OAH Case Nos. 2021020362 & 2021030817, Parents and Conejo Valley Unified School District

DECISION

AUGUST 25, 2021

On February 10, 2021, Student filed with the Office of Administrative Hearings, referred to as OAH, a Request for Due Process Hearing in OAH Case No. 2021020362, Student's Case, naming Conejo Valley Unified School District. On March 1, 2021, OAH granted the parties' joint request for mediation and continuance of the due process hearing.

On March 23, 2021, Conejo Valley filed a Request for Due Process Hearing in OAH Case No. 2021030817, Conejo Valley's Case, naming Student. On April 2, 2021, OAH granted the parties' joint Motion to Consolidate Conejo Valley's Case with Student's Case and set the due process hearing dates in the consolidated matters to the dates set in Student's Case.

Administrative Law Judge Kara Hatfield heard this matter by video conference on June 8, 9, 15, 16, and 17, 2021.

Attorneys N. Jane DuBovy and Mandy Favaloro represented Student. Parents attended all hearing days on Student's behalf. Student did not attend except while he testified. Attorney Tamra Kaufman represented Conejo Valley. Erika Johnson, Conejo Valley's Director of Special Education, attended all hearing days on Conejo Valley's behalf, and Lisa Miller, Conejo Valley's Assistant Superintendent, attended all days except June 16, 2021.

At the parties' request, OAH continued the matter to July 19, 2021, for written closing argument. The record was closed, and the matter was submitted on July 19, 2021.

ISSUES

STUDENT'S ISSUES:

Did Conejo Valley deny Student a free appropriate public education, called FAPE, by:

1. Significantly impeding Parents' opportunity to participate in the decisionmaking process regarding providing Student a FAPE, and depriving Student of educational benefits, by failing to provide Parents an assessment plan within 15 days of Parents' request for an assessment for central auditory processing disorder and of Student's need for recreational therapy?

2. Significantly impeding Parents' opportunity to participate in the decisionmaking process regarding providing Student a FAPE by failing to provide all of Student's educational records within five days of Parents' January 5, 2021 request?

3. Significantly impeding Parents' opportunity to participate in the decisionmaking process regarding providing Student a FAPE, and depriving Student of educational benefits, by failing to include in the December 14, 2020 individualized education program, called an IEP, a description, individualized for Student, of the means by which the special education and related services of the IEP would be provided during emergency conditions when instruction or services could not be provided to Student either at school or in-person for more than 10 school days?

4. Significantly impeding Parents' opportunity to participate in the decisionmaking process regarding providing Student a FAPE, and depriving Student of educational benefits, in the December 14, 2020 IEP by failing to consider Parents' concerns regarding placement?

5. Significantly impeding Parents' opportunity to participate in the decisionmaking process regarding providing Student a FAPE, and depriving Student of educational benefits, in the December 14, 2020 IEP by failing to provide Parents prior written notice with all required information related to Conejo Valley's proposed change of placement?

6. Failing in the December 14, 2020 psychoeducational assessment to conduct appropriate assessments in all areas of suspected disability?

7. Failing to assess Student in all areas of suspected disability, specifically:

a) Student's need for recreational therapy;

b) Central auditory processing disorder; and

c) Behavior, through a functional behavior assessment?

8. Failing in the December 14, 2020 IEP to:

a) Develop appropriate goals in all areas of unique need;

b) Offer appropriate placement;

c) Offer appropriate and sufficient accommodations;

d) Offer an appropriate behavior support plan based on assessment of Student's needs; and

e) Offer Student special education and related services for the 2021 extended school year?

CONEJO VALLEY'S ISSUES:

9. Did Conejo Valley's December 14, 2020 psychoeducational assessment comply with legal requirements such that Student is not entitled to an independent educational evaluation in psychoeducation at public expense?

JURISDICTION

This hearing was held under the Individuals with Disabilities Education Act, its regulations, and California statutes and regulations. (20 U.S.C. § 1400 et. seq.; 34 C.F.R. § 300.1 (2006) et seq.; Ed. Code, § 56000 et seq.; Cal. Code Regs., tit. 5, § 3000 et seq.) All future references to the Code of Federal Regulations are to the 2006 version. The main purposes of the Individuals with Disabilities Education Act, referred to as the IDEA, are to ensure:

• all children with disabilities have available to them a free appropriate public education that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment and independent living, and

• the rights of children with disabilities and their parents are protected.

(20 U.S.C. § 1400(d)(1); see Ed. Code, § 56000, subd. (a).)

The IDEA affords parents and local educational agencies the procedural protection of an impartial due process hearing with respect to any matter relating to the identification, assessment, or educational placement of the child, or the provision of FAPE, to the child. (20 U.S.C. § 1415(b)(6) & (f); 34 C.F.R. § 300.511; Ed. Code, §§ 56501, 56502, and 56505; Cal. Code Regs., tit. 5, § 3082.) The party requesting the hearing is limited to the issues alleged in the complaint, unless the other party consents, and has the burden of proof by a preponderance of the evidence. (20 U.S.C. § 1415(f)(3)(B); Ed. Code, § 56502, subd. (i); Schaffer v. Weast (2005) 546 U.S. 49, 57-58, 62 [126 S.Ct. 528, 163 L.Ed.2d 387]; and see 20 U.S.C. § 1415(i)(2)(C)(iii).) In this consolidated matter, Student bore the burden of proof on Student's issues, and Conejo Valley bore the burden of proof on its issues. The factual statements in this Decision constitute the written findings of fact required by the IDEA and state law. (20 U.S.C. § 1415(h)(4); Ed. Code, § 56505, subd. (e)(5).)

Student was 12-and-a-half years old at the time of hearing. Student resided within Conejo Valley's geographic boundaries at all relevant times. Student attended Conejo Valley's Westlake Elementary School for first through fourth grades. In the middle of fourth grade in January 2019, Student received a plan of accommodations under Section 504 of the Rehabilitation Act of 1973.

For fifth grade, Parents disenrolled Student from Conejo Valley and sent him to Bridges Academy, a private school that was not certified by the California Department of Education as a nonpublic school. In fall 2019 while Student attended Bridges, Conejo Valley assessed Student for eligibility for special education and convened an IEP team meeting. Student was initially found eligible for special education and related services in October 2019, but Parents did not consent to Student's eligibility, or to special education and related services. Parents continued Student's enrollment at Bridges and filed a request for a due process hearing in March 2020. As the result of a May 15, 2020 Final Settlement Agreement of that earlier due process case, Student was designated a privately placed, general education student and Student was scheduled to attend Bridges until at least December 31, 2020.

In September 2020, Parents asked Conejo Valley to assess Student for eligibility again, and Student again was found eligible for special education and related services on December 14, 2020, with the primary eligibility category of other health impairment based on Student's Attention Deficit Hyperactivity Disorder, for which he took a stimulant medication, and a secondary eligibility category of emotional disturbance based on Student's anxiety, for which he also took medication. Parents consented to the determination that Student was eligible for special education and related services, but disagreed with the placement and services offered in the December 14, 2020 IEP, then filed their request for a due process hearing.

CONEJO VALLEY'S PREHEARING MOTION TO DISMISS AND RENEWED DEFENSE IT WAS RELIEVED OF ITS DUTY BY PARENTS' LACK OF CONSENT

A FAPE means special education and related services that are available to an eligible child that meets state educational standards at no charge to the parent or guardian. (20 U.S.C. § 1401(9); 34 C.F.R. § 300.17.) Parents and school personnel develop an IEP for an eligible student based upon state law and the IDEA. (20 U.S.C. §§ 1401(14), 1414(d)(1); and see Ed. Code, §§ 56031,56032, 56341, 56345, subd. (a), and 56363 subd. (a); 34 C.F.R. §§ 300.320, 300.321, and 300.501.)

In general, a child eligible for special education must be provided access to specialized instruction and related services which are individually designed to provide educational benefit through an IEP reasonably calculated to enable a child to make progress appropriate in light of the child's circumstances. (Board of Education of the Hendrick Hudson Central School Dist. v. Rowley (1982) 458 U.S. 176, 201-204; Endrew F. v. Douglas County School Dist. RE-1 (2017) 580 U.S. ____ [137 S.Ct. 988, 1000].)

On May 25, 2021, Conejo Valley moved to dismiss Student's Issues 6, 7, and 8, asserting “Parents refused to consent to the District's initial provision of special education and related services for Student and a parent's refusal to consent to the initial provision of special education and related services relieves the District of the obligation to provide FAPE for that student until the parent provides consent.”

On June 1, 2020, OAH denied Conejo Valley's motion to dismiss Student's Issues 6, 7, and 8, without prejudice to raising the argument as a defense at the due process hearing on the consolidated cases.

In its written closing argument, Conejo Valley renewed its assertion that Student's claims Conejo Valley denied him a FAPE in the December 14, 2020 IEP, presumably Issue 8 but possibly also Issues 6 and 7 as originally argued in the motion to dismiss, were barred by Parents' refusal to consent to the implementation, or delivery, of the special education and related services Conejo Valley offered in that IEP. Conejo Valley argues that because Parents “only consented to Student's eligibility for special education and related services but refused to consent to the initial provision of special education and related services for Student, . . . District has no obligation to Student under the IDEA or California Education Code.” Conejo Valley asserts Student cannot seek redress for any inadequacy in Conejo Valley's offer of special education and related services in the December 14, 2020 IEP because Parents did not allow Conejo Valley to provide what Parents assert was inappropriate for Student.

Conejo Valley relies on Colbert County Board of Education v. B.R.T. (N.D.Ala., June 19, 2008, No. CV-07-J-1430-NW) 2008 WL 11305871, and a state educational agency decision from Georgia, Gainesville School District (Georgia State Educational Agency October 22, 2019), in support of its claim that the IDEA, and California Education Code section 56346, subdivision (c)(1), bar Student's denial of FAPE claims in the December 14, 2020 IEP. Conejo Valley contends the federal case and state decision conclude if parents refuse consent to an IEP, even in the basis that they do not agree the school district has offered their child FAPE, the IDEA expressly absolves a school district of liability for not providing a FAPE to a disabled child.

Even assuming Conejo Valley is correct, Conejo Valley made no showing how this defense applies to Issues 6 and 7, relating to assessments, versus the offered program of special education and related services.

Conejo Valley improperly conflates the concepts of making available, or offering, a FAPE and providing, or delivering, special education and related services. California Education Code section 56346, subdivision (c)(1) explicitly states a public agency shall not be in violation of “the requirement to make available a free appropriate public education” to a student due to “the failure to provide the child with the special education and related services” because the parents “refuse to consent to the initial provision of special education.” Here Student did not allege a denial of FAPE based upon Conejo Valley not delivering services for which it does not have parental consent. Rather, Student alleged a denial of FAPE by Conejo Valley failing to make available a FAPE, that is by failing to offer Student a program reasonably calculated to confer educational benefit appropriate in light of his circumstances.

As explained in A.H. by and Through A.H. v. Clarksville-Montgomery County School System (M.D.Tenn., Feb. 7, 2019, No. 3:18-CV-00812) 2019 WL 483311, at *8, “the educational agency is relieved of its obligation to provide a FAPE if the parent or guardian rejects the proposition that the child should be provided special education or related services at all. Nothing in the IDEA shields an agency in a case where parents agree that their child is entitled to services but refuse to consent to the way in which the agency wishes to provide them.” (Italics in original.) Furthermore, Conejo Valley's “interpretation of how consent functions under the IDEA . . . would be plainly contrary to the purposes of the Act, because it would reward school systems for offering inferior services that they know parents will refuse.” (Ibid.)

By Conejo Valley's flawed logic, a school district could always evade liability by intentionally offering an inappropriate program of special education and related services for purposes of drawing parents' disagreement. Under Conejo Valley's reasoning, a district would always prevail against any claim for denial of FAPE in that scenario based on the parents' refusal to subject their child to an inadequate or even harmful program of special education and related services. This could not possibly be Congress' intent.

Therefore, Student's Issues 6, 7, and 8 may proceed on their merits, discussed below.

ISSUE 1: FAILURE TO PROVIDE PARENTS AN ASSESSMENT PLAN WITHIN 15 DAYS OF PARENTS' REQUEST FOR AN ASSESSMENT FOR CENTRAL AUDITORY PROCESSING DISORDER AND OF STUDENT'S NEED FOR RECREATIONAL THERAPY

Student contends Conejo Valley failed to, within 15 days of Parents' request, provide Parents an assessment plan for assessments of Student's central auditory processing and need for recreational therapy, thereby significantly impeding their opportunity to participate in the educational decisionmaking process and depriving Student of educational benefits.

Conejo Valley contends through the May 2020 Settlement Agreement, Student prospectively waived “all claims, damages, liability, rights, and complaints of whatever kind or nature arising from or related to Student's educational program through and including December 31, 2020 except as to any disagreement as to the assessment results and IEP that may result from Parents' request for an assessment and IEP” provided under paragraph 8 of the agreement. The waiver also was expressed as a release and discharge “apply[ing] to any action or proceeding based on any state or federal statute, regulation, case decision, common law, including all educationally related claims . . .in any forum . . . through an including December 31, 2020 except as to any disagreement as to the assessment results and IEP that may result from the Parents' request for an assessment and IEP” provided under paragraph 8 of the agreement. Conejo Valley asserts Student is contractually barred by the May 2020 Settlement Agreement from recovery under Issue 1, even if Conejo Valley did not provide Parents an assessment plan for assessments of Student's central auditory processing and need for recreational therapy within 15 days of Parents' request made prior to December 31, 2020.

Student's complaint alleged on page 10 that Parents requested on September 17, 2020, that Conejo Valley assess Student. However, in listing the issues for hearing, on page 21 of Student's complaint, Student stated the issue concerned an assessment request by Parents on October 5, 2020. The evidence showed October 5, 2020, was the date on the assessment plan Conejo Valley sent to Parents in response to the September 17, 2020 request. Student's Prehearing Conference Statement repeated the error and stated the issue as concerning Parents' October 5, 2020 assessment request. The May 28, 2020 Order Following Prehearing Conference also stated Student's first issue as concerning Parents' October 5, 2020 assessment request, and neither party corrected the statement of the issue. This Decision has omitted the date from the statement of Issue 1 above based on the matter litigated by both sides at hearing and proceeds according to the allegation in Student's complaint and the proof submitted at hearing regarding Mother emailing Conejo Valley on the night of September 17, 2020. (M.C. v. Antelope Valley Unified School Dist. (9th Cir. 2017) 858 F.3d. 1189, 1196.)

On the night of Thursday, September 17, 2020, Mother emailed Conejo Valley requesting assessment for eligibility for special education. She stated Student had ”been diagnosed with ASD, ADHD and Anxiety Disorder.” Mother requested “that the school district conduct testing that addresses: Psycho/educational, social/emotional, Occupational Therapy (OT), LAS (language), Recreation Therapy (RT), and Central Auditory Processing (CAPD).” Effectively, Parents' request for assessment was made on Friday, September 18, 2020. Under normal procedures, the 15-day deadline to respond to Parents' request would have been on Saturday, October 3, 2020. At noon on Monday, October 5, 2020, 17 calendar days after Mother's request, Conejo Valley emailed Mother an assessment plan dated October 5, 2020.

