G.M. and R.M. v. Saddleback Valley Unified – Supreme Court PetitionDecember 01, 2014
G.M. and R.M. v. Saddleback Valley Unified - Supreme Court Petition
Supreme Court of the United States
G. M. AND R. M., A MINOR CHILD BY AND THROUGH HER MOTHER G.M., PETITIONERS
SADDLEBACK VALLEY UNIFIED
PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
PETITION FOR WRIT OF CERTIORARI
TIMOTHY A. ADAMS
Adams & Associates
1930 Old Tustin AvenuE, Suite A
Santa Ana, CA 92705 (714) 698-0239
Counsel of Record
40 Country Club Road
North Reading, MA 01864
Congress enacted the Education for All
Handicapped Children Act of 1975, subsequently entitled the Individuals with Disabilities Education Act, to assess and assure the effectiveness of efforts to educate all children with disabilities. The Act requires that all children with disabilities residing in the State and who are in need of special education and related services be identified, located, and evaluated. 34 C.F.R. §300.111(a)(1)(i). This process is referred to as child find.
The question presented is:
When is a public school district’s child find obligation triggered?
TABLE OF CONTENTS
TABLE OF AUTHORITIES
20 U.S.C. §1400
20 U.S.C. §1412(3)
20 U.S.C. Sec. 1412(a)(1)(A)
20 U.S.C. § 1415(i)(2)
20 U.S.C. Sec. 1412(a)(3)
20 U.S.C. § 1412(a)(3)(a)
28 U.S.C. § 1254
Cal. Educ. Code Sec. 56300
Cal. Educ. Code Sec. 56301
Congress enacted the Education for All Handicapped Children Act of 1975, subsequently entitled the Individuals with Disabilities Education Act, to assess and assure the effectiveness of efforts to educate all children with disabilities. The Act requires that all children with disabilities residing in the State and who are in need of special education and related services be identified, located, and evaluated. 34 C.F.R. 300.111(a)(1)(i). This process is referred to as child find.
The question presented is:
When is a public school district’s child find obligation triggered?
TABLE OF CONTENTS
TABLE OF AUTHORITIES
20 U.S.C. §1400
20 U.S.C. §1412(3)
20 U.S.C. Sec. 1412(a)(1)(A)
20 U.S.C. § 1415(i)(2)
20 U.S.C. Sec. 1412(a)(3)
20 U.S.C. § 1412(a)(3)(a)
28 U.S.C. § 1254
Cal. Educ. Code Sec. 56300
Cal. Educ. Code Sec. 56301
The opinion of the court of appeals (Pet. App. 1a-4a) is unpublished. The court’s order denying rehearing en banc is unpublished. The opinion of the district court (Pet. App. 5a-28a) is unreported. The opinion of the administrative law judge (ALJ) of the Office of Administrative Hearings State of California (Pet. App. 29a-101a) is unreported.
The court of appeals entered judgment on July 18, 2014. An order denying rehearing en banc was entered on August 26, 2014. This Court has jurisdiction pursuant to 28 U.S.C. § 1254.
Relevant provisions of the Individuals with Disabilities Education Act 2004, 20 U.S.C. §1412(3) Child Find:
(A) In general
All children with disabilities residing in the State, including children with disabilities who are homeless or are wards of the State and children with disabilities attending private schools, regardless of the severity of their disabilities, and who are in need of special education and related services, are identified, located, and evaluated and a practical method is developed and implemented to determine which children with disabilities are currently receiving needed special education and related services.
Nothing in this chapter requires that children be classified by their disability as long as each child with a disability listed in section 1401 of this title and who, by reason of that disability needs special education and related services is regarded as a child with a disability under this subchapter.
and 34 C.F.R. § 300.111 Child Find:
(1) The State must have in effect policies and procedures to ensure that –
(i) All children with disabilities residing in the State, including children with disabilities who are homeless children or are wards of the State, and children with disabilities attending private schools, regardless of the severity of their disability, and who are in need of special education and related services, are identified, located, and evaluated; and
(ii) A practical method is developed and implemented to determine which children are currently receiving needed special education and related services.
(c) Other children in child find. Child find also must include –
(1) Children who are suspected of being a child with a disability under § 300.8 and in need of special education, even though they are advancing from grade to grade; and
(2) Highly mobile children, including migrant
children.(d) Construction. Nothing in the Act requires that children be classified by their disability so long as each child has a disability that is listed in § 200.8 and who, by reason of that disability, need special education and related services is regarded as a child with disability under Part B of the Act.
The decision below deepens a preexisting circuit split on an important and recurring question. The question is whether the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. § 1400 et. seq., requires a public school district to assess a student under child find, when a physician notifies the school district that the student has a disability that is adversely affecting her educational performance.
In the decision below, a Ninth Circuit panel did not articulate a test for when the child find obligation is triggered.
Enacted pursuant to Congress’ spending power, the purpose of the Education for All Handicapped Children Act of 1975, subsequently entitled the Individuals with Disabilities Education Act (IDEA), was to ensure the effectiveness of efforts to educate all children with disabilities. The IDEA provides federal funds to assist state and local agencies to identify, locate and evaluate all children with disabilities residing in the State. 20 U.S.C. § 1412(a)(3)(a) and ensure that a “free appropriate public education is available to all children with disabilities residing in the State between the ages of 3 and 21.” 20 U.S.C. Sec. 1412(a)(1)(A); see Arlington Cent. Sch. Dist. Bd. of Educ. v. Murphy, 548 U.S. 291, 295 (2006).
“The purpose of the IDEA has been to strip schools of their traditional unilateral authority. Honig v. Doe, 484 U.S. 305, 321 (1988) (discussing several sections which combine to remove school district authority.) The IDEA limits unilateral school district authority and increases parental involvement. For example, parents are deemed a necessary party to any IEP Team meeting (20 U.S.C. Sec. 1414(d)(1)(B)(i)) and have the right to review special education documents and participate in any meeting involving their child. 34 C.F.R. Sec. 300.501. Ultimately, if a parent is prevented from meaningful participation, the IDEA is violated and a FAPE has been denied to a child. R.B. v. Napa Valley Unified Sch. Dist., 496 F.3d 932, 938 (9th Cir. 2007) citing Park v. Anaheim Union Sch. Dist., 464 F.3d 1025, 1031 (9th Cir. 2006).
IDEA defines “free and appropriate public education” (“FAPE”) as “special education and related services” that are “provided at public expense,” meet state regulatory standards, “include an appropriate …school … in the State,” and conform to IDEA’s statutory and regulatory requirements. Id. Sec. 1401(9)(A)-(D). The IDEA creates an affirmative obligation for the State to locate and provide services to children with disabilities. 20 U.S.C. Sec. 1412(a)(3) and 34 C.F.R. § 300.111. In California, that obligation is delegated to the local school district. Cal. Educ. Code Sec. 56300. Specifically, a school district, must identify, locate, and assess all children with disabilities by a practical method. Cal. Educ. Code Sec. 56301.
Child find must include children who are suspected of being a child with a disability under 34 C.F.R. Sec. 300.8 and in need of special education. 34 C.F.R. § 300.111 (c)(1). While the statue is silent as to what is required to trigger the “suspicion of a possible disability” it does reflect that a low threshold exists based on the fact that child find can apply to students who are advancing from grade to grade. Id.
The statute’s failure to address what type of notice is required to trigger a suspicion that a student may have a disability, that would require the school district to assess has divided the Third, Sixth, and Ninth Circuits, as well as district courts of other circuits.
Petitioner R.M. was enrolled in the Saddleback Valley Unified School District (“District”). Beginning in 2005 R.M. fell into a depression after the death of a close friend. R.M.’s mental health further deteriorated after the separation of her parents in 2007. Ninth Circuit Excerpts of Record.
R.M.’s mother, G.M., became increasingly concerned and eventually obtained therapy for R.M. where she was diagnosed with depression on or about December 17, 2008. R.M.’s mental condition continued to worsen as the 2009/2010 school year began.
In September 2009, R.M. entered high school as a freshman within the District. On October 13, 2009, R.M.’s treating therapist, contacted R.M.’s high school counselor by email. The email specifically informed the District that R.M. had a “major depressive disorder,” along with relational and substance abuse issues which negatively impacted R.M.’s ability to concentrate and focus on schoolwork.
The District took no action in response to learning of R.M.’s disorder. On November 23, 2009, G.M. contacted the District requesting “an assessment for Special Education on the basis of emotional disturbance.” The District did not create an assessment plan or initiate any proceedings to test R.M. for special education eligibility. Instead, the District scheduled an informal Student Study Team (“SST”) meeting for December 7, 2009.
At the time of the SST, R.M. was failing four of her six classes. At the SST, G.M. informed District personnel about R.M.’s depression and medication. Despite being manifestly aware of R.M.’s depression and the impact on her academics, the District refused to conduct any initial assessments for special education, as indicated on the SST form.
R.M.’s academics and behaviors continued to deteriorate until G.M. had no other option but to secure a therapeutic non-public school program for R.M. On December 21, 2009 G.M. notified the District of her intent to privately place R.M. and seek reimbursement. R.M. began private instruction in a residential treatment center on December 30, 2009.
On January 12, 2010, the District convened a meeting where, for the first time, it offered to assess R.M. for special education eligibility. At an Individualized Education Program (“IEP”) meeting on March 26, 2010, the District’s assessment was reviewed and R.M. was determined eligible for special education.
R.M. requested a due process hearing which was held in June 2011. Pet. App. 29a. The hearing officer concluded that the “District had no reason to believe that Student [R.M.] has a disability nor did it have reason to suspect that Student [R.M.] needed special education services to address the disability, prior to the time Mother [G.M.] unilaterally enrolled Student [R.M] at the Sunrise [the residential treatment center].” Pet. App. 74a.
Pursuant to 20 U.S.C. § 1415(i)(2), R.M. appealed the child find issue to the U.S. District Court for the Central District of California Southern Division. The district court accepted the hearing officer’s factual findings, but misapplied the child find test articulated in Department of Education, State of Hawaii v. Cari Rae S., 158 F.Supp.2d 1190, 1194 (D. Haw. 2001) (hereinafter CarI Rae). In its application of the CarI Rae test, “the child-find duty is triggered when the [district] has reason to suspect a disability, and reason to suspect that special education services may be needed to address that disability” (Pet App 4a-5a). However, he lower court also incorporated 5 C.C.R. §3030(4), the definition of R.M.’s subsequently identified disability of emotional disturbance to find that the District’s child find duty had not been triggered.
A panel of the Ninth Circuit affirmed and remanded. The panel identified that the child find issue was a close and novel question, but held that the District complied with its child find duty based on the fact that it took steps to “idenitf[y], locate, and evaluate” R.M. in accordance with Compton Unified Sch. Dist. v. Addison, 598 F.3d 1181, 1183 (9th Cir. 2010). The panel acknowledged that the circuit had not yet articulated a test as to when a child find obligation is triggered. Pet. App. 3a.
It is without question that a District has a duty to identify, locate and evaluate students suspected of having a qualifying disability under the Individuals with Disabilities Education Act. This case presents an ideal vehicle to answer the question of when this duty is triggered and resolve the circuit split that exists.
THIS COURT SHOULD GRANT CERTIORARI TO RESOVE THE RECOGNIZED CIRCUIT SPLIT ON THE QUESTION PRESENTED.
In this case, the Ninth Circuit did not articulate a test as to when a school District’s child find duty is triggered. The Ninth Circuit’s declined to adopt or implement a child find test and deference to the district court’s reliance on a modification of CarIRaeresults in continued ambiguity within the circuit, and conflicts with the tests promulgated by the Sixth and Third Circuits.
Further, the district court’s modification of CarI Rae creates a standard which allowed the court the ability to retrospectively nullify whether a public school district has suspicion of a disability, and suspicion that the need for special education existed. The district court’s reliance on the definition of the disability R.M. was eventually made eligible for special education under does not take into consideration the fact that child find does not require that the specific disability be identified. Child findonly requires there is a suspIcIOn that a disability exists and that special education may be required. The District court’s post-hoc application of the emotional disturbance definition negates the court having to make a determination of whether a suspicion of any qualifying disability existed.
In Bd. Of Educ. Of Fayette Cnty, Ky. v. L.M., 478 F.3d 307 (6th Cir. 2007), the Sixth Circuit did not rely on whether there was a “suspicion of a disability,” but instead established a negligence standard. The Sixth Circuit held child find was violated when a school district “overlooks clear signs of disability and were negligent in failing to order testing or that there was no rational justification for not deciding to evaluate.” Id. at 314.
In D.K. v. Abington Sch. Dist., 696 F.3d 233 (3d Cir. 2012), the Third Circuit found that while a school district must act without unwarranted delay, a formal assessment and special education identification is not necessary if the student is identified as challenged and offered substantial accommodations and services. In this case it was determined that child find was not violated because while formal assessments were not performed at this time, D.K.’s teacher observed that he had difficulties in listening, following directions and organization, provided D.K.’s parents with measures that could be implemented at home to address these deficits, and ultimately incorporated supports into the classroom. The actions of the District were determined to be sufficient to meet the requirements of child find.
Mirroring the circuit conflict, district courts outside the Third and Sixth circuits are divided over the question presented here. At least one district court has adopted the Third Circuits standard. See J.Y. ex. Rel. E.Y. v. Dothan City Bd. Of Educ., 2014 WL 1320187 (U.S. Dist. Ct., M.d. Ala., Southern Div., 2014). Other district courts have adopted the holdings of Sch. Bd. Of the City of Norfolk v. Brown, 769 F.Supp.2d 928, which identifies that the child find duty is triggered when: (1) the parent of the child has expressed specific concerns in writing to a teacher or administrative authority that the child needs services, (2) the parent has requested an evaluation be undertaken, or (3) the teacher of the child or other administrator has expressed concerns about the child’s pattern of behavior directly to the special education director or someone with similar authority. See Moore v. Hamilton Southeastern Sch. Dist., 2013 WL 4607228, Aug. 29 2013).
Further, other district courts have held that a violation of the child find duty is not triggered if the student is later found to not be eligible for IDEA’s benefits or was not in “need” of special education during the time period of the supposed violation. D.G. v. Flour Bluff Independent School District 2012 WL 19925302 * 893 (i.A.5 (Tex.)) 2012. In FlourBluff, the court of appeals cited a Fifth circuit non-child find case, Alvin Independent School District v. A.D. ex rel. Patricia F., 503 F. 3d 378 (5th Cir.2007), which held that a child is not considered a child with a disability under the IDEA if he does not “need” special education services by reason of his [disability]. Id. at *891. The court used this case to justify its reasoning that the test of whether the child find duty was violated was based on whether the student was eligible for IDEA’s benefits during the time period in question. Id. In Flour Bluff, the high school student was evaluated for special education nine months after the parent notified the District of the child’s 5th grade diagnosis, however the court held that he may not recover for the District’s failure to evaluate him at that time, because he was later found not to be eligible for IDEA’s benefits during that particular school year. Id. at *893.
The variance in holdings of the lower courts creates conflict and uncertainty as to when a school district’s child find duty is triggered and how a school district must respond once it is triggered. Given the circuit conflict and its practical consequences, the Court should grant review to provide uniformity on this important and recurring issue.
This Court should grant the petition for a writ of certiorari.
Timothy A. Adams
ADAMS & ASSOCIATES
1930 Old Tustin Avenue, Suite A
Santa Ana, CA 92705
Counsel of Record
40 Country Club Rd
North Reading, MA 01864
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
G. M. and R. M., a minor child by and through her mother G.M., Plaintiffs – Appellants,
SADDLEBACK VALLEY UNIFIED SCHOOL DISTRICT, Defendant – Appellee.
D.C. No. 8:11-cv-01449-DOCMLG
Argued and Submitted May 16, 2014 Pasadena, California
Before: NOONAN and WARDLAW, Circuit Judges, and SILVER, Senior District Judge.**
Appellants G.M. (“Mother”) and R.M. (“Student”) appeal the district court’s decision, which affirmed an Administrative Law Judge’s determination that Saddleback Valley Unified School District (“School District”) did not violate its “child find” obligation with respect to Student, nor did it fail to provide Student with a Free and Appropriate Public Education (“FAPE”). In addition to ruling on the merits of plaintiffs’ claims, the district court also solicited a request for an award of attorneys’ fees from the School District based on its conclusion that plaintiffs’ claims were frivolous or presented for an improper purpose.
Though a close and novel question, the district court did not err in concluding that the School District complied with its child find duty with respect to Student because it took steps to “identif[y], locate, and evaluate” Student. Compton Unified Sch. Dist. v. Addison, 598 F.3d 1181, 1183 (9th Cir. 2010) (quoting 20 U.S.C. § 1412(a)(3)(A)).
