DECISION
NOVEMBER 12, 2021
On April 14, 2021, the Office of Administrative Hearings, called OAH, received a due process hearing request from Student, naming Beverly Hills Unified School District as respondent. On June 9, 2021, OAH granted Student's request to amend the complaint. On July 26, 2021, OAH granted Beverly Hills' request for continuance. Administrative Law Judge Judith L. Pasewark heard this matter in Los Angeles on August 17, 18, 19, 24 26, 31, and September 1, 2, and 9, 2021.
N. Jane DuBovy and Maeve Crommie, Attorneys at Law, represented Student. Carrie Watts, Ms. DuBovy's paralegal, attended the hearing each day. Parents attended each day on behalf of Student. Student did not attend the hearing.
Tracy Petznick Johnson, Attorney at Law, represented Beverly Hills. Cassis Anorga, Ms. Petznick Johnson's legal assistant attended one afternoon of the hearing. Laura Chism, Assistant Superintendent of Special Education, attended each day, and Jeanne McCrea, Special Education Coordinator, attended two days on behalf of Beverly Hills.
At the parties' request the matter was continued to October 12, 2021, for written closing briefs and replies. The record was closed, and the matter was submitted on October 12, 2021. On October 18, 2021, at OAH request, the parties agreed to continue the decision issuance until November 15, 2021.
ISSUES
The statutory period addressed in this decision commenced on March 15, 2019, and ended on June 9, 2021, based upon the filing date of the amended complaint. Neither party raised issues regarding exceptions to the statute of limitations.
The issues as determined and finalized in the August 10, 2021 Order Following Prehearing Conference, were discussed, and confirmed at hearing on August 17, 2021. On August 18, 2021, pursuant to the prior discussion, Student filed a written withdrawal of several sub-issues. Student presented 13 issues which have been consolidated, renumbered, and restated to delete those sub-issues withdrawn by Student and provide chronological clarity consistent with J.W. v. Fresno Unified v. Fresno Unified School Dist. (9th Cir. 2010) 626 F.3d 431, 442-443, and M.C. v. Antelope Valley Union High Sch. Dist. (9th Cir. 2017) 858 F.3d 1189.
1. Did Beverly Hills deny Student a free appropriate public education, referred to as a FAPE, by failing to meet its child find obligations to locate, evaluate, identify, and serve Student, failing to provide prior written notice of the refusal to initiate assessments, eligibility and the provision of special education and related services, and failing to provide Procedural Safeguards to Parents when it refused to initiate the process to identify Student for special education prior to December 15, 2019?
2. Did Beverly Hills deny Student a FAPE by failing to assess Student in all areas of suspected disability prior to December 15, 2019, failing to make Student eligible for special education under the category of other health impairment in a timely manner, and failing to have an IEP in effect at the beginning of the 2019-2020 school year?
3. Did Beverly Hills deny Student a FAPE by failing to make FAPE available when it failed to have an IEP in place and to offer and provide a substantively appropriate program, including appropriate goals accommodations, specialized instruction, related services, and appropriate placement during the 2018-2019 school year and 2019-2020 school year prior to February 2020?
4. Did Beverly Hills deny Student a FAPE by failing to assess in all areas of disability by failing to conduct an educationally related intensive counseling services assessment, referred to as an ERICS assessment, as part of Student's initial assessments?
5. Did Beverly Hills deny Student a FAPE by failing to conduct a sufficiently comprehensive initial multi-disciplinary assessment by failing to identify all of Student's unique needs, failing to utilize appropriate assessment tools and strategies to fully evaluate Student, and failing to conduct appropriate assessments that comported with the standards of the IDEA during the 2019-2020 school year?
6. Did Beverly Hills deny Student a FAPE by failing to assess in all areas of suspected disability when it failed to initiate an ERICS evaluation in a timely manner in 2021?
7. Did Beverly Hills deny Student a FAPE in the May 2021 ERICS assessment by failing to conduct an appropriate evaluation that was sufficiently comprehensive to identify all of Student's unique special education and related services needs and that comported with the standards of the IDEA?
8. Did Beverly Hills deny Student a FAPE from February 2020 through the end of the 2020-2021 regular and extended school years by failing to include all required content and sufficient detail to provide Parents with sufficient information, failing to include Parents as meaningful participants in the decision-making process and refraining from predetermining its offer of placement and services, failing to provide prior written notice with all required information of proposed and refused action, and failing to consider the private assessment in determining related services, placement, and the provision of FAPE and failing to offer and provide a substantively appropriate IEP which provided Student with designed to meet her needs and provide her with meaningful educational benefit in the February 27, 2020-March 5, 2020 IEP?
9. Did Beverly Hills deny Student a FAPE from February 2020 through the end of the 2020-2021 regular and extended school years by failing to include all required content and sufficient detail to provide Parents with sufficient information, failing to include Parents as meaningful participants in the decision-making process and refraining from predetermining its offer of placement and services, failing to provide prior written notice with all required information of proposed and refused action, and failing to revise the IEP and include all required content to address the provision of FAPE during school closures and failing to offer and provide a substantively appropriate IEP which provided Student with designed to meet her needs and provide her with meaningful educational benefit in the August 21, 2020 IEP?
10. Did Beverly Hills deny Student a FAPE from February 2020 through the end of the 2020-2021 regular and extended school years by failing to hold an IEP team meeting for lack of anticipated progress and revise the IEP to address lack of anticipated progress?
11. Did Beverly Hills deny Student a FAPE from February 2020 through the end of the 2020-2021 regular and extended school years by failing to include all required content and sufficient detail to provide Parents with sufficient information, failing to include Parents as meaningful participants in the decision-making process and refraining from predetermining its offer of placement and services, failing to provide prior written notice with all required information of proposed and refused action, and the provision of FAPE and failing to offer and provide a substantively appropriate IEP which provided Student with designed to meet her needs and provide her with meaningful educational benefit in the December 15, 2020 IEP?
12. Did Beverly Hills deny Student a FAPE from February 2020 through the end of the 2020-2021 regular and extended school years by failing to include all required content and sufficient detail to provide Parents with sufficient information, failing to include Parents as meaningful participants in the decision-making process and refrain from predetermining its offer of placement and services, failing to provide prior written notice with all required information of proposed and refused action, and the provision of FAPE and failing to offer and provide a substantively appropriate IEP which provided Student with designed to meet her needs and provide her with meaningful educational benefit in the February-March 5, 2021 IEP?
13. Did Beverly Hills deny Student a FAPE from February 2020 through the end of the 2020-2021 regular and extended school years by failing to fully implement consent to services during school closures and by failing to convene an IEP team meeting to include Parents in determinations regarding the implementation of services during school closures?