Student waived all claims against Conejo Valley through and including December 31, 2020, except disagreement pertaining to “the assessment results and IEP that may result from the Parents' request for an assessment and IEP.” In exchange for the benefits Student negotiated in the confidential settlement agreement, Conejo Valley was absolved of other obligations under the IDEA and related California state law through December 31, 2020. Therefore, Student is barred from asserting procedural compliance claims that arose before December 31, 2020, if they are unrelated to results or an IEP resulting from any assessment Parents requested pursuant to paragraph 8 of the May 2020 settlement.

Student claims Conejo Valley procedurally denied him a FAPE by failing to provide Parents an assessment plan for two specific assessment types they requested in September 2020, well before December 31, 2020. Student's claim in Issue 1 is not regarding assessment results or an IEP resulting from the eligibility assessment Parents requested, but rather, limited to the timeliness of an assessment plan regarding central auditory processing and recreational therapy assessments. Student waived his claim for such procedural noncompliance in the May 2020 Settlement Agreement and Conejo Valley was not required to provide Parents an assessment plan within any specific period of time, only to conduct an eligibility assessment as contemplated by paragraph 8 of the parties' agreement, which was negotiated with the assistance and advice of attorneys.

Student is barred from claiming he was denied a FAPE by Conejo Valley significantly impeding Parents' opportunity to participate in the decisionmaking process regarding providing Student a FAPE, and depriving Student of educational benefits, by failing to provide Parents an assessment plan within 15 days of Parents' September 18, 2020 request for an assessment for central auditory processing disorder and of Student's need for recreational therapy. Therefore, Student's claim in Issue 1 fails.

ISSUE 2: FAILURE TO PROVIDE ALL OF STUDENT'S EDUCATION RECORDS WITHIN FIVE DAYS PARENTS' JANUARY 5, 2021 REQUEST ISSUE 2: FAILURE TO PROVIDE ALL OF STUDENT'S EDUCATION RECORDS WITHIN FIVE DAYS OF PARENTS' JANUARY 5, 2021 REQUEST

Student alleged in his complaint Conejo Valley failed to provide Parents all of Student's education records within five days of Parents' January 5, 2021 request, and thereby significantly impeded Parents' opportunity to participate in the decisionmaking process regarding providing Student a FAPE. Notably, neither party's written closing argument mentions this issue.

Parents have the right to request and receive the pupil's education records within five business days at any time. (Ed. Code, § 56504).

Student failed to introduce at hearing any evidence that Parents or Student's attorney requested Student's education records on or about January 5, 2021. Student failed to introduce any evidence of what Conejo Valley produced in response to any such request. And Student failed to introduce any evidence of what was incomplete about Conejo Valley's production that formed basis of Issue 2 in his due process hearing request.

Most significantly, Student failed to introduce any evidence of how some allegedly missing information not only affected Parents' participation in educational decisionmaking, but rose to the level of significantly impeding that participation. Only Mother testified, not Father. And Mother never mentioned not receiving documents she requested, or the impact any allegedly missing documents had on her ability to understand Student's educational or other developmental needs and to be involved in Student's educational decisionmaking.

Notably, Student had not attended a Conejo Valley school since the end of the 2018-2019 school year. When Student disenrolled from Conejo Valley and enrolled at Bridges, Conejo Valley transmitted Student's cumulative file to Bridges and did not retain a copy. As part of Conejo Valley's eligibility assessment in fall 2020, Conejo Valley requested copy of Student's cumulative file including “all previous evaluations, report card grades, testing, etc.” In response, Bridges only sent Conejo Valley seven progress reports from the 2019-2020 school year, not the rest of Student's educational record Conejo Valley previously sent Bridges. Student's educational record that originated with Conejo Valley remained with Bridges and was always available to Parents.

Student failed to carry his burden of production and persuasion on this issue and did not prove by a preponderance of the evidence that Conejo Valley denied Student a FAPE by failing to timely produce Student's education record. Concerns regarding production of Student's education records as they existed at Conejo Valley as of January 5, 2021, were addressed prehearing in the June 2, 2021 Order Denying as Moot in Part and Denying in Part Student's Motion to Compel Production of Education Records. Student was explicitly noted to retain all rights to move for further relief if Conejo Valley's production related to the 2020 assessments was incomplete. Student improperly failed to either pursue or withdraw this issue.

ISSUE 3: SUFFICIENCY OF DECEMBER 14, 2020 IEP'S EMERGENCY SERVICES PROVISION

Student contends the December 14, 2020 IEP did not include a description, individualized for Student, of the means by which the special education and related services of the IEP would be provided during emergency conditions when instruction or services could not be provided to Student either at school or in-person for more than 10 school days, thereby significantly impeding Parents' opportunity to participate in the decisionmaking process regarding providing Student a FAPE, and depriving Student of educational benefits. Conejo Valley contends the Emergency Services Provision of the December 14, 2020 IEP was sufficient.

Under new law enacted in summer 2020, each initial or revised IEP over the 2020-2021 school year must include a description of the “means” by which a student's IEP would be provided under emergency conditions if “instruction or services, or both,” could not be provided to a student at school or in-person for more than 10 school days as a result of eight specific circumstances. (Ed. Code, § 56345, subd. (a)(9)(A).) These emergency conditions are not particular to the COVID-19 pandemic, and the eight specifically enumerated emergencies are fire, flood, impassable roads, epidemic, earthquake, the imminence of a major safety hazard as determined by the local law enforcement agency, a strike involving transportation services to pupils provided by a nonschool entity, and any order of any military officer of the United States or of the state to meet an emergency created by war, or of any civil officer of the United States, of the state, or of any county, city and county, or city authorized to issue an order to meet an emergency created by war. (Ed. Code, §§ 46392, subd. (a)(1)-(8), 41422.)

The new law requires a description of emergency services for an IEP's special education and related services, supplementary aids and services, transitions services, and extended school year. (Ed. Code, § 56345, subd. (a)(9)(A)(i)-(iv).) These changes in the Education Code now require an IEP to include a description of how aspects of the IEP would be implemented in case an emergency prevented a school district from providing the underlying special education and related services at a school campus or in-person for more than 10 school days. This preparation for continuing the education of students with IEPs is an important step, but the ultimate delivery of services in emergency conditions will require consideration of the actual circumstances during any specific emergency, including whether there is electrical power, the functioning of various telecommunications systems such as traditional telephones, cellular telephone networks, television broadcasting, and internet, and other considerations that could be unique to each emergency. No educational emergency services plan can fully account for all eventualities.

The description of the means by which the IEP would be provided under emergency conditions pursuant to Education Code, section 56345, subdivision (a)(9)(A) is an element of the overall offer of FAPE. (California Department of Education Special Education Guidance for Covid-19, September 30, 2020.) Parents must be involved in the development of the emergency plan, and local educational agencies must obtain parental consent to implement the plan. (Ibid.)

Also under new law enacted as part of the same legislation during summer 2020, California Education Code section 43500 defines “in-person instruction” as “instruction under the immediate physical supervision and control of a certificated employee of the local educational agency while engaged in educational activities required of the pupil.” (Ed. Code, § 43500, subd. (b).). “Distance learning” is defined as “instruction in which the pupil and instructor are in different locations and pupils are under the general supervision of a certificated employee of the local educational agency” and distance learning “may include, but is not limited to, all of the following:

• Interaction, instruction, and check-ins between teachers and pupils through the use of a computer or communications technology.

• Video or audio instruction in which the primary mode of communication between the pupil and certificated employee is online interaction, instructional television, video, telecourses, or other instruction that relies on computer or communications technology.

• The use of print materials incorporating assignments that are the subject of written or oral feedback.”

(Ed. Code, § 43500, subds. (a)(1)-(3), (b).)

The December 14, 2020 IEP offered Student special education and related services consisting of specialized academic instruction, group counseling, and individual counseling as direct services, plus temporary individual aide support during a brief period of transition from private school to public school. The IEP also offered temporary consultation/collaboration service to Student's teachers for a longer period of time, to assist Student's teachers during Student's transition from private school to public school.

The December 14, 2020 IEP included a page captioned “Emergency Services Provisions” that described “distance education,” consistent with Education Code section 43500, subdivision (a). The document stated if instruction or services, or both, could not be provided to Student either at the school or in person for more than 10 school days due to emergency conditions, the IEP would be provided “by means of ‘distance learning' [as defined on the page] to the extent feasible, as determined by [Student's] teachers, in light of the emergency circumstances at that time.” The document stated it applied to the special education and related services in the IEP, including supplementary aids and services.

The document identified that the “special education and related services” offered in Student's IEP would be provided by distance learning in any of the three ways defined by statute and the Emergency Services Provision document. It also identified that the “supplementary aids and services (accommodations, modifications, and other supports)” in the IEP would be provided by distance learning in any of the three ways defined by statute and the Emergency Services Provision document. The document informed Parents, “As soon as practicable following the determination that instruction or services, or both, cannot be provided either at the school or in person for more than 10 school days due to a qualifying state of emergency, the parent will be notified as to the specific alternative means by which the student's IEP will be provided, in light of the emergency circumstances present at that time. Public health orders shall be taken into account in implementing the emergency conditions provision.”

No evidence established that Student, who had above average cognitive abilities and at least average academic achievement, would not have been able to access the curriculum using any one of the three methods of “distance learning” defined by statute and incorporated into the Emergency Services Plan of the December 14, 2020 IEP. A preponderance of the evidence reflected that Student could have received educational benefit from each method of distance instruction. The IEP team did not err by including each method. Said differently, the IEP team did not err by not excluding any of the three methods. Student failed to prove Conejo Valley inappropriately proposed to use any or all of the three distance learning methods as defined by statute to deliver the special education, related services, and supplementary aids and services of Student's December 14, 2020 IEP in case of extended emergency conditions.

Conejo Valley developed an Individualized Distance Learning Plan during the COVID-19 campus closures for each student who had a consented-to IEP. What each student's individualized plan during the emergency condition of the COVID-19 pandemic campus closure looked like depended on the consented-to services in each student's IEP. While a school district may offer a variety of goals, placements, related services, supplementary aids and services, and accommodations to any particular student in their IEP, that student's parents might not consent to every goal, placement, related service, supplementary aid and service, and accommodation. Therefore, for students who had IEPs to which their parents had consented, Conejo Valley developed Individualized Distance Learning Plans that mirrored the specific components to which the parents had consented. Conejo Valley did not make an Individualized Distance Learning Plan for Student because Parents never consented to Student receiving any special education or related services Conejo Valley offered. Parents consented only to eligibility on January 28, 2021, more than a month later.

Student cited no authority for any argument that new California law required school districts to be any more specific than Conejo Valley was in the December 14, 2020 IEP's Emergency Services Plan in describing how emergency services for an IEP's special education and related services, supplementary aids and services, transitions services, and extended school year would be implemented in case an emergency prevented a school district from providing the underlying special education and related services at a school campus or in-person for more than 10 school days.

Because the December 14, 2020 IEP included a description, individualized for Student, of the means by which the special education and related services of the IEP would be provided during emergency conditions when instruction or services could not be provided to Student either at school or in-person for more than 10 school days, Conejo Valley did not significantly impede Parents' opportunity to participate in the decisionmaking process regarding providing Student a FAPE, or deprive Student of educational benefits.

Student failed to meet his burden of proof on Issue 3.

ISSUE 4: FAILURE DURING DECEMBER 14, 2020 IEP TEAM MEETING TO CONSIDER PARENTS' CONCERNS REGARDING PLACEMENT

Student contends Conejo Valley failed at the December 14, 2020 IEP team meeting to consider Parents' concerns regarding placement, thereby significantly impeding Parents' opportunity to participate in the decisionmaking process regarding providing Student a FAPE, and depriving Student of educational benefits. Conejo Valley contends it considered Parents' concerns regarding placement and Parents were afforded the opportunity for meaningful participation in the December 14, 2020 IEP team meeting.

In developing the IEP, the IEP team must consider the strengths of the child, the concerns of the parents for enhancing the child's education, the results of the most recent evaluations of the child, and the academic, developmental, and functional needs of the child. (20 U.S.C. § 1414(d)(3)(A); 34 C.F.R. § 300.324(a).)

To fulfill the goal of parental participation in the IEP process, the school district is required to conduct a meaningful IEP meeting. (W.G. v. Board of Trustees of Target Range School Dist. No. 23 (9th Cir. 1992) 960 F.2d 1479, 1485 (Target Range).) A parent has meaningfully participated in the development of an IEP when he or she is informed of the child's problems, attends the IEP meeting, expresses disagreement regarding the IEP team's conclusions, and requests revisions in the IEP. (N.L. v. Knox County Schools (6th Cir. 2003) 315 F.3d 688, 693; Fuhrmann v. East Hanover Board of Education (3d Cir. 1993) 993 F.2d 1031, 1036 [parent who has an opportunity to discuss a proposed IEP and whose concerns are considered by the IEP team has participated in the IEP process in a meaningful way].)

There was no persuasive evidence to support Student's assertion Conejo Valley failed, refused, or avoided discussion or consideration of Parents' concerns regarding placement at the December 14, 2020 IEP team meeting. The testimony did not contradict the IEP team meeting notes regarding the questions Parents' asked and the comments Parents made during the meeting, and there was no testimony that the notes did not accurately or completely reflect the content of Parents' questions or comments. The notes reflected that Parents attended the meeting and actively participated. There was no evidence Parents expressed concern about Student's placement offer as discussed by the IEP team, or specifically requested a different amount of time in the general education environment, a different amount of time in a self-contained special education environment, or a class with a different maximum capacity. Further, there was no evidence Parents requested a different public school, for example, a different middle school campus less likely to have students who had attended Student's elementary school, of whom Student was resentful and with whom Student remained fearful of future contact because of perceived bullying during fourth grade. Also, there was no evidence Parents requested a different school type, such as, instead of a comprehensive middle school campus for students both without and with disabilities, a school exclusively for students with disabilities, denominated as a nonpublic school. There was no evidence Parents requested the IEP team consider whether Student required continued attendance at Bridges to receive a FAPE. The evidence established Parents had already made that decision without any discussion about it with the other members of the IEP team.

Student failed to meet his burden of proof on Issue 4.

ISSUE 5: FAILING TO PROVIDE PARENTS PRIOR WRITTEN NOTICE WITH ALL REQUIRED INFORMATION RELATED TO CONEJO VALLEY'S PROPOSED CHANGE OF PLACEMENT

Student contends Conejo Valley was required to provide Parents a prior written notice when it proposed to change what Student calls his “placement” at Bridges Academy to Colina Middle School in the December 14, 2020 IEP. Student posits Conejo Valley was required give Parents this written notice before implementing a change a change in placement, which Conejo Valley offered to do as soon as the day following the IEP team meeting, December 15, 2020, if Parents had consented, and Parents had not yet been provided a prior written notice.