Nor did the district court err when it concluded that the School District also met its obligation to provide a FAPE to Student. 20 U.S.C. § 1412(a)(1). The School District drafted an individualized education plan (“IEP”) “reasonably calculated to confer an educational benefit on the child.” JG v. Douglas Cnty. Sch. Dist., 552 F.3d 786, 801 (9th Cir. 2008). While the IEP may not have been perfect, it did “take into account what was, and was not, objectively reasonable when the snapshot was taken, that is, at the time the IEP was drafted.” Adams v. State of Oregon, 195 F.3d 1141, 1149 (9th Cir. 1999) (internal quotation marks omitted).
However, the district court’s solicitation of a motion for attorneys’ fees from the School District on this record was questionable. Congress amended the IDEA in 2004 to allow prevailing school districts to obtain attorneys’ fees from the plaintiffs if the litigation was “frivolous, unreasonable, or without foundation,” or “presented for any improper purpose, such as to harass, to cause unnecessary delay, or to needlessly increase the cost of litigation.” 20 U.S.C. § 1415(i)(3)(B)(i)(II), (III). The district court’s order makes clear that it solicited “a future motion for attorney’s fees from [the] District” because it had already concluded that plaintiffs’ claims were frivolous. The question of whether the School District violated its child find duties was close, and one of first impression for our circuit, especially given that Student’s school counselor had been advised of Student’s diagnosis of “major depressive disorder” as of at least October 15, 2009. The question of whether the School District failed to provide a FAPE was, at a minimum, legally cognizable. See R.P. ex rel. C.P. v. Prescott Unified Sch. Dist., 631 F.3d 1117, 1126 (9th Cir. 2011) (“Lawyers would be improperly discouraged from taking on potentially meritorious IDEA cases if they risked being saddled with a six-figure judgment for bringing a suit where they have a plausible, though ultimately unsuccessful, argument, as here.”). We remand in part to the district court so it may consider whether it should have solicited the request of attorneys’ fees from the district.2
Each side shall bear its own costs.
* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
** The Honorable Roslyn O. Silver, Senior District Judge for the U.S. District Court for the District of Arizona, sitting by designation.
1 We have not yet articulated a test for when the child find obligation is triggered. The parties and the district court rely upon a test articulated by a Hawaii district court. See Dept. of Educ., Haw. v. Cari Rae S., 158 F. Supp. 2d 1190 (D. Haw. 2001) (“[T]he child-find duty is triggered when the [district] has reason to suspect a disability, and reason to suspect that special education services may be needed to address that disability.”) (internal quotation marks omitted). The Sixth and Third Circuits have promulgated tests that differ significantly from the Cari Rae standard. See D.K. v. Abington Sch. Dist., 696 F.3d 233, 249 (3d Cir. 2012) (noting that “Child Find does not demand that schools conduct a formal evaluation of every struggling student”); Bd. of Educ. of Fayette Cnty., Ky. v. L.M.,
478 F.3d 307, 314 (6th Cir. 2007) (holding that the individual claiming a child find violation must demonstrate “that school officials overlooked clear signs of disability and were negligent in failing to order testing or that there was no rational justification for not deciding to evaluate”).
2 Plaintiffs’ failed to appeal the November 26, 2012 order granting the School District’s motion for attorneys’ fees, so we lack jurisdiction over the actual amount awarded.
UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA SOUTHERN DIVISION
G.M. and R.M., a minor child by and through her mother, Plaintiffs,
SADDLEBACK VALLEY UNIFIED SCHOOL DISTRICT, Defendant.
Case No.: SACV 11-1449 DOC(MLGx)
ORDER AFFIRMING ADMINISTRATIVE LAW JUDGE’S DECISION
Before the Court is a document titled “Plaintiff’s Opening Brief,” which is an appeal of a decision the Office of Administrative Hearings in an action under the Individuals with Disabilities Education Act (“IDEA”).1 (Dkt. 19). After reviewing the moving papers and oral argument, the court AFFIRMS the decision by the Office of Administrative Hearings.
This appeal is brought on behalf of student R.M. (“Student”) by her mother G.M. (“Mother”) against Saddleback Valley Unified School District (“District”). As discussed in this opinion, infra, the Court finds that the ALJ’s decision is thorough and careful and thus adopts the ALJ’s findings of fact in their entirety. The Court summarizes those findings here very briefly to provide context for this appeal.
a. Mother’s difficulties with Student prior to attending District’s high school
In 2007, Mother and Student’s father divorced and Student’s boyfriend died in a car accident, leaving Student very sad. (Vol. 1, p2 ¶ 2). Mother and Student clashed on a regular basis. Id. p3 ¶ 3. According to Mother, Student was disrespectful and refused to follow Mother’s rules. Id. Student and Mother participated in counseling beginning in December 2008.
In the 2007-2008 school year, prior to Student’s attendance at high school in the District, Mother enrolled Student in a religious school affiliated with Mother’s employer. Id. p2 ¶ 2.
At a July 30, 2009, urgent visit with Mother and Student’s mutual psychiatrist, Mother expressed her frustration with Student’s behavior and outbursts. Id. at p3 ¶ 5. Mother expressed her desire to “send Student away for awhile.” Id.
The psychiatrist advised Mother that, if she did so, she would have to pay for Student’s care at a residential treatment center. Id.
b. Student begins attending high school in District on September 10, 2009
Student attended a high school in District for three months from September 10, 2009 until December 18, 2009. See AR p. 1390.
c. October 19, 2009, email by Student’s therapist mentioning Student’s unnamed major depressive disorder
On October 15, 2009, Mother showed Student’s guidance counselor an email from Student’s therapist requesting information about make-up work and tutoring. See Mot. at 9. The email mention that Student’s “major depressive disorder, relationships/boyfriend issues, familial stressors and struggles with drug abuse have all combined negatively to impact her ability to concentrate and focus on school- work.” Vol. I p.4 ¶ 9.
d. November 23, 2009 letter by Mother and attempts at compromise by District
Just before Thanksgiving break, on November 23, 2009, Mother sent a letter to District requesting a special education assessment of Student. Id. at p5 ¶ 15. After Thanksgiving break, on November 30, 2009, District contacted Mother and arranged a December 7, 2009, meeting. Id. at p6 ¶ 16.
At the December 7, 2009, meeting, Mother and District agreed that a special education assessment should be postponed until after the certain education interventions were implemented. Id. at p7 ¶ 20. Mother and District did not discuss Student’s history of depression nor placement at a residential treatment center. Id. at p6 ¶ 19. Mother and District agreed to meet after the winter break, which ran from December 19, 2009 to January 4, 2010. Id. at p7 ¶ 20.
On December 10, 2009, District left a voicemail message with Mother that was not returned. Id. at p8 ¶ 25.
e. December 18, 2009, letter by Mother withdrawing Student from District
At the beginning of winter break, on December 19,
2009, Mother (through a special education advocate she had hired) sent a letter to District advising District that Student would be available for an assessment for only 10 more days. Id. at p8 ¶ 26. The letter stated that, after these 10 days, Student would be in a residential placement and that Mother would seek reimbursement from District for this placement. Id.
f. December 29, 2009, Mother sends Student out of state
On December 29, 2009, an escort service hired by Mother transported Student to Solacium Sunrise (“Sunrise”), which is a private, for-profit entity in Utah that is not a certified California Non-Public School. Id. at p8 ¶¶ 27,-28.
The day before Mother placed Student in Sunrise, Mother was contacted by the police because Student had been detained. Id. at p. 8 ¶ 27. Mother placed Student at Sunrise at least in part “because of her growing concerns about Student’s drug use, her failure to come home for days at a time, and defiance when she was at home.” Id. at p. 8 ¶ 27.
g. Mother continually refuses to produce Student for assessment over several months
When the District reopened on January 4, 2010, after the winter holiday, District contacted Mother’s special education advocate to arrange a special education assessment. Id. at p. 9 ¶ 30. Mother refused to make Student available for an assessment within District’s jurisdiction. Id. at p. 9. Although District did not have an obligation to conduct a special education assessment in another state,2 District sent an experienced psychologist to Utah to assess Student. Id. at p. 10.
On March 26, 2010, the Individual Education Program (“IEP”) Team met to discuss the assessment and determine if Student was eligible for special education. Id. at p12. IEP Team recommended that Student’s mental health issues be addressed through a referral to Orange County Medical Health for evaluation. Later, at the due process hearing, Student’s expert agreed with the IEP team’s decision to refer Student to OCHCA for a mental health assessment. Id. at p31 ¶ 45.
Mother refused to consent to the OCHCA referral and assessment. Id. at p 31 ¶ 45.
h. Student continues her attendance at for-profit and religious institutions
Student continued her attendance at Sunrise and then enrolled in a religious institution.
i. Appeal of the due process hearing
Mother commenced the present action on September 20, 2011, on behalf of Student. See Compl. (Dkt. 1). The action seeks more than $70,000 in costs Mother incurred for attending Sunrise and a separate religious institution.
II. Legal Standard
Where, as here, a party challenges the outcome of a due process hearing under the Individuals with Disabilities Education Act (“IDEA”), the reviewing court receives the administrative record, hears any additional evidence, and, “basing its decision on the preponderance of the evidence, shall grant such relief as the court determines is appropriate.” 20 U.S.C. §1415(i)(2)(B); 3 Americans with Disab.: Pract. & Compliance Manual § 11:267.
The standard of review of an administrative decision is a modified de novo standard, based primarily on a review of the stipulated administrative record. Seattle Sch. Dist. No. 1 v. B.S., 82 F.3d 1493, 1499 (9th Cir. 1996); Ojai Unified Sch. Dist. v. Jackson, 4 F.3d 1467, 14711473 (9th Cir. 1993). Complete de novo review is inappropriate. J.G. v. Douglas County Sch. Dist., 552 F.3d 786, 793 (9th Cir. 2008); E.W. v. Rocklin Unified Sch. Dist., 2006 U.S. Dist. LEXIS 71151, *15 (E.D. Cal. 2006) (“Because the deference potentially accorded the administrative proceedings, complete de novo review is inappropriate.”) (citing Amanda J. v. Clark County Sch. Dist., 267 F.3d 877, 887 (9th Cir. 2001)).
In reviewing the decision, the court must give “due weight” to the underlying administrative proceedings, which means that the court should not try the case anew. Henry Hudson Cent. Sch. Bd. of Educ. v. Rowley (“Rowley”), 458 U.S. 176, 206 (1982) (finding that courts should not “substitute their own notions of sound educational policy for those of the school authorities which they review”); Capistrano Unified Sch. Dist. v. Wartenberg, 59 F.3d 884, 891-892 (9th Cir. 1995).
Where an administrative law judge’s report is “careful and thorough,” the reviewing court may exercise “discretion to give [the report] quite substantial deference.” Capistrano, 59 F.3d at 892; Union Sch. Dist. v. Smith, 15 F.3d 1519, 1524 (9th Cir. 1994). A decision is thorough and careful when the hearing officer “participates in the questioning of witnesses and writes a decision ‘contain[ing] a complete factual background as well as a discrete analysis supporting the ultimate conclusions.’” R.B. v. Napa Valley Unified Sch. Dist., 496 F.3d 932, 942 (9th Cir. 2007) (citing Park v. Anaheim Union High Sch. Dist., 464 F.3d 1025, 1031 (9th Cir. 2006). A carefully-articulated administrative- level opinion meets the “thorough and careful” standard. L.M. v. Capistrano Unified Sch. Dist., 556 F.3d 900, 908 (9th Cir. 2009). Exactly how much weight is “due” to an administrative law judge’s findings is a matter of discretion of the courts. Gregory K. v. Longview Sch. Dist., 811 F.2d 1307, 1311 (9th Cir. 1987); see also Capistrano, 59 3d. at 891.
The parties dispute the level of deference that the Court should give the decision by the administrative law judge (ALJ) who presided over the due process hearing in this case. The Court concludes that the ALJ’s decision should be reviewed with substantial deference because her findings are thorough and careful.
i. The purportedly “numerous” factual errors in the ALJ’s decision were neither errors nor numerous
Student contends that the ALJ’s decision does not merit deference because it was not thorough and careful, as shown by the “numerous” factual errors. Reply 8-9; Mot. at 16-17. Student identifies a mere two factual determinations that are purported clearly erroneous. A finding of fact is clearly erroneous when the evidence in the record supports the finding but “the reviewing court is left with a definite and firm conviction that a mistake has been committed.” K.D. ex rel. C.L. v. Dep’t of Educ., Hawaii, 665 F.3d 1110, 1117 (9th Cir. 2011).
First, Student cherry picks one sentence in the ALJ’s summary of a Sunrise therapist’s testimony to argue that the ALJ’s summary inaccurately explains the reason Mother refused to produce Student for evaluation. See Mot. at 17 (quoting ALJ’s summary of testimony as “Student would not be ready to return home at the time of the March 26, 2010 IEP meeting because she had not finished the program” but citing record to show that testimony was that a “home visit would have been disastrous”). The Court does not see how this is an inaccuracy; even if it was, Student has offered no reason to show why this one sentence is not harmless error.
Second, Student argues that the ALJ failed to alert Mother’s counsel that the recording had ceased during her testimony. Mot. at 16. However, the Court can not discern how this harmed Mother, as Mother was allowed to continue her testimony. Occasionally technological snafus occur; this is not a reason to retry this case.
Finally, the Court notes that the ALJ’s 34-page decision includes a thorough factual background summarizing the evidence presented at the due process hearing. The ALJ issued 65 detailed factual findings related to the issues presented at the due process hearing. The ALJ also actively participated in the proceedings, including extensive direct questioning of the witnesses and seeking clarification and follow-up information.
In sum, the Court concludes that the ALJ’s decision contains no factual errors and is, instead, a model of accuracy and clarity.
ii. The two purported legal errors in the ALJ’s decision are not errors
Student argues that the ALJ misapplied the law by adopting the reasoning of a non-lawyer and by failing to find Mother and Student’s expert credible. Mot. at 18-21, Reply 10-12. Student’s argument grossly mischaracterizes the record.
First, Student asserts that the ALJ’s decision is based on a non-lawyer’s statement of the law because the ALJ’s decision mentions a conversation in which Student’s own therapist advised Mother that she would have to pay for Student’s care at a residential treatment center. A fair reading of the record shows that the ALJ did not allow this non-lawyer’s statement to supplant the ALJ’s own judgment. This conversation is simply recounted in the ALJ’s findings of fact. See Vol. I p. 5 ¶ 5.
Second, Student objects to the ALJ’s conclusion that Mother placed Student at Sunrise “because of her growing concerns about Student’s drug use, her failure to come home for days at a time, and defiance when she was at home.” Mot. at 17 (quoting Vol, 1 p. 8 ¶ 27). Yet, Student concedes that these were “contributing factors” to Mother’s decision. Id. Student appears to argue that the ALJ erred because she gave too little weight to Mother’s testimony that the “primary cause of the Sunrise placement was that Student was completely failing in school.” Id. To the extent that the ALJ discounted Mother’s testimony in concluding that Student’s placement at Sunrise was not due to District’s failure to offer Student a Fair Appropriate Public Education (“FAPE”), that conclusion is supported by the record. The record shows that, prior to Student ever attending District, Mother had previously enrolled Student in religious education in
2007-2008 (Vol. 1, p4. ¶ 2) and expressed her desire to “send Student away for a awhile” (id. at p5 ¶ 5). Given that Mother had demonstrated a preference for Student to receive religious education and to live apart from Mother in the year and a half before Student attended District, the ALJ was entitled to give no weight to Mother’s self-serving statements about the reasons for placing Student at Sunrise.
Third, Student argues in one sentence that the ALJ’s credibility determination was error when she concluded that a report by Student’s expert “does not appear to be an objective assessment of Student.” Reply at 11. This argument is unavailing because Student has not challenged the ALJ’s factual findings that Student’s expert “has no experience or credentials as a school psychologist,” the expert’s report “relied on materials not available to the March 26, 2010 IEP team or the February 11, 2011 IEP team,” and the report was “prepared in anticipation of litigation.” Vol. I p20 ¶ 62. Furthermore, an ALJ’s findings regarding the credibility and competence of witnesses are entitled to substantial deference. Ms. S. ex rel. G v. Vashon Island Sch. Dist., 337 F.3d 1115, 1127 (9th Cir. 2003).
Finally, the Court notes that, contrary to Student’s argument, the ALJ’s 34-page decision demonstrate that the ALJ carefully considered the testimony of the 12 witnesses who testified and thoroughly researched the relevant law. In reaching her conclusions, the ALJ routinely summarized the legal rule and explained how the facts either satisfied or failed to satisfy the rule—a feat few lawyers accomplish in practicing before this Court. See e.g., Vol. I p. 33 ¶ 49 (“As set forth in Legal Conclusion 36 above, a [residential treatment center] is available only if a student’s needs cannot reasonably be met through any combination of nonresidential services. (Gov. Code § 7572.5(b)(1).) . . . . The fact that Student exhibited emotional and behavioral difficulties outside of school would not have, in and of itself, demonstrated a need for an RTC placement. . . .”).
In sum, the Court concludes that the ALJ’s decision contains no legal errors and is, instead, a paragon of logic, well-researched authority, and objectivity.