14. Did Beverly Hills deny Student a FAPE from February 2020 through the end of the 2020-2021 regular and extended school years by failing to include all required content and sufficient detail to provide Parents with sufficient information, failing to include Parents as meaningful participants in the decision-making process and refraining from predetermining its offer of placement and services, failing to consider Dr. Morrison's assessment provided by Parents, and failing to offer and provide a substantively appropriate IEP which provided Student appropriate placement in a residential treatment center setting to meet her needs and provide her with meaningful educational benefit in the April 29, 2021 IEP?
15. Did Beverly Hills deny Student a FAPE from February 2020 through the end of the 2020-2021 regular and extended school years by failing to include all required content and sufficient detail to provide Parents with sufficient information, and failing to include Parents as meaningful participants in the decision-making process and refraining from predetermining its offer of placement and services and failing to offer and provide a substantively appropriate IEP which provided Student appropriate placement in a residential treatment center setting, to meet her needs and provide her with meaningful educational benefit in the May 27, 2021 IEP?
16. Since March 2020 did Beverly Hills deny Student a FAPE by failing to make an individual determination of appropriate goals, accommodations, specialized instruction, and related services necessary to meet Student's needs and provide her with meaningful benefit during distance learning?
JURISDICTION
This hearing was held under the IDEA, 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.) The main purposes of 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 a free appropriate public education, referred to as 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.)
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].) A school district must take into consideration not only a child's academic needs, but also his or her social and emotional needs that affect academic progress, school behavior and socialization. (Cty. of San Diego v. California Special Educ. Hearing Office, (9th Cir. 1996) 93 F. 3d 1458, 1467.)
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 individualized education program, referred to as 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.)
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).) Student requested this hearing and had the burden of proof on all 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 14 years old and in eighth grade at the time of the filing of the complaint. Student resided within the boundaries of Beverly Hills Unified at all relevant times. However pursuant to Parent's unilateral placement, Student resided and attended classes at New Leaf Academy, a residential therapeutic program, located in Oregon. Pursuant to Student's last agreed upon IEP dated February 27, 2020, Student qualified for special education under the primary category of other health impairment, and secondary category of autism. Autism eligibility is no longer a concern of the parties. The IEP placed Student in a general education classroom at Beverly Vista Middle School, with specialized academic instruction in math, a goal in math, a goal in work completion, and accommodations which addressed both math and work completion.
ISSUE 1: DID BEVERLY HILLS DENY STUDENT A FREE APPROPRIATE PUBLIC EDUCATION, REFERRED TO AS A FAPE, BY FAILING TO MEET ITS CHILD FIND OBLIGATIONS TO LOCATE, EVALUATE, IDENTIFY, AND SERVE STUDENT, FAILING TO PROVIDE PRIOR WRITTEN NOTICE OF THE REFUSAL TO INITIATE ASSESSMENTS, ELIGIBILITY AND THE PROVISION OF SPECIAL EDUCATION AND RELATED SERVICES, AND FAILING TO PROVIDE PROCEDURAL SAFEGUARDS TO PARENTS WHEN IT REFUSED TO INITIATE THE PROCESS TO IDENTIFY STUDENT FOR SPECIAL EDUCATION PRIOR TO DECEMBER 15, 2019?
FAILURE TO MEET CHILD FIND DUTY
Student contends that Beverly Hills denied Student a FAPE by failing in its child find obligations to locate, evaluate and identify Student as a child with a disability, and failing to find Student eligible for special education and related services.
Beverly Hills contends Student performed satisfactorily in general education academics until her transition to middle school at the beginning of the 2019-2020 school year. On October 2, 2019, Beverly Hills convened a Student Study Team meeting in which general education interventions and supports were initiated to assist Student with her attention, pro-social participation, and work completion. On December 12, 2019, Beverly Hills offered Student an assessment to determine eligibility for special education and related services.
The IDEA places an affirmative, ongoing duty on the state and school districts to identify, locate, and evaluate all children with disabilities residing in the state who are in need of special education and related services. (20 U.S.C. § 1412(a)(3); 34 C.F.R. § 300.111(a).) A child may be found eligible for special education beginning at three years of age. (Ed Code, § 56026, subd. (c)(2).). This duty is commonly referred to as “child find.” California law specifically incorporates child find in Education Code section 56301, subdivision (a).
The obligation toward a specific child is triggered when there is knowledge of, or reason to suspect a disability. (Dep't. of Educ., State of Hawaii v. Cari Rae, (D. Haw. 2001) 158 F. Supp. 2d 1190, 1195). The threshold for suspecting that a child has a disability is relatively low. (Id. at 1195). A disability is suspected and therefore must be assessed by a school district when the district has notice that the child has displayed symptoms of that disability. (Timothy O. v. Paso Robles Unified Sch. Dist., (9th Cir. 2016) 822 F. 3d 1105, 1110.)
Whether a school district has reason to suspect a child may have a disability and a need for special education must be evaluated in light of the snapshot of information that the school district knew or had reason to know, at the relevant time. It is not to be evaluated in hindsight. (Adams v. State of Oregon, (9th Cir. 1999) 195 F.3d 1141, 1149.)
Violations of child find, and of the obligation to assess a student, are procedural violations of the IDEA and the Education Code. (Park v. Anaheim Union High School Dist. (9th Cir. 2006) 464 F.3d 1025, 1031 (Park).)
Student exhibited varying difficulty with math skills throughout elementary school. During the 2018-2019 sixth grade school year, Student received C's and B's in math. Her grades in other subjects ranged from A to C except for a second semester grade of D in physical education, which noted Student put forth inconsistent effort and participation. The report card indicated Student's work habits were satisfactory. On state standardized testing in May 2019, however, Student scored below standard in math, and near standard in language arts, despite receiving private tutoring at home twice a week.
Teacher comments regarding Student's citizenship indicated some disruptive behavior and need for improvement. Sarah Kaber, Student's elementary school Principal, knew of only one reported incident of disruptive behavior. Not all negative behaviors were reported to the Principal. Generally, the teachers had their own ways of handling behavioral infractions. Classroom disruptions were usually reported only when they kept the teacher from teaching. Student's behaviors were primarily in her math class where she had a distinctively bad relationship with the math teacher. Parents complained about a significant series of squabbles between Student and a peer related to immature pre-adolescent behaviors, which caused increasing anxiety in Student. Kaber met with Parents. They decided the school psychologist would provide behavior intervention through a behavior chart. Kaber described Student's social behaviors, typical of sixth grade girls. The informal behavior plan proved successful through the end of the sixth grade. Parent provided no information regarding Student's private tutoring or counseling at this time.
The evidence supported a finding that during the 2018-2019 school year, while in elementary school, Student scored below standard in math and near standard on language arts on standardized testing, indicating academic weakness. While Student's standardized test scores indicated areas of weakness, they did not automatically create a suspected disability, when considered as part of the whole of Student's academic history. Student's grades remained consistently average or above average. Student's identified behaviors were successfully addressed with general education strategies of positive reinforcement using a behavior chart. There were no reasons to suspect a disability requiring special education and related services. Student failed to establish by a preponderance of the evidence that there was a suspicion of disability during the 2018-2019 school year.