Conejo Valley asserts the December 14, 2020 IEP document itself contained all of the elements of prior written notice regarding the proposed placement.

A school district must provide parents prior written notice of proposed and/or refused actions within a reasonable time before initiating or changing the identification, evaluation, educational placement, or the provision of FAPE. (34 CFR § 300.503(a).) Title 20 United States Code, section 1415(b)(3), and 34 Code of Federal Regulations, part 300.503(b), require:

• A description of the action proposed or refused by the district;

• An explanation of why the district proposes or refuses to take the action;

• A description of each evaluation procedure, assessment, record, or report the district used as a basis for the proposed or refused action;

• A statement that the parents have protection under Part B's procedural safeguards and, if the notice is not an initial referral for evaluation, the means by which a copy of a description of the procedural safeguards can be obtained;

• Sources for parents to contact to obtain assistance in understanding the provisions of Part B;

• A description of other options that the IEP team considered and the reasons why those options were rejected; and
• A description of other factors relevant to the district's proposal or refusal.

A procedural violation results in a denial of a FAPE only if the violation:

• impeded the child's right to a FAPE;

• significantly impeded the parent's opportunity to participate in the decisionmaking process; or

• caused a deprivation of educational benefits.

(20 U.S.C. § 1415(f)(3)(E)(ii); 34 C.F.R. § 300.513(a)(2); Ed. Code, § 56505, subds. (f)(2) & (j); Target Range, supra, 960 F.2d at p. 1484; see N.B. v. Hellgate Elementary School Dist., ex rel. Board of Directors, Missoula County, Mont. (9th Cir. 2008) 541 F.3d 1202, 1208, quoting Amanda J. ex rel. Annette J. v. Clark County School Dist. (9th Cir. 2001) 267 F.3d 877, 892.)

As explained in Issue 1, Student waived all claims against Conejo Valley through and including December 31, 2020, except disagreement pertaining to “the assessment results and IEP that may result from the Parents' request for an assessment and IEP.” In exchange for the benefits Student negotiated in the confidential settlement agreement, Conejo Valley was absolved of other obligations under the IDEA and related California state law through December 31, 2020. Therefore, Student is barred from asserting procedural compliance claims that arose before December 31, 2020, if they are unrelated to results or an IEP resulting from any assessment Parents requested pursuant to paragraph 8 of the May 2020 settlement.

Student claims Conejo Valley procedurally denied him a FAPE by failing to provide Parents prior written notice of the offer of placement at public school, which would be a change from the uncertified, private school Parents unilaterally selected. Student's claim in Issue 5 is not regarding assessment results or an IEP resulting from the eligibility assessment Parents requested, but rather, limited to whether Parents received a “prior” written notice of Conejo Valley's offer of placement at a public school. Student waived his claim for such procedural noncompliance in the May 2020 Settlement Agreement and Conejo Valley was not required to provide Parents any fully compliant prior written notice at any time through December 31, 2020.

Student is barred from claiming he was denied a FAPE by Conejo Valley significantly impeding Parents' opportunity to participate in the decisionmaking process regarding providing Student a FAPE, and depriving Student of educational benefits, by failing to provide Parents prior written notice with all required information related to Conejo Valley's proposed “change” of placement. Therefore, Student's claim in Issue 5 fails.

Additionally, although Conejo Valley's October 2019 psychoeducational assessment and the October 24, 2019 IEP team meeting concluded Student was eligible for special education and related services, Parents declined consent to eligibility and the initial provision of special education and related services offered in the October 24, 2019 IEP. Student therefore remained a general education Student. Student's status as a general education Student was acknowledged in the May 2020 Settlement Agreement. The May 2020 Settlement Agreement also explicitly contemplated a possible future eligibility assessment and IEP team meeting to review such an assessment and to consider anew an offer of eligibility, placement, and services. The Settlement Agreement explicitly stated Bridges or continued funding either for “Student's unilateral placement” or any other educationally related services addressed in the confidential settlement agreement and obtained by Parents would not be “Student's stay-put placement.”

Conejo Valley's offered placement at Student's local middle school in regular classrooms for 90 percent of his school day did not constitute a change of placement from private school to public school requiring prior written notice. At the time of the December 14, 2020 IEP team meeting, Student was in the same position as any other general education Student newly determined to be eligible for special education and related serviced for whom a school district offers special education and related services. After considering the extent of the continuum of placement options necessary to confer educational benefit to Student appropriate in light of his circumstances, the IEP team determined Student could make adequate progress in the general education curriculum and his goals by attending regular classes most of the time, with some push-in specialized academic instruction in the regular classroom and some pull-out specialized academic instruction in a separate classroom. Student's IEP placement was offered at Colina Middle School, the campus near Student's home and the campus he would have attended but for his disability, the same middle school Student's older sibling who did not have an IEP had attended. (See 34 C.F.R. § 300.116.)

Conejo Valley was not required to provide Parents a separate prior written notice of the initial offer of placement and services the IEP team proposed. Parents were present during the IEP team meeting and had a fair and full opportunity to participate in the IEP team's discussion of the educational environment necessary to afford Student a FAPE. Parents fully understood what type of campus, what specific campus, and the types of classrooms Conejo Valley offered as Student's placement. And the December 14, 2020 IEP meeting notes documented Parents' attendance, participation, and opportunity to ask questions during as well as after the December 14, 2020 IEP team meeting.

Parents did not request, either during the IEP team meeting or after, that Student attend a different public middle school campus, a different balance of regular and special classrooms, or a different placement on the permissible continuum of placement options, such as a certified nonpublic school. Therefore, Conejo Valley did not refuse any action Parents requested, which might have necessitated a prior written notice.

Student offers no authority for the proposition that Conejo Valley was required to provide a prior written notice setting forth all the categories of information specified in the federal regulation concerning what Student contends was a “change of placement” from the noncertified private school to which Parents unilaterally sent Student, to the comprehensive public middle school campus Student would have attended based on his place of residence, in the regular classroom for all general education core curriculum courses.

Furthermore, the December 14, 2020 IEP reflects Parents were provided with sufficient written notice to understand Conejo Valley's proposed placement at Colina Middle School in the regular classroom with 22 minutes per day, four days per week, in a special education classroom. The IEP team meeting notes reflect Conejo Valley gave Parents written notice of their protection under Part B of the IDEA's procedural safeguards and there was no evidence that did not include, as statutorily required, sources for Parents to contact to obtain assistance in understanding the provisions of Part B.

The IEP documented the results of the psychoeducational, health, and language and speech assessments, including academics, motor development, auditory processing, and behavior. The IEP noted the procedures used during Conejo Valley's eligibility assessment, which Conejo Valley used as a basis for the proposed placement. The IEP identified Student's areas of need, present levels of performance in those areas, and proposed goals in each area. The IEP team considered the statutory continuum of placement options and “after a discussion of options, parent input, assessments, and present levels of performance,” Conejo Valley offered placement in the regular classroom with push-in specialized academic instruction for 60 minutes weekly, and specialized academic instruction in a special education classroom 88 minutes weekly, at Colina Middle School. The IEP contained a description of the action Conejo Valley proposed and why. The IEP's Least Restrictive Environment page described the other options that the IEP team considered and the reasons why those options were rejected; and other factors relevant to the Conejo Valley's placement proposal.

And, most significantly, even if Conejo Valley was required to give Parents a fully compliant prior written notice, and even if the contents of the December 14, 2020 IEP document did not satisfy the regulatory requirements, Student still failed to show how any failure by Conejo Valley to comply with a prior written notice obligation not only affected Parents' participation in educational decisionmaking, but rose to the level of significantly impeding that participation.

Parents lacked any intent to enroll Student at a public school operated by Conejo Valley, or even to enroll Student in a certified nonpublic school funded by Conejo Valley had that been offered, for the spring term of the 2020-2021 school year. Parents were already committed to Student attending Bridges for the remainder of the 2020-2021 school year. Bridges' enrollment contracts for an upcoming school year obligated parents for the full tuition of a school year if parents did not cancel the contract by June 30: “I understand that my obligation to pay the tuition and fees for the full academic year is unconditional. After June 30 [ ], no portion of tuition and fees paid or outstanding will be refunded or canceled in the event of absence, withdrawal or dismissal of STUDENT from BRIDGES. Furthermore, I understand that ALL UNPAID TUITION AND/OR FEES SHALL BE DUE AND PAYABLE TO BRIDGES UPON TERMINATION OF THIS AGREEMENT, REGARDLESS OF THE REASON FOR ITS CANCELLATION, WHETHER FOR ABSENCE, WITHDRAWAL, DISMISSAL OR OTHERWISE.” (Bolding and underlining in original removed.)

By Parents' election during the end of Student's 2019-2020 fifth grade school year to enroll Student at Bridges for sixth grade for the 2020-2021 school year, Parents committed to pay the full year tuition at Bridges whether he attended or not. Had Student stopped attending Bridges mid-year in December 2020, the payment plan in which Parents had been participating would have been terminated with a balloon payment due immediately upon Student's transfer back to Conejo Valley. The evidence established that regardless of what Conejo Valley offered in the December 14, 2020 IEP, no matter how adequate, Parents would have rejected it and continued Student's attendance at Bridges for the spring of 2021.

As Student honestly testified in response to his attorney's question to him what this case was about, Student said the trial was about getting Conejo Valley to pay for him to go to Bridges. Parents “participated in the December [2020] IEP process not to help [Conejo Valley] prepare to provide their child with a FAPE, but merely as a prelude to seeking reimbursement. . . . [⁋] . . . Parents' participation in this process was not genuine, but rather was done solely as a prerequisite to seeking reimbursement.” (Ashland School Dist. v. Parents of Student E.H. (9th Cir. 2009) 587 F.3d 1175, 1183, 1186 (affirming district court's rejection of parents' claim for reimbursement).)

Any lack of prior written notice regarding the placement Conejo Valley offered in the December 14, 2020 IEP did not significantly impede Parents' opportunity to participate in the decisionmaking process regarding providing Student a FAPE, or deprive Student of educational benefits.

Student failed to meet his burden to prove Conejo Valley denied him a FAPE by failing to provide Parents prior written notice with all required information related to Conejo Valley's proposed change of placement.

ISSUES 6 AND 9: APPROPRIATELY ASSESSING STUDENT IN ALL AREAS OF SUSPECTED DISABILITY IN DECEMBER 14, 2020 PSYCHOEDUCATIONAL ASSESSMENT AND LEGAL SUFFICIENCY OF DECEMBER 14, 2020 PSYCHOEDUCATIONAL ASSESSMENT

Student contends Conejo Valley's fall 2020 psychoeducational assessment did not appropriately assess Student in all areas of suspected disability because it was not sufficiently comprehensive to identify all of Student's unique special education and related-services needs, did not use a variety of assessment tools and strategies, and did not comport with the requirements of the law.

Conejo Valley asserts its fall 2020 psychoeducational assessment was procedurally and substantively appropriate in all respects, assessed Student in all areas of suspected disability, and was conducted in accordance with the legal requirements such that Student is not entitled to an independent educational evaluation at public expense.

Before any action is taken to place a student with exceptional needs in a program of special education, an assessment of the student's educational needs must be conducted. (20 U.S.C. § 1414(a)(1)(A); Ed. Code, § 56320.) The IDEA uses the term “evaluation,” while the California Education Code uses the term “assessment.” In this Decision the terms mean the same thing and are used interchangeably. An assessment may be initiated by request of a parent, a State educational agency, other State agency, or local educational agency. (20 U.S.C. § 1414(a)(1)(B); Ed. Code, §§ 56302, 56029, subd. (a), 56506, subd. (b).) Park v. Anaheim Union High School Dist., et al. (9th Cir. 2006) 464 F.3d 1025, 1031-1033.) Assessments are required to determine eligibility for special education, and what type, frequency, and duration of specialized instruction and related services are required. (20 U.S.C. § 1414(a); 34 C.F.R. § 300.303; Ed. Code, §§ 56043(k), 56381, subd. (a).)

Each public agency must ensure that assessments are conducted in a way that:

• uses a variety of assessment tools and strategies to gather relevant functional, developmental, and academic information, including information provided by the parent;

• does not use any single measure or assessment as the sole criterion for determining whether a child is a child with a disability; and

• uses 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)(A)-(C); 34 C.F.R. §300.304(b); see Ed. Code, § 56320.) The IDEA and California state law require that a school district assess a student in all areas of his or her suspected disability. (20 U.S.C. § 1414(b)(3); Ed. Code, § 56320, subd. (f).)

The assessments and other evaluation materials used to assess a child must be:

• selected and administered so as not to be discriminatory on a racial, cultural, or sex basis;

• provided in a language and form most likely to yield accurate information on what the child knows and can do academically, developmentally, and functionally;

• used for purposes for which the assessments are valid and reliable;

• administered by trained and knowledgeable personnel; and

• administered in accordance with any instructions provided by the producer of such assessments.

(Ed. Code, §§ 56320, subds. (a) & (b), 56322, 56381, subd. (e); see 20 U.S.C. § 1414(b) & (c); 34 C.F.R. § 300.304(c).) A psychological assessment must be performed by a credentialed school psychologist. (Ed. Code, § 56324, subd. (a).)

The personnel who assess a student must prepare a written report that includes, among other items not applicable to Student's case:

• Whether the student may need special education and related services;

• The basis for making that determination;

• The relevant behavior noted during observation of the student in an appropriate setting;

• The relationship of that behavior to the student's academic and social functioning;

• The educationally relevant health, development, and medical findings, if any; and

• If appropriate, a determination of the effects of environmental, cultural, or economic disadvantage.
(Ed. Code, § 56327.) The report must be provided to the parent after the assessment. (20 U.S.C. § 1414(b)(4)(B); Ed. Code, § 56329, subd. (a)(3).)

The determination of what tests are required is made based on information known at the time. (See Vasheresse v. Laguna Salada Union School Dist. (N.D.Cal. 2001) 211 F.Supp.2d 1150, 1157-1158 [assessment adequate despite not including speech/language testing where the concern prompting the assessment was reading skills deficit].) No single measure, such as a single intelligence quotient, shall be used to determine eligibility or services. (Ed. Code, § 56320, subds. (c) & (e).) Assessors must be knowledgeable about the student's suspected disability and must pay attention to student's unique educational needs such as the need for specialized services, materials, and equipment. (Ed. Code, § 56320, subd. (g).) Assessments must be sufficiently comprehensive to identify all of the child's special education and related service needs, whether or not commonly linked to the disability category of the child. (34 C.F.R. § 300.304(c)(6).)

The procedural safeguards of the IDEA provide that under certain conditions, a parent is entitled to obtain an independent evaluation of a child at public expense. (20 U.S.C. § 1415(b)(1).) An independent evaluation is an evaluation conducted by a qualified examiner not employed by the school district. (34 C.F.R. § 300.502(a)(3)(i).) A parent has the right to request an independent evaluation at public expense if the parent disagrees with an evaluation obtained by the school district. (34 C.F.R. § 300.502(b)(1); Ed. Code, § 56329, subd. (b).) When a parent requests an independent evaluation at public expense, the school district must, “without unnecessary delay,” either initiate a due process hearing to show that its evaluation is appropriate, or provide the independent evaluation at public expense, unless the school demonstrates at a due process hearing that an independent evaluation already obtained by the parent does not meet its criteria. (34 C.F.R. § 300.502(b)(4); Ed. Code, § 56329, subd. (c).)