Because the ALJ decision contained no factual or legal errors, the Court concludes that the ALJ’s decision is thorough and careful. Because the ALJ’s decision is thorough and careful, the Court reviews the ALJ’s decision with substantial deference. See Union Sch. Dist. v. Smith, 15 F.3d 1519, 1524 (9th Cir. 1994).
Student argues that the ALJ erred either by holding that: (1) information known to District did not trigger the child find duty; or (2) the March 2010 IEP did not deny Student a FAPE.
a. The information known to District did not trigger the “child find” duty and thus District did not deny Student a FAPE
The IDEA and California state law create what is commonly referred to as a “child find duty,” which requires that “[a]ll children with disabilities residing in the State . . . who are in need of special education and related services, are identified, located, and evaluated and a practical method is developed and implemented to determine which children with disabilities are currently receiving needed special education and related services.” See 20 U.S.C. § 1412(a)(3)(A); see also Cal. Ed. Code § 56300. The child find duty arises when a school district has “reason to suspect” that: (1) the student has a “disability”; and (2) “special education services may be needed to address the disability.” Department of Education, State of Hawaii v. Cari Rae. S., 158 F.Supp.2d 1190, 1194 (D. Haw. 2001); see also A.P. v. Woodstok Bd. of Education, 572 F.Supp.2d 221,
225 (D. Conn. 2008).
Referrals for special education are to occur “only after the resources of the regular education program have been considered and, where, appropriate, utilized.” Cal. Ed. Code § 56303; see also W.H. ex rel. B.H. v. Clovis Unified Sch. Dist., No. CV F 08-0374, 2009 U.S. Dist. LEXIS 47736 (E.D. Cal. June 8, 2009); Johnson v. Upland Unified Sch. Dist., 26 Fed.Appx. 689, 2002 LEXIS 515 (9th Cir. 2002).
i. Law regarding the child-find duty for “emotional disturbance” and “other health impairment”
Regarding the first element of the child find duty— reason to suspect that the student has a disability— Student never explains what disability she has.3 See Opening Brief (Dkt. 19) at 1- 2. However, the Court assumes that Student contends her disability is based on her depression and can be classified as an: (1)“emotional disturbance”; or (2) “other health impairment.” The Court does so because, regarding the second element in the child find duty—reason to suspect that special education services may be needed to address the disability—the ALJ analyzed whether the District had reason to suspect the need for the following two special education services: (1) “emotional disturbance”; or (2) “other health impairment.” See Vol. I p 23 ¶¶ 6-8. The following two paragraphs summarize the relevant law regarding this second element of the child find duty as it relates to these two disabilities.
1. Services for emotional disturbance
A child is not eligible for services under the “emotional disturbance” category simply because the child is socially maladjusted. Vol. I p 21 ¶ 7 (citing 34 C.F.R. §300.8(c)(4)(ii)(2006); Ed. Code, § 56026, subd. (e); Gov. Code, §7576, subd. (b)(3)(D).). A child may be eligible for special education and related services under the category of emotional disturbance if, because of a serious emotional disturbance, a pupil exhibits one or more of the following characteristics over a long period of time and to a marked degree, which adversely affect educational performance:
(1) An inability to learn which cannot be explained by intellectual, sensory, or health factors.
(2) An inability to build or maintain satisfactory interpersonal relationships with peers and teachers.
(3) Inappropriate types of behavior or feelings under normal circumstances exhibited in several situations.
(4) A general pervasive mood of unhappiness or depression.
(5) A tendency to develop physical symptoms or fears associated with personal or school problems. Id. at p 21 ¶ 6 (citing 5 C.C.R. §3030, subd. (i); see also 34 C.F.R. §300.8(c)(4)(A)- (E)(2006)).4
2. Services for other health impairment
A child may qualify for special education and related services under the category of other health impairment when she has “limited strength, vitality or alertness, due to chronic or acute health problems, including but not limited to a heart condition, cancer, [and several other conditions from which Student does not claim to suffer] which adversely affect a pupil’s educational performance.” Id. at p 21 ¶ 8 (quoting Ed. Code, §
56026, subd. (e); 34 C.F.R. §300.8 (c)(9)(2006)).5
ii. The information known to District during the three months that Student attended District did not trigger the child-find duty because this was not enough time to reasonably suspect that special education services may be needed to address her disability
Student contends that District’s child find duty was triggered during the three months that Student was enrolled in District from September 10, 2009 until December 18, 2009. On December 18, 2009, the semester ended and District closed for winter break. On that same date, Mother gave District a 10-day notice that she had withdrawn Student from District. Mother then sent Student out of state to attend a for- profit entity Sunrise.
1. District’s knowledge the October 2009 email by Student’s therapist mentioning Student’s “major depressive disorder” did not trigger the child find duty
The earliest that Student contends District’s child find duty was triggered was on October 15, 2009, when Mother showed student’s guidance counselor an email from Student’s therapist requesting information about make-up work and tutoring. See Mot. at 9.6 The email mentioned that Student’s “major depressive disorder, relationships/boyfriend issues, familial stressors and struggles with drug abuse have all combined negatively to impact her ability to concentrate and focus on school- work.” Vol. I p.4 ¶ 9.
The ALJ appropriately held that the email “on its face was insufficient” to trigger the child find duty because notice of a student’s mood disorder and/or psychological treatment does not, in and of itself, trigger the district’s duty to conduct an assessment. See Student v. Palos Verdes Peninsula Unified Sch. Dist. OAH No. N2005060588.
2. Mother’s November 23, 2009, letter requesting an assessment did not trigger the child find duty
At oral argument, Student contended that Mother’s November 23, 2009, letter requesting an assessment triggered School’s child find duty. Student cited California Education Code Section 56029(a). This argument fails because that statute does not create a child find duty.7
Section 56029(a) is in the “definitions” section of the code and merely states that “‘Referral for assessment’ means any written request for assessment to identify an individual with exceptional needs made by any of the following: (a) A parent . . . of the individual . . . .” Cal. Ed. Code § 56029(a). This statute merely provides a definition, not a child find duty. See Jack P. v. Auburn Union Elementary Sch. Dist., S-04-896 LKK/PAN, 2005
WL 2042269, *1415 (E.D. Cal. Aug. 23, 2005) (affirming ALJ’s decision in favor of school and rejecting parent’s argument based on Section 56029 that assessment must be as broad as parent’s request, which sought an audiologist, given that “there is no statutory standard which requires the District to do so” and thus the District was not required to “proceed immediately to a test with an
As noted previously, the second element of the child find duty requires that the school had “reason to suspect” that “special education services may be needed to address the disability.” See Department of Education, State of Hawaii v. Cari Rae. S., 158 F.Supp.2d 1190, 1194 (D. Haw. 2001). A parent’s request for an assessment does not satisfy that element per se. Furthermore, there is an excellent policy justification for why a parent’s request for assessment does not automatically trigger the child find duty. Schools should not be burdened with conducting expensive and invasive assessments at the whims of parents; rather, schools should conduct such assessments when doing so is warranted by the facts known to the school.
3. District’s knowledge of Students subpar academic performance combined with the October 2009 email did not trigger the child find duty
Alternatively, Student contends that District’s simultaneous knowledge of an unnamed mental depressive disorder, based on the October 2009 email, and Student’s subpar academic performance throughout the remaining semester triggered District’s child find duty. The ALJ correctly held that no child- find duty existed. As explained above, District did not have a child-find duty unless it had reason to suspect either: (1) an “emotional disturbance,” as shown by symptoms “over a long period of time and to a marked degree, which adversely affect educational performance”; or (2) an “other health impairment,” as shown by “chronic or acute health problems.” Id. at ¶¶ 6, 8.
Regarding whether the child find duty was triggered as based on an emotional disturbance, the three months during which Student attended District was per se insufficient to observe symptoms “over a long period of time and to a marked degree.” See Vol. I p 23 ¶ 6 (emphasis added). Regarding the “other health impairment,” the three months during which Student attended District was per se insufficient to observe any “chronic . . . health problems” and there is nothing in the record to show that District had reason to suspect that Student’s unnamed mental health disorder was “acute.” See id. at ¶ 8.
The emotional disorder and other health disorder disability categories demonstrate the legislature’s balancing of a student’s needs with the difficulty a school may have in distinguishing between these disability and normal student behavior. As Student’s guidance counselor explained to Mother in October 2009, and as explained by multiple teachers at the due process hearing, Student was a freshman in high school and freshman students often struggle academically in their first semester. Vol. I, p. 5; AR p. 710-711, 771-772. The three months during which Student attended District were not sufficient for District to distinguish between symptoms of Student’s disability and normal student behavior. See Las Virgenes Unified Sch. Dist. v. Student, Case No. SN04-01160 (CA SEA 2004) (despite student’s failing grades in four academic classes during the first semester of eighth grade, no child find violation was found because it was reasonable that school would need one semester of acquaintance with a new student before identifying a need for special education assessment); see also Sherman v. Mamaroneck Union Free Sch. Dist., 340 F.3d 87, 93 (2nd Cir. 2003) (holding that poor grades alone do not necessarily establish that a district has failed its child find obligation or that it failed to provide an educational benefit to a student); Mather v. Hartford Sch. Dist., 928 F.Supp. 437, 446 (D. Vt. 1996).
Student’s first basis for appeal turns on the Student’s type of disability and the time necessary for a school to distinguish this disability from normal student behavior. Here, Student attended District for only three months before Mother unilaterally withdrew Student and sent Student out of state. Student’s emotional disturbance disability is a type of disability for which a child find duty is triggered only if District has observed the student over a long period of time; three months is not a long period of time. Student’s other health impairment disability is a type of disability for which a child find duty is triggered only if the District is aware of its chronic or acute nature; the record does not show that District was made aware of this nature in the three months during which student attended. Accordingly, the ALJ’s decision is AFFIRMED as to this issue.
b. The March 2010 IEP did not deny Student a FAPE
Student contends that the ALJ erred in concluding that Student was not denied a FAPE because: (1) the March 2010 IEP was insufficient as a matter of law due to its recommendation that Student’s mental health issues be evaluated by a mental health facility; or (2) the ALJ erred as a matter of law in relying on evidence of Student’s condition obtained after the March 2010 IEP.8
i. Referral for evaluation by another agency
In resolving the question of whether a school district has offered a FAPE, the focus is on the adequacy of the school district’s proposed program. Gregory K v. Longview School District, 811 F.2d 1307, 1314 (9th Cir. 1987). A school district is not required to place a student in a program preferred by a parent, even if that program will result in greater educational benefit to the student. Id. For a school district’s offer of special education services to a disabled pupil to constitute a FAPE under the IDEA, a school district’s offer of educational services and/or placement must be designed to meet the student’s unique needs, comport with the student’s IEP, and be reasonably calculated to provide the pupil with some educational benefit in the least restrictive environment. Board of Education of Hendrick Hudson Central School District, et. al. v. Rowley, 458 U.S. 176, 200, 202-04 (1982).9
Student argues that the District’s March 2010 IEP was insufficient because the IEP Team recommended that Student’s mental health issues—namely, her depression—be addressed through a referral to Orange County Medical Health for evaluation. Mot. at 14, Reply at 8. While Student’s argument is somewhat unclear, she appears to challenge the ALJ’s conclusion that “Student failed to prove . . . that [District] denied her a FAPE by not providing appropriate educational supports in the form of counseling, individual, group and family therapy.” See Vol. I pp. 31-32 ¶ 45).
Student cites no authority for the proposition that a public school must finance the family therapy sessions or other counseling for its depressed students. Public schools’ role in society is to provide education; they are not mental institutions and are not designed to cure patients. Accordingly, the ALJ’s decision is AFFIRMED as to this issue.
ii. Student’s Unique Needs
As the ALJ’s decision states, an IEP is evaluated in light of information available at the time it was developed; it is not judged in hindsight because it is “a snapshot, not a retrospective.” Adams v. State of Oregon, 195 F.3d 1141, 1149 (9th Cir. 1999). It must be evaluated in terms of what was objectively reasonable when the IEP was developed. Id.
Student mischaracterizes the ALJ decision as reviewing the appropriateness of the March 2010 IEP by relying on evidence of Student’s needs six months later. Reply at 7:5-13. This is a gross mischaracterization of the ALJ’s reasoning. First, the two sentences in the ALJ’s decision regarding this evidence expressly state that this evidence is “not part of the ‘snapshot’ for determining whether [District’s] offer was appropriate at the time” and merely mentions the evidence because it corroborates the other bases for the ALJ’s decision. (Vol. I p. 31 ¶ 45). These other bases, as expressly provided in the decision, are that:
- “Student’s expert . . . agreed with the IEP team’s decision to refer Student to OCHCA for a mental health assessment.” (Vol. I p. 31 ¶ 45).
- “Mother refused to consent to the OCHCA referral and assessment.” (Vol. I p. 31 ¶ 45).
- “Mother’s refusal to allow the mental health assessment made it impossible for District to have offered the individual, group, and family therapy [that] Student now contends were required.” (Vol. I pp. 31-32 ¶ 45).
Accordingly, the ALJ’s decision is AFFIRMED as to this issue.
c. Attorney’s fees
Given that Student has failed on appeal, her request for attorney’s fees is DENIED. However, the Court is willing to entertain a future motion for attorney’s fees from District.
This is not a case where a student’s potential need for special education services was apparent for months before the school sought an assessment. This is not a case where a student was physically unable to communicate with her teachers and the school refused to assess her ability to hear or speak, nor is it a case where the parent provides the school with a student’s medical history documenting years of a qualified disability and the school shrugs its shoulders. Rather, upon receipt of Mother’s November 23, 2009, letter requesting an assessment, District attempted to work with Mother over the course of the next several months. During that time Mother withdrew her request, unilaterally removed student from the state, and failed to produce student for an assessment within the state, all the while insisting that District pay for Student’s for-profit and religious education.
America’s public schools, unlike for-profit and religious schools, are institutions devoted to the noble principle that every child is entitled to an education, regardless of their parent’s income or ideology. Public schools are not piggy banks that parents may raid to fund their children’s attendance at for-profit or religious schools that the parents prefer.10 Mother’s attempt to do just that has forced District to incur expenses in this litigation that could have funded the education of deserving students with disabilities and special education needs. If District wishes to recover these expenses so as to better serve its students, District is free to file a motion to do so.
For the foregoing reasons, the Court AFFIRMS the ALJ’s decision. If District, as prevailing party, wishes to move for reimbursement for reasonable attorney’s fees, it should file:
(1) a Proposed Final Judgment by August 2, 2012; and
(2) a Motion for Reasonable Attorneys fees by August 6, 2012, with a hearing date of September 3, 2012, prominently displayed on the first page.
DATED: August 1, 2012
DAVID O. CARTER
UNITED STATES DISTRICT JUDGE
1 The document title on the docket, however, is “Motion for Summary Judgment.” Regardless of what the “parties may call” the document, it “is in substance an appeal from an administrative determination.” Capistrano Unified Sch. Dist. v. Wartenberg By & Through Wartenberg, 59 F.3d 884, 892 (9th Cir. 1995).
2 See Patricia P. v. Bd. of Educ., 203 F.3d 462, 469-70 (7th Cir. 2000).
3 Because Student never addresses the issue of whether Student even qualifies as a student with a disability or what that disability is, the Court simply assumes without deciding that she has a qualifying disability.
4 Student does not object to the ALJ’s summary of this law.
5 Student does not object to the ALJ’s summary of this law.
6 Student’s argument is made in one paragraph and without citation to authority. The Court addresses it with the same depth, although, unlike Student, this
Court cites authority.
7 While the Court doubts that Student exhausted this argument below, the Court addresses it anyways because Student’s appeal fails on the merits.
8 The School contends that Student did not exhaust these two issues below in the due process hearing. While the Court agrees, the Court alternatively holds that, even if Student had exhausted these issues, her appeal also fails on the merits.
9 Student does not object to this summary of the law that was in the ALJ’s decision.
10 See 34 C.F.R. § 300.148(a) (2012) (“This part does not require [a school district] to pay for the cost of education, including special education and related services, of a child with a disability at a private school or facility if that agency made FAPE available to the child and the parents elected to place the child in a private school or facility.”).
BEFORE THE OFFICE OF ADMINISTRATIVE HEARINGS STATE OF CALIFORNIA
In the Consolidated Matters of: PARENT ON BEHALF OF STUDENT, V.
SADDLEBACK VALLEY UNIFIED SCHOOL DISTRICT.
SADDLEBACK VALLEY UNIFIED SCHOOL DISTRICT.
PARENT ON BEHALF OF STUDENT.
OAH CASE NO. 2010090212
OAH CASE NO. 2010100932
Administrative Law Judge (ALJ) Glynda B. Gomez, Office of Administrative Hearings (OAH), heard the above-captioned matter in Mission Viejo, California on June 1, 2, 3, 7 and 8, 2011. Student was represented by Timothy Adams and Drew Massey, Attorneys at Law. Student’s mother (Mother) and maternal grandmother were present for the hearing. Epiphany Owen, Attorney at Law, represented the Saddleback Unified School District (District). Dr. Rona Martin, Director of Special Education, and Susan De Pass, Program Specialist for the District attended each day of hearing.