Student began to deteriorate upon transition to middle school for the 2019-2020 school year. She failed math and social studies in the first semester of seventh grade. The informal behavior plan from the previous year was no longer effective. Student was reported as impulsive and disruptive; she received a lunch-hour detention for an incident in which she disrupted her classroom. Despite a math tutor at home, Student performed poorly in math, with missing assignments. In math class, Student drew pictures and played with pens when she did not understand the lesson. She was easily distracted by others.
Shelby Benefield, Student's private tutor since 2018, best described Student's academic difficulties. Benefield held a bachelor's degree in chemical and biological engineering. Although she did not possess a teaching credential, Benefield was an experienced tutor, having mentored and tutored students ranging from kindergarten through college, since 2017, and through her prior employment with LA Tutors 123.
Benefield initially tutored Student in math. As time went on Student needed more support in more areas, and Parents added more time for tutoring. Benefield described Student as hard on herself. Student had test anxiety. Once Student started middle school, puberty hit, and Student's anxiety increased. She had a really hard tim with school and developed more “dramas” with her friends. Student needed additional support at school, but her math teacher would not allow accommodations without an IEP.
On October 2, 2019, Beverly Hills convened a Student Success Team meeting in response to parental concerns. Parent reported Student had test anxiety and requested extra time for Student on tests. Parent reported Student was emotionally immature, and had a difficult time navigating friendships. Parent informed the team Student began private psychotherapy in March 2019 to address these issues. The therapist, through Parent, reported emotional dysregulation, outbursts, physical dysregulation, impulsivity, pressured speech, hypervigilance, worries and fears, as well as difficulties with perspective taking, reading social cues and concrete black-and-white thinking. The therapist reported some improvement in Student' behavioral regulation and inhibition in the classroom environment.
Vergine Aiazan, Student' seventh grade general education math teacher reported concerns with Student's immaturity, her failure to respond well to feedback, and her avoidance behaviors. Student was selective on what to work on or when to participate in class. Student's behavior could be disruptive in class when she yelled, refused to work, or walked out of the classroom when she did not want to do something.
The evidence supports a finding that as of October 2, 2019, Beverly Hills had sufficient information to constitute a reasonable suspicion Student was a child with a disability. Student's grade dropped dramatically in the first quarter of the year despite private tutoring for over one year. Beverly Hills prior attempts at informal behavior interventions were unsuccessful. The information supplied from Student's private therapist reported a plethora of social-emotional and behavior issues, some of which permeated into the classroom setting. The culmination of this information created a suspicion of disability and triggered Beverly Hills' child find obligation to identify and assess student's with a suspected disability, regardless Parent's request for assessment. Beverly Hills failure in its child find duties as of October 2, 2019 constituted a procedural violation of the IDEA.
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 decision-making process regarding the provision of a FAPE to the parents' child or caused a deprivation of educational benefits. (20 U.S.C. § 1415(f)(3)(E)(ii); see Ed. Code, § 56505, subd. (f)(2); W.G. v. Board of Trustees of Target Range School Dist. No. 23 (Target Range) (9th Cir. 1992) 960 F.2d 1479, 1484.) Because Beverly Hills did not take steps to conduct statutorily mandated assessment until December 15, 2019, despite being on notice of Student's suspected disability as of October 2, 2019, Student has necessarily shown that Student was deprived of a FAPE during that time period, a period of 44 school days. (See Timothy O, supra, at p. 1126.).
PRIOR WRITTEN NOTICE AND PROCEDURAL SAFEGUARDS
A school district must provide the parents of a child with a disability prior written notice whenever it proposes or refuses to initiate or change the identification, evaluation or educational placement of the child or the provision of FAPE to the child. (34 C.F.R § 300.503 (a).) The provision of prior written notice includes a statement that the parents have protection under Part B's procedural safeguards. (34 C.F.R. § 300.304(a).) Notice of the procedural safeguards are required upon initial referral or parental request for the evaluation (34 C.F.R § 300.504(a).).
The IDEA does not prohibit a school district from implementing screening procedures to determine if a child is suspected of having a disability. (Letter to Mills, OSEP (May 2, 2019), citing Letter to Torres, OSEP (April 7, 2009).) A school district may utilize general education interventions prior to assessing a child for special education however in doing so, it must fully comply with the procedural requirements of prior written notice and provision of Procedural Safeguards when making such decision, where the parent has made a request for an assessment for special education and related services.
Student contends Beverly Hills failed to provide Parent with prior written notice and Procedural Safeguards prior to November 2019.
Beverly Hills contends any failure to provide prior written notice or Procedural Safeguards constituted a procedural violation which did not amount to a denial of FAPE.
Parent requested an assessment for special education eligibility during the Student Success Team meeting on October 2, 2019. Parent recalled being discouraged from seeking an assessment and being told Beverly Hills did not assess unless a student was failing classes. This statement remained disputed, but Beverly Hills did not offer to assess Student. Instead, Beverly Hills initiated a series of interventions and accommodations designed to address Student's attention and behavior. These included changes in classroom seating, reminders and prompts to take note, restating instructions, reminders of classroom expectations, use of a fidget, and extended time for math tests. Beverly Hills did not provide Parent with prior written notice of its refusal to assess Student, nor did it provide Parent with the Procedural Safeguards which explained Student's rights in seeking special education and related services.
Without having been provided prior written notice, Parent continued to feel something was wrong with Student and Beverly Hills was avoiding the issue. The Student Success Team interventions were not as successful as expected. In response, Parents obtained a private neuropsychological assessment in November 2020. Parent provided Beverly Hills with a copy of the report on December 2, 2020, when re-requesting a special education assessment, this time in writing. On December 12, 2019, Beverly Hills sent Parents an assessment plan offering assessment in academic achievement, health, intellectual development, and social-emotional/behavior.
Parent requested a special education assessment on October 2, 2019. Beverly Hills declined to assess Student at that time. Beverly Hills did not provide Parent with the Parental Safeguards when Parent initially requested a special education assessment on October 2, 2019, nor did Beverly Hills follow up with prior written notice to Parent explaining its reasons for declining to assess Student at that time. This constituted a procedural violation of the IDEA.
Further, Student contends Beverly Hills' child find process was unfair as it shifted the child find obligation to parents, by being heavily reliant on parents making the referral for special education themselves and by requiring participating in a Student Success Team process prior to the school district fulfilling its own duties to actively and systematically seek out individuals with exceptional needs.