CONEJO VALLEY INITIATED A DUE PROCESS HEARING WITHOUT UNNECESSARY DELAY

Whether the length of time that has passed before a district initiates a due process hearing or provides the independent evaluation at public expense constitutes “unnecessary delay” is a question of fact, based upon the circumstances of the particular case. (J.P. v. Ripon Unified School Dist. (E.D. Cal., Apr. 15, 2009, No. 207CV02084MCEDAD) 2009 WL 1034993 (Ripon).) For example, in Ripon the court determined that the school district's due process request filed more than two months after the request for an independent evaluation was timely, as the parties were communicating regarding the request for the evaluation in the interim, and did not come to an impasse on the issue until less than three weeks before the school district's filing. (2009 WL 1034993, at pp. 7-8.)

The term “unnecessary delay” as used in 34 Code of Federal Regulations part 300.502(b)(2) is not defined in the regulations. It permits a reasonably flexible, though normally brief, period of time that could accommodate good faith discussions and negotiations between the parties over the need for, and arrangements for, an independent evaluation. (Letter to Anonymous (OSEP August 13, 2010).) Some delay in the provision of an independent evaluation is reasonable if the school district and the parents are engaging in active communications, negotiations or other attempts to resolve the matter. (See Horne v. Potomac Preparatory P.C.S. (D.D.C. 2016) 209 F.Supp.3d 146, 153-155.) The determination of “unnecessary delay” is a fact-specific inquiry. The facts of each case are therefore critical. (Ibid.)

In Student's February 10, 2021 request for due process, he alleged Conejo Valley failed in the December 14, 2020 psychoeducational assessment to conduct appropriate assessments in all areas of suspected disability and requested as a remedy an independent educational evaluation in the area of psychoeducation. On February 22, 2021, Conejo Valley denied Student's requested remedies and informed Student it believed its psychoeducational assessment satisfied legal requirements. The parties met and conferred and selected a mutually agreeable date for mediation, and on February 23, 2021, requested OAH schedule a mediation in May 2021. On March 23, 2021, 41 days after Student filed his complaint and while the opportunity to mediate Student's request for an independent educational evaluation in psychoeducation was upcoming, Conejo Valley requested a due process hearing to show that its evaluation was appropriate. Conejo Valley initiated a due process hearing without unnecessary delay.

SUFFICIENCY OF DECEMBER 14, 2020 PSYCHOEDUCAITONAL ASSESSMENT

MOTHERS' SEPTEMBER 2020 REQUESTFOR ANOTHER ELIGIBILITY ASSESSMENT

On the night of Thursday, September 17, 2020, Mother emailed Conejo Valley requesting another assessment for eligibility for special education. She stated Student had ”been diagnosed with ASD, ADHD and Anxiety Disorder” and requested “testing that addresses: Psycho/educational, social/emotional, Occupational Therapy (OT), LAS (language), Recreation Therapy (RT), and Central Auditory Processing (CAPD).”

THE FALL 2020 ASSESSMENT

The initial assessment Conejo Valley conducted in fall 2019 was completed by a multi-disciplinary team from elementary school, as Student was in fifth grade at that time. When Student was in sixth grade in fall 2020, Conejo Valley assembled an entirely different multi-disciplinary team, mostly from Student's local middle school, to conduct the new assessment requested by Parents in September 2020.

On September 29, 2020, credentialed school psychologist Monica Agrawal and a team that included a speech-language pathologist, general education teacher, school counselor, and school counseling intern, met with both Parents to discuss their request for assessments and develop an assessment plan. At hearing, Mother complained the meeting was short, but there was no evidence Parents supplied, or were prevented from supplying, Conejo Valley with additional explanation or documentation to inform Conejo Valley of the extensive background information Parents had, based on years of private assessments of Student by pediatric neuropsychologist Lev Gottlieb, Ph.D., Student's prescribing physician pediatric psychiatrist Marc Rosenthal, M.D., and Student's treating psychologist Stazan Sina, Ph.D., a Regional Center assessment, and in-home behavior intervention services.

Agrawal considered the information Mother included in the September 2020 letter requesting assessments, Parents' input during the assessment planning meeting, and a review of the records Conejo Valley had. From this information, Agrawal concluded Student's areas of suspected disability were in the eligibility categories of specific learning disability, other health impairment, emotional disturbance, and autism. She prepared an assessment plan that included assessment in an array of areas to allow an IEP team to consider whether Student qualified for special education and related services, and what unique needs Student had for which an IEP would be required to afford him appropriate educational benefit.

At noon on Monday, October 5, 2020, Conejo Valley emailed Mother a prior written notice, a notice of parental rights, and an assessment plan dated October 5, 2020. Conejo Valley proposed:

• to have a special education teacher assess Student's academic achievement, to determine his reading, writing, and math skills;

• to have a school psychologist assess Student's social/emotional behavior, to evaluate how he handled feelings and emotions and got along with other people;

• to have a school psychologist assess Student's motor skills development, to evaluate his small and large motor functioning and/or psycho-motor skills related to access and performance in the educational environment;

• to have a speech-language pathologist assess Student's language/speech communication development, to determine Student's ability to understand, relate to, and use language and speech clearly and appropriately;

• to have a school psychologist assess Student's intellectual development, to determine how well Student remembered what he saw and heard, how well he used information to solve problems, and to assist in predicting Student's learning rate; and

• to have a school nurse conduct a hearing and vision screening and evaluate Student's developmental patterns and current health status as they related to school functioning.

Conejo Valley gave Parents rating scales to fill out, which were part of the assessment instruments the school psychologist selected, and a health and development form for Parents to complete to provide Conejo Valley with relevant information about Student. Conejo Valley also gave Parents release of information authorization forms and specifically requested permission to communicate about Student with Bridges Academy. Conejo Valley also invited Parents to complete release of information authorization forms for any outside providers with whom Parents wanted Conejo Valley staff to speak as part of the assessment.

Mother returned the signed consent for assessment on October 8, 2020. On November 2, 2020, Agrawal corresponded with Mother to coordinate dates and times for Student to come to Colina Middle School for standardized testing and other assessments. Agrawal proposed dates in early and mid-November 2020. Mother did not accept a variety of options, and specifically because“Tuesdays do not work.” Agrawal ultimately proposed November 30 and December 3, 2020, for testing, and on November 3, 2020, Mother agreed.

As of November 3, 2020, Parents had not submitted the completed rating scales and had not provided Conejo Valley authorization, through a signed form, to communicate with Bridges, or with any other private provider. Agrawal emailed Mother and again requested the signed release of information authorization form and informed Mother that Agrawal could not observe Student or talk to teachers at his current school until Parents provided that written authorization. Mother replied she would provide the authorization that week. Mother did not provide authorization that week, or the next.

On Monday, November 16, 2020, Mother provided Agrawal a signed release of information authorization form permitting Bridges to disclose information about Student to Conejo Valley. Agrawal contacted Bridges that day to arrange observations by her and by speech-language pathologist Jane “Jennie” McIntosh, and to have Student's teachers complete rating scales that were part of the assessment instruments, and teacher feedback forms. She also requested a copy of Student's cumulative file including “all previous evaluations, report card grades, testing, etc.” Agrawal provided Bridges the release of information authorization form Mother signed permitting Bridges to disclose information about Student to Conejo Valley.

On November 17, 2020, speech-language pathologist McIntosh obtained from Mother email addresses for three of Student's teachers, in science, humanities, and math, and directly contacted them for input. One teacher replied that all requests related to IEPs needed to go through a Bridges administrator, whom Agrawal had already contacted. McIntosh then also contacted that Bridges administrator with a list of five question topics she wanted those three of Student's teachers to answer. She requested responses before Thanksgiving, which was nine days later, on November 26, 2020.

On November 18, 2020, Bridges provided Agrawal a total of seven progress reports in limited subject areas from fifth grade, some for December 2019 and some for May 2020. These progress reports contained scores for academic content and classroom skills on a scale from one to five, and some teacher comments. While some of these progress reports were not correctly labeled in Conejo Valley's December 2020 psychoeducational assessment report, it was clear from the context that the psychoeducational assessment report included progress reports from December 2019 and May 2020 during Student's fifth grade year at Bridges. Bridges did not provide any other documents from Student's cumulative file, which should have included everything Conejo Valley had transferred to Bridges when Student enrolled there for the fall 2019 term.

Because Conejo Valley sent Student's entire cumulative file to Bridges in fall 2019 and did not retain a copy for itself, Conejo Valley did not have a copy of pediatric neuropsychologist Dr. Gottlieb's November 2018 Neuropsychological Assessment report. In November 2020, while conducting her assessment, Agrawal only had access to the summary and information from Dr. Gottlieb's report that another Conejo Valley school psychologist had included in the October 2019 initial psychoeducational assessment. The October 2019 initial psychoeducational assessment was not offered into evidence in this case.

Agrawal was aware of the existence of Dr. Gottlieb's 2018 assessment report, and the fact that she did not have a copy of it. Parents were not aware Agrawal did not have Dr. Gottlieb's report, because they provided it to Conejo Valley in approximately December 2018 and had no reason to know Conejo Valley had sent Student's education record to Bridges less than a year later and had not retained a copy. Agrawal did not inform Parents she did not have Dr. Gottlieb's report, did not request Parents provide her another copy, and did not request Parents sign an authorization for release of information form specifically for Dr. Gottlieb so she could contact Dr. Gottlieb directly to request a copy of his 2018 assessment report. Because Conejo Valley previously received Dr. Gottlieb's report and did nothing to obtain another copy after it learned it was again assessing Student but lacked information it previously, but no longer, had, Conejo Valley is charged with knowledge of all the contents of that report.

On November 30 and December 1, 2020, in collaboration with Parents about their availability, specifically that “Thursdays do not work,” Conejo Valley scheduled an IEP team meeting to review the assessment results for the morning of Monday, December 14, 2020.

Conejo Valley and Bridges had numerous communications about scheduling observation by Agrawal as part of the psychoeducational assessment. Bridges was willing to allow Agrawal only one observation, for only 20 minutes. Conejo Valley informed Bridges 20 minutes was “not a sufficient amount of time to complete an evaluation such as the one we are conducting.” In the face of Bridges' reluctance to allow the school psychologist either more than one observation or a lengthier observation, Conejo Valley requested Parents intervene and attempt to persuade Bridges to allow the school psychologist to observe more than once or for longer than 20 minutes. Conejo Valley informed Parents Conejo Valley required observations of Student longer than 20 minutes to conduct a comprehensive evaluation. Parents told Conejo Valley they agreed with Bridges' restrictions and would not attempt to persuade Bridges to allow more or longer observation by the school psychologist. Ultimately, Bridges refused Conejo Valley's requests and allowed Agrawal only one observation, 20 minutes in length, by coming to the Bridges campus and using a Bridges computer inside a Bridges office to observe Student participate in his online instruction from his home, which was near the Conejo Valley office.

Agrawal scheduled to observe Student in his online classroom on Tuesday, December 8, 2020. By Thursday, December 3, 2020, the three Bridges teachers had not yet returned the rating scales forms or responded to the questionnaires from Agrawal or speech-language pathologist McIntosh. Agrawal requested the information from the Bridges administrator, who said the teachers were still working on the forms and questionnaires. After the observation on December 8, 2020, Agrawal again requested the teacher responses, which still had not been provided.

Over the four days following Agrawal's observation, between the late afternoon of Tuesday, December 8 and Friday, December 11, 2020, Bridges piecemeal dribbled in to Conejo Valley staff the science, humanities, and math teachers' responses to the rating scales, forms, and questions Agrawal and McIntosh had provided Bridges in mid-November.

On Monday, December 7, 2020, Agrawal contacted Mother about providing consent to speak to any outside providers Parents wanted Agrawal or Conejo Valley staff to communicate with about Student. Agrawal reminded Mother release of information authorization forms had been sent to parents in October 2020 and the only authorization Parents had provided was for Conejo Valley and Bridges to share information. Agrawal asked Mother if Parents wanted Conejo Valley to get feedback from Student's “therapist, psychiatrist, educational therapist/tutor, or anyone else.” Agrawal provided Mother an electronic version of a release of information authorization form for Parents' use, in addition to the paper copies Agrawal had mailed Parents in October 2020. Agrawal also asked Mother eight specific questions to obtain additional input from Parents about information Agrawal learned while assessing Student.

Rather than respond to Agrawal's question about which outside providers Parents wanted Conejo Valley to obtain information from, Mother deflected and told Agrawal she did not know who Agrawal wanted to talk to, generically informing her Student saw a psychiatrist, psychologist, and received 14 hours per week of applied behavior analysis service. Agrawal informed Mother she would reach out to any outside provider from whom Parents wanted input included in the evaluation.

It was not until Friday, December 11, 2020, the last weekday before the IEP team meeting scheduled for the morning of Monday, December 14, 2020, when Mother sent Agrawal signed release of information authorization forms, two dated December 10, and one dated December 11, 2020, finally permitting mutual disclosures between Conejo Valley and, separately, Student's treating psychologist Dr. Sina, Student's prescribing psychiatrist Dr. Rosenthal, and Student' in-home applied behavior analysis therapist Stephanie Neri as well as the agency she worked for, Center for Autism and Related Disorders. Parents did not provide a consent form for pediatric neuropsychologist Dr. Gottlieb.

Agrawal separately, according to the contact information Mother provided on the different consent forms, called and left a voice message, emailed, and faxed the three outside providers the same day she received the signed consent forms from Mother. None of the providers returned Agrawal's messages over the weekend before the IEP team meeting scheduled for December 14, 2020. Agrawal prepared the psychoeducational assessment report based on the information she had available at the time, which did not include input from the outside providers because Parents delayed two months to inform Agrawal she should and was authorized to communicate with, despite Agrawal's repeated requests.

Agrawal's assessment of Student's intellectual development, social-emotional behavior, and motor skills development consisted of a variety of standardized instruments, rating scales, real-time and form questionnaire-based interviews, in-person and internet-based observation of Student, and records review.

A school nurse conducted a health assessment, and a speech-language pathologist assessed Student's language/speech/communication development. Those two assessments' results were included within the December 14, 2020 psychoeducational report, but they are not at issue in this consolidated case. However, information from them is relevant to other issues and is reported here as part of the assessment data, when relevant.