Student filed a due process hearing request (complaint) on September 2, 2010. District filed its own complaint on October 18, 2010. A joint motion to continue Student’s case was granted on October 20, 2010. A joint motion to consolidate the two cases and continue District’s case was granted on November 5, 2010. At that time, Student’s case was designated the lead case with all statutory timelines running from the filing date of Student’s complaint. On December 29, 2010, Student filed an amended complaint. The amended complaint reset all statutory timelines. An additional joint motion to continue was granted for good cause on February 10, 2011. A subsequent continuance was granted on March 1, 2011 for good cause. At the close of the hearing on June 8, 2011, the parties requested, and were granted leave to file closing briefs in lieu of oral argument by June 22, 2011. Both parties timely filed closing briefs and the record was closed on June 22, 2011.
1. Did District deny Student a free appropriate public education (FAPE) by tailing to identify Student as a child with disabilities and provide her with a FAPE from October 2009 until March 2010?
2. Did District deny Student a FAPE by conducting an inappropriate psycho-educational assessment on or around March 12, 2010?
3. Did District deny student a FAPE for the 2009-2010 and 2010-2011 school years in the individualized educational program (IEP) dated March 26, 2010:
(a) by failing to include all appropriate participants in the IEP team;
(b) by failing to include baselines of performance in the IEP;
(c) by failing to offer an appropriate placement on a small campus, with small class size, removed from a peer group that reinforced negative behaviors; and
(d) by failing to offer appropriate supports including counseling, individual, group and family therapy.
4. Was District’s psycho-educational assessment peformed on or around March 12, 2010, appropriate such that Student is not entitled to an independent educational evaluation (IEE)?
1. Student is a 16-year-old young woman eligible for special education under the categories of other health impaired (OHI) and emotional disturbance (ED). Student was first found eligible for special education and related services on March 26, 2010. Student has a diagnosis of Dsthymia, a mild, but prolonged form of depression, and an unspecified mood disorder.
2. Student attended school in Michigan until her parents divorced in 2007. At the time of the divorce, Student was in sixth grade. Around the same time. Student’s boyfriend was killed in an accident The combination of the death and the divorce left Student very sad and her grades deteriorated. After the divorce, Student initially remained in Michigan with her father to complete her sixth grade year while Mother moved to California. Student moved to California and enrolled in a religious school affiliated with Mother’s employer for seventh grade during the 2007-2008 school year. Student was not happy in California and did not want to obey Mother’s rules, so she moved back to Michigan to live with her father in October of2007. When she returned to Michigan, Student started using drugs and experimenting sexually. Mother flew back to Michigan and met with Student’s father and school officials concerning Student’s poor academic performance and behavior issues. Notes from Student’s therapist reference an incident of sexual abuse by a boyfriend and fear of a potential pregnancy. These factors resulted in Mother, in May 2008, moving Student back to California to live with her, which was the last month of seventh grade. Student attended District’s Santa Margarita Intermediate School (Santa Margarita) for the final month of the 2007-2008 school year and the entire 2008-2009 school year. Mother maintained contact with the school counselor during Student’s attendance at Santa Margarita.
3. Mother and Student clashed on a regular basis. According to Mother, Student was disrespectful and refused to follow Mother’s rules. Beginning in December of 2008, Student and Mother participated in counseling at Kaiser Permanente Medical Group (Kaiser) with licensed social worker J.E. Churchill (Churchill). Churchill saw Student and Mother for issues related to their relationship and Student’s behavior. Churchill referred Student to Kaiser Psychiatrist Dr. David Allyn (Allyn) for a medication evaluation. Student began treating with Allyn on January 23, 2009. Allyn diagnosed Student with Dsthymia, Oppositional Defiant Disorder, alcohol abuse (in remission) and Cannabis abuse (in remission). Allyn prescribed 20 milligrams of Prozac per day for Student, placed her on regular urinalysis schedule and continued to see her on a quarterly basis. Mother and Student both felt that the Prozac was helping Student. In May of 2009, Mother terminated the therapy with Churchill because she believed it was not really helpful, but Student continued to receive treatment from Allyn. Student had a few relapses of alcohol and Marijuana use in the following months. 1
4. In July of 2009, Mother took Student to the emergency room at Sand Canyon Hospital (Sand Canyon) because Student had a temper outburst. Student’s temper outburst resulted from Mother taking away Student’s cellular telephone as a punishment for not coming home the night before. Student refused to either go home with Mother or go to her maternal grandmother’s house. She was released by the hospital, because she was not a danger to herself or others.
5. On July 30, 2009, Mother and Student went to see Allyn on an urgent visit following Student’s trip to Sand Canyon. At that time, Mother expressed her frustration with Student’s behavior and outbursts. She expressed to Allyn that she would like to send Student away for a while. Allyn discussed with Mother that sending Student away to live with a relative would not change her behavioral issues and that Student was not a candidate for in-patient psychiatric care. He also advised her that a residential treatment center (RTC) was not an option unless she wanted to pay for it herself. Allyn recommended that Mother and Student participate in the Kaiser Resolving Adolescent Problems (RAP) program. Allyn opined that the RAP program, which was led by licensed clinical psychologist Adam Pollock (Pollock) and licensed clinical social worker Margaret Poole (Poole), would provide the more intensive intervention that Mother sought.
6. Beginning in July of2009, Mother and Student participated in the RAP program. RAP was a continuing program which consisted of family and group therapy. Parent attended one to two hours of group therapy a week, while Student attended a separate group therapy for the same time. Mother and Student also attended a family therapy group twice per week as part of RAP.
7. On September 9, 2009, Student enrolled in the ninth grade at District’s Trabucco Hills High School (Trabucco Hills), a 3000 student comprehensive high school. Student was enrolled in general education classes, which included Spanish 1, Earth Science, Physical Education, Algebra 1A, History through Film, and English 1.
8. With Mother’s permission, on October 15, 2009, Pollock sent an email to Trabucco Hills guidance counselor Christa Schulz (Schulz). Schulz has been a guidance counselor at Trabucco Hills since 1998. Before serving as a guidance counselor, Schulz was a middle school English teacher and associate student body advisor at District’s Los Alisos Intermediate School. Schulz received a bachelor of arts degree in English from the University of California, Irvine in 1989 and a single subject English teaching credential in 1992. She received a master of arts degree in school counseling and a Certification in Personnel Services from California State University at Long Beach in 1998. Schulz’s responsibilities included designing career units, parent nights, participating in section 504 meetings, attending student study team (SST) meetings, preparing letters of recommendation, participating in the scholarship committee, handling at- risk appointments, handling crisis intervention, and foreign students.
9. In his email, Pollock asked that Student be given an opportunity to make up her missing home work. He advised Schulz that Student’s "major depressive disorder, relationships/boyfriend issues, familial stressors and struggles with drug abuse have all combined negatively to impact her ability to concentrate and focus on school-work." Pollock did not ask for Student to be assessed for special education. His intention was to get some relief for Student from the stress she felt from being behind in her school work.
10. On October 15,2009, Mother spoke to Schulz at Back to School Night. At that time, Mother approached her with concerns about Student’s drug use and academic problems. Mother also advised her that Pollock had sent an email requesting make up work and consideration for Student. Schulz had not seen the email. She opened her computer and read the email with Mother at her side. Schulz opined that Student had enough time in the school year to raise her grades without doing make up work. Schulz was concerned that Student might become overwhelmed trying to do make up work and keep up with current assignments. Schulz responded to Pollock advising that there was plenty of time for Student to bring up her grades without making up work and that she would talk with Mother more about monitoring of homework and address the issue. Schulz scheduled a meeting with Mother for October 21, 2009.
11. The meeting was later rescheduled to October 22, 2009 due to Schulz’s scheduling conflict. On October 21, 2009, Mother cancelled the meeting by way of an email and advised that "I will have to cancel our appointment for Thursday Oct. 22nd. Per the advice of [Student’s] therapist, we are seeking an alternate way to handle the situation." Schulz responded by email on October 26, 2009 asking Mother to "Let me know if I can do anything to lend support."
12. At hearing, Schulz explained that she regularly sees freshman with social and academic difficulties during the first semester of ninth grade. She opined that the transition from middle school to high school is more difficult for some students than it is for other students. It is not uncommon for students to have difficulties adjusting to the social environment, the larger campus and the more rigorous academics. After the first semester of ninth grade, the Trabucco Hills guidance counselor and staff typically review the grades of all ninth graders. For the ninth graders with poor grades, various resources are provided. Some oft hose resources include a ninth grade intervention program which involves teachers working individually with a student, a mentor program which matches junior and senior students with the ninth graders, guidance counselor services, changes to class schedules, and/or enrollment in a Pass Skills class that teaches study skills, organization and strategies to be successful in class. Schulz usually invites the parents of freshman that appear to be at-risk to the "freshman at risk night." The "freshman at risk night" is an opportunity for school staff to answer parent concerns and questions. She invited Mother, but Mother was unable to attend due to a schedule conflict.
13. At hearing, Schulz candidly and credibly testified that she was familiar with the District’s "child find" obligations to find and serve students eligible for special education, and had a general understanding of the applicable law, but admitted that she did not know the details of the law governing District’s duties.
14. In October 2009, Student was referred to, and attended, a Kaiser eight week outpatient chemical and drug dependency group therapy with Kaiser Marriage and Family therapist Tim Cyrus.
15. On the advice of advocate Juda Carter. Mother sent a letter dated November 23, 2009, to Schulz requesting a special education assessment for Student. Schulz forwarded the letter to school psychologist Stephanie Anderson (Anderson). Anderson received a bachelor of arts degree in psychology with a minor in education from the University of California at Irvine in 2003. She received a master of arts degree in school psychology in 2006. She also received a pupil service credential in school psychology. Anderson also had a certification in behavior intervention case management (BICM) from the Orange County Department of Education.
16. Anderson received the request for assessment on November 24, 2009. Anderson called Mother on November 30, 2009, after the Thanksgiving break. Mother and Anderson agreed to meet for a student study team (SST) meeting on December 7, 2009.
17. On December 7, 2009, a SST team, consisting of Anderson and Mother, convened. In preparation for the SST meeting, Anderson contacted the Trabucco Hills assistant principal Jonathan Von Tassel, as well as Schulz, regarding Student. Anderson also reviewed Student’s academic information in the "Aries" computer system maintained by the District. The "Aries" system contains grades, information on homework and class work completion, attendance. state testing, and discipline records. Student’s records contained a few insignificant discipline incidents involving the use of a cellular telephone during school hours, talking in class, chewing gum, putting on make up in class and not participating in physical education. In the most serious of the incidents, Student called the physical education teacher "a stupid fat ass." She received two in-house suspensions for not attending the assigned detention and Saturday school for the violations. Student’s records did show poor grades which appeared to Anderson to be attributable to her failure to complete her homework. At the time, Student was failing four of her six classes. At the SST meeting, Mother expressed her concerns about Student’s behavior and drug use which she believed were affecting her school work. Mother also disclosed that Student had received extensive counseling and was in the seventh week of an eight week outpatient drug counseling program provided by Kaiser.
18. Anderson and Mother agreed on a set of general education interventions to be implemented. They agreed that a planner check would be initiated wherein Student would write her assignments in a planner, the teachers were to sign off on the planner, and Mother was to check the planner and sign off each day. Mother and Anderson also discussed the possibility of changing Student’s class schedule to remove Spanish and add a video/TV production class. They also discussed changing Student’s physical education teacher due to a personality conflict between Student and the teacher. Anderson agreed to contact the teachers about make up work and tutoring for Student. Mother advised Anderson that Student had expressed an interest in going to Silverado Continuation High School (Silverado). Anderson told Mother that she would explain to Student that Silverado was designed for students that needed to make up credits and was not appropriate for Student at that time. Anderson agreed to talk to Student about the planner check, class changes, and teacher change, and would then contact Mother again.
19. During the course of the meeting with Anderson, Mother advised that Student was taking Prozac. At hearing, Anderson testified that she did not believe that the fact that Student was taking Prozac alone warranted a special education assessment. Anderson and Mother did not discuss placement at a residential treatment center (RTC) or Student’s history of depression. Anderson was not aware of Pollock’s email to Schulz, which referenced a depressive disorder at the time of the SST meeting.
20. Anderson and Mother agreed to hold a follow-up SST meeting in January of 2010, after the holiday break (December 19, 2009 to January 4, 2010) and agreed that a special education assessment should be postponed until after the interventions were implemented. At the SST meeting, Mother signed a release of records for Pollock and marriage and family therapist Timothy Cyrus.
21. At Anderson’s request, on December 7, 2009, Schulz drafted an email to all of Student’s teachers advising that Student was "struggling with some personal issues that [Mother] may choose to share with you." In her email, Schulz asked the teachers to advise her of any make up work that Student could complete or tutoring that could be made available to Student. The email also asked the teachers to opine as to whether Student should remain in college preparation classes, so that a change could be made for the second semester, if needed. Schulz copied Mother on the email.
22. Student’s English teacher, Katherine Petty (Petty), received a bachelor of arts degree in English literature with a minor in European history from the University ofNevada, Reno in 2001. She received a master of arts degree in teaching from the University of California at Irvine in 2003. She also holds a California single subject credential for language arts. Petty responded to Schulz’s email the same day and copied Mother on her response. She opined that Student was not misplaced in her class and was an excellent writer. She noted that Student "is disorganized and either can’t remember what to do or just chooses not to do it." Petty noted that she spoke to Student and would be meeting with her to provide make up work. She also noted that she posted all homework assignments on the internet so Student could check on her assignments if she forgot what to do and Mother could monitor progress. At hearing, Petty testified that Student participated when called upon and did not display signs of depression or problems in school. To Petty, Student appeared social and worked well with others on school projects and received good grades on the work she completed in class. However, by the end of December of 2009, Student was receiving a failing grade because of her failure to complete her homework
23. Linda Kimble was Student’s teacher in History through Film, an elective class. Kimble received a bachelor of arts in history from the University of California in Los Angeles and a master of science in administration from the California State University in Fullerton. Kimble holds a clear administrative credential and a standard elementary school credential. She had been a District teacher for 23 years and had taught every grade and adult education. Kimble opined that Student was an excellent writer, but not motivated. She did not feel that Student had a problem that warranted a special education assessment. She saw Student as sometimes being sad about disagreements with Mother, but sociable with peers. Student never presented herself as hostile or argumentative in Kimble’s class.
24. On December 9, 2009, Anderson called Student into the office and spoke with her regarding Student’s desire to attend Silverado and about her school performance. Anderson advised Student that Silverado was not appropriate for a first semester freshman. Anderson also emphasized the importance of completing homework. At hearing, Anderson credibly testified that Student behaved appropriately during the meeting and gave no outward indications of sadness or depression.
25. On December 10, 2009, Anderson left a voice mail message for Mother, but did not receive a return call from Mother. At hearing, Mother testified that she did not remember receiving such a phone message. Anderson had no indication from Mother that she was dissatisfied with the results of the SST meeting or not in agreement with the course of action.
26. Mother met advocate Jillian Bonnington through another parent in the RAP group sometime in mid- December of 2009, and hired her as an educational advocate. In that capacity, Bonnington wrote a letter to District on December 21, 2009, during the winter break, requesting Student’s records. an assessment plan and a referral to Orange County Health Care Agency (OCHCA), the county mental health provider, for assessment. The letter advised that Student would be available to OCHCA and District for 10 days for assessment; thereafter, Mother would be making a private residential placement and would seek reimbursement from District for the placement.
27. Mother testified that she was on vacation for two weeks during the winter holidays and had planned to have Student placed at an RTC on January 4, 2010. Mother planned to make the placement because of her growing concerns about Student’s drug use, her failure to come home for days at a time, and defiance when she was at home. Mother had grown frustrated and weary over Student’s behavior. Mother advanced the enrollment date when she was contacted by the police on the night of December 28, 2009, advising that Student had been detained with two young men who were in possession of drugs. Student was not in possession of drugs. Mother advised the police that Student would be enrolled in an RTC shortly. Student was released to Mother without charges. On December 29, 2009, an escort service hired by Mother transported Student to Solacium Sunrise (Sunrise), an RTC in Hurricane, Utah. Student was not aware that Mother intended to send her to an RTC and was taken by surprise.
28. Sunrise is a 24-hour residential treatment center (RTC) for adolescent girls. Sunrise is a private, for- profit entity and is not a certified California Non-Public School (NPS). The residential program combines therapy and school. Sunrise describes itself as designed for girls 13 years old to 17 years old, who are stable enough to engage in a long-term personal growth program and therapy, but who need the structure of residential care. Sunrise accepts girls who are struggling with defiance, substance abuse, depression, anxiety, school avoidance, learning disabilities, low self-esteem, Attention Deficit Disorder (ADD), Attention Deficit Hyperactivity Disorder (ADHD), sexual promiscuity, and eating disorders. Sunrise has a maximum staffing ratio of one staff member per six program participants. The facility is located in a house which has been converted to a treatment facility and living quarters. A typical program participant stays at Sunrise for six to nine months. Student ended up staying there for nine and a half months.
29. N. Brad Simpson (Simpson) is the Clinical Director of Sunrise and was Student’s primary therapist. Simpson is a licensed clinical social worker. He received a bachelor of arts degree in social work from Brigham Young University in 2005. He also received a master of arts in social work in 2005 from the University of Utah. According to Simpson’s report and his testimony at hearing, Student was admitted to Sunrise for mood swings, parent-child conflict, substance abuse, poor academic performance, and poor peer relationships. Student was initially resistant to treatment when she arrived at Sunrise. She was very angry with her Mother for placing her at Sunrise. Student did not want to interact with the other program participants and generally expressed that she did not belong at Sunrise. After a few months, Student settled into the therapy and academic routine. She progressed through Sunrise’s five-level system during the course of her stay. While at Sunrise, Student attended academic classes each day, participated in individual counseling once per week, and participated in family therapy on the phone, and in person, with her mother. Her treatment included three quarterly parent therapeutic weekends, equine therapy, dialectical behavioral therapy skills training, relational building groups, self- management and recovery training (SMART) recovery groups, recreational therapy, and milieu therapy.
30. When District reopened after the holiday break on January 4, 2010, District special education director Dr. Rona Martin (Martin) wrote a letter to Bonnington explaining that "the 10 days prior written notice time line will commence once school reopens in January and [Student] will need to be made available to District staff for that 10 day period."
31. On January 6, 2010, District Program Specialist Susan De Pass wrote and taxed a letter to Bonnington advising that District had scheduled a meeting for January 7, 2010, to discuss the December 21, 2010 letter. Bonnington replied that she and Mother were not available on such short notice and could not participate in a meeting without the records requested in the December 21, 2009 letter. Also on January 6, 2010, De Pass requested Student’s records from Kaiser pursuant to the release signed by Mother on December
32. A SST meeting was held on January 12, 2010. At that time, Dr. Rona Martin, Program Specialist Susan DePass, school psychologist Stephanie Anderson, advocate Jillian Bonnington and Mother met. They discussed Student’s depression, parent-child problems, the course of her mental health treatment and the events leading to student’s placement at Sunrise RTC. On January 12, 2010, Mother signed an assessment plan giving permission for the District to conduct a psychoeducational assessment. The assessment plan provided for a school psychologist to assess Student in the areas of academic achievement, intellectual development, psycho-motor development, social- emotional, and behavior status. However, Student was not made available for the assessment. Mother asserted that Student was not stable enough to return to California for assessment and insisted that District assess Student in Utah.
33. On January 12, 2011, Mother signed a release for records from Kaiser providers Allyn, Pollock and Poole, as well as records from Sunrise. On January 14, 2011, DePass sent the additional releases along with requests for records to Kaiser and to Sunrise. From Sunrise, District received a master treatment plan and a psychosocial assessment. Kaiser only provided records from Churchill and Allyn. DePass and other District staff made several requests to Kaiser for complete records, but were not provided any additional records.
34. On March 1, 2010, the parties agreed to extend the 60-day timeline for review of the District psychoeducational assessment to March 26, 2010.
35. District school psychologist Frances Dizon (Dizon) flew to Hurricane, Utah and conducted a psychoeducational assessment of Student at Sunrise on March 12, 2010. Dizon received a bachelor of arts in psychology and speech communications from the University of San Diego, a master of arts degree in educational psychology and a master of arts degree in counseling from Loyola Marymount University in 2005. He received a Tier I Preliminary Administrative Credential in 2008. Dizon has completed all coursework requirements for a doctorate in education from Chapman University and is scheduled to present his dissertation in December of 2011. Dizon is an experienced school psychologist and has served as a school psychologist for District since 2005. He is assigned to Mission Viejo High School for four and a half days per week. He also spends one half of a day each week at Trabucco Hills High School. Dizon conducts all assessments for District students placed in RTCs.
36. Dizon carefully selected assessment tools that were not discriminatory or biased. The assessment was administered in English, Student’s primary language. Dizon administered the Woodcock Johnson Tests of Cognitive Abilities, 3rd Edition (WJ-III), Woodcock Johnson Tests of Achievement 3rd Edition (WJ Achievement-III), Differential Test of Conduct and Emotional Problems (DTCEP), Connors’ Rating Scale, 3rd Edition Parent and Teacher Rating scales (Connors-3), Behavior Assessment System for Children, 2nd Edition (BASC-2) Parent, Teacher and self-report adolescent scales, and the Million Adolescent Clinical Inventory (MACI). Dizon completed a health and developmental history with Mother, interviewed Student and conducted a review of records which included the Sunrise master treatment plan, Allyn’s records, Churchill’s records and District records. Dizon did not conduct a classroom observation or personal interviews with Student’s teachers. He arrived after school had finished for the day and the teachers were no longer available. Dizon did not believe that it was necessary to conduct a classroom observation because there were no concerns about her classroom behavior. Instead, he concentrated on his interview and observation of Student during the assessment. He provided rating scales for the teachers to ascertain information about Student’s social emotional status.
37. Dizon used the WJ-III to evaluate Student’s cognitive functioning. Student received a general intelligence score of 102, within the average range. Dizon used the WJ Achievement-III to evaluate Student’s academic achievement. Student performed in the average range on this measure. She received a standard score of 104 in broad reading, a standard score of 92 in broad math and a standard score of 98 in written language.
38. Dizon used the Connors-3 rating scales, MACI, DTCEP and BASC-II to evaluate Student’s social emotional status. The Connors-3 is a multimodal assessment tool for the diagnosis of attention deficit hyperactivity disorder and related behavior problems. The scales include measures of inattention, hyperactivity, impulsivity, learning problems, executive functioning, aggression, peer relations, and oppositional defiance. Mother completed the parent rating scale. Mother’s rating scales suggested the possible presence of a conduct disorder or oppositional defiant disorder. Katherine Whittekiend (Whittekiend), the Sunrise academic director and Student’s teachers Elizabeth Hess (Hess) and Jacob Grimm (Grimm) completed the teacher rating scales. The scales completed by Hess and Whittekiend did not contain any elevated ratings. Grimm’s rating scales were consistent with the possibility of conduct disorder and oppositional defiant disorder.
39. The MACI is a clinically based 160 item self- reporting scale that identifies patterns of emotional discomfort, social difficulties and psychological traits in adolescents. There are 29 diagnostic scales listed as atypical behaviors and feelings. The responses are then scored by a testing service. The MACI report ref1ected elevated levels of abnormal internalizing and externalizing behaviors, feelings consistent with antisocial and aggressive/sadistic personality traits with histrionic and negativistic features, substance abuse, conduct disorder and parent-child relational problems.
40. The DTCEP is a 63 item true/false rating scale designed for individuals that know a student well enough to rate them based on certain behaviors related to conduct and emotional problems. The DTCEP does not use a self-report scale and according to the technical manual, its use with parents is not recommended. The DTCEP is designed to provide information about conduct problems and emotional disturbance. Whittekiend, Hess and Grimm completed the DTCEP rating scales. The scales completed by Whittekiend and Hess rated Student within the normal range. The scale completed by Grimm showed the potential presence of a serious conduct problem. Dizon opined that the overall results of the DTCEP did not suggest either an emotional disturbance or a conduct problem.
41. The BASC-II is an assessment rating scale that measures a wide range of internalizing and externalizing psychological and physiological behaviors. There are a total of 16 scales on the self-report form, and 14 scales on the teacher and parent rating scales. Student completed a self-report rating scale. Student’s self-report did not have any rating in the clinically significant range. The parent rating scale was completed by Mother. Mother’s responses showed clinically significant ratings in conduct disorder, aggression, hyperactivity, functional communication and activities of daily living. The rating scales completed by Whittekiend did not rate Student in the clinically significant range in any areas. The rating scales completed by Hess indicated clinical significance in the areas of somatization and atypicality. Grimm rated Student in the clinically significant range in aggression and atypicality.
42. Dizon opined that Student did not meet the criterion tor eligibility under emotional disturbance or specific learning disability based upon the assessment results. In his report, Dizon reviewed the criterion as it applied to Student. Dizon reasoned that Student was capable of learning as evidenced by her performance on the WJ-Ill achievement, was able to build and maintain satisfactory relationships, despite her failure to select friends that were positive inf1uences, and did engage in rule breaking and anti-social behavior. Dizon reasoned that Student had the ability, but not the willingness, to get along with others. Dizon opined that the rating scales and observation did not show exhibition of inappropriate feelings or behaviors under normal circumstances. Dizon also noted that although Student had been diagnosed with depression, dsthymia, and mood disorders, the current behavior rating scales did not indicate concerns with unhappiness or depressive symptoms. Dizon also did not find any indications of physical fears or symptoms associated with school or personal problems.
43. Dizon ruled out a specific learning disability because Student’s assessed academic achievement, state testing results2 and cognitive level were all within the average range. He did not consider Student’s eligibility under the category of other health impairment (OHI).
44. An IEP meeting was held on March 26, 2010. Parent, advocate Bonnington, general education teacher Kevin Biggs, District school psychologist Dizon, District Program Specialist De Pass, and District Special Education Director Dr. Martin attended the meeting. At the meeting, the IEP team reviewed the psychoeducational report prepared by Dizon. Although Dizon’s report did not recommend that Student be found eligible for special education, the IEP team ultimately found Student eligible for special education and related services under the categories of Other Health Impaired based upon her mood disorder and secondarily under the category of Emotional Disturbance (ED). At hearing, Dizon testified that he agreed with the IEP team’s determination of eligibility. The IEP team determined that Student had unique educational needs in the areas of language arts, math, and history, asking for help, work completion, and self- management. Although District requested baseline academic information from Sunrise, none was provided. Sunrise representatives were not available to participate in the March 26, 2010 IEP meeting. Accordingly, District used the WJ-III achievement scores, information from Parent, and the psychoeducational report to establish baselines for the goals.
45. Measurable annual goals were drafted to address Student’s academic and social-emotional areas of need as follows:
(1) By 3/26/2011, when given grade level literary text, Student will describe how literary devices including figurative language, setting, tone and characterization connect to issues and themes within the text for 80% accuracy in 2 of 3 trials as measured by teacher observation and tests.
(2) By 3/26/2011, when given core literature reading
passages Student will define, restate and correctly provide examples which show her understanding of specialized vocabulary words with 80% accuracy in 2 of3 trials as measured by teacher made assessments.
(3) By 3/26/2011, when given a writing prompt, Student will write an expository essay with a controlling thesis statement, clearly definable topic sentences, and supporting detail sentences (facts, statistics and specific examples) with 80% accuracy in 2 of 3 trials as measured by writing rubric.
(4) By December 26, 2010, when given a set of data
about parallel and perpendicular lines and how slopes are related, Student will find the equation of a line perpendicular to a given line that passes through a given point with 80% accuracy in 3 of 4 trials as measured by Student work samples.
(5) By December 26, 2010, when given ten systems of equations, Student will use the methods of substitution and elimination to solve the systems with 80% accuracy in 4 out of 5 trials as measured by Student work samples and teacher made test and quizzes.
(6) By March 26, 2011, when given 10 quadratic
equations, Student will solve each equation using the quadratic formula with 80% accuracy in 3 out of 5 trials as measured by work samples and teacher made tests or quizzes.
(7) By March 26, 2011, after reading a brief passage
within history curriculum, when asked to draw inferences, conclusions. or generalizations about text, Student will use prior knowledge to make and confirm inferences, conclusions, or generalizations and support them with historical textual evidence with 80% accuracy in 4 of 5 trials as measured by Student work samples/teacher charted observations.
(8) By March 26, 2011, when given a grade level history textbook, Student will demonstrate comprehension of historical content by making predictions, comparing and contrasting, distinguishing between cause and effect, and distinguishing between fact and opinion with
80% accuracy in 4 out of 5 trials as measured by teacher made materials indicated on work samples.
(9) By March 26, 2011, following teacher-led prewriting activities of grade level history curriculum, Student will produce a multiple paragraph composition addressing historical significance of events, cause and efiect, or comparison and contrast of historical events that includes an introductory paragraph, three supporting paragraphs, and a concluding paragraph, Student will score at least 16 out of 20 on a teacher generated writing rubric on 5 writing assignments as measured by student work samples.
(10) By March 26, 2011, when in need of help, Student
will use au appropriate method to get teacher’s attention and will request assistance with 100% accuracy in three of four situations as measured by observation and charting.
(11) By March 26, 2011, when given a timeline, Student will complete and turn in classroom/homework assignments 85%, of the time as measured by Progress Reports and teacher report.
(12) By March 26, 2011, Student will increase her ability to identify those situations which cause her a great deal of anxiety or frustration by appropriately seeking the assistance of a responsible adult, for 7 out of every 10 opportunities as measured by case carrier evaluations.
46. The IEP team’s offer of placement and services was three class periods of resource specialist support (RSP) each day at Trabucco Hills. The RSP support was offered three times daily for 55 minutes each session for English, Math and Study Skills. An RSP History class was to be added in the fall of 2011. An RSP class is a smaller setting with a lower student-to-teacher ratio than a typical general education class and would provide Student with the extra attention she needed to catch up on her school work and develop study skills. The IEP did not provide any modifications or accommodations for Student and did not provide any counseling or therapy. The IEP team recommended a referral to the Orange County Health Care Agency (OCHCA) for assessment for mental health services. At the time, OCHCA provided the mental health services necessary for provision of FAPE to District students. DePass handed Mother the OCHCA assessment referral for signature at the March 26, 2011 IEP meeting. Bonnington advised the IEP team that Mother would not be signing any documents at the IEP meeting. Ultimately, Parent did not sign the IEP or agree to any portion of the IEP. At the time of hearing, Mother had yet to sign the OCHCA referral.
47. At hearing, Mother acknowledged that District’s offer of placement and services addressed Student’s academic issues. However, she felt that it failed to address Student’s anxiety and depression. She felt that Student would regress if she accepted the offer. She elected to keep Student at Sunrise to utilize the extensive daily therapy, full academic program, dialectical behavior therapy, and interpersonal skills training to help Student learn to understand her mood disorder and gain some tools to better manage her anxiety and anger.
48. Sunrise Director Simpson opined that Student was not ready to return home at the time of the March 26,
2010 IEP meeting because she had not finished the program. Home visits were made in June, July, August and September of2009. Student’s first visit was for three days, her second for five days, and the third and fourth visits were for seven to ten days each. On the fourth visit, Simpson accompanied Student for two of the days to meet with staff from Crean Lutheran School (Crean), a private religious school: Student’s family: a friend; and Pollock to plan Student’s transition home.
49. Originally, Student was scheduled to return home in August of 2009, but her return and discharge were delayed when Student began purging (self-induced vomiting after eating) during one of her visits home. Mother did not advise District of any of the home visits because she did not think it was appropriate and she deemed the visits "personal."
50. On April 19, 2010, Pollock wrote a summary of his treatment of Student. When he wrote the summary, he expected that it would be provided to District. Mother never provided the summary to District. Pollock’s summary noted that Student was his patient from August of2009 to January 2010. According to the summary, Student was treated for a major depressive disorder recurrent, polysubstance abuse and a parent- child relational problem. According to Pollock’s summary, Student was "experiencing significant distress and struggling to cope with difficulties academically and in her relationships with her peers. High school appeared to be a very stressful place in which she struggled to reach her potential academically as a result of significant mood, relational and substance issues."
51. On April 23, 2010, Simpson also wrote a summary letter with recommendations. Mother never provided Simpson’s letter to the District either. In his letter. Simpson explained that Student was admitted to Sunrise with a diagnosis of mood disorder, cannabis abuse and oppositional defiant disorder. According to Simpson, in therapy Student addressed self-harm, depression, relationships with family and peers, communication, impulsivity, emotional regulation, self image, distress tolerance, self-esteem, interpersonal skills, intrapersonal skills and substance abuse issues. In his letter, Simpson recommended that Student not be returned to her old environment at home and that she attend a new school.
52. On June 15, 2010, Poole wrote a summary of her treatment of Student. The summary was prepared at Mother’s request, but never shared with District. Poole had diagnosed Student with parent-child relationship problems, depressive disorder not otherwise specified, alcohol abuse and cannabis abuse. Poole wrote that Student had attended 30 sessions of RAP during the period of July to December 2009. Poole wrote that in RAP, Student worked "on issues concerning an absence of relationship with her father, and substance abuse issues." According to Poole, Student "worked to develop anger management skills, problem solving skill, cognitive behavioral skills to challenge distorted thoughts, skills to identify feelings, and communication skills." Poole described Student’ s acting out behaviors as defying parental rules, substance abuse, leaving home without permission and associating with friends that her mother disapproved of" In the summary, Poole opined that the behaviors were interfering with Student’s relationships at home and her academic progress.
53. On September 27, 2010, six months after the March 26, 2010 IEP meeting, Mother, through her attorneys, notified District that she objected to District’s March 2010 psychoeducational report and requested that District fund an independent educational evaluation (IEE) by Mitchel Perlman, Ph.d. District denied the request and timely filed a request for due process hearing on October 18, 2010 to defend the appropriateness of its assessment.
54. On October 11, 2010, Student was discharged from Sunrise. Mother did not advise District of Student’s discharge because she felt "it wasn’t any of their business." The discharge summary notes the reason for Student’s referral to Sunrise as "non-compliance with treatment in the past, mood swings, parent child conflict, substance abuse, poor academic performance and poor peer relationships… She was admitted with a diagnosis of mood disorder, cannabis abuse and oppositional defiant disorder. Sunrise targeted mood disorder, oppositional defiant disorder, substance abuse and low self-esteem/trauma for treatment. The discharge summary contained recommendations that Student continue weekly individual and family therapy, bi-monthly group therapy, have bi-monthly urinalysis, attend a transition group, and follow up with her psychiatrist for medication management. At Sunrise, Student’s Prozac dosage was doubled from 20 milligrams per day to 40 milligrams per day. According to Simpson’s testimony at hearing, Student’s primary issue was a mood disorder and her substance abuse was a result of the mood disorder. Simpson opined that Student needed to generalize the skills she learned at Sunrise to an academic setting. Simpson believed Student needed a new environment "void of her old peers."
55. In July of 2010, Mother moved within the boundaries of the District to an area where El Toro High School was the local high school. Had Student returned to District schools, she would have transferred from Trabucco Hills to El Toro High school when District learned of her change in residence. By the summer of 2010, Mother had already decided to place Student in private school. She visited Crean Lutheran School (Crean) during the summer and made a deposit in September of 2010. Because Student’s return home was delayed, she enrolled in Crean’s classes on line and kept up with the Crean curriculum beginning in September of2010, until she retumed to California on October 11, 2010, and began attending classes at Crean.
56. On October 14, 2010, after Student had already enrolled at Crean, Mother’s attorneys wrote to District and advised she was placing Student at Crean and would seek reimbursement from District. Crean is a Christian religious high school which opened on August 31, 2009, in Irvine, California. The school opened with 450 Students and is expected to grow to 1200 students. For the 2010-2011 school year, Crean had approximately 500 students in ninth through twelfth grade. The school offers a comprehensive curriculum which includes honors and advanced placement classes. Crean students wear school uniforms, and attend classes from 7:30a.m. to 2:30p.m. Crean offers a fifth period class from 2:40 to 3:30p.m. when most athletic teams meet. The school also has a band, choir, service leadership team and sixteen different varsity sports and junior varsity sports. Crean students attend a modified block schedule of four periods per day of 80 minutes each period. The school does not have a special education program or special education teachers. College credit courses are also offered on campus as part of the school’s early college program. Crean has a learning success program which provides accommodations to students that need them. To participate in the learning success program, a prospective student must provide a psychoeducational assessment. Mother presented District’s psychoeducational assessment prepared by Dizon to Crean to support Student’s application to Crean and participation in the learning success program. Crean used the assessment to design Student’s accommodations and to alert her teachers to her needs.
57. Gabriel Castrillon (Castrillon), the Crean school psychologist, runs the learning success program. Castrillon has a master of arts degree in school psychology and is a credentialed school psychologist. He designs accommodations and modifications for learning success program participants like Student. At Crean, Student does not have an IEP. She is provided accommodations, but no curriculum modifications. Student’s accommodations consist of extra time to complete tests and quizzes and the availability to take the tests and quizzes in the learning success lab room. Castrillon checks in on Student from time to time and is available to her if she needs guidance or counseling. A school counselor is also available to all students. Student has gone to Castrillon’ s office once or twice to discuss school matters. At hearing, Castrillon testified that Student did not need any additional services. Crean does not offer remedial programs to its students. Student had typical interactions with other peers and did not appear to have any extraordinary stressors. It took Student a while to adjust to the new school, the interruption of holidays during the first semester and the move of the school to a new location. Her participation and grades have improved during the second semester. There are generally 20 to 26 students in each class. Crean does not ofter remedial classes to its students.
58. Jacob Hearney (Hearney) was Student’s math teacher at Crean. Hearney has been a private school teacher for six years. He received an associate of arts degree in liberal studies from Gavilan College, a bachelor of science degree and a master of arts degree from National University. He found Student to work hard and care about her grades. She was earning a C in his class at the time of hearing. In his class, Student had accommodations of extra time on tests and taking tests in a separate quiet room, if needed. Hearney opined that Student was making academic progress in his class at Crean.
59. On February 11, 2011, an IEP meeting was held for Student. District program specialist De Pass, District school psychologist Dizon, Mother, Student’s attorney Timothy Adams, District regular education teacher Kelly McAlister, El Toro High School special education teacher Jan Coccliara, special education director Dr. Martin, and District’s attorney Epiphany Owen attended the meeting. At the IEP meeting, District requested that Mother invite teachers from Crean to participate in the IEP meeting and asked for an update on Student’s academic and mental health status. Mother reported that Student was receiving As and Bs at Crean. She also reported that Crean did not have special education classes or teachers but did offer modifications and accommodations to students in the learning success program. Student received accommodations such as extra time for tests and the availability of a separate quiet room for test taking. District again requested that Mother sign a consent for referral to OCHCA. District IEP team members also requested that Mother allow District to conduct updated assessments. Mother declined both requests. Mother also refused to sign District’s release of information for District to communicate with Crean. Mother did not consent to District’s proposed observation and release of information from Crean. Some of the specific limitations she sought to impose were that the District assessors were not to speak to Student or any staff member and must be accompanied by the Crean’s psychologist at all times. She did not sign the release because she did not want District to have access to all of Student’s information. The IEP meeting was ended before completion by Student’s attorney.
60. Mother had no intention of removing Student from Crean by the time of the February 2011 IEP meeting. Mother declined District’s requests to hold an additional IEP team meeting and to conduct a new comprehensive reassessment of Student.
61. In October of2010, Mother and her attorneys engaged Mitchel Perlman, Ph.d., to conduct a psychoeducational IEE of Student and to serve as Student’s expert witness in this due process matter. Perlman received an associate of arts degrees in computer science and graphic arts from Miami Dade Junior College in 1973, and an associate of arts in psychology and philosophy from Dallas Bible College in 1979. Perlman received a bachelor of arts degree in psychology from the University of Texas at Dallas in 1980, a doctorate in clinical psychology from the California School of Professional Psychology in 1986 and a postdoctoral masters degree in clinical psychopharmacology from Alliant University in 2010. Perlman has 15 years of experience conducting a variety of psychological assessments and extensive experience with the MACI. He has no experience or credentials as a school psychologist.
62. Perlman began his assessment in October of 2010, but did not finalize his report until May of 2011, shortly before the hearing of this matter. District first received the report five days before the hearing on this matter. The report was not available to the March 26, 2010 IEP team or the February 11, 2011 IEP team. Although Perlman’s report purports to be an IEE, it does not appear to be an objective assessment of Student. Although Perlman conducted an assessment of Student and the results of the assessment are contained in the report, Perlman acknowledged that the report was prepared in anticipation of litigation. As such, it focused on strategies to discredit the District assessor and weaknesses in the IEP. Mother reviewed and commented on a draft of the report before it was finalized.
63. Perlman used the Kaufman Assessment Battery for Children, Second Edition (KABE-2), Delis-Kaplan Executive Function System (D-KEFS), Minnesota Multiphasic Personality Inventory (MMPI-2), and the Rorshach Inkblot Test (Rorshach) to assess Student. Perlman also reviewed Student’s records, all of Student’s Kaiser medical and therapy records, and all of the records of both Crean and Sunrise, including records to which District never had access. Perlman interviewed Pollock, Simpson, Sunrise Residential Manager Kim Smith, Whittikiend, Grimm, Castrillon, and Student’s Crean biology teacher Steve Hobus. District also made its staff available to Perlman. Trabucco Hills Assistant Principal Van Tassell, Kimble, Schulz, Dizon, DePass and Dr. Martin all participated in a telephone conference with Perlman to answer his questions about Student and the IEP process. Perlman found Student’s intelligence and achievement levels to be within the average range. From his assessment data and the MACI administration by Dizon, he opined that Student was anxious, easily frustrated and overwhelmed. Perlman’s assessment did not reveal any processing or executive functioning deficits. Perlman’s interview with Student revealed that in addition to marijuana and alcohol, Student had experimented with stimulants and may have negative body image issues. Perlman asserted that Student has a mood disorder and as a result of the mood disorder, she is more susceptible to substance abuse as a way to deal with her anxiety and depression.
64. At hearing, Perlman testified that there were no errors in Dizon’s report and that Dizon’s assessment was not inappropriate. Perlman’s only criticism of Dizon’s assessment was that he believed that Dizon "left data on the table." By this, Perlman meant that Dizon could have analyzed more of the data that he collected. Perlman also acknowledged that a classroom observation was not necessary for this assessment to be appropriate. Perlman expressed concern that Student’s IEP did not provide counseling and would have returned her to Trabucco Hills. At hearing and in his report, he expressed agreement with the IEP team’s decision to make Student eligible for special education under the category of emotionally disturbed (ED). He asserted that ED should be Student’s primary eligibility category. Perlman acknowledged that a referral to OCHCA was appropriate and that OCHCA would provide counseling and medication management, if an assessment determined that Student was eligible for OCHCA services.
65. Mother seeks reimbursement for a variety of expenses that she incurred related to Student and for placement at Crean through the date of issuance of this decision. Mother incurred $5,690.00 in Crean tuition and expenses for the period of July 21, 2010 to May 17, 2011. Crean tuition includes a laptop computer and an ACT/SAT Princeton College entrance examination review. Crean also charges a $500 registration fee, uniform fees and book fees. Mother incurred $72,360.00 for Student’s treatment at Sunrise between December 31, 2009 and October 26, 2010. Mother paid $1,750.00 to Adolescent Escort services to transport Student from California to Sunrise. Mother paid Hurricane Family Clinic $354.15 for Student’s blood tests and urinalysis performed on January 11, 2010 and January 21, 2010. She also paid a second medical bill from Hurricane Family Medical Clinic for undisclosed services dated April7, 2010 in the amount of$79.00. Mother paid $95.13 for a rental car for a trip to Sunrise during the period of September 2, 2010 to September 5, 2010 and $69.70 for airfare for a trip to Utah. Mother also incurred $5.861.50 for the assessment and expert witness services of psychologist Mitchel Perlman. Perlman testified that only $1500.00 of the charge was for the evaluation.
1. The petitioning party has the burden of proof in an Individuals with Disabilities Education Act (IDEA) due process hearing. (Schaffer v. Weast (2005) 546 U.S. 49, 56-62 [126 S.Ct. 528, 163 L.Ed.2d 387].) Accordingly, Student has the burden of proof on Issues One, Two, and Three, and District had the burden of proof on Issue Four.
Issue 1: Child Find
2. Student contends that District should have suspected Student was a child with disabilities and referred her for a special education evaluation when Student’s psychologist emailed the District guidance counselor about Student’s missing homework on October 14, 2009. Student further contends that District should have received Student for assessment when Mother made a written request for assessment on November 23, 2009. District contends that it did not have reason to suspect Student was a child with disabilities in October of 2009, and reacted appropriately to the concerns of Mother and the psychologist. District also contends that Mother agreed to postpone assessment until after general education interventions were implemented.
3. Under the IDEA and companion state law, students with disabilities have the right to a FAPE. (20 U.S.C. §1400; Ed. Code,§ 56000.) FAPE means special education and related services, under public supervision and direction that are available to the student at no cost to the parents, that meet the state educational standards, and that conform to the student’s IEP. (20 U.S.C. §1401(9); Cal. Code Regs., tit. 5, § 3001, subd. (o).) "Related Services" are transportation and other developmental, corrective and supportive services as may be required to assist the child in benefitting from special education. (20 U.S.C. § 1401(26).) In California, related services are called designated instruction and services (DIS), which must be provided if they may be required to assist the child in benefitting from special education. (Ed. Code, §56363, subd. (a).)
4. "Child find" is expressly provided for in the IDEA at title 20 United States Code section 1412(a)(3)(A). "Child find" refers to the duty that IDEA imposes upon states to identify, locate and evaluate all children with disabilities, including homeless children, wards of the state, and children attending private schools, who are in need of special education and related services, regardless of the severity of the disability. (20 U.S.C.§1412(a)(3)(A); Ed. Code,§ 56171 ["child find" applicable to private school children]; and Ed. Code,§ 56301, subd. (a) and (b) [general "child find" obligation and applicability to migrant children or children suspected of having a disability who are nonetheless advancing from grade to grade].) "The purpose of the child-find evaluation is to provide access to special education." (Fitzgerald v. Camdenton R-Ill School District (8th Cir. 2006) 439 F.3d 773, 776.) A district’s child find obligation toward a specific child is triggered when there is reason to suspect a disability and reason to suspect that special education services may be needed to address that disability. (Dept. of Education, State of Hawaii v. Cari Rae (D. Hawaii 2001) 158 F.Supp.2d 1190, 1194.) The threshold for suspecting that a child has a disability is relatively low. (Id. at p. 1195.) A district’s appropriate inquiry is whether the child should be referred for au evaluation, not whether the child actually qualifies for services. (Ibid)
5. Signs that trigger the child find duty include a pupil who is performing below grade average in basic academic functions such as reading; failing grades; behavior and discipline problems; a significant amount of absences from school; concerns expressed by parents and teachers; signs of substance abuse; a medical diagnosis of a recognized disability; psychiatric hospitalizations; suicide attempts; and a request for evaluation by the parents. (Compton UnifiedSchool District v. Addison 598 F. 3d at pp.1181, 1182-1183; Rae, supra, 158 F. Supp.2d at p. 1195; Wiesneberg v. Ed Of Education of Salt Lake City School Dist. (D.Utah 2002) 181 F. Supp.2d 1307; 1311-1312; Hicks v. Purchase Line School Dist. (W.D.Pa. 2003) 251 F. Supp. 2d 1250,1254; NG. v. District of Columbia (D.D.C. 2008) 556 F. Supp. 2d 11, 18-21.)
6. A child may be eligible for special education and related services under the category of emotional disturbance if because of a serious emotional disturbance, a pupil exhibits one or more of the following characteristics over a long period of time and to a marked degree, which adversely affect educational performance:
(1) An inability to learn which cannot be explained by intellectual, sensory, or health factors.
(2) An inability to build or maintain satisfactory interpersonal relationships with peers and teachers.
(3) Inappropriate types of behavior or feelings under normal circumstances exhibited in several situations.
(4) A general pervasive mood of unhappiness or depression.
(5) A tendency to develop physical symptoms or fears associated with personal or school problems.
(5 C.C.R. § 3030, subd. (i); see also 34 C.F.R. §300.8(c)(4)(A)-(E)(2006.)
7. The eligibility category of "emotional disturbance" does not apply to children who are socially maladjusted. (34 C.P.R.§ 300.8(c)(4)(ii)(2006); see also Ed. Code, § 56026, subd. (e); Gov. Code, §7576, subd. (b)(3)(D).)
8. "Other Health Impairment"(OHI) is also an eligibility category for special education. A child may qualify for special education and related services under the category of OHI when he/she has "limited strength, vitality or alertness, due to chronic or acute health problems, including but not limited to a heart condition, cancer, leukemia rheumatic fever, chronic kidney disease, cystic fibrosis, severe asthma, epilepsy, lead poisoning, diabetes, tuberculosis and other communicable infectious diseases and hematological disorders such as sickle cell anemia and hemophilia which adversely affect a pupil’s educational performance." (Ed. Code, § 56026, subd. (e); 34 C.P.R.
§300.8 ( c)(9)(2006).)
9. Here, the evidence showed that District had no reason to suspect Student had a disability as early as October 2009. When District guidance counselor Schulz was approached by Mother at Back to School night, she promptly responded to Mother’s concerns by scheduling a meeting with Mother. When Mother told her that Student’s psychologist had sent an email to her, Schulz opened her computer and read the email with Mother present. In his email, Pollock requested information about make-up work and tutoring for Student. Neither Pollock nor Mother requested that Student be assessed for special education. Schulz did not think it was unusual for a freshman to be experiencing difficulties adjusting to high school. Schulz responded by sending an email to Pollock opining that make-up work was not necessary so early in the semester and that she was scheduling a meeting with Mother to further explore and address the concerns. Mother later cancelled the meeting in an email because she had chosen to pursue private therapeutic treatment. Schulz understood the email to mean that Mother had chosen to keep Student’s problems private, but nevertheless offered to be of assistance, if needed.
10. Despite Student’s contention that District failed in its child find obligation by not referring Student for a special education assessment after its receipt of Pollock’s email in October 2009, the evidence showed that although Pollock’s email, referenced a depressive disorder as well as other issues, his concern and request was for tutoring and make-up work. Neither he nor Mother asked for an assessment of Student in October of2009. Although a specific request for special education assessment is not required to trigger a school district’s child find duty, Pollock’s email on its face was insufficient to cause the District to suspect that Student should be assessed for special education. Instead, at the time, it was reasonable to conclude that Student, like others, was having adjustment problems to ninth grade that could be addressed in general education. Student’s teachers Kimble and Perry both credibly testified that they saw no reason to refer Student for a special education assessment. Both teachers saw Student as a capable and social young woman who lacked motivation to complete her homework. Schulz responded to the concerns raised by Pollock and attempted to further explore the situation with Mother, but Mother cancelled the meeting with Schulz. The District cannot be faulted for not immediately assessing Student when Mother did not participate in providing further information to District.
11. When Mother did make a request for assessment on November 23, 2009, Schulz immediately contacted Mother and the school psychologist. The school psychologist, Anderson, met with Mother on December 7, 2009, and the two devised some general education interventions that were to be tried with Student. The evidence showed that Mother expressly agreed to postpone a special education assessment until the interventions were implemented. Anderson had no reason to suspect that Mother was dissatisfied with the interventions, as Mother conveyed no displeasure with Anderson. Mother and Anderson agreed to meet again after the winter break to discuss the next step, if any. Instead, during the winter break, Mother placed Student in an RIC in Utah without proper notice to District, and in immediate reaction to Student’s outside of school association with drug users and brush with law enforcement.
12. Given the above factors. District had no reason to believe that Student had a disability nor did it have reason to suspect that Student might need special education services to address that disability, prior to the time Mother unilaterally enrolled Student at Sunrise. Mother cancelled the meeting with Schulz in October opting to handle Student’s problems privately and then placed Student out of state in an RIC shortly thereafter. The District presented a reasonable plan of trying general education interventions prior to special education assessments, to which Mother expressly agreed. As such, Student has failed to demonstrate by a preponderance of the evidence that District failed to meet its child find obligations. (Factual Findings 1-45 and Legal Conclusions 1-12.)
Issues 2 and 4: District’s Psychoeducational Assessment
13. Student contends that she was denied a FAPE because District’s psychoeducational assessment was not appropriate. Specifically, Student contends that the assessment was inadequate because tl1e assessor did not conduct a classroom observation at Sunrise or interview the Sunrise teachers. Student further contends that she was denied a FAPE because had the assessment been properly conducted, the District’s subsequent IEP offer would have been different, and that she is also entitled to an IEE at public expense. District contends that its psychoeducational assessment was appropriate and as a result, Student is not entitled to an IEE. As discussed below, Student’s contention lacks merit because District met its burden of demonstrating that its assessment was appropriate and Student failed to show it was inappropriate. Therefore, Student did not meet the threshold showing of a procedural violation of a FAPE, nor is Student entitled to an IEE at public expense.
14. A student’s parent or the responsible public educational agency may request an initial evaluation to determine whether a child is eligible for special education and related services on the basis of a qualifying disability. (20 U.S.C. §1414(a)(l)(A), (a)(l)(B).) The initial evaluation must consist of procedures to determine whether a child is a child with a qualifying disability and to determine the educational needs of the child. (20 U.S.C. § 1414( a )(1 )(c).) In conducting the evaluation, a district must use a variety of assessment tools and strategies to gather relevant functional, developmental, and academic information, including information provided by the parent that may assist in determining whether the child is a child with a disability and the contents of an individualized education program. (20 U.S.C. § 1414(b)(2)(A); 34 C.P.R.§ 300.304(c)(6) (2006); Ed. Code,§ 56320.) The district may not use any single assessment as the sole criteria for determining eligibility and must use technically sound instruments that may assess the relative contribution of cognitive and behavioral factors, in addition to physical or developmental factors. (20 U.S.C. § 1414(b)(2)&(c); Ed. Code,§ 56320.)
15. In order to assess or reassess a student, a school district must provide proper notice to the student and her parents. (20 U.S.C. § 1414(b)(l ); Ed. Code,§ 56381, subd. (a).) The notice consists of the proposed assessment plan and a copy of parental and procedural rights under IDEA and state law. (20 U.S.C. §1414(b)(l); Ed. Code,§ 56321, subd. (a).) The assessment plan must appear in a language easily understood by the public and the native language of the student, explain the assessments that the district proposes to conduct, and provide notice that the district will not implement an IEP without the consent of the parent. (Ed. Code,§ 56321, subds. (b)(l)-(4).) District must give the parents and/or the student 15 days to review, sign and return the proposed assessments plan. (Ed. Code, §56321, subd. (a).) For purposes of evaluating a child for special education eligibility, 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).)
16. A school district’s failure to conduct appropriate assessments or to assess in all areas of suspected disability may constitute a procedural denial of a FAPE. (Park v. Anaheim Union High School District, et al. (9th Cir. 2006) 464 F.3d 1025, 1031-1033.) In matters alleging procedural violations, a denial of FAPE may only be shown if the procedural violations impeded the child’s right to FAPE, significantly impeded the parents’ opportunity to participate in the decision- making process regarding the provision of FAPE, or caused a deprivation of educational benefits. (Ed. Code,
§ 56505, subd. (f)(2); see also W. G. v. Board qjTrustees of Target Range School District No. 23 (Target Range) (9th Cir. 1992) 960 F.2d 1479, 1484.)
17. In conducting assessments, a school district shall ensure that: (1) assessment materials used to assess a child under this section are selected and administered so as not to be discriminatory on a racial or cultural basis; (2) are provided and administered in a language and form most likely to yield accurate information on what the child knows and can do academically, developmentally, and functionally unless it is not feasible to do so; (3) are used for purposes for which the assessments or measures are valid and reliable; ( 4) are administered by trained and knowledgeable personnel; and (5) are administered in accordance with instructions provided by the producer of such assessments. (20 U.S.C. §1414(b)(2)(C); Ed. Code,§56322.) Assessors must be knowledgeable about the
student’s suspected disability and must pay attention to the student’s unique educational needs such as the need for specialized services. materials and equipment. (Ed. Code, § 56320. subd. (g).) A psychological assessment of a student must be conducted by a credentialed school psychologist who is trained and prepared to assess cultural and ethnic factors appropriate to the student being assessed. (Ed. Code, § 56324, subd. (a).) The determination of what tests are required is made based on information known at the time. (See Vasheresse v. Laguna Salada Union School District (N.D. Cal. 2001) 211 F.Supp.2d 1150, 1157-1158.)
18. The procedural safeguards of the IDEA provide that under certain conditions a student is entitled to obtain an IEE at public expense. (20 U.S.C. § 1415(b)(l); 34 C.P.R.§ 300.502 (a)(1 )(2006); Ed. Code, § 56329, subd. (b); Ed. Code, § 56506, subd. (c) [parent has the right to an IEE as set forth in Ed. Code, § 56329; see also 20 U.S.C. § 1415(d)(2) requiring procedural safeguards notice to parents to include information about obtaining an IEE].) "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.P.R. § 300.502(a)(3)(i).) To obtain an IEE, the student must disagree with an evaluation obtained by the public agency and request an IEE at public expense. (34 C.P.R.§ 300.502(b)(l) & (b)(2) (2006).)
19. The provision of an IEE is not automatic. Code of Federal Regulations, title 34, part 300.502(b)(2), provides, in relevant part, that following the student’s request for an IEE, the public agency must, without unnecessary delay, either:
(i) File a due process complaint to request a hearing to show that its evaluation is appropriate; or
(ii) Ensure that an independent educational evaluation is provided at public expense, unless the agency demonstrates in a hearing pursuant to§§ 300.507 through 300.513 that the evaluation obtained by the parent did not meet agency criteria.
(See also Ed. Code, § 56329, subd. (c) [providing that a public agency may initiate a due process hearing to show that its assessment was appropriate].)
20. Here, District established that its March 12, 2010 psychoeducational assessment was appropriate. The evidence showed that Dizon was a highly qualified school psychologist who held the appropriate credentials. In addition, he had completed all coursework for a doctorate in education. Dizon used a variety of tools to assess Student including observation, interview, standardized testing, rating scales and review of available records. These measures were used to evaluate Student’s cognitive abilities, achievement levels, psychomotor development and social emotional status. Dizon administered the testing in English, Student’s primary language, and according to the test administration instructions. In addition, Dizon selected and administered the assessment so as not to be racially, culturally or sexually discriminatory. The evidence showed that Dizon was knowledgeable and gathered relevant functional, developmental, and academic information about Student. Dizon completed a comprehensive written report of his findings and conclusions.
21. Although Dizon did not interview teachers from Sunrise because they were not available by the time he arrived, he focused on his observation and direct assessment of Student, as well as the information from Student’s teachers through ratings scales which were incorporated into his assessment. The evidence further showed that Dizon did not observe Student in the Sunrise classroom because her classroom behavior was not at issue, but instead focused on a one-on-one interview with Student and the use of direct assessment tools. Most importantly, Student did not meet her burden of proof on this point, whereas District did, because Student’s own expeti acknowledged at hearing that a classroom observation was not required for an assessment to be appropriate. Consistent with her own expert’s opinion, Student’s Mother had sufficient confidence in District’s assessment that she presented it to a third party, Crean, as an accurate reflection of Student’s abilities and for consideration in admission to Crean’s learning success program. Crean’s school psychologist, Castrillon, found the assessment sufficiently comprehensive to use it in designing accommodations for Student.
22. In sum, Student failed to meet her burden of proving that she was denied a FAPE because the District’s psychoeducational assessment was inappropriate. In contrast, District demonstrated that its assessment was appropriate under IDEA in all respects. Thus, Student did not make a threshold showing of a procedural violation. Accordingly, this decision need not address whether, as a result of an inappropriate assessment, Mother’s opportunity to participate in the decision-making process regarding the provision ofFAPE was impeded, or whether an inappropriate assessment caused Student a deprivation of educational benefit. Because the District’s assessment was appropriate, Student was not denied a F APE and is not entitled to an IEE at public expense. (Factual Findings 1-64 and Legal Conclusions 1-22.)
Issue 3: Was the March 26, 2010 IEP appropriate?
23. Student contends that she was denied a FAPE because the March 26, 2010 IEP failed to include Sunrise representatives, failed to include baselines of performance, did not offer appropriate supports including counseling, individual, group and family therapy and failed to offer a placement on a small campus, with a small class size in a new school. District contends that the Sunrise representatives were not essential members of the IEP team. District further contends that Sunrise did not provide any baseline data for the IEP team to use in drafting goals, nevertheless the IEP contained appropriate baselines of performance derived from the assessment data. District also contends that Mother rejected its offer to refer Student to OCHCA for a mental health assessment and that District offered Student a placement in the least restrictive environment based upon the intormation available to the IEP team.
24. As set forth in Legal Conclusion 3 above, the IDEA and companion state law, provide that students with disabilities have the right to a FAPE.
25. As set forth in Legal Conclusion 16, above, in matters alleging procedural violations, a denial of FAPE may only be shown if the procedural violations impeded the child’s right to FAPE, significantly impeded the parents’ opportunity to participate in the decision-making process regarding the provision of FAPE, or caused a deprivation of educational benefits. (20 U.S.C. § 1415 (f)(3)(E)(ii); Ed. Code, § 56505, subd. (f)(2); see also TVG. v. Board of Trustees of Target Range School District No. 23 (Target Range) (9th Cir. 1992) 960 F.2d 1479, 1484.)
26. Procedural errors that lead to a deprivation of educational benefits, such as failure to have the proper composition of the IEP team during the IEP process, are analyzed by determining whether: 1) a procedural violation occurred and 2) whether the procedural violation resulted in a deprivation of educational benefits to the student. M.L., et al., v. Federal Way School District (9th Cir. 2004) 394 F.3d 634, 653 (concurring opn. of Gould, J.).) Where a procedural violation is found to have significantly impeded the parents’ opportunity to participate in the IEP process, the analysis does not include consideration of whether the student ultimately received a FAPE, but instead focuses on the remedy available to the parents. (Amanda J. ex rel. Annette J. v. Clark County School Dist. (9th Cir. 2001) 267 F.3d 877, 892-895 [school’s failure to timely provide parents with assessment results indicating a suspicion of autism significantly impeded parents’ right to participate in the IEP process, resulting in compensatory education award]; Target Range, supra, 960 F.2d at pp. 1485-1487 [when parent participation was limited by district’s pre- formulated placement decision, parents were awarded reimbursement for private school tuition during a time when no procedurally proper IEP was held].)
27. The 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 the child. (Ed. Code, §§ 56304, 56342.5; 34 C.F.R. § 300.501(b ).) An IEP team consists of (1) parents, (2) one regular education teacher, (3) one special education teacher of the pupil, (4) a representative of the local education agency (LEA), (5) an individual who can interpret the instructional implications of the assessment results, (6) at the discretion of the parents or LEA, other individuals who have knowledge or special expertise regarding the pupil, including related services personnel, as appropriate, and (7) the individual with exceptional needs. (20 U.S.C. § 1414 (d)(l)(B); Ed. Code,§ 56341, subds. (b)(1-7).) A parent has meaningfully participated in the development of an IEP when he is informed of his child’s problems, attends the IEP meeting, expresses his 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 Ed Of Education (3d Cir. 1993) 993 F.2d 1031, 1041.)
28. A parent may waive the participation of a regular IEP team member even if that member’s area of curriculum or related services is being modified or discussed at the meeting. However, both of the following must occur: (1) the parent and the local educational agency consent to the excusal after conferring with the IEP team member and (2) the member submits in writing to the parent and the individualized education program team, input into the development of the individualized education program prior to the IEP meeting. The parent’s consent must be in writing. (20 U.S.C. § 1414 (d)(l)(C); Ed. Code,§ 56341, subds. (g) & (h).)
29. Education Code section 56341.1 also requires the IEP team to consider, among other matters, the strengths of the pupil and the results of the initial assessment or most recent assessment of the pupil. The IEP must include a written statement of present levels of academic achievement and functional performance, a statement of the manner in which the disability affects involvement and progress in the general education curriculum and a statement of measurable annual goals, related services, supplementary aids and services, program modifications or supports that will be provided to enable the pupil to advance appropriately toward attaining the annual goals. (20 U.S.C. §1414(d); Ed. Code,§ 56345.) The IEP team must consider the concerns of the parents throughout the IEP process. (20 U.S.C. § 1414(c)(1)(B), (d)(3)(A), (d)(4)(A)(ii)(III); 34 C.F.R. §§ 300.305(a)(i), 300.324(a)(1)(ii), (b)(l)(ii)(C); Ed. Code,§ 56341.1, subds. (a)(1), (d)(3) & (e).)
30. In Board of Education of Hendrick Hudson Central School District, et. al. v. Rowley (1982) 458 U.S. 176 [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. (Rowley, supra, at p. 200.) Instead, Rowley interpreted the F APE requirement of the IDEA as being met when a child receives access to an education that is "sufficient to confer some educational benefit" upon the child. (Id. at pp. 200, 203-204.) De minimus benefit, or only trivial advancement, however, is insufficient to satisfy the Rowley standard of "some" benefit. (Walczak v. Florida Union Free School District (2d Cir.) 142 F.3d 119, 130.)
31. A student derives benefit under Rowley when he improves in some areas even though he fails to improve in others. (See, e.g., Fort Zumwalt Sch. Dist. v. Clynes (8th Cir. 1997) 119 F.3d 607, 613; Carlisle Area School v. Scott P., 62 F.3d 520, 530.) He may derive benefit while passing in four courses and flunking in two. (Cypress- Fairbanks Indep. Sch. Dist. v. Michael F (S.D. Tex. 1995) 931 F.Supp. 474, 481.) A showing of progress does not require that a D student become a C student and thus rise in relation to his peers. Progress may be found even when a student’s scores remain severely depressed in terms of percentile ranking and age equivalence, as long as some progress toward some goals can be shown. (Coale v. Delaware Dept. of Educ. (D.Del. 2001) 162 F.Supp.2d 316, 328.)
32. In resolving the question of whether a school district has offered a FAPE, the focus is on the adequacy of the school district’s proposed program. (See Gregory K v. Longview School District (9th Cir. 1987) 811 F.2d 1307, 1314.) A school district is not required to place a student in a program preferred by a parent, even if that program will result in greater educational benefit to the student. (Ibid) For a school district’s offer of special education services to a disabled pupil to constitute a FAPE under the IDEA, a school district’s offer of educational services and/or placement must be designed to meet the student’s unique needs, comport with the student’s IEP, and be reasonably calculated to provide the pupil with some educational benefit in the least restrictive environment. (Rowley, supra, at 200, 202-204.) An lEP is evaluated in light of information available at the time it was developed: it is not judged in hindsight. (Adams v. State of Oregon (9th Cir. 1999) 195 F.3d 1141, 1149.) An IEP is "a snapshot, not a retrospective." (Ibid, citing Fuhrmann, supra, at p.1041.) It must be evaluated in terms of what was objectively reasonable when the IEP was developed. (Id)
33. Local educational agencies must ensure that a continuum of program options is available to meet the needs of individuals with exceptional needs for special education and related services. (34 C.F.R. § 300.ll5(a)(2006); Ed. Code, § 56360.) The continuum of program options includes, but is not limited to: regular education; resource specialist programs; designated instruction and services; special classes; nonpublic, nonsectarian schools; state special schools; specially designed instruction in settings other than classrooms; itinerant instruction in settings other than classrooms; and instruction using telecommunication instruction in the home or instructions in hospitals or institutions. (Ed. Code, § 56361.) Special classes, separate schooling, or removal of children with disabilities from the regular education environment occurs only if the nature or severity of the disability is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily. (34 C.F.R. §300.114 (2006).)
34. In determining the educational placement of a child with a disability a school district must ensure that: 1) the placement decisions are made by a group of persons, including the parents and other persons knowledgeable about the child, the meaning of the evaluation data, and the placement options, and takes into account the requirement that children be educated in the least restrictive environment (LRE); 2) placement is determined annually, is based on the child’s IEP and is as close as possible to the child’s home: 3) unless the IEP specifies otherwise, the child attends the school that he or she would if non-disabled: 4) in selecting the LRE, consideration is given to any potential harmful effect on the child or on the quality of services that he or she needs; and 5) a child with a disability is not removed from education in age- appropriate regular classrooms solely because of needed modification in the general education curriculum. (34 C.F.R. § 300.116 (2006).)
35. To provide the LRE, school districts must ensure, to the maximum extent appropriate: 1) that children with disabilities are educated with non-disabled peers; and 2) that special classes or separate schooling occur only if the nature or severity of the disability is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily. (20 U.S.C. § 1412(a)(5)(A); Ed. Code,§56031; 34 C.F.R. § 300.l14(a) (2006).) To determine whether a special education student could be satisfactorily educated in a regular education environment, the Ninth Circuit Comt of Appeals has balanced the following factors: 1) "the educational benefits of placement full-time in a regular class"; 2) "the non-academic benefits of such placement"; 3) the effect [the student] had on the teacher and children in regular class"; and 4) "the costs of mainstreaming [the student]." (Sacramento City Unified School Dist. V Rachel H. (9th Cir. 1994) 14 F.3d 1398, 1404 (Rachel H) [adopting factors identified in Daniel R.R. v. State Board of Ed (5th Cir. 1989) 874 F.2d 1036, 1048-1050]; If it is determined that a child cannot be educated in a general education environment, then the LRE analysis requires determining whether the child has been mainstreamed to the maximum extent that is appropriate in light of the continuum of program options. (Daniel R.R. v. State Board of Ed, Supra, 874 F. 2d at p. 1050.)
36. A residential placement is inappropriate if the pupil’s needs can reasonably be met through any combination of nonresidential services, preventing the need for out of home care. (Gov. Code§ 7572.5 (b)(l).) Residential placement is proper only when residential care is necessary for the child to benefit from educational services. (Gov. Code§ 7572.5 (b)(2).) The fact that a student exhibits emotional or behavioral difficulties outside of school will not, in and of itself, demonstrate a need for a RIC placement. (Ashland School District v. Parents of RJ (9th Cir. 2009) 588 F. 3d 1004, 1010 [holding that a district did not have to pay for a student’s placement in a RIC when the placement stemmed from her "risky" and "defiant" behaviors at home.]
37. In pertinent part, California Code of Regulations, title 2, section 60100, subdivision (h) provides that:
Residential placements for a pupil with a disability who is seriously emotionally disturbed may be made out of California only when no in-state facility can meet the pupil’s needs and only when the requirements of subsections (d) and (e) have been met. Out-of-state placements shall be made only in residential programs that meet the requirements of Welfare and Institutions Code Sections 11460(c)(2) through (c)(3). For educational purposes, the pupil shall receive services from a privately operated, non-medical, non-detention school certified by the California Department of Education.
38. The IDEA allows states the flexibility to provide related services required in IEPs through interagency agreements between the state educational agency and other public agencies. (See 20 U.S.C. § 1412(a)(l2).) At the time of the IEP, in order to maximize the utilization of state and federal resources, mental health assessments for purposes of developing an offer ofFAPE were the joint responsibility of the State Secretary of Public Instruction and the State Secretary of Health and Welfare. (Gov. Code, §§ 7570; 7572, subds. (a) & (c), 7576, subd. (a) [community mental health services provide the mental health services required in order to provide a FAPE].)
39. "Mental health assessment" means "a service designed to provide formal, documented evaluation or analysis of the nature of the pupil’s emotional or behavioral disorder" that is conducted by qualified mental health professionals in conformity with Education Code sections 56320 through 56329 [detailing the numerous procedural safeguards associated with assessments]. (Cal. Code Regs., tit. 2, § 60020, subd. (g) and (g).)
40. A local education agency, the IEP team, or parent may initiate a mental health referral for assessment of a pupil’s social and emotional status for any child who has been determined eligible for special education and "who is suspected of needing mental health services." (Gov. Code, § 7576.) This referral is appropriate where the child has emotional or behavioral characteristics that:
(A) Are observed by qualified educational staff in educational and other settings, as appropriate;
(B) Impede the pupil from benefitting from educational services;
(C) Are significant as indicated by their rate of occurrence and intensity; and
(D) Are associated with a condition that cannot be described solely as a social maladjustment or temporary adjustment problem, and cannot be resolved by short-term counseling.
(Gov. Code, §7576, subd.(b)(3).)
41. The process of obtaining special education mental health services is not designed for an emergency situation. (Gov. Code§ 7576, subd. (t); Cal. Code Regs .. tit. 2, § 60040, subd. (e).) If a student requires emergency services, a parent must seek other resources. (Gov. Code§ 7576, subd. (g); Cal.Code Regs., tit. 2, § 60040 (e).)
42. A local educational agency may be responsible for reimbursement for the costs of a unilateral parental RTC placement when it has failed to provide a student with a F APE. (Ed. Code §56175; see also 20 U.S.C. §1412 (a)(IO)(C)(ii); 34 C.F.R. § 300.148(c); School Committee of Burlington v. Department of Ed (1985) 471 U.S. 359, 369 [105 S.Ct. 1996, 85 L.Ed.2d 385].) The reimbursement may be reduced when, at the most recent IEP meeting, the parent did not advise the school district that she disagreed with the IEP, state her concerns and advise of her intention to enroll the child in a private school at public expense, the parent did not give 10 days prior written notice of the intent to enroll the child in a private school at public expense, the parent refused to make the child available for assessment or otherwise acted unreasonably. (Ed. Code
§56176; 34 C.F.R. § 300.148 (2006).)
Analysis of Issue 3(a)
43. Here, Student’s contention in issue 3(a), that she was denied a FAPE because representatives from Sunrise were not present at the March 26, 2010 IEP, fails. As set forth in Legal Conclusion 26 above, the essential members of an IEP team are (1) parents; (2) one regular education teacher; (3) one special education teacher of the pupil; ( 4) a representative of the local education agency (LEA); and (5) an individual who can interpret the instructional implications of the assessment results. Parents and District have the discretion to invite the student and any other individuals who have knowledge or special expertise regarding the student. Although Sunrise staff members might have been able to provide some useful information, they were not available to participate in the IEP meeting by telephone or in person. Sunrise staff were not among the statutorily designated essential members of the IEP team. As such attendance by Sunrise staff was discretionary and not mandatory. The IEP team gathered information about Student from Dizon’s assessment which included information gathered at Sunrise from Student and her teachers. Mother was tree to request an additional IEP meeting that would have been convenient for the Sunrise representatives to attend. Given the above, Sunrise’s lack of attendance at the IEP meeting did not constitute a procedural violation of the IDEA and therefore cannot and does not establish a denial of FAPE. (Factual Findings 1-64 and Legal Conclusions 1-
Analysis of Issue 3 (b)
44. Student’s second contention in Issue 3(b), that District denied her a FAPE by failing to include baselines of performance in the March 26, 2010 IEP, is also without merit. As set forth in Legal Conclusion 28, the IEP must include a written statement of present levels of academic achievement and functional performance. The March 26, 2010 IEP included present levels of performance also known as baselines of performance, based upon the assessment data provided by Dizon. District staff attempted to obtain additional baseline information from Student’s teachers at Sunrise, but did not receive any information that was helpful in developing the required statement. As set forth in Legal Conclusion 20 above. Dizon prepared an appropriate psychoeducational assessment of Student. The assessment provided relevant and useful information for the IEP team’s use. Dizon’s assessment data from the WJ Achievement-III was used to prepare the statement of present levels of performance for the March 26, 2010 IEP. Accordingly, the March 26, 2010 IEP contained a statement of present levels of performance and baseline information and therefore did not violate the IDEA or deny Student a FAPE. (Factual Findings l-64 and Legal Conclusions l44.)
Analysis of lssue 3(c)
45. Student failed to prove her third contention in Issue 3(c), that District denied her a FAPE by not providing appropriate educational supports in the form of counseling, individual, group and family therapy. The March 26, 2010 IEP team determined Student’s unique needs and developed goals for each area of need. As set forth in Legal Conclusion 40, a local education agency, the IEP team, or parent may initiate a mental health referral for assessment of a pupil’s social and emotional status for any child who has been determined eligible for special education and "who is suspected of needing mental health services." (Gov. Code, § 7576.) As set forth in Legal Conclusion 39, "Mental health assessment" means "a service designed to provide formal, documented evaluation or analysis of the nature of the pupil’s emotional or behavioral disorder" that is conducted by qualified mental health professionals. The referral is the initial step in obtaining counseling, therapy and medication management services offered by OCHCA. At the time of the IEP, OCHCA was responsible for providing mental health services to District’s special education students. Student’s expert psychologist Mitchel Perlman agreed with the IEP team’s decision to refer Student to OCHCA for a mental health assessment. Yet, Mother refused to consent to the OCHCA referral and assessment. Mother’s refusal to allow the mental health assessment made it impossible for District to have offered the individual, group, and family therapy, Student now contends were required to provide her a FAPE. More importantly, at no time did Student share any information with District that she had obtained from private sources such as the Sunrise discharge summary or Perlman’s assessment. Although Student’s expert Perlman was concerned that the IEP offer did not contain counseling, even he acknowledged that District has appropriately sought to refer Student to OCHCA to obtain such services. Finally, although not part of the "snapshot" for determining whether District’s offer was appropriate at the time, Student herself presented evidence that she receives no such services from Crean, her private, religious school of choice, and that Crean’s school psychologist does not believe such services are necessary. Accordingly, Student failed to meet her burden of proving that she was denied a FAPE because the March 26, 2010 IEP did not contain an offer for counseling, individual and group family therapy. (Factual Findings l-64 and Legal Conclusions l-45.)
Analysis of Issue 3 (d)
46. Student’s final contention in Issue 3(d), that District denied Student a FAPE by providing her with inappropriate educational placement, also tails. Student asserts that she required a placement on a small campus, with a small class size removed from her prior peer group in order to receive a FAPE. As set forth in Legal Conclusion 30-35 above, the IDEA and California law provide that a school district’s offer of educational services and/or placement must be designed to meet the student’s unique needs, comport with the student’s IEP, and be reasonably calculated to provide the pupil with some educational benefit in the least restrictive environment. As the Ninth Circuit stated in Rachel H., in determining the least restrictive environment for a particular student, the IEP team must consider the educational benefits of placement full-time in a regular class, the non-academic benefits of such placement, the effect of student on the teacher and children in regular class, and the costs of mainstreaming the student.
47. Student’s educational needs were identified by the IEP team and goals were drafted in each identified area of need. As set forth in Legal Conclusion 34 and 35 above, Student must be educated in the LRE. Here, it is clear that District offered Student a placement in the LRE. The goals drafted for Student could be implemented in an RSP setting on a general education campus and in general education classes. An RSP class is a smaller setting with a lower student-to-teacher ratio than a typical general education class and would provide Student with the extra attention she needed to catch up on her school work and develop study skills. It is presumed that students will be educated in a general education classroom in the neighborhood school unless the contents of the IEP dictate otherwise. Here, Student had always been educated in a general education classroom and presented no significant disciplinary problems. Student’s main barrier to academic success was homework completion and organization. District offered Student a placement at Trabucco Hills, with small-class specialized instruction for three periods of the day in RSP. Student was to participate in RSP for math, language arts and a study skills class to help her organize and complete her work. An RSP history class was to be added for the 2010-2011 school year. Student was to remain in general education for other classes.
48. Applying the Rachel H. factors enunciated by the Ninth Circuit here, District’s offer of FAPE provided Student with, specialized instruction in a smaller setting in core academics and study skills that the IEP team determined were needed and compotied with her IEP. Student retained the benefits of a general education placement by participating in general education classes with same aged peers on a comprehensive general education campus for the majority of the school day. Student was not disruptive in class, having only a few minor disciplinary offenses and did not have a negative effect on other students or the teachers. In the one incident in which Student cursed at a teacher, District acknowledged a personality conflict between Student and teacher and moved Student to another physical education class as an intervention. Costs of mainstreaming were not at issue. (Factual Findings l-64 and Legal Conclusions 1-
49. Student contends that placement at Sunrise RIC was essential for her to receive a F APE. The law is clear that residential placement is an extraordinary measure reserved for those instances in which other less restrictive placements and interventions are not appropriate. As set forth in Legal Conclusion 36 above, an RIC is available only if a student’s needs cannot reasonably be met through any combination of nonresidential services. (Gov. Code§ 7572.5 (b)(l).) Residential placement is proper only when residential care is necessary for the child to benefit from educational services. (Gov. Code§ 7572.5 (b )(2).) The fact that, as here, Student exhibited emotional or behavioral difficulties outside of school would not have, in and of itself, demonstrated a need for an RIC placement. Here, the focus of Student’s treatment at the RIC was on behaviors outside of school and her relationship with her parents. Student was placed at the RIC because Mother was overwhelmed and frustrated with her behavior and refusal to follow family rules. Ultimately, Mother was triggered to send Student to Sunrise immediately after the police contact with Student rather than a concern for Student’s educational needs.
50. Further, Mother was selective in what information she provided to the IEP team. Nevertheless, the IEP team was able to craft a comprehensive offer ofFAPE to Student based on the accurate information it had at the time, including a referral to OCHCA for additional intensive mental health services. There is nothing in Student’s IEP or in this record that suggests a restrictive placement such as an RIC was needed for Student to receive an educational benefit as of the date of the IEP team meeting. The anxiety and depression issues that Mother was concerned about were to be addressed by the referral to OCHCA. In addition, the small classes and peer group issues were addressed by the RSP classes offered by District. To the extent Student contends that a private, religious school like Crean should have been offered at the March 26. 2011 IEP. this contention fails as well. Under no circumstances could District have offered a religious school placement in an IEP, and Student presented no evidence of what, if any type of placement other than Sunrise, Student thinks should have been offered. (Ed. Code§§ 56365, 56366.)
51. In sum, District’s placement offer in the March 26, 20ll IEP addressed Student’s unique needs, and was reasonably calculated to provide Student an educational benefit in the least restrictive environment. Student was not denied a FAPE on this ground. (Factual Findings l-64 and Legal Conclusions l-51.)
52. Because Student failed to meet her burden of demonstrating that she was denied a FAPE, Student is not entitled to reimbursement of any kind. and the ALJ need not address whether reimbursement should be awarded through the date of hearing. (See 20 U.S.C. § 1412 (a)(10)(C)(ii); 34 C.P.R.§ 300.148(c) (2006); see also School Committee of Burlington v. Department of Ed, supra, 471 U.S. at p. 369 [reimbursement for unilateral placement may be awarded under the IDEA where the district’s proposed placement does not provide a F APE].) (Factual Findings 1-65 and Legal Conclusions l-52.)
All of Student’s requests for relief are denied.
GLYNDA B. GOMEZ
Administrative Law Judge
Office of Administrative Hearings
1 Allyn’s November treatment notes indicated that Student advised him that she used marijuana three times during the period of July 30, 2009 to November 2, 2009.
2 Student’s State testing scores were all in the basic range.
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
G. M. and R. M., a minor child by and through her mother G.M., Plaintiffs – Appellants,
SADDLEBACK VALLEY UNIFIED SCHOOL DISTRICT, Defendant – Appellee.
Before: NOONAN and WARDLAW, Circuit Judges, and SILVER, Senior District Judge.*
Judge Wardlaw has voted to deny Appellants’ petition for rehearing en banc, and Judges Noonan and Silver so recommend.
The full court has been advised of the suggestion for rehearing en banc and no active judge has requested a vote on whether to rehear the matter en banc. Fed. R. App. P. 35.
The suggestion for rehearing en banc is rejected.
IT IS SO ORDERED.
* The Honorable Roslyn O. Silver, Senior District Judge for the U.S. District Court for the District of Arizona, sitting by designation.