The IDEA imposes the child find obligation upon school districts, not the parents of disabled students. There cannot be a burden placed on Parents to come forward with evidence the disability is the cause of Student's problems; that would be placing the burden on Student and her family for identifying Student as a student with a disability, precisely what child find duties forbid. (A.P. v. Pasadena Unified School Dist. (C.D. Cal. Jan. 26, 2021, Case No. CV 19-7965-MWF (SSx)) 2021 WL 810416, citing Culley v. Cumberland Valley Sch. Dist., (3d Cir. 2018) 758 F. App'x 301, 306.).
At hearing, Parent testified, that she was misled by the Student Success Team, and believed she was required to acquiesce to the Student Success Team plan prior to qualifying for a special education assessment. Parent did not understand how special education worked or her child's rights under the IDEA. Prior written notice and a copy of the Procedural Safeguards provide parents with the foundational rights created in the IDEA which Beverly Hills did not provide to Parent. This failure significantly impeded the parent's opportunity to participate in the special education process as of October 2, 2019.
Without knowing the reasons why Beverly Hills declined to assess Student in October 2019, and without knowing their procedural recourse under the IDEA, Parents were left to their own devices to identify Student as a child with a disability. They did so by obtaining a private assessment at their own expense. Only upon receiving the private assessment report did Beverly Hills and Parent's written request for assessment provide Parent with an assessment plan.
It is immaterial if the Student Success Team plan was appropriate or that Parent consented to the plan. The purpose of prior written notice was to provide Parent with sufficient detail to participate in Student's education in an informed manner.
Student established Parent's meaningful participation in the special education process was significantly impeded and resulted in delay in obtaining an assessment to determine Student's eligibility for special education and related services. Beverly Hills denied Student a FAPE by failing to provide prior written notice and Procedural Safeguards to Parent when it denied her request for an assessment on October 2, 2019.
ISSUE 2: DID BEVERLY HILLS DENY STUDENT A FAPE BY FAILING TO ASSESS STUDENT IN ALL AREAS OF SUSPECTED DISABILITY PRIOR TO DECEMBER 15, 2019, FAILING TO MAKE STUDENT ELIGIBLE FOR SPECIAL EDUCATION UNDER THE CATEGORY OF OTHER HEALTH IMPAIRMENT IN A TIMELY MANNER, AND FAILING TO HAVE AN IEP IN EFFECT AT THE BEGINNING OF THE 2019-2020 SCHOOL YEAR?
FAILURE TO ASSESS PRIOR TO DECEMBER 15, 2019
Student contends Beverly Hills failed to assess Student prior to February 2020, despite knowledge of Student's areas of suspected disability.
Beverly Hills contends Student did not qualify for special education and related services in the 2018-2019 school year and it assessed Student in a timely manner as of December 12, 2019.
As determined in Issue 1, Beverly Hills did not violate its child find duties during the 2018-2019 school year. Therefore, Beverly Hills was not required to assess Student during the 2018-2019 school year.
As determined in Issue 1, as of October 2, 2019, when the Student Success Team met, Parent's input regarding Student's private tutoring and counseling, coupled with significant decline in Student's grades and behavior, and past struggles provided Beverly Hills sufficient information on which to base a suspicion of disability requiring assessment. Further, Parent requested an assessment at that time. As such, Beverly Hills' delay in starting the assessment process until December 12, 2019, was not timely. Following the same analysis as Issue One, Beverly Hills did not take steps to conduct statutorily mandated assessment until December 15, 2019, despite being on notice of Student's suspected disability as of October 2, 2019, necessarily showed Student was deprived of a FAPE a period of 44 school days.
FAILURE TO MAKE STUDENT ELIGIBLE FOR SPECIAL EDUCATION
Student contends Beverly Hills failed to make Student eligible for special education under the category of other health impairment in a timely manner.
Beverly Hills contends that its child find obligation did not trigger until December 2020, at which time it offered Student an assessment plan for special education and related services in a timely manner.
A school district must conduct a full and individual initial evaluation before the initial provision of special education and related services to a child (34 C.F.R. § 300.301(a).) Either the parent of a child or a public agency may initiate a request for an initial evaluation to determine if the child is a child with a disability (34 C.F.R. § 300.301(b).)
To qualify as a child with a disability under the IDEA, a student must meet the definition of one or more of the thirteen categories of disabilities, which include other health impairment. (34 C.F.R. § 300.8(a)(1) Other health impairment means having limited strength, vitality, or alertness, including a heightened alertness to stimuli that results in a limited alertness to the educational environment. (34 C.F.R. § 300.8(c)(9): Ed. Code, § 56339, subd. (a).) However, a student with an impairment is not eligible for special education unless he/she has an educational need for such services. If a child has one or more of the disabilities identified, but only needs related services and not special education, the child is not a child with a disability under the IDEA. (34 C.F.R. § 300.8(a)(2)(ii); Ed Code, § 56339, subd; (b).)
In this matter prior to December 12, 2019, Student had not been diagnosed with attention deficit hyperactivity disorder, nor was her anxiety exhibited at school beyond test anxiety. The facts needed under the low bar created as the test for determining a suspicion of disability, is not the same as the information obtained through a thorough assessment to determine eligibility. Student's past educational history indicated she could respond well with accommodations in lieu of special education supports. In this matter, assessment was required to determine whether Student required an IEP or whether she could be appropriately serviced under a 504 Plan. At best, prior to the private assessment diagnosis of attention deficit hyperactivity disorder, Student's eligibility for special education in general was speculative. Student did not establish by a preponderance of the evidence that Student would have qualified for special education prior to the completion of the assessment.
FAILURE TO HAVE AN IEP IN PLACE IN EFFECT AT THE BEGINNING OF THE 2019-2020 SCHOOL YEAR
Student contends Beverly Hills failed to have an IEP in effect at the start of the 2019-2020 school year, failed to provide prior written notice of the refusal to initiate assessments, eligibility and the provision of special education and related services and failed to provide Procedural Safeguards to Parents thereby infringing upon Parents' right to meaningful participation, and loss of educational benefit to Student.
Beverly Hills contends Student was not eligible for special education at the beginning of the 2019-2020 school year and was not required to provide an IEP prior to Student's initial IEP on February 27, 2020.
A school district shall have an IEP in effect for each individual with exceptional needs within its jurisdiction at the beginning of each school year. (34 C.F.R. § 300.323 (a); Ed. Code, § 56344, subd. (c).)
The requirement to have an IEP in place at the beginning of the school year applies only to those children who have been found eligible for special education and related services. As determined in Issue 1, Beverly Hills did not fail in its child find duties during the 2018-2019 school year, therefore had no obligation to assess Student for special education prior to the 2019-2020 school year. Beverly Hills' obligation to assess Student arose on October 2, 2019, when Student displayed symptoms of her disability and Parent requested an assessment. Therefore, Beverly Hills was not required to have an IEP in effect at the beginning of the 2019-2020 school year.