Agrawal assessed Student's intellectual development using a variety of instruments that evaluated Student's cognitive and processing skills. The Wechsler Intelligence Scale for Children, Fifth Edition, measured Student's intellectual ability. A full scale intelligence quotient is a score derived from the administration of seven subtests from the Wechsler Intelligence Scale for Children, and provides a measure of overall general cognitive and intellectual functioning. One subtest Agrawal administered was deemed invalidated, so she substituted another subtest score to derive student's full scale IQ score. Because the subtest was substituted and based on the test publisher's guidance, the full scale IQ score results were to be interpreted with caution and considered nonstandard. Student's full scale IQ score was 124, in the very high range. Dr. Gottlieb had administered the same instrument in November 2018, when Student had a full scale IQ score of 123. When the Regional Center assessed Student in the summer of 2019 using the same test, his full scale IQ score was reported without a number but “within the very high range.”

Various subtests of the Wechsler Intelligence Scale for Children indicated various aspects of student's intellectual ability. Oral language testing measured Student's acquired knowledge and verbal reasoning skills. The subtests involved Student defining words read aloud to him and finding common concepts between two words read aloud to him. Student's Verbal Comprehension Index score was 103, in the average range, with both the Similarities and Vocabulary subtest scores being in the average range. Student's scores were similar when the Regional Center assessed him in the summer of 2019.

The Fluid Reasoning testing measured Student's ability to use logic and problem solving to solve unfamiliar problems. One subtest involved Student completing matrices or series, involving inductive reasoning, taking a specific information and making a broader generalization that was considered probable, allowing for the fact that the conclusion may not be accurate. Another subtest involved Student balancing numerical scales in a limited amount of time, requiring mathematical reasoning and quantitative reasoning, the ability to analyze information and determine which skills and procedures can be applied to a particular problem to arrive at a solution. Student's Fluid Reasoning Index score was 128, in the very high range, with his two subtest scores in the high average and very high ranges. Student's score was 118, in the high average range, when Dr. Gottlieb assessed him in November 2018, and was in the very high range when the Regional Center assessed him in summer 2019.

The Working Memory testing measured Student's ability to recall and use information within a few seconds. One subtest involved Student hearing a sequence of numbers stated aloud and then recalling and repeating the numbers in the forward, reverse, and sequential order, a verbal task. The other subtest involved student looking at a page with one or more pictures for five seconds, and then selecting the pictures, in sequential order if possible, from options on a response page, a visual task. Student's working memory index score was 110, in the high average range, with subtest scores in the average range. Student's score in the area of working memory was the same when Dr. Gottlieb assessed him in November 2018.

The Long Term Memory testing measured Student's ability to store and retrieve information from long-term memory. The tasks of the subtests required Student to have efficient retrieval of phonological information from long-term memory, providing a broad estimate of automaticity of basic naming ability. Student's Naming Speed Index score was 118, in the high average range, with the two subtest scores also in the high average range. Student's scores in the area of long-term memory were similar when Dr. Gottlieb assessed him in November 2018.

The Visual Processing testing measured Student's ability to understand and make sense of what he saw, including visual spatial relationships. The subtests were time-limited and involved using blocks to re-create a design, a visual motor task, and to determine which puzzle pieces to choose from to construct a puzzle, a visual task. Student's Visual-Spatial Index score was 129, in the very high range, with the two subtest scores also in the very high range. Student's score in the area of visual processing was 138, in the superior range, when Dr. Gottlieb assessed him in November 2018.

The Processing Speed testing measured Student's speed and accuracy of processing information at the output level. The three subtests were timed paper-pencil tasks and involved using a key to copy shapes and accurately scanning identifying objects. Student's Processing Speed Index score was not able to be reported because one subtest score was invalidated. Student's scaled score on the Coding subtest was six, low average. During the two-minute time limit for the subtest, Student stopped completing the task and put his pencil down and began talking to Agrawal about his summer vacation. Agrawal prompted him several times to keep working until the two-minute time limit was up. Student's score on the Coding subtest was widely discrepant from his performance on the Symbol Search and Cancellation subtests, on each of which he earned scaled scores of 16, in the very high range. Agrawal did not believe processing speed had been assessed in the evaluations by Dr. Gottlieb or the Regional Center. However, Dr. Gottlieb's report indicates that he also used the Wechsler Intelligence Scale for Children and Student's Processing Speed Index standard score was 116, high average, his Coding subtest scaled score was 11, average, and his Symbol Search subtest scaled score was 15, very high.

Conejo Valley was aware Student had shown challenges with auditory processing. One of Dr. Gottlieb's 2018 diagnoses under the American Psychological Association's Diagnostic and Statistical Manual, Fifth Edition, called the DSM-5, was “315.9, Other Specified Neurodevelopmental Disorder in auditory processing, sensory regulation and social cognition.” He testified he selected the Other Specified Neurodevelopmental Disorder because there was not a better label that categorized Student's deficits. Notably, Dr. Gottlieb did not diagnose Student with Autism Spectrum Disorder. Dr. Gottlieb reached his diagnosis regarding weakness in auditory processing based on Student's performance on the Test of Auditory Processing Skills, Third Edition, subtest of auditory processing. Student's scaled score on the Word Discrimination subtest was six, in the 9th percentile, with any score below the 16th percentile being in the below average range.

Conejo Valley assessed Student's auditory processing in 2020 with two tests. The auditory processing testing measured Student's ability to understand and make sense of what he heard and to recognize sounds in speech. Like Dr. Gottlieb, Agrawal also administered the Test of Auditory Processing Skills, but used the more recent Fourth Edition. This test provided information about language processing and comprehension skills. Student's scaled score was seven, in the low average range. Agrawal also administered the Comprehensive Test of Phonological Processing, Second Edition, and used the Non-Word Repetition subtest as a measure of Student's auditory processing. Student's scaled score on that subtest was 10, in the average range.

Student introduced no evidence regarding what “Central Auditory Processing (CAPD)” is, how – if at all – it differs from the type of auditory processing Conejo Valley's psychoeducational assessment investigated, or why Conejo Valley was supposed to know Student required an evaluation of his “Central Auditory Processing (CAPD)” and not the auditory processing Conejo Valley did evaluate.

Conejo Valley assessed Student's phonological processing with the Test of Auditory Processing Skills, Fourth Edition, and the Comprehensive Test of Phonological Processing, Second Edition. Phonological processing is the ability to quickly and correctly hear, store, recall, and make different speech sounds. The subtests required Student to segment and blend parts of real and non-words, called phonemes, to make and understand whole words. Student's Phonological Processing Index on the Test of Auditory Processing Skills was 94, in the average range, with three subtests each having a scaled score in the average range. Student's Bending Words subtest on the Comprehensive Test of Phonological Processing had a scaled score in the average range.

Conejo Valley assessed Student's attention processing, measuring the ability to focus, sustain, and divide attention, using the Cognitive Assessment System, Second Edition, a norm-referenced measure of cognitive ability. Agrawal administered three subtests, which were timed and involved Student focusing and resisting distractions on one verbal and two written tasks. Student's Attention Index score was 118, in the high average range. His Expressive Attention subtest scaled score was 10, in the average range. His Number Detection subtest scaled score was 16, in the very high range. His Receptive Attention subtest scaled score was 13, in the high average range.

Conejo Valley assessed Student's fine motor skills, which referred to the coordination of small muscles in the hands and fingers with the eyes. Agrawal administered the Beery Buktenica Developmental Test of Visual-Motor Integration, Sixth Edition, which was a nonverbal assessment that evaluated the extent to which individuals can integrate visual and motor abilities, commonly used in pencil-paper tasks like writing. Student's scores in visual motor integration, motor coordination, and visual perception were all in the average range, at 94, 102, and 95, respectively.

Credentialed special education teacher Donna Manley administered the Wechsler Individual Achievement Test, Third Edition, to measure Student's academic achievement in the areas of oral language, reading, written expression, mathematics, and math fluency. Student's Total Achievement score was 92, in the 30th percentile, in the average range. This Total Achievement score was significantly affected by Student's standard score in Written Expression, at 77, the 6th percentile, in the below average range. One year earlier, when Conejo Valley assessed student in the fall of 2019, Student's Written Expression standard score was 99, average. At that time, his subtest scores were Sentence Composition 77, Sentence Combining 82, Sentence Building 74, Spelling 93, Essay Composition 131, Word Count 131, and Theme Development 127. Two years earlier, when Dr. Gottlieb administered the Wechsler Individual Achievement Test, Student's Written Expression standard score was 119, high average. At that time, before Student began attending Bridges, his subtest scores were Sentence Composition 113, Sentence Combining 132, Sentence Building 92, Spelling 102, Essay Composition 129, Word Count 124, and Theme Development and Text Organization 131.

During the academic achievement testing in 2020, when Student was afforded 10 minutes for the Essay Composition subtest, Student stated he was finished in less than two minutes, and he did not have 30 words written. Agrawal encouraged him to write more. He worked for about one more minute, resulting in a 33-word essay, which contained an introductory sentence and three details. The essay did not have indentation, a conclusion, transition words, or elaborations. On other Written Expression subtests, Student's errors included miscopying keywords, changing the meaning of sentences. He also made many mechanical errors. Only Student's Spelling score was in the average range, at 89. Other subtest scores were Sentence Composition 72, Sentence Building 78, and Essay Composition 80, all in the low average range. His Sentence Combining score was 68, in the low range.

All of Student's other academic achievement composite scores were in the average range, 111 in Oral Language, 114 in Oral Expression, 95 in Total Reading, 92 in Basic Reading, 104 in Reading Comprehension and Fluency, 95 in Mathematics, and 108 in Math Fluency.

Agrawal evaluated Student's social-emotional and behavioral functioning using observation, records review, interviews, parent and teacher input, and rating scales. Agrawal selected instruments based on known information and supplemented with additional instruments when results indicated further exploration was appropriate.

Conejo Valley knew Student was diagnosed with Attention Deficit Hyperactivity Disorder, combined type and took medication to support his attention. In 2018, Dr. Gottlieb noted Student's performance on the standardized tests he administered was better when Student was medicated than when he was not. Dr. Gottlieb also documented that Student had been taking a stimulant medication in the morning and a “booster” dose in the afternoon while at school until Parents discontinued the afternoon dose “given [Student's] embarrassment about taking booster at school.” Conejo Valley also knew Student was diagnosed with Anxiety Disorder and took medication for anxiety. Additionally, Conejo Valley knew a psychologist through the Regional Center diagnosed Student with Autism Spectrum Disorder under the criteria of the DSM-5. Student received behavior intervention services in the home. Agrawal assessed Student's social, emotional, and behavioral functioning with an awareness of these diagnoses and treatments.

Conejo Valley used the Comprehensive Executive Functioning Inventory to assess Student's executive functioning in the areas of attention, emotion regulation, flexibility, inhibitory control, initiation, organization, planning, self-monitoring, and working memory. On the parent rating scale Mother completed, the scores on the validity scale indicated a negative impression response style. Parent's full-scale score was in the below-average range. Student's humanities teacher's scores on the validity scale did not indicate concerns about consistency, negative impression, positive impression, or the number of omitted items. The humanities teacher's full-scale score was in the average range, with only one score, in the area of initiation, in the low average range. Student's science teacher's scores on the validity scale indicated an inconsistent response style. The science teacher's full-scale score was in the average range, with below average scores in the areas of inhibitory control and working memory, low average scores in the areas of attention, emotional regulation, and organization, and scores in the average range in the other areas. Student's math teacher's scores on the validity scale did not indicate concerns about consistency, negative impression, positive impression, or the number of omitted items. The math teacher's full-scale score was in the low average range, with below average scores on the self-monitoring scale, low average scores on attention, flexibility, inhibitory control, initiating, and working memory, and average scores in other areas.

The three teachers' responses on rating scales indicated Student's executive functioning was in the average or low average range. But Mother was dismissive of any teacher ratings that categorized Student as average, saying only the science teacher knew Student from the prior school year, which had been taught in person, and the two other teachers largely knew Student through distance education, which was reinstated at Bridges in approximately October 2020. However, the science teacher rated Student's executive functioning as average. Mother also dismissed teacher ratings in the average range by speculating that because Student attended Bridges, where all the students have disabilities, the teachers were comparing Student to others with disabilities and the teachers would have rated him more critically if they were comparing him to neurotypical students, of which there were none at Bridges.

Agrawal assessed Student for autism using the Autism Spectrum Rating Scale, a nationally standardized, norm-referenced measure to help identify symptoms, behaviors, and associated features of Autism Spectrum Disorder in children and adolescents. Parents were critical Conejo Valley did not use the Autism Diagnostic Observation Schedule, Second Edition, which the Regional Center had used in summer 2019. However, their criticism was not valid. The publisher of the Autism Diagnostic Observation Schedule, Second Edition, indicated the assessment was not validated for use with personal protective equipment covering the nose and mouth of the tester or the test subject, and stated the test was not appropriate to administer with social distancing, and could not be administered remotely due to having to share materials that are play-based, passed back and forth between the evaluator and subject. Conejo Valley reasonably selected an alternative instrument to assess Student in a known area of disability.

On the parent rating scale of the Autism Spectrum Rating Scale, Mother's total score was in the very elevated range for Student displaying behavioral characteristics similar to youth diagnosed with an autism spectrum disorder, and also in the very elevated range for the category of the instrument that evaluates whether a child shows symptoms directly related to the DSM-5 diagnostic criteria for an autism spectrum disorder. The math teacher's rating scales for some categories of the Autism Spectrum Rating Scale could not be calculated because the teacher omitted items. The math teacher's rating of Student for the DSM-5 scale of the Autism Spectrum Rating Scale was within the average range, indicating Student has few symptoms related to the DSM-5 criteria. The humanities teacher's ratings total score was in the average range, indicating the teacher did not observe Student to demonstrate characteristics similar to those on the autism spectrum. The science teacher's ratings, who had known Student the longest as she had been his teacher in both fifth and sixth grades, had a total score in the slightly elevated range, indicating many associated features characteristic of autism spectrum disorder. But the science teacher's DSM-5 scale score was within the average range, indicating Student had few symptoms directly related to the DSM-5 criteria for autism spectrum disorder.

Agrawal administered the Behavior Assessment Scale for Children, Third Edition, with parent, teacher, and student rating scales. This instrument evaluates whether a student has externalizing problems, internalizing problems, and the quality of his adaptive skills at home and in the school setting, and according to a student's own thoughts and feelings. Mother completed the parent rating scales and the validity indices for the parent form resulted in an S index elevation “extreme caution” which indicated that her reporting should be interpreted with caution. Elevated S indices may have meant overly negative reporting on the part of the respondent or may have meant that the student was exhibiting extreme behavior compared to peers. Parent reported Student had an extreme degree of externalizing, internalizing, behavioral symptoms, and adaptive skill struggles in the home setting.

All validity indices for the three teachers' rating scales were in the acceptable range. Student's humanities teacher rated Student as having overall average social, emotional, and behavioral functioning in class. Teacher responses resulted in at-risk ratings in the areas of atypicality and withdrawal, and close to the at-risk range in the areas of depression and social skills. Student was distracted by a smartphone or other device during class time. Student became distracted and needed prompting to redirect, especially during online learning. Student rushed through work and needed guidance from an adult to manage his pacing and slow down to work carefully. Student's math teacher rated Student as having strengths and weaknesses related to his social and emotional functioning in class. The teacher responses resulted in at-risk ratings in the areas of hyperactivity, anxiety, attention problems, learning problems, and study skills. Critical items indicated concerns about having panic attacks sometimes. The teacher was concerned about Student's short attention span. Student's science teacher rated Student as having strengths and weaknesses related to his social and emotional functioning in class. The teacher responses resulted in at-risk ratings in the areas of conduct problems, depression, attention problems, atypicality, and study skills. Scores resulted in clinically significant ratings in the areas of hyperactivity and anxiety. Critical items indicated concerns about sometimes having panic attacks and losing control when angry.

Student's responses on the student form were in the acceptable range on the validity indices. Student's responses resulted in at-risk ratings on the attention problems scale, and clinically significant ratings on the anxiety and hyperactivity scales. Critical items indicated concerns about feeling sad, hating school, feeling life is getting worse, and having difficulty controlling his thoughts. The December 2020 administration of the self-report ratings showed a decrease in elevated scales compared to the previous evaluation Conejo Valley conducted in fall 2019, when self-report ratings were additionally elevated in the areas of social stress, sense of inadequacy, interpersonal relations, and self-esteem.

Because anxiety ratings on the Behavioral Assessment Scale for Children self-report and parent report were elevated, Agrawal administered a narrow-band measure of anxiety, the Revised Children's Manifest Anxiety Scale, Second Edition, which identifies the source and level of anxiety in children and measures for the presence of academic stress, test anxiety, and peer and family conflicts. Student asked Agrawal to read the questions aloud to him and she did. Both validity indexes on this scale were acceptable. The results of this self-report revealed that the Total Anxiety, Physiological Anxiety, and Social Anxiety scales were within a “normal” range, while the Worry scale was within a “moderately problematic” range. Student experienced worries at a higher rate than his typical peers, and shared some particular worries such as throwing up in his mouth, and that he may get sick and die. However, his total score showed that his anxiety was no more problematic than for his typical peers.

Because depression ratings on the Behavior Assessment Scales for Children parent-report were elevated, Agrawal administered a narrow-band measure of depression, the Reynolds Adolescent Depression Scale, Second Edition, a student rating scale used to help identify depressive symptoms in adolescents ages 11 to 20 years old. Student asked Agrawal to read the questions aloud to him, and she did. According to the self-report total depression scale, Student's score indicated the Depression Total was within the “normal” range, with all domains in the “normal” range. The Reynolds Adolescent Depression Scale has Critical Items, selected based on their ability to discriminate between clinically depressed and non-depressed adolescents. Student did not report any critical items.

Agrawal also administered the Piers-Harris Children's Self Concept Scale, Third Edition, which provides an overall view of an individual's self-concept, and six sub-categories. There were two validity indices on this scale, and the response bias index did not indicate overly positive or negative responses, but the inconsistency index suggested Student may have responded randomly to some of the items on the questionnaire. Student had average scores in the domain of Behavioral Adjustment, measuring admission or denial of problematic behaviors, and in the domain of Freedom from Anxiety, looking at specific emotions of worry, nervousness, shyness, sadness, fear, and a general feeling of being left out of things. Student had low average scores in the domain of Physical Appearance and Attributes, which was Student's appraisal of his physical appearance, and in the domain of Social Acceptance, which was Student's social functioning including perceived popularity, ability to make friends, and feelings of inclusion in activities such as games and sports. Student had a low score in the domain of Happiness and Satisfaction, reflecting Student's feelings of happiness and satisfaction with life. And Student had a very low score in the domain of Intellectual and School Status, which was Student's assessment of his abilities with respect to intellectual and academic tasks, general satisfaction with school, and future expectations about achievement. Student's Total Scale was a low score, indicating characteristics of individuals with serious doubts about their own self-worth.

Agrawal observed Student during the administration of standardized testing, while Student completed rating scales for various instruments, and for one 20-minute segment of his science class in the synchronous distance learning Bridges provided. It was well-known that Student frequently raised his hands to his nose and deeply inhaled to smell his fingers, and frequently washed his hands when his sniffing caused him to believe his hands had a bad odor. Both Dr. Gottlieb and Student's treating psychiatrist Dr. Rosenthal diagnosed this repetitive behavior, and related recurrent hand washing, as an obsessive-compulsive feature of Student's anxiety. During two days of assessment at Colina Middle School, Agrawal observed Student raise his hands to his face and move the face mask he was required to wear as a precaution against COVID-19 to enable him to smell his hands. During observation of Student at home participating in the synchronous distance learning science class, Agrawal saw Student sniff his hands. Using momentary time sampling in which Student's behaviors were noted every 30 seconds, Agrawal calculated that Student was on task 66 percent of the time over a 15-minute period, and Student's peer was on task 93 percent of the time. Agrawal also noted that Student had many disruptive and off-task behaviors at the beginning of the observation, and once he settled into the class and was asked to work, he was highly engaged and focused on the assignment, no longer presented with any behaviors, and was socially appropriate with the peer he was paired with into a breakout room.

The science teacher reported Student engaged in some atypical actions during Agrawal's observation, such as trying to work from bed which he had never done before, Parents had never come into Student's room during class before as they did that day, and Student usually did not leave his seat without first telling the teacher why or asking permission, but Student moved around frequently and even left his room during Agrawal's observation. But the science teacher reported Student's participation during the 20 minutes Agrawal observed was also typical in many respects, such as Student frequently interrupting, needing prompting to return to work, and eating at his desk.

Bridges teachers' comments consistently reported concerns related to inattention, impulsivity, and struggles with behavioral regulation. Classroom and testing observation similarly found disruptive, off-task, and impulsive behaviors. Student frequently smelled his hands and had a hard time focusing without adult prompting and redirection.

McIntosh completed a language and speech assessment. One tool McIntosh used was the Comprehensive Assessment of Spoken Language, Second Edition. The area of Receptive Vocabulary measured Student's comprehension of the meaning of a spoken word. Student's standard score was 116, in the 86th percentile, above the average range. The area of Grammaticality Judgment (Syntactic) measured Student's ability to judge the accuracy of syntax and to construct grammatically correct sentences. A sentence was spoken and Student had to indicate whether the sentence sounded grammatically correct and change the sentence to make it correct. Student's standard score was 106, in the 66th percentile, in the average range. The area of Double Meaning measured Student's ability to identify and express two possible meanings for a single word or sentence that has multiple interpretations. The examiner read a sentence aloud, and Student had to describe two different meanings the sentence could have. Student's standard score was 103, in the 58th percentile, in the average range. Student's General Language Ability Index was a standard score of 102, in the 55th percentile, in the average range. His Receptive Language Index was a standard score of 98, in the 45th percentile, in the average range. McIntosh did not find that Student inaccurately heard any of the words or sentences she spoke aloud as part of administering the Comprehensive Assessment of Spoken Language. McIntosh did not suspect Student had auditory processing deficits.

McIntosh evaluated Student's ability to use language in different social contexts, also called pragmatics. She used the Supralinguistic, Pragmatic Language, and Pragmatic Judgment subtests of the Comprehensive Assessment of Spoken Language, and the Social Language Development Test – Elementary Normative Update. Student's standard score on the Supralinguistic index was 103, in the 58th percentile, in the normal range. Student's score on the Pragmatic Judgment subtest was a standard score of 97, in the 42nd percentile, in the average range. And Student's Social Language Index score, a total across all the subtests, was a standard score of 130, in the 98th percentile, in the gifted/very advanced range. This indicated Student demonstrated excellent social language skills, including taking someone else's perspective, naming correct inferences, negotiating conflicts with peers, being flexible in interpreting situations, and supporting friends. Student's exceptional scores on the Social Language Development Test – Elementary Normative Update were counterbalanced by teacher comments and Mother's reports that Student was highly engaged in peer conflict, had a difficult time in group work because he wanted others to accept his many ideas, and spoke out of turn without waiting to be called on. Also, some teacher reports indicated Student was social, worked well in a group, and spoke when it was his turn.

Student introduced no evidence regarding what recreation therapy is as a service, what area(s) of disability it addresses, or why Student required an evaluation of his need for recreational therapy. The evidence only established Mother requested assessment for recreational therapy because Student's advocate or attorney told Mother to ask for “testing” for “Recreation Therapy (RT),” and they did not testify as to why they believed Student required an assessment for Recreation Therapy.

Conejo Valley's psychoeducational assessment met all legal requirements. Each assessor who contributed to the multi-disciplinary evaluation was qualified to conduct the assessment. The assessment instruments were appropriate to administer to Student, they were selected so as not to be discriminatory, and they were administered in accordance with any test instructions. The assessors used assessment instruments that were valid and reliable. The assessors used a variety of assessment measures, both standardized and non-standardized, and reviewed existing evaluation data. Student was assessed in all areas of suspected disability within the psychoeducational assessment realm. A collaborative report was prepared by the assessors, which explained the assessment results, described Student's strengths and weaknesses, and discussed Student's need for special education and related services. District provided Parents with a copy of the report as it existed at the time of the December 14, 2020 IEP team meeting at which the report was reviewed and discussed.

Student's generic complaints against the psychoeducational assessment are not persuasive. Student did not have any qualified witness testify with criticism of the assessment itself. Student argues there was some deficiency in the assessment because Agrawal's analysis of the eligibility category for Autism concluded Student did not meet the special eligibility category of Autism. Whether Student qualified for special education and related services under the category of Autism was not an issue pleaded in this case, as the issue to be determined was whether Conejo Valley conducted an appropriate psychoeducational assessment, which it did. Further, the eligibility determination was not only the result of the assessment, but was a decision of the IEP team. The IEP team determined Student was eligible for special education and related services, which was the only crucial determination. (See 20 U.S.C. § 1412(a)(3)(B) (“Nothing in this title requires that children be classified by their disability so long as each child who has a disability listed in section 602 and who, by reason of that disability, needs special education and related services is regarded as a child with a disability under this part”; see also Heather S. v. Wisconsin (7th Cir. 1997) 125 F.3d 1045, 1055 (noting “whether Heather was described as cognitively disabled, other health impaired, or learning disabled is all beside the point. The IDEA concerns itself not with labels, but with whether a student is receiving a free and appropriate education.”)

Student argues the assessment was not appropriate because it did not consider input from Student's outside providers. However, the only reason input from Student's outside providers was not included in the version of the psychoeducational assessment report reviewed at the December 14, 2020 IEP team meeting is that Parents did not disclose who Student's outside providers were and provide authorization to Conejo Valley to exchange information with those providers until the last business day before the December 14, 2020 IEP team meeting. Agrawal made immediate efforts to contact the providers, but they did not respond until well after the IEP team meeting. Furthermore, Student did not establish that any information those providers ultimately shared would have led to or required additional services or supports for Student.

In sum, the evidence showed that Conejo Valley's December 14, 2020 psychoeducational assessment of Student was conducted in accordance with the legal requirements. Conejo Valley satisfied its burden of proof on Issue 9 and Student therefore is not entitled to an independent evaluation at public expense. Regarding Issue 6, Student did not prove by a preponderance of the evidence that Conejo Valley's December 14, 2020 psychoeducational assessment of Student was not appropriate.

ISSUE 7: ASSESSMENT IN ALL AREAS OF SUSPECTED DISABILITY

Student contends Conejo Valley denied him a FAPE by failing to assess his need for recreational therapy, for central auditory processing disorder, and his behavior, through a functional behavior assessment.

Conejo Valley asserts Student did not require the three assessments Student alleges were necessary.

ISSUE 7(A): STUDENT'S NEED FOR RECREATIONAL THERAPY

As stated above, Student introduced no evidence regarding what recreation therapy is as a service, what area(s) of disability it addresses, or why Student required an evaluation of his need for recreational therapy. The evidence only reflected Mother requested assessment for recreational therapy because Student's advocate or attorney told Mother to ask for “testing” for “Recreation Therapy (RT).” There was no persuasive evidence that a recreational therapy assessment was required to assess a known or suspected disability.

Student failed to demonstrate Conejo Valley denied him a FAPE by failing to assess Student's need for recreational therapy.

ISSUE 7(B): CENTRAL AUDITORY PROCESSING DISORDER

As stated above, Student introduced no evidence regarding what central auditory processing is, how – if at all – it differs from the type of auditory processing Conejo Valley's psychoeducational assessment investigated, or why Conejo Valley was supposed to know Student required an evaluation of his central auditory processing and not the auditory processing Conejo Valley did evaluate. Dr. Gottlieb's report repeatedly mentioned that Student had a deficit in auditory processing, weak auditory discrimination of sounds, and diagnosed him, in addition to Attention Deficit Hyperactivity Disorder and Other Specified Anxiety Disorder, with an Other Specified Neurodevelopmental Disorder in auditory processing, sensory regulation, and social cognition. But his report did not recommend further evaluation of Student's auditory processing. Dr. Gottlieb's testimony confirmed he did not include any recommendation in his report that Parents take Student to an audiologist, and he did not recall that he verbally told Parents to do so. Dr. Gottlieb testified that his evaluation detected a signal about auditory processing as a deficit and that he made a referral about Central Auditory Processing Disorder, but the preponderance of the evidence established that his claim to have made a referral was not true. Dr. Gottlieb testified he thought it would be reasonable for Parents to have Student evaluated by an audiologist, but this information shared for the first time at hearing did not amount to a basis for Conejo Valley to suspect in fall 2020 Student required assessment by an audiologist.

As detailed above, Conejo Valley assessed Student's auditory processing using the same instrument Dr. Gottlieb used, with slightly better results, and an additional instrument, which rated Student's auditory processing as average.

Student failed to demonstrate by a preponderance of evidence that Conejo Valley denied him a FAPE by failing to assess Student's “central auditory processing.”

ISSUE 7(C): FUNCTIONAL BEHAVIOR ASSESSMENT

The IDEA does not require a functional behavior assessment prior to development of a behavior intervention plan unless the child's placement has been changed for disciplinary reasons and the conduct that resulted in discipline is determined to have been a manifestation of the child's disability. (See 20 U.S.C. § 1415(k)(1)(F).) The United States Department of Education, in promulgating regulations implementing the IDEA, explained that the IEP team determines whether a behavior implementation plan is required, and although a functional behavior assessment may assist the team to address behavioral issues, the IDEA does not require functional behavior assessment to formulate a behavior intervention plan. (71 Fed. Reg. 46683 (Aug. 14, 2006); see also J.C. v. New York City Dept. of Educ. (2d Cir. 2016) 643 Fed.Appx. 31 [pre-planned functional behavior assessment is not necessary if the IEP adequately identifies a student's behavioral impediments and implements strategies to address that behavior].) Moreover, neither Congress, the U.S. Department of Education, nor any statute or regulation has created substantive requirements for the behavior intervention plan contemplated by the IDEA. (Alex R. v. Forrestville Valley Community Unit School Dist. #221 (7th Cir. 2004) 375 F.3d 603, 615.)

In California, an IEP team must consider the use of positive behavioral interventions and supports, and other strategies to address the behavior. (Ed. Code, § 56341.1, subd. (b)(1).) A behavior intervention is “the systematic implementation of procedures that result in lasting positive changes in the individual's behavior.” (Cal. Code Regs., tit. 5, § 3001, subd. (d).) It includes the design, evaluation, implementation, and modification of the student's individual or group instruction or environment, including behavioral instruction, to produce significant improvement in the student's behavior through skill acquisition and the reduction of problematic behavior. (Ibid.)

Student failed to present persuasive evidence regarding his need for a functional behavior assessment. Typically a functional behavior assessment is used to develop a behavior support or behavior intervention plan, and as the basis for developing and teaching pro-social replacement behaviors for any maladaptive behaviors a student exhibits that interfere with his learning or the learning of others. Curiously, Parents elected to send Student to a private school that did not use these types of approaches to behavior modification. Bridges offered students access to therapy dogs, which the Bridges administrator who testified at hearing said was a very effective relaxation and centering practice for Student.

The evidence did not reveal what maladaptive behaviors Student exhibited that would have required Conejo Valley to conduct a functional behavior assessment. Agrawal observed and documented Student's long-standing and well-known behaviors of compulsive hand sniffing associated with his Anxiety Disorder, and the lapses of attention that are the hallmark of his Attention Deficit Hyperactivity Disorder. However, Agrawal also observed that Student demonstrated anxious and inattentive behavior at the start of class, but settled down and participated in instruction and collaboration without continuing any disruptive behavior. The Bridges administrator who observed Student in his online class with Agrawal did not testify, and no one else contradicted Agrawal's observation report.

None of Student's experts testified Student required a functional behavior assessment to receive a FAPE, and in fact they testified they could not comment about what Student required at school and what the school district offered Student.

Student failed to demonstrate Conejo Valley denied him a FAPE by failing, to assess Student's behavior through a functional behavior assessment.

ISSUE 8: DEFICITS OF THE DECEMBER 14, 2020 IEP

Student contends Conejo Valley denied him a FAPE by failing in the December 14, 2020 IEP to develop appropriate goals in all areas of unique need; offer appropriate placement; offer appropriate and sufficient accommodations; offer an appropriate behavior support plan based on assessment of Student's needs; and offer Student special education and related services for the 2021 extended school year.

Conejo Valley contends it fulfilled the requirements of offering Student a FAPE and the December 14, 2020 IEP did not deny Student a FAPE for any of the reasons Student asserts.

ISSUE 8(A): APPROPRIATE GOALS IN ALL AREAS OF UNIQUE NEED

Student contends he required additional goals, specifically in the areas of recreational therapy, central auditory processing, and functional behavior, and that because Conejo Valley did not assess in these areas, Conejo Valley failed to write goals in these areas of need.

Conejo Valley asserts it accurately determined Student's needs in the following demonstrated areas: written expression, using coping skills to reduce feelings of anxiousness, developing a positive self-concept, sustaining conversations on nonpreferred topics, controlling impulsive behaviors, demonstrating on-task behaviors, and using self-advocacy skills to self-regulate. Conejo Valley further argues it developed goals in each of those areas of need, and that goals were not required in any other areas because they were not areas of need.

The “educational benefit” to be provided to a child requiring special education is not limited to addressing the child's academic needs, but also social and emotional needs that affect academic progress, school behavior, and socialization. (County of San Diego v. California Special Educ. Hearing Office (9th Cir. 1996) 93 F.3d 1458, 1467.) A child's unique needs are to be broadly construed to include the child's academic, social, health, emotional, communicative, physical, and vocational needs. (Seattle School Dist. No. 1 v. B.S. (9th Cir. 1996) 82 F.3d 1493, 1500, citing H.R. Rep. No. 410, 1983 U.S.C.C.A.N. 2088, 2106, reversed in part on other grounds by Schaffer, supra, 546 U.S. 49, 56-58.).)

The purpose of annual goals is to permit the IEP team to determine whether the pupil is making progress in an area of need. (Ed. Code, § 56345, subd. (a).) For each area in which a special education student has an identified need, the IEP team must develop measurable annual goals that are based upon the child's present levels of academic achievement and functional performance, and which the child has a reasonable chance of attaining within a year. (Ed. Code, § 56345; Letter to Butler (OSERS March 25, 1988); Notice of Interpretation, Appendix A to 34 C.F.R., part 300, Question 4 (1999 regulations).) The IEP team need not draft IEP goals in a manner that the parents find optimal, as long as the goals are objectively measurable. (Bridges ex rel. F.B. v. Spartanburg County School Dist. Two (D.S.C., Sept. 2, 2011, No. 7:10-CV-01873-JMC) 2011 WL 3882850 [the use of percentages tied to the completion of discrete tasks was an appropriate way to measure student progress].)

The IEP must include appropriate objective criteria, evaluation procedures, and schedules for determining, on at least an annual basis, whether the annual goals are being achieved, and a statement of how the student's progress toward the goals will be measured. (Jessica E. v. Compton Unified School Dist. (C.D.Cal., May 2, 2017, No. CV16-04356-BRO (MRWx)) 2017 WL 2864945; see also 20 U.S.C. § 1414(d)(1)(A)(i)(II) & (III); Ed. Code, § 56345, subd. (a)(2) & (3).) An examination of the goals in an IEP is central to the determination of whether a student received a FAPE: “[W]e look to the [IEP] goals and goal achieving methods at the time the plan was implemented and ask whether these methods were reasonably calculated to confer . . . a meaningful benefit.” (Adams v. State of Oregon (9th Cir. 1999) 195 F.3d 1141, 1149.)

The December 14, 2020 IEP identified writing, social-emotional functioning, and academic study skills as areas of unique need. The IEP included two goals for writing, three goals for social-emotional functioning, and three goals for academic study skills. These goals, in total, were sufficient to afford Student the opportunity to receive educational benefit appropriate in light of his circumstances. Any student might receive additional benefit from having additional goals, but Conejo Valley did not deny Student a FAPE by not having goals in the additional areas Student urges.

In the area of writing, formal assessments revealed Student had an objective weakness in his ability to write an essay with the components of an organized paragraph, and in using conventions of the English language like capitalization, usage, punctuation, and spelling. At the time of Conejo Valley's assessment in fall 2020, Student was able to write a one paragraph informative/explanatory text to examine a topic and convey ideas, concepts, and information through the selection, organization, and analysis of relevant content with a topic sentence and details. To better access the general education curriculum and meet a grade-level standard regarding informative text, the IEP proposed that within a year, Student would write a three-paragraph informative/explanatory text to examine a topic and convey ideas, concepts, and information through the selection, organization, and analysis of relevant content with topic sentences, details, transition words, elaborations, and a conclusion, independently in a classroom setting using a teacher-provided graphic organizer in two out of three trials as measured by work samples and teacher-recorded data. Both special education and general education teachers would have worked with Student to achieve this goal.

At the time of Conejo Valley's assessment in fall 2020, Student was able to complete writing tasks with accurate capitalization, usage, punctuation, and spelling an average of 75 percent of the time. To better meet grade-level expectations, the IEP proposed that within a year, Student would edit his writing in a classroom setting after completing a writing assignment, for capitalization, usage, punctuation, and spelling using a teacher-provided checklist to achieve 90 percent accuracy in two out of three trials as measured by teacher-recorded data. Both special education and general education teachers would work with Student to achieve this goal. Both special education and general education teachers would have worked with Student to achieve this goal.

In the area of social-emotional functioning, at the time of Conejo Valley's assessment in fall 2020, exhibited specific maladaptive responses when anxious or frustrated, had low self-esteem, and struggled to maintain conversations on non-preferred topics. To address these areas of need, the December 14, 2020 IEP identified his present levels of performance and proposed goals to improve specific aspects of Student's social-emotional functioning. When Student was anxious or frustrated, he engaged in distracting behavior like talking and fidgeting, or unusual behaviors such as sniffing his hands, as he believed his hands often smelled bad and in times of stress he raised them to his nose and inhaled to check their odor. In the one-on-one testing setting and with adult prompting at the time of Conejo Valley's assessment in fall 2020, Student identified and used one coping strategy when feeling anxious across a two-day period as measured by staff observation, in that during times of stress Student took deep breaths. To improve Student's social-emotional functioning, the IEP proposed that within a year, Student would use positive coping strategies such as taking a deep breath, requesting a break, and others, to reduce feelings of anxiousness or frustration on the school campus, and with adult prompting, at least once per week across a four week period as measured by teacher/staff observation and/or recorded data collection. The special education teacher and school-based counselor would have worked with Student to achieve this goal.

Student's scores on the Piers-Harris Children's Self-Concept Scale, Second Edition, indicated Student's self-concept was in the low range. In the one-on-one testing setting at the time of Conejo Valley's assessment in fall 2020, Student identified only one positive strength about himself across a two-day period as measured by staff observation. To improve Student's social-emotional functioning, the IEP proposed that within a year, Student would, during school-based counseling and with adult support, identify and express strengths about himself by making at least three positive self-statements or reflecting positively on an event or activity once per week across a four week period as measured by teacher/staff observation and/or recorded data collection. The school-based counselor would have worked with Student to achieve this goal.

Student struggled to maintain a conversation on a non-preferred topic. In the one-on-one testing setting at the time of Conejo Valley's assessment in fall 2020, Student maintained approximately two to three exchanges in conversation on a non-preferred topic across a two-day period as measured by staff observation. To improve Student's social-emotional functioning, the IEP proposed that within a year, when talking to an adult or peer, Student would maintain four to six exchanges on another person's perspective or topic by asking questions or making positive comments in three out of four opportunities across a four week period as measured by teacher/staff observation and/or recorded data collection. The special education teacher and school-based counselor would have worked with Student to achieve this goal.

In the area of academic/study-skills, at the time of Conejo Valley's assessment in fall 2020, Student exhibited specific impulsive behaviors, distractibility, and an unwillingness to ask for help when he had difficulty with a task. These areas of need closely related to social-emotional functioning and although they were denominated in the IEP as “Academic Study Skills,” the goals addressing them intersected with Student's social-emotional functioning. To address these areas of need, the December 14, 2020 IEP identified his present levels of performance and proposed goals to improve specific aspects of Student's academic/study skills.

In class, Student struggled to control his impulsive behaviors and often interrupted and talked without raising his hand. Teachers at Bridges reported Student was occasionally impatient for his turn and had trouble respecting student boundaries when asked to wait. During observation by Conejo Valley staff in Student's online classes at Bridges, Student did not raise his hand in Zoom class and spoke without being called on six times in the 20-minute observation. To address Student's impulsiveness and cooperation with classroom structure, the IEP proposed that within a year, in the classroom setting, Student would control impulsive behaviors by raising his hand and waiting to respond without calling out, with no more than one prompt in three out of four opportunities across a 20-minute period as measured by teacher/staff observation and/or recorded data collection. The special education teacher would have worked with Student to achieve this goal.

Student struggled to demonstrate on-task behaviors in the classroom due to distractibility, inattention, and impulsivity. During observation by Conejo Valley staff in Student's online classes at Bridges, Student demonstrated on-task behaviors of listening to teacher instructions and working on an assignment for approximately 13 minutes of the 20-minute observation, calculated as 65 percent of the time. To address Student's off-task behaviors, the IEP proposed that within a year, in the classroom setting, Student would demonstrate on-task behaviors including listening to teacher instructions and working on assigned tasks for at least 20 to 25 minutes at a time in all four academic classes in three out of four opportunities across a four week period as measured by teacher/staff observation and/or recorded data collection. The special education teacher would have worked with Student to achieve this goal.

One of Student's teachers at Bridges reported Student did not ask for help on his own and needed regular check-ins to be productive. At the time of Conejo Valley's assessment in fall 2020, Student did not ask for help when he thought an assignment was too difficult. To address Student's self-advocacy, the IEP proposed that within a year, Student would as for help or a break, with no more than one prompt, when given an assignment he found difficult or frustrating in three out of four opportunities across a four week period as measured by teacher/staff observation and/or recorded data collection. The special education teacher would have worked with Student to achieve this goal.

The goals Conejo Valley developed for Student were sufficient to afford Student educational benefit appropriate in light of his circumstance. A preponderance of the evidence did not support Student's assertion Conejo Valley denied Student a FAPE by failing to develop goals in additional areas. Student did not meet his burden of proving the December 14, 2020 IEP required additional goal areas or even additional goals in the identified areas of writing, social-emotional functioning, and academic/study skills to enable him to make appropriate progress in light of his circumstances.

Conejo Valley did not deny Student a FAPE by failing to develop appropriate goals in all areas of unique need.

ISSUE 8(B): APPROPRIATE PLACEMENT

Student generally contends Conejo Valley did not offer Student appropriate placement. Student did not specify what he believed the appropriate placement was in December 2020, but Parents elected to send him to a private school exclusively for children with disabilities, but not certified by the California Department of Education as a nonpublic school.

Conejo Valley contends it offered Student appropriate placement in the least restrictive environment through a combination of regular education classrooms with some specialized academic instruction provided inside the regular classroom and some provided in a special class. Conejo Valley asserts the offered placement was reasonably calculated to enable Student to make progress on his goals and general education classes to support his progress toward completing the common core curriculum, and to integrate Student with typical peers to the maximum extent appropriate.

School districts are required to provide each special education student with a program in the least restrictive environment. To provide the least restrictive environment, school districts must ensure, to the maximum extent appropriate, that children with disabilities are educated with non-disabled peers; and 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); 34 C.F.R. § 300.114(a); Ed. Code, § 56031.)

The continuum of program options includes, but is “not necessarily” limited to, in increasing order of restrictiveness:

• 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, and instruction in the home, in hospitals, or other institutions.
(Ed. Code, § 56361.)

In determining the educational placement of a child with a disability, a school district must ensure that:

• the placement decision is 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;

• placement is determined annually, is based on the child's IEP, and is as close as possible to the child's home;

• unless the IEP specifies otherwise, the child attends the school that he or she would if non-disabled;

• in selecting the least restrictive environment, consideration is given to any potential harmful effect on the child or on the quality of services that he or she needs; and

• a child with a disability is not removed from education in age-appropriate regular classrooms solely because of needed modifications in the general education curriculum.
(34 C.F.R. § 300.116.)

To determine whether a special education student could be satisfactorily educated in a regular education environment, the Ninth Circuit 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 has on the teacher and children in the 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 Education (5th Cir. 1989) 874 F.2d 1036, 1048-1050 (Daniel R.R.)].)

If a school district determines that a child cannot be educated in a general education environment, then the least restrictive environment 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., supra, 874 F.2d at p. 1050.)

While the law requires the IEP team to consider the specific school campus a student will attend with attention to how close the campus is to the child's home and what school the child would attend if he or she was non-disabled, the law does not require that a school district place a child at his neighborhood school if there is no program available there to meet his needs. (See, e.g. McLaughlin v. Holt Public School Board of Education (6th Cir. 2003) 320 F.3d 663, 672 [least restrictive environment provisions and regulations do not mandate placement in neighborhood school]; Hudson v. Bloomfield Hills Public School (6th Cir.1997) 108 F.3d 112 [IDEA does not require placement in neighborhood school]; Urban v. Jefferson County School Dist. (10th Cir. 1996) 89 F.3d 720, 727 [IDEA does not give student a right to placement at a neighborhood school]; Wilson v. Marana Unified School Dist. No. 6 of Pima County (9th Cir. 1984) 735 F.2d 1178 [school district may assign the child to a school 30 minutes away because the teacher certified in the child's disability was assigned there, rather than move the service to the neighborhood school].) No one factor is determinative in placement, and parental preference cannot be either the sole or predominant factor in placement decisions. (See, e.g., Letter to Burton (OSERS March 20, 1991); Letter to Anonymous (OSEP April 20, 1994); Letter to Bina (OSERS November 5, 1991).)

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 Dist. (9th Cir. 1987) 811 F.2d 1307, 1314.) 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 must be designed to meet the student's unique needs, comport with the student's IEP, and be reasonably calculated to provide the student with educational benefit appropriate in light of the student's circumstances, in the least restrictive environment. (Ibid.; Endrew F., supra, 580 U.S. ____ [137 S.Ct. at p. 1000].) Whether a student was offered or denied a FAPE is determined by looking to what was reasonable at the time the IEP was developed, not in hindsight. (Adams v. State of Oregon (9th Cir. 1999) 195 F.3d 1141, 1149, citing Fuhrman v. East Hanover Board of Education (3d Cir. 1993) 993 F.2d 1031, 1041.)

An IEP need not conform to a parent's wishes to be sufficient or appropriate. (Shaw v. District of Columbia (D.D.C. 2002) 238 F.Supp.2d 127, 139 [IDEA did not provide for an “education . . . designed according to the parent's desires.”]; J.R. v. Sylvan Union School Dist. (E.D.Cal., March 10, 2008, No. CIV S-06-2136 LKK GGH PS) 2008 WL 682595, **10-11.) 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.) A school district has the right to select the program offered, if the program is able to meet the student's needs, and the district is ultimately responsible for ensuring a FAPE is offered. (Letter to Richards (OSEP January 7, 2010).) The Ninth Circuit has held that while the school district must allow for meaningful parental participation, it has no obligation to grant the parent a veto over any individual IEP provision. (Ms. S. ex rel G. v. Vashon Island School Dist. (9th Cir. 2003) 337 F.3d 1115, 1131.)

In determining Student's needs and the appropriate placement on the continuum of placement options, it was telling that Student had attended regular classes in Conejo Valley for first through fourth grades and made adequate progress, advancing from grade to grade, without special education and related services. After pediatric neuropsychologist Dr. Gottlieb diagnosed Student with attention deficit hyperactivity disorder in November 2018, Conejo Valley developed for Student a Section 504 plan of accommodations on January 10, 2019, for the spring term of fourth grade. Student had a B average in third and fourth grades. The Section 504 plan was developed because although Student received passing grades, his focus and ability to remain on-task were impacted. Student earned all As and Bs on his final report card of the 2018-2019, fourth grade school year.

During testing of Student's academic achievement in October 2019, very shortly after Student stopped attending public school and began attending Bridges for fifth grade, Student's standardized testing scores reflected average performance in reading comprehension and fluency, written expression, math, math fluency, and oral language, and high average performance in oral expression.

In November 2020, after Student had been attending Bridges for more than a full school year, Student's scores reflected average performance in reading comprehension and fluency, math, math fluency, oral language, and oral expression, but below average performance in written expression, decreasing in his composite standard score from 119 in November 2018 while attending public school, to 99 in October 2019 after attending Bridges for a few months, and to 77 in November 2020.

Conejo Valley offered Student placement at his local middle school, in courses required for the regular education common core curriculum. Conejo Valley offered placement in regular classes for all academic and elective courses, with specialized academic instruction provided by a credentialed special education teacher inside the regular classroom for 60 minutes per week to support Student in the area of writing, an area in which he performed below average in the most recent assessment. Conejo Valley offered a self-contained, specialized academic instruction class for 22 minutes per day, four days per week, to support Student's development in organization/academic skills. These 88 minutes per week counted as time Student would be outside the general education environment. They were necessary to provide Student instruction by a credentialed special education teacher in a small group environment, also supported by a classroom instructional aide, to remediate Student's learning challenges in his areas of unique need.

Conejo Valley's December 14, 2020 placement offer struck a reasonable balance, given Student's high intellect and past academic success in regular classes, between the specialized academic instruction Student needed in view of his executive functioning/organizational challenges and demonstrated deficits in writing, and the Congressionally mandated opportunity to be educated with typical peers. Conejo Valley's placement offer of regular classes integrating typical and disabled peers, with some push-in specialized academic instruction to support Student's writing development, and one special class totaling 88 minutes per week to support Student's organization and academic study skills, was reasonably calculated to enable Student to receive educational benefit appropriate in light of his circumstances in the least restrictive environment.

Conejo Valley's placement offer adequately fulfilled the requirements of Rachel H. Student required some support to make progress in academic content, specifically in the area of writing, as well as with organization/academic study skills. Full-time placement only in general education courses without any specialized academic instruction would not have been reasonable. However, Student's challenges appeared not to be cognitive and/or related to significant processing delays, and therefore Student required only modest academic support from a credentialed special education teacher to enable him to make adequate academic progress. Student did not have behavior, health, or mobility concerns that would have required a permanent aide to support his participation in the general education environment, beyond the limited-term aide support Conejo Valley offered to facilitate Student's transition from his small private school to a comprehensive public middle school campus. In the offered placement, Student would have benefitted from social interaction with same-aged, neurotypical peers. Therefore, Student could have received both academic and non-academic benefit from nearly full-time placement in a regular class. Student did not have extreme behaviors that would have been disruptive to a teacher or other students in a regular class. The cost of mainstreaming Student was not a consideration. Conejo Valley fairly balanced Student's academic and social interaction needs and offered Student placement in the least restrictive environment in which he could receive educational benefit appropriate in light of his circumstances.

Apart from expressing disappointment with Conejo Valley's offer of placement at Student's local public middle school in regular classrooms, Parents did not make clear at the December 14, 2020 IEP team meeting what they thought would be an appropriate public school placement for Student, or request placement either at a certified nonpublic school or continued public funding for Parents' preferred private school placement. Parents only inquired how much time they had to review the IEP and sign it.

Student failed to prove Conejo Valley failed to offer Student appropriate placement in the December 14, 2020 IEP.

ISSUE 8(C): APPROPRIATE AND SUFFICIENT ACCOMMODATIONS

Student contends in his written closing argument that he required additional accommodations of allowing Student to move around the room, providing for visual cues during auditory tasks, and prompts to slow down when reading. Conejo Valley contends the accommodations of the December 14, 2020 IEP were sufficient to enable Student to access his education and receive a FAPE.

Student did not provide persuasive documentary or testimonial evidence about what additional accommodations he required but which Conejo Valley did not offer in the December 14, 2020 IEP. Furthermore, the December 14, 2020 IEP included accommodations of the type Student now argues were missing, including allowing for fidgeting and a fidget object, allowing for extra movement, frequent breaks, directions given through visual cues and one at a time, and on-task reminders and frequent checks for understanding. Student did not establish that the accommodations Conejo Valley offered in the December 14, 2020 IEP failed to offer Student a FAPE.

ISSUE 8(D): APPROPRIATE BEHAVIOR SUPPORT PLAN BASED ON ASSESSMENT

Student contends he required a behavior support plan. Conejo Valley contends the December 14, 2020 IEP contained two goals that addressed two important aspects of Student's behavior, specifically controlling impulsive behaviors and demonstrating on-task behaviors. Conejo Valley also contends it offered Student appropriate services to support him in achieving these goals through mental health services including group counseling for 45 minutes per week, and individual counseling for 45 minutes per week.

If a child's behavior interferes with his learning or the learning of others, the IDEA requires the IEP team, in developing the IEP, to “consider the use of positive behavioral interventions and supports, and other strategies, to address that behavior.” (20 U.S.C. § 1414(d)(3)(B)(i); 34 C.F.R. § 300.324(a)(2)(i); Ed. Code, § 56341.1, subd. (b)(1).) An IEP that does not appropriately address behavior that impedes a child's learning denies a student a FAPE. (Neosho R-V School Dist. v. Clark (8th Cir. 2003) 315 F.3d 1022, 1028-1029; W.A. ex rel S.A. v. Patterson Joint Unified School Dist. (E.D.Cal. July 18, 2011, No. CV F 10-1317 LJO SMS.) 2011 WL 2925393, *11.)

Notably, as stated above, Parents sent Student to Bridges, which did not use the methodology of behavior intervention Student now argues was necessary for him to appropriately address his behavioral concerns. Parents were very satisfied with Student's performance at Bridges, intended to maintain him there for seventh grade, and asserted they had, at the time of hearing, contractually obligated themselves to maintain him there for the upcoming 2021-2022 school year.

The December 14, 2020, IEP did not contain a behavior support plan, but it did not ignore Student's social, emotional, and behavioral challenges. The IEP contained two goals to address two important aspects of Student's behavior, specifically controlling impulsive behaviors and demonstrating on-task behaviors. The December 14, 2020 IEP also offered Student mental health services including group counseling for 45 minutes per week, and individual counseling for 45 minutes per week. Student offered no evidence that he required a behavior support plan or any additional behavior services to access the curriculum.

Student failed to demonstrate he required a behavior support plan in the December 14, 2020 IEP to receive a FAPE.

ISSUE 8(E): 2021 EXTENDED SCHOOL YEAR

Student asserts he required extended school year services and Conejo Valley denied him a FAPE by failing to offer him special education and related services for the 2021 extended school year.

Conejo Valley contends Student did not meet the regulatory definition for requiring extended school year placement and services.

An IEP must state whether extended school year services are offered. (Ed. Code, § 56345, subd. (b)(3).)

California Code of Regulations, title 5, section 3043, provides that extended school year services shall be provided for each individual with exceptional needs who requires special education and related services in excess of the regular academic year. The students to whom extended programming must be offered under section 3043:

. . . shall have disabilities which are likely to continue indefinitely or for a prolonged period, and interruption of the pupil's educational programming may cause regression, when coupled with limited recoupment capacity, rendering it impossible or unlikely that the pupil will attain the level of self-sufficiency and independence that would otherwise be expected in view of his or her disabling condition.

The purpose of extended school year placement and services is to prevent regression and recoupment difficulties during the summer break. Therefore, a student's placement and services for the extended school year may differ from placement and services during the regular school year. (Letter to Myers (OSEP December 18,1989).)

The last day of the 2020-2021 regular school year was on June 10, 2021, and the first day of the 2021-2022 school year was some date in August 2021. Sandwiched between the two school years was a summer break, during which extended school year services were provided to qualifying students with disabilities. The specific dates for Conejo Valley's 2021 extended school year services was not established by Conejo Valley's school year calendars or the testimony at hearing.

In the December 14, 2020 IEP, Conejo Valley did not offer Student extended school year services and the evidence did not establish he required those services to receive a FAPE. Given Student's above average cognitive abilities and his history of successfully returning to school in the fall without demonstrating regression coupled with limited recoupment capacity, the IEP team correctly concluded it was not impossible or unlikely that Student would attain the level of self-sufficiency and independence that would otherwise be expected in view of his disabling condition if there was interruption of his educational programming. The IEP team correctly determined Student did not qualify for extended school year services. Student offered no persuasive evidence that demonstrated he required special education and related services during the extended school year to prevent regression or reduce the period of time required for recoupment.

Student failed to prove Conejo Valley denied Student a FAPE by failing to offer him special education and related services for the 2021 extended school year.

CONCLUSIONS AND PREVAILING PARTY

As required by California Education Code section 56507, subdivision (d), the hearing decision must indicate the extent to which each party has prevailed on each issue heard and decided.

Issue 1: Conejo Valley did not significantly impede Parents' opportunity to participate in the decisionmaking process regarding providing Student a FAPE, or deprive Student of educational benefits, by failing to provide Parents an assessment plan within 15 days of Parents' request for an assessment for central auditory processing disorder and of Student's need for recreational therapy. Conejo

Valley prevailed on Issue 1.

Issue 2: Conejo Valley did not significantly impede Parents' opportunity to participate in the decisionmaking process regarding providing Student a FAPE by failing to provide all of Student's educational records within five days of Parents' January 5, 2021 request. Conejo Valley prevailed on Issue 2.

Issue 3: Conejo Valley did not significantly impede Parents' opportunity to participate in the decisionmaking process regarding providing Student a FAPE, or deprive Student of educational benefits, by failing to include in the December 14, 2020 IEP, a description, individualized for Student, of the means by which the special education and related services of the IEP would be provided during emergency conditions when instruction or services could not be provided to Student either at school or in-person for more than 10 school days. Conejo Valley prevailed on Issue 3.

Issue 4: Conejo Valley did not significantly impede Parents' opportunity to participate in the decisionmaking process regarding providing Student a FAPE, or deprive Student of educational benefits, in the December 14, 2020 IEP by failing to consider Parents' concerns regarding placement. Conejo Valley prevailed on Issue 4.

Issue 5: Conejo Valley did not significantly impede Parents' opportunity to participate in the decisionmaking process regarding providing Student a FAPE, or deprive Student of educational benefits, in the December 14, 2020 IEP by failing to provide Parents prior written notice with all required information related to Conejo Valley's proposed change of placement. Conejo Valley prevailed on Issue 5.

Issue 6: Conejo Valley did not deny Student a FAPE by failing in the December 14, 2021 psychoeducational assessment to conduct appropriate assessments in all areas of suspected disability. Conejo Valley prevailed on Issue 6.

Issue 7: Conejo Valley did not deny Student a FAPE by failing to assess Student in all areas of suspected disability, specifically:

a. Student's need for recreational therapy;

b. Central auditory processing disorder; and

c. Behavior, through a functional behavior assessment.

Conejo Valley prevailed on Issues 7a, 7b, and 7c.

Issue 8: Conejo Valley did not deny Student a FAPE by failing in the December 14, 2021 IEP to:

a. Develop appropriate goals in all areas of unique need;

b. Offer appropriate placement;

c. Offer appropriate and sufficient accommodations;

d. Offer an appropriate behavior support plan based on assessment of Student's needs; and

e. Offer Student special education and related services for the 2021 extended school year.

Conejo Valley prevailed on Issues 8a, 8b, 8c, 8d, and 8e.

Issue 9: Conejo Valley's December 14, 2020 psychoeducational assessment complied with legal requirements such that Student is not entitled to an independent educational evaluation in psychoeducation at public expense. Conejo Valley prevailed on Issue 9.

ORDER

All Student's requests for relief are denied.

RIGHT TO APPEAL THIS DECISION

This is a final administrative decision, and all parties are bound by it. Pursuant to Education Code section 56505, subdivision (k), any party may appeal this Decision to a court of competent jurisdiction within 90 days of receipt.

Kara Hatfield
Administrative Law Judge
Office of Administrative Hearings