observed the skills and Parent did not provide any evidence that Student exhibited the skills in a school setting. District included services to provide Student educational benefit. Specifically, District offered 1840 minutes weekly of specialized academic instruction, 60 sessions of language and speech for 30 minutes each, 600 minutes a year of occupational therapy, and 30 sessions of adaptive physical education for 30 minutes each. District also offered individualized adult supervision and a certified nursing assistant. However, District did not offer any services to address Student’s behavioral feeding disorder.

REQUIREMENT OF FAPE

23. To determine whether a school district substantively offered a student a FAPE, the focus must be on the adequacy of the district’s proposed program, not parent’s preferred program. (Gregory K. v. Longview School District (9th Cir. 1987) 811 F.2d 1307, 1313-1314.) If the school district’s program was designed to address the student’s unique educational needs, was reasonably calculated to provide the student with some educational benefit, comported with the student’s IEP, and was in the least restrictive environment, then the school district provided a FAPE, even if the student’s parents preferred another program, and even if the parents’ preferred program would have resulted in greater educational benefit. (Ibid.) School districts need to “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.” (Endrew F., supra, 137 S. Ct. at p. 1002.)

LEAST RESTRICTIVE ENVIRONMENT

24. Both federal and state law require a school district to provide special education in the least restrictive environment appropriate to meet the child’s needs. (20 U.S.C. § 1412(a)(5); 34 C.F.R. § 300.114(a); Ed. Code, § 56040.1.) This means that a school district must educate a special needs pupil with nondisabled peers “to the maximum extent appropriate,” and the pupil may be removed from the general education environment only when the nature or severity of the student’s disabilities is such that education in general classes with the use of supplementary aids and services “cannot be achieved satisfactorily.” (20 U.S.C. § 1412(a)(5)(A); 34 C.F.R. § 300.114(a)(2)(ii); Ed. Code, § 56040.1; see Sacramento City Unified Sch. Dist. v. Rachel H. (1994) 14 F.3d 1398,1403; Ms. S. v. Vashon Island School Dist. (9th Cir. 2003) 337 F.3d 1115, 1136-1137 (Vashon Island).)

25. Placement in the least restrictive environment is not an absolute. In an appropriate case, it must yield to the necessity that a student receives a FAPE: The IDEA does not require mainstreaming to the maximum extent possible or to the maximum extent conceivable. It requires mainstreaming to the maximum extent appropriate. Mainstreaming is an important element of education for disabled children, but the IDEA does not permit, let alone require, a school district to mainstream a student where the student is unlikely to make significant educational and non-academic progress. (D.F. v. Western School Corp. (S.D.Ind. 1996) 921 F.Supp. 559, 571 [citation omitted].)

26. The IDEA recognizes that some students should not be placed in general education. Despite this preference for “mainstreaming” disabled children, that is, educating them with nondisabled children, Congress recognized that regular classrooms simply would not be a suitable setting for the education of many disabled children. The Act expressly acknowledges that “the nature or severity of the disability [may be] such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily.” § 1412(a)(5). The Act thus provides for the education of some disabled children in separate classes or institutional settings. (Rowley, supra, 458 U.S. at p. 181, fn. 4 [citation omitted].)

27. Consequently, in appropriate cases, courts have approved placements outside of general education. When it is clear that a student cannot benefit academically or socially from general education, the Ninth Circuit has interpreted its decision in Rachel H., supra, 14 F.3d 1398, to approve placements for all or part of a school day in other than general education settings. (Vashon Island, supra, 337 F.3d at pp. 1118, 1136-1138 [approving temporary placement of student with Down syndrome and IQ between 50 and 70 in self-contained special education classroom]; Clyde K. v. Puyallup Sch. Dist., No. 3 (9th Cir. 1994) 35 F.3d 1396, 1398, 1400-1402 (Puyallup) [approving placement of student with Tourette’s Syndrome in private school for disabled].)

28. InRachel H., supra, at p. 1398, the Ninth Circuit Court of Appeal set forth four factors that must be evaluated and balanced to determine whether a student is placed in the least restrictive environment: (1) the educational benefits of full-time placement in a regular classroom; (2) the non-academic benefits of full-time placement in a regular classroom; (3) the effects the presence of the child with a disability has on the teacher and children in a regular classroom; and (4) the cost of placing the child with a disability full-time in a regular classroom.6(Id., at p. 1404.)

6Neither party introduced evidence that a general education setting would be appropriate for Student.

29. Here, District crafted an offer of placement designed to meet Student’s unique needs based on the information the team had at the time. District offered placement in a special day class on a public school campus. During the assessments Student required frequent redirection and did not appear to understand the directions to many of the assessments. Mr. Doria, Mr. Park, Ms. Aguirre, Ms. Hench, and Ms. Zaboori all agreed that the special day class at Hope Elementary was appropriate. Student had extremely limited communication skills, a short attention span, and had never been in a public school setting. Placement in a general education class would not be appropriate. Additionally, Student would have access to general education peers during recess and lunch. Consequently, District offered placement in a small class setting with a high student to teacher ratio. Student did not present any evidence that he required a more restrictive setting, such as a nonpublic school.

30. Student seeks a more restrictive placement, specifically Children’s Workshop. Placement at a nonpublic school would remove Student completely from regular education and prohibit him from interacting with typical peers at school. Student did not present any evidence that he required a nonpublic school placement to receive a FAPE, or that a behavioral feeding program could not have been implemented in the special day class at Hope Elementary. Student did not provide any evidence as to the student teacher ratio at Children’s Workshop, what the classroom environment looked like, or the type of instruction Student received.

REMEDIES

1. Parents may be entitled to reimbursement for the costs of placement or services they have procured for their child when the school district has failed to provide a FAPE, and the private placement or services were appropriate under the IDEA and replaced services that the school district failed to provide. (20 U.S.C. § 1412(a)(10)(C); Burlington, supra, 471 U.S. at pp. 369-371.) 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. ALJ’s have broad latitude to fashion equitable remedies appropriate for a denial of a FAPE. (Id.at pp. 369-370; 20 U.S.C. § 1415(i)(2)(C)(3).)

2. The ruling in Burlington is not so narrow as to permit reimbursement only when the placement or services chosen by the parent are found to be the exact proper placement or services required under the IDEA. (Alamo Heights Independent Sch. Dist. v. State Bd. of Educ.(5th Cir. 1986) 790 F.2d 1153, 1161.) Although the parents’ placement need not be a “state approved” placement, it still must meet certain basic requirements of the IDEA, such as the requirement that the placement address the child’s needs and provide him educational benefit. (Florence County Sch. Dist. Four v. Carter (1993) 510 U.S. 7, 13-14, [114 S.Ct. 361] (Carter).) Parents may receive reimbursement for the unilateral placement if it is appropriate. (34 C.F.R. § 300.148(c); Ed. Code, § 56175; Carter, supra,510 U.S. at pp. 15-16 .) The appropriateness of the private placement is governed by equitable considerations. (Ibid.) The Ninth Circuit has held that to qualify for reimbursement under the IDEA, parents need not show that a private placement furnishes every special education service necessary to maximize their child’s potential. (C.B. v. Garden Grove Unified School District(9th Cir. 2011) 635 F.3d 1155, at 1159.)

3. Reimbursement may be reduced or denied in a variety of circumstances, including whether a parent acted reasonably with respect to the unilateral private placement. (20 U.S.C. § 1412(a)(10)(C)(iii); 34 C.F.R. § 300.148(d); Ed. Code, § 56176.) These rules may be equitable in nature, but they are based in statute.

4. Based on the principle set forth in Burlington, federal courts have held that compensatory education is a form of equitable relief that may be granted for the denial of appropriate special education services to help overcome lost educational opportunity. (Puyallup, supra, 31 F.3d at p. 1496 .) The purpose of compensatory education is to “ensure that the student is appropriately educated within the meaning of the IDEA.” (Ibid.)

5. The remedy of compensatory education depends on a “fact-specific analysis” of the individual circumstances of the case, and the conduct of both parties must be reviewed and considered to determine whether relief is appropriate. (Puyallup, supra, 31 F.3d at p. 1497.) There is no obligation to provide day-for-day compensation for time missed. , Park v. Anaheim Union High School Dist. (9th Cir. 2006) 464 F.3d 1025, 1033.)

6. Student prevailed on part of Issue 2, in that District denied Student a FAPE by failing to address his behavioral feeding disorder because District did not develop an appropriate behavioral feeding plan for Student and did not develop a goal to address Student’s feeding issues. Student did not prove that any other part of the IEP was deficient. As a remedy, Student requested placement in an applied behavioral analysis program at Children’s Workshop; reimbursement for costs Parents incurred for private evaluations and educational services provided to Student; an unspecified amount of compensatory services; and transportation for Student to and from Children’s Workshop.

7. Although District took steps to address Student’s behavioral feeding disorder by including a medical doctor, nurse, and board certified behavior analysist at the January 17, 2018 IEP team meeting, and offering a functional behavioral assessment plan to parents, ultimately the IEP District offered was deficient. District’s own medical doctor testified that it would not be safe for Student to eat at school until the healthcare plan for Student’s behavioral feeding disorder had been approved by Student’s treating physician. District did not review the healthcare plan with Student’s treating physician and did not have a plan for Student to attend school and eat safely.

8. District denied Student a FAPE by not including an appropriate behavioral feeding plan in the IEP. Although Parents notified District they were unilaterally placing at Children’s Workshop prior to the completion of Student’s IEP that does not relieve District of its obligation to offer Student FAPE.

9. Student failed to introduce any evidence supporting his request for reimbursement, prospective placement, or compensatory services other than Parent’s testimony that Student was attending Children’s Workshop and they had a behavioral feeding program in place. The Order Following the Prehearing Conference ordered that any party seeking reimbursement of expenditures shall present admissible evidence of these expenditures, or a stipulation to the amount of expenditures, as part of its case in chief. A party seeking compensatory education should provide evidence regarding the type, amount, duration, and need for any requested compensatory education. However, Student’s failure to present expert testimony does not mean he should not receive any remedy for the denial of FAPE caused by District’s failure to include an appropriate behavioral feeding plan as part of the IEP. (See Butler v. District of Columbia(D.D.C. 2017) 275 F.Supp.3d 1, 5-6. [Duty of hearing officer to craft a remedy if a student establishes a FAPE denial].) Student was not able to attend a District school because there was no appropriate behavioral feeding plan. Parents placed Student at Children’s Workshop that had a behavioral feeding program for Student. It is equitable to award Student remedies arising from District’s denial of FAPE. As a remedy for District’s failure Student is entitled to reimbursement for tuition paid for the days he attended Children’s Workshop from February 2018 through the date of this decision. Student must first furnish invoices for tuition, proof of attendance, and proof of payment to district to be reimbursed.

ORDER

1. Within 45 calendar days of the date of this decision, Parents shall provide District with copies of proof of payment to the Institute for Effective Education’s Children’s Workshop in San Diego for Student’s attendance there between February 1, 2018, and the date of this decision, and proof of Student’s daily attendance at the Children’s Workshop for the same period. Proof of payment may be demonstrated through cancelled checks or credit card statements. Parents may redact other payments from any credit card statements they submit.

2. Within 45 calendar days of the date Parents provide proof of attendance and proof of payment to District, District is ordered to reimburse Parents for the days Student attended the Institute for Effective Education’s Children’s Workshop in San Diego from February 2018 through the date of this decision.

3. All of Student’s other requests for relief are denied.

4. District may not implement its October 16, 2017 IEP or any of its amendments, without Parents’ consent.

PREVAILING PARTY

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 Issue 1 and part of Issue 2 and District prevailed on Issue 3 and 4 and part of Issue 2.

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: June 27, 2018

LINDA JOHNSON
Administrative Law Judge
Office of Administrative Hearings