ISSUE 3: DID BEVERLY HILLS DENY STUDENT A FAPE BY FAILING TO MAKE FAPE AVAILABLE WHEN IT FAILED TO HAVE AN IEP IN PLACE AND TO OFFER AND PROVIDE A SUBSTANTIVELY APPROPRIATE PROGRAM, INCLUDING APPROPRIATE GOALS ACCOMMODATIONS, SPECIALIZED INSTRUCTION, RELATED SERVICES, AND APPROPRIATE PLACEMENT DURING THE 2018-2019 SCHOOL YEAR AND 2019-2020 SCHOOL YEAR PRIOR TO FEBRUARY 2020?
Student contends that during the 2018-2019 and 2019-2020 school years through February 2020, Beverly Hills deny Student a FAPE by failing to make FAPE available when it failed to have an IEP in place and to offer and provide a substantively appropriate program, including appropriate goals accommodations, specialized instruction, related services, and appropriate placement.
As indicated in Issue 1 and Issue 2, Beverly Hills was not required to have an IEP in place at the beginning of the 2019-2020 school year. However, Beverly Hills failed to timely assess Student as of October 2, 2019, in its delay commencing the assessment process. Also as determined in Issue 2, pending completion of the assessment, Student's eligibility for special education was speculative. Nevertheless, Beverly Hills delay in assessing Student resulted in a 44 school-day loss of educational benefit, as it was unable to convene Student's initial IEP team meeting until February 27, 2020, to make its initial offer of FAPE.
ISSUE 4: DID BEVERLY HILLS DENY STUDENT A FAPE BY FAILING TO ASSESS IN ALL AREAS OF DISABILITY BY FAILING TO CONDUCT AN EDUCATIONALLY RELATED INTENSIVE COUNSELING SERVICES ASSESSMENT, REFERRED TO AS AN ERICS ASSESSMENT, AS PART OF STUDENT'S INITIAL ASSESSMENTS?
Student contends Beverly Hills failed to assess Student in all areas of disability by failing to conduct an ERICS assessment in its initial assessments.
Beverly Hills contends Student's behavior in the educational setting did not suggest a need for an ERICS assessment. Student's psychoeducational assessment was comprehensive and addressed possible concerns in all areas of suspected disability.
School district assessments of students with disabilities under the IDEA serve two purposes. They identify students who need specialized instruction and related services because of an IDEA-eligible disability and help IEP teams identify the special education and related services the student requires. (34 C.F.R. §§ 300.301 and 300.303.)
Evaluations are referred to as assessments in California (Ed. Code, § 56302.5), and the terms are used interchangeably in this Decision.
A school district must conduct a full and individual initial evaluation before the initial provision of special education and related services to a child with a disability. (34 C.F.R. § 300.301(a).)
A disability is “suspected,” and a child must be assessed, when the district is on notice that the child has displayed symptoms of that disability or that the child may have a particular disorder. (Timothy O. v. Paso Robles Unified School District (9th Cir. 2016) 822 F.3d 1105, 1119-21.) That notice may come in the form of concerns expressed by parents about a child's symptoms, opinions expressed by informed professionals, or other less formal indicators, such as the child's behavior.
Beverly Hills offered to assess Student for special education and related services pursuant to its assessment plan, dated December 12,2019. Beverly Hills' obligation to identify and assess in all suspected areas of disability is determined by what was known at the time, and not by subsequent events. (Adams, supra at p. 1149). At the time of the initial assessment, Student exhibited minor behavioral problems at school which were described by Kaber and Benefield as typical for middle school girls. Student's disruptive behaviors occurred in her math class. Student's academic difficulties with math, increased due to a damaged relationship with the math teacher. Student's behavior resulted in minor disciplinary responses consisting of two detentions. While in the sixth grade, Shady Zahirpour, the school psychologist, created a behavior chart for Student to address her increasing behaviors in the classroom. The behavior chart intervention worked well by reinforcing Student's positive behaviors. Zahirpour determined further assessment unnecessary during the 2018-2019 school year because Student responded so well to the behavior chart intervention. Student did so well with the behavior chart, she was given a doughnut party at school as a reward.
When Student matriculated to Beverly Vista for middle school for the 2019-2020 school year, Student's grades plunged, and her behaviors resurfaced. In October 2019, the Student Success Team created new behavioral interventions utilizing positive reinforcement to which Student responded well the previous year. Student's behaviors were limited in scope. She exhibited inattentiveness related anxiety primarily in her math class. No significant behaviors were reported in Student's other classes. Although Parents reported Student received private therapy services, little information was forthcoming regarding Student's mental health status. Beverly Hills implemented the informal behavior plan with parental consent. Student's behaviors did not sufficiently improve during the remainder of October and November 2019. On December 12, 2019, Beverly Hills offered an assessment plan for special education and related services, which included assessment in the areas of social-emotional and behavior, autistic-like behaviors, all of which were designed to identify areas related to behaviors, executive functioning, and inattentiveness. At that time, Student's behaviors did not rise to a level of intensity to suggest Student suffered from acute anxiety or presented with other mental health concerns in the school setting which could not be addressed by the school psychologist.
PRIVATE ASSESSMENT
Parents obtained a private neuro-psychoeducational assessment from JNK Assessments, which provided a written assessment report dated November 20, 2019. Dr. Sloan Miller, a clinical psychologist, and Dr. Jayme Neiman-Kimel, a pediatric neuropsychologist assessed Student. The JNK assessors did not contact Beverly Hills for information or observation of Student in the school setting Neither assessor testified at hearing, however, they both attended the February 27, 2020 IEP team meeting.
The JNK assessment provided essential components of Student's contentions regarding the information supplied to Beverly Hills which identified Student's areas of need and mental health status.
According to the JNK assessment, Parents reported Student continued to struggle with emotional regulation. Student was quick to react in a fiery and raging manner and would sometimes threaten self-harm by cutting or scratching with scissors. Student exhibited some struggles with behavioral/emotional regulation in the sixth grade, consisting of emotional outbursts, talking back to teachers, and leaving class without permission. Student also exhibited difficulties with peers.
The JNK assessment contained a large range of assessment tools including standardized testing, observations, and relevant interviews. The assessors concluded Student presented with a low average to average cognitive level which ranged across a wide span of intellectual abilities. Student's social acumen appeared to be below that expected for Student's age and cognitive abilities.
The assessors determined Student presented as egocentric in how she viewed the world and with the world around her, which impacted her in many ways. Student's retribution and propensity towards hostility were steeped in her rigidity of thought and inability to understand her role in a situation. She struggled to make positive behavioral changes and exhibited a tendency to project blame towards and upon others rather than understand negative feedback.
Along with her egocentricity, Student presented with anxiety, rigid thinking, and moments of emotional reactivity at home and at school. At home Student easily dysregulated when things did not go the way she intended, expected, or preferred. Student struggled with her ability to cope and manage her feelings when she did not immediately get her needs or wants met, which could lead to volatile emotional outbursts.
Additionally, Student struggled with executive functioning demands, those that required her to engage in cognitive flexibility, working memory, simultaneous processing, and organization. Student's memory abilities appeared to be variable. Student struggled with cognitively demanding tasks, such as mental manipulations, and had difficulty organizing her thoughts. Student did not possess the tools needed to approach those types of tasks. Additionally, Student's variable attention span negatively impacted her ability to be “present” to recall information. In turn, Student's non-strategic approach to recalling information, could be overwhelming and increase her anxiety, which further interfered with her ability to process and recall incoming information.
The assessment report made significant findings and recommendations regarding Asperger's Syndrome. Although the JNK assessment determined Student to be a person with high-functioning autism, the autism diagnosis was not a consideration of this hearing. Instead, Student emphasized the findings which continued to impede Student's emotional and academic growth, particularly, focus, sustaining attention, distractibility, impulsivity, fidgeting, reduced stamina and executive functioning which required Student to engage in cognitive flexibility, working memory, simultaneous processing and the organization and processing of less concrete information.
The assessors diagnosed Student with autism spectrum disorder, unspecified anxiety disorder, attention deficit hyperactivity disorder tertiary to autism spectrum disorder and anxiety, and specific learning disability with impairments in math computation, math fluency, spelling accuracy, written expression, and reading comprehension.
The remainder of the assessment report addressed the autism diagnosis in depth. It also made extensive recommendations for Student outside of the school environment, such as continuing therapy, medication for anxiety, home activities, and suggested reading materials.
Specifically pertinent to Issue 4 and Student's educationally related mental health, the JNK assessment did not support a need for an ERICS assessment as of November 2019. The assessors determined Student could thrive in middle school and continue into high school, however Student's academic struggles furthered her anxiety and took a toll on her emotionally. The assessors determined Student required academic supports and accommodations to ensure she remained confident and motivated with her academic pursuits. The accommodations included extra time for tests, scheduled breaks during testing, and testing in a quiet room without distractions. Supports included rephrasing questions, checking for understanding, breaking down questions, participation in small group activities, and development of de-escalation techniques to counter the initial signs of emotional escalation.
The assessors suggested several accommodations regarding time management and attention. These accommodations included creating a priority list, and use of a planner and calendar for assignments, due dates, and tests.
The assessors recommended Student continue private tutoring in math and learn self-monitoring strategies to address her tendency to make careless errors. They recommended breaking down required steps when Student faced different types of math tasks.
Student's school behaviors in November 2019, conformed to the JNK assessors opinion that Student's anxiety surfaced when she was asked to push beyond her comfort zone. This school anxiety presented as avoidance behaviors, primarily by losing focus and selective attention. Student struggled to work through her discomfort and tended to withdraw and engage in more passive avoidance behaviors, such as doodling or fidgeting. Student exhibited reduced stamina when overwhelmed interfered with her capacity to focus or engage in a task as expected. The JNK assessment did not recommend intense therapy for these school behaviors, and instead suggested a series of accommodations which could be utilized in the classroom. Further, as discussed below, Beverly Hills assessed Student's social-emotional status and behavior in its initial psychoeducational assessment, as areas of suspected disability. Student did not establish by a preponderance of the evidence that an ERICS assessment was required as part of Student's initial assessment.
ISSUE 5: DID BEVERLY HILLS DENY STUDENT A FAPE BY FAILING TO CONDUCT A SUFFICIENTLY COMPREHENSIVE INITIAL MULTI-DISCIPLINARY ASSESSMENT BY FAILING TO IDENTIFY ALL OF STUDENT'S UNIQUE NEEDS, FAILING TO UTILIZE APPROPRIATE ASSESSMENT TOOLS AND STRATEGIES TO FULLY EVALUATE STUDENT, AND FAILING TO CONDUCT APPROPRIATE ASSESSMENTS THAT COMPORTED WITH THE STANDARDS OF THE IDEA DURING THE 2019-2020 SCHOOL YEAR?
Student contends the Beverly Hills assessment was insufficient to identify all of Student's unique needs, failed to utilize appropriate assessment tools and strategies, and failed to utilize assessments that comported with the standards of the IDEA.
Beverly Hills contends it conducted a thorough and appropriate initial psychoeducational assessment of Student which complied with statutory regulations.
Procedures for initial evaluation must consist of procedures to determine if the child is a child with a disability under Section 300.8 of Title 34, Code of Federal Regulations, and to determine the educational needs of the child. (34 C.F.R. § 300.301(c)(ii)(iii); Ed Code, § 56320.)
A school district must assess in all areas of suspected disability, including, if appropriate, health, vision, hearing, social and emotional status, general intelligence, academic performance, communicative status, and motor abilities. (20 U.S.C. § 1414(b)(3)(B); 34 C.F.R. § 300.304(c)(4) (2006); Ed. Code, § 56320, subd. (f).) A school district's failure to conduct appropriate assessments or to assess in all areas of suspected disability is a procedural violation. (Park, supra, 464 F.3d at pp. 1031-1033.)
The December 12, 2019, assessment plan offered assessments in academic achievement, health, intellectual development, and social-emotional/behavior. Parent consented to the assessment plan on January 4, 2020 and returned the executed assessment plan to Beverly Hills on January 9, 2020. The assessments were completed and recounted in a written report dated February 2020. Beverly Hills completed Student's psychoeducational assessment within the 60-day timeline. (20 U.S.C. § 1414(a)(C)(i)(I); Ed. Code, § 56043, subd. (c).)
Paige Rubin, school psychologist, and Katherine Warren, special education teacher, conducted Student's initial psychoeducational assessment for Beverly Hills. Rubin held masters' degrees and pupil personnel services degrees in educational psychology and counseling education. In addition to experience conducting psychoeducational assessments, Rubin held behavior intervention case management certification, with experience conducting functional behavior assessments, and creating behavior intervention plans. Rubin also held certification in nonviolent crisis intervention. Warren, a special education teacher for 15 years, held a mild/moderate special education teaching credential. Warren previously established rapport with Student as she was the special education teacher in Student's co-taught math class.
Rubin reported all test results were examined in conjunction with information obtained from teachers, parents, and educational specialists. Assessment procedures were selected to avoid discrimination on gender, culture, language, ethnicity, and disability. No single test or score was used to determine eligibility for special education and related services. The assessment included a review of Student's records, a nurse's screening, interviews with teachers, Parents and Student, observations of Student, and standardized testing.
Parents reported Student's diagnoses of anxiety and high functioning Asperger's Syndrome. Student exhibited attention problems and had a hard time focusing on studying. Parents did not report any fine motor, gross motor, or speech concerns. They indicated Student saw a private therapist and would soon see a psychiatrist. Parents did not report any family stressors. There were no indications that economic, cultural, or environmental factors affected Student's school performance.
In their interview, Parents described Student as thoughtful, affectionate, active, outgoing, happy, independent, responsible, friendly, trustworthy, and hardworking. Student was extremely creative, artistic, empathetic, and kind. On the other hand, Parents reported Student as sad, impulsive, aggressive, loud, defiant, bossy, angry, anxious, unusually fearful, and hyper.
Parents indicated Student was highly sensitive, and had a hard time reading social cues. She struggled with self-esteem and had a hard time in school. Student felt she was not smart and tended to feel everyone was against her. Parents described Student as emotionally immature; she had difficulty navigating friendships.
Parents stressed Student needed more support from her teachers in the form of additional instructions, clarifying materials, and patience. Student struggled with organizing her thoughts and work. Student got hyper when she became anxious, and in turn, cannot focus. Student exhibited test anxiety and needed extra time on tests.
Outside of school, Student worked with a private therapist on issues of impulsiveness, anger-management, and self-regulation. Student gave up easily when frustrated and shut down. She had temper tantrums when she got angry and did not feel understood. Parents expressed concern about dangerous behaviors, as Student threatened to cut herself. Student also expressed fear she would be shot at school.
Student's teachers provided information similar to that of Parents. Student had difficulty asking questions, was easily distracted, and had difficulty taking notes and organizing her work. She became anxious when taking tests. Student was immature and tended to whine. Although Student's behavior improved in the co-taught math class, Student would leave class when not allowed, and would argue and call out.
Teachers reported Student's difficulties with task attention, following directions, class participation, effort and motivation, and work completion. In math class, Student would often draw pictures or play with her pen when expected to work. Student was easily distracted by her peers and could be impulsive in class. Student's more acute behaviors reported in the home, were not corroborated in teacher observations.
Rubin observed Student in her general education science class. Overall, Student demonstrated appropriate behavior and good attention to the task. It was noted however, that Student had just received positive reinforcement in the form of an A on her test, and this particular teacher allowed more talking and movement within the classroom than many other teachers. This provided Student the freedom to take breaks or talk to peers without disrupting the class.
Parents completed the Achenbach Child Behavior Checklist, a questionnaire which assesses social-emotional/behavior. Parents classified Student with significant behaviors in the areas of anxiety/depression, attention problems, and social problems. They rated Student borderline significant or at-risk for aggressive behavior. Parents rated Student as average in all other domains.
Five of Student's teachers completed the teacher's version of the Achenbach. While individual scores varied, the overall scores indicated either borderline or significant concerns in areas of anxious/depression, withdrawn/depression, somatic complaints, attention problems, social problems, thought problems, rule-breaking behavior, and aggressive behavior.
Student self-reported on the Achenbach, providing a borderline significant or at-risk rating for attention problems. She rated herself average in all other domains.
Parents and Student's teachers completed the Attention-Deficit/Hyperactivity Disorder Test, Second Edition, a behavior checklist to identify symptoms of ADHD, and the probability of an attention deficit. Parent's ratings indicated very likely probabilities of deficits in the areas of inattention and hyperactivity/impulsivity. Three teachers rated Student with likely to very likely probabilities of deficits in the areas of inattention and hyperactivity/impulsivity.
Student completed the Piers-Harris Children's Self-Concept Scale, Third Edition. Student's self-responses place her in the average range in overall level of self-concept, indicating feelings of self-assuredness across a wide range of cognitive and interpersonal situations. Student scored average or above average in behavioral adjustment, freedom from anxiety, happiness and satisfaction, physical appearance and attributes and social acceptance. Student scored in the low average range for intellectual and school status.
Parent and Student's teacher completed the Autism Spectrum Ratings Scale, designed to identify symptoms, behaviors, and associated features of autism spectrum disorders. Parents' ratings indicated Student's scored in the elevated range suggesting Student had many behavioral characteristics like those diagnosed with autism spectrum disorder. Specifically, Student scored slightly elevated in social communication and elevated in the areas of unusual behaviors and self-regulation. Student also presented with deficits in attention and motor/impulse control and was argumentative.
Four-out-of-five of Student's teachers placed Student in the slightly to very elevated range for autism spectrum behaviors in the same areas noted by Parents. The results obtained in this assessment were consistent with the results of the private JNK assessment.
Additionally, Student's difficulty with attention, as noted throughout the assessment findings, appeared to be significantly impacting Student's learning experience. Student's diagnosis of anxiety, to a lesser degree, might impact her school performance. This, along with her medical diagnosis of ADHD, suggested special education eligibility as other health impairment.
Warren conducted Student's academic skills assessment. Warren co-taught Student's seventh grade math class. She maintained a positive relationship with Student and was able to manage Student's testing anxiety. The assessment took place over several days to accommodate Student's need for frequent breaks.
Warren administered subtests of the Woodcock-Johnson IV-Test of Achievement, and subtests of the Woodcock-Johnson IV-Oral Language to measure Student's overall scholastic achievement, compared to same-age peers. The Letter-Word Identification, Word Attack, Oral Reading, and Sentence Reading Fluency subtests assessed Student's basic reading skills. Student's basic reading skills fell within the average range, and reading fluency fell within the high average range. The Passage Comprehension subtest measured Student's ability to use syntactic and semantic cues to identify missing words in a text. Student scored in the average range.
The Picture Vocabulary and Sentence Repetition subtests measured Student's oral expression skills including knowledge of words, language development and the ability to combine words to make meaningful sentences. Student scored in the average range. The Sentence Repetition subtest primarily measured Student's short-term working memory. Student scored in the average range.
The Oral Comprehension and Understanding Directions subtests measured Student's ability to comprehend short audio-recorded passages. Oral Comprehension required the use of listening, reasoning, and vocabulary. Student scored in the average range. The Understanding Directions subtest required listening to audio-recorded instructions and following those instructions. Student scored in the low average range.
The Spelling, Written Samples, and Sentence Writing Fluency subtests measured Student's written expression. Student scored in the average range for spelling. The Writing Sample subtest measured Student's skills in writing responses to a variety of demands, which were evaluated for their quality of expression. Student scored in the high average range. The Sentence Writing Fluency subtest measured Student's skill in formulating and writing simple sentences quickly, requiring both reading-writing and cognitive processing speed abilities. Student scored in the average range.
Warren assessed Student's math calculations using the Calculation and Math Facts Fluency subtests. The Math Calculation subtest measured Student's ability to perform math computations with basic math facts to determine basic mathematical skills. Student scored in the average range. The Math Fact Fluency subtest measured the speed of computation and the ability to solve simple math facts quickly, requiring both quantitative knowledge and cognitive processing speed abilities. Student scored in the average range.
The Applied Problems and Number Matrices subtests measured Student's math problem solving skills. The Applied Problems subtest required the analysis and solving of math problems where Student must listen to the problem, recognize the procedure to be followed, and then perform relatively simple calculations. Student scored in the average range. The Number Matrices subtest measured Student's ability to complete number sequences by identifying the missing number. Student scored in the low average range and exhibited difficulty thinking horizontally and vertically. Student could work one way but not both.
Based upon the academic skills assessment, Warren concluded Student's academic skills fell within the low to high average range. Student presented with strengths in basic reading, and written expression. She presented with weaknesses in listening comprehension and math problem solving. Student did not exhibit a significant discrepancy between her capability and her academic achievement on standardized testing. However, due to her behaviors, Student did not consistently demonstrate her skills in the general education classroom.
As the Wechsler Intelligence Scale for Children, Fifth Edition, was administered in the JNK assessment only a few months earlier, Rubin administered the Woodcock-Johnson IV Test of Cognitive Abilities, to assess Student's overall intellectual ability and information processing skills. On the Woodcock-Johnson, Student scored in the low average range for general intellectual ability. Student's scores on the many subtests ranged from average to low average. Due to this variability, Student's general intellectual ability score were viewed with caution as a possible underrepresentation of Student's true ability. Student's difficulty attending, responding impulsively, and giving up easily, all of which likely invalidated Student's scores.
Due to Student's poor performance on the Woodcock Johnson IV, cognitive testing, several additional processing tests were administered to determine Student's true abilities.
The Test of Auditory Processing Skills-4 further assessed Student's auditory-perceptual skills and utilized three indices. The Phonologic Auditory Processing subtest measured Student's ability to discriminate between sounds within words, segment words, and blend part of words into whole words. The Auditory Memory subtest measured Student's basic memory processes for number memory, word memory and sentence memory. The Listening Comprehension subtest measured Student's ability to understand exactly what is said, and to use inferences, deductions, and abstractions to understand the meaning of a passage, including processing and recalling oral directions. Overall, Student scored in the average range, although Student required prompting to return her focus and attention to the tasks.
The Test of Visual Perceptual Skills, Third Edition, further evaluated Student's visual perceptual skills. The test contained seven subtests, which determined Student's overall score in the average range. Student's scores on the seven individual subtests were consistently within the average to high average range indicating good visual processing ability. Again, Student required multiple prompts to attend and frequent reminders to take her time in answering. Student also engaged in lots of self-corrections due to initially answering impulsively, and then changing to the correct answer upon reflection.
The Beery-Buktenica Developmental Test of Visual Motor Integration, Sixth Edition, measured Student's visual-motor skills, and hand-eye coordination. Student scored within the average range.
Student's demonstrated cognitive ability within average range which paralleled Student's performance on the private JNK assessment. Student, however, presented with a processing deficit in attention.
Rubin opined Student would benefit from special education and related services, and recommended eligibility as other health impairment due to Student's identified attention deficit. She further suggested IEP team consideration of autism eligibility, based upon several of Student's behaviors which fell within the autism spectrum as also identified in the JNK assessment.
The psychoeducational assessment recommended thirteen accommodations designed to address Student's attention and focus on tasks.
FAILURE TO IDENTIFY UNIQUE NEEDS
Student's contends Beverly Hills failed to identify all of Student's unique needs. Student's contention regarding failure to assess continues to revolve around the ERICS assessment. As determined in Issue 5, Student exhibited academic weaknesses particularly in math, test anxiety, attention and task completion difficulties, and mild social-emotional and behavioral issues which were either typical of preadolescents or adequately managed by teachers in the classroom. Student did not exhibit serious mental health difficulties at school, which indicated the need for an ERICS assessment. Student did not contend Beverly Hills failed to assess Student in any other areas of suspected disability nor was any evidence presented to suggest Beverly Hills overlooked any areas of suspected disability.
Beverly Hills' assessments were designed to investigate Student's suspected areas of need in intellectual development, current academic abilities, and both social-emotional issues and behavior to determine whether Student exhibited disabilities within the confines of IDEA eligibility, and what areas required additional supports and accommodations to provide Student access to her education. (34 C.F.R. § 300.301 (c) (ii)(iii).)
FAILURE TO UTILIZE APPROPRIATE ASSESSMENT TOOLS
In conducting the assessment, the school district shall use a variety of assessment tools and strategies to gather relevant functional, developmental, and academic information including information provided by the parent that may assist in determining whether the child is a child with a disability, and the content of the child's IEP, including information related to enabling the child to be involved in and progress in the general education curriculum. (20 U.S.C. § 1414 (b)(2)(A)(i)(ii); Ed Code, § 56320(b)(3).)
The school district shall not use any single measure or assessment as the sole criteria for determining whether a child is a child with a disability; and use technically sound instruments that may assess the relative contribution of cognitive and behavioral factors in addition to physical or developmental factors. (20 U.S.C. § 1414 (b)(2)(B) & (c); Ed Code, § 56320, subd. (e).)
The school district shall ensure that assessments and other evaluation materials used to assess a child are selected and administered to as not to be discriminatory on a racial or cultural basis; are provided and administered in the language and form most likely to yield accurate information on what the child knows and can do academically, developmentally and functionally, unless it is not feasible to so provide or administer; are used for purposes for which the assessments or measures are valid and reliable; are administered by trained and knowledgeable personnel; and are administered in any instructions provided by the producer of such assessments. (20 U.S.C. §1414 (b)(3)(A); Ed Code § 56320, subd. (a).) The assessments and strategies must be selected to provide relevant information that directly assists persons in determining the educational needs of the child are provided. (20 U.S.C. § 1414 (b)(3)(C).)
Student contends Beverly Hills failed to utilize appropriate assessment tools and strategies to fully evaluate Student. Student's closing argument contends Beverly Hills' assessment only addressed Parent concerns related primarily to Student's academics struggles in her classes, and failed to analyze information regarding behaviors, including significant behaviors and social emotional concerns reported by Parents, teachers, and the private assessors. This contention is incorrect. First, although a child's disabilities arise from different sources such as anxiety or attention deficit hyperactivity disorder, the defining issue is not about the disability itself, but rather the disability's impact on the student's academic struggle accessing education. (See Rowley, supra).
Second, the psychoeducational assessment comprehensively addressed behaviors and social-emotional issues. Rubin interviewed Parents who voiced their concerns. Rubin administered several different assessments to investigate a broad range of social-emotional and behavior concerns. Parent, teachers, and Student completed the Achenbach Child Behavior Checklist addressing nine behavior domains which included anxiety and depression, social problems, attention, and rule breaking and aggressive behaviors. Parent and teachers completed the Attention Deficit Hyperactivity Disorder Test. Student completed the Piers-Harris rating scale to determine how Student felt about herself. The Piers-Harris addressed six domains included behavioral adjustment, anxiety, happiness, intellectual and school status, and social acceptance. Rubin administered the Autism Spectrum Rating Scales to Parent and teachers. The Autism Spectrum assessment explored eleven areas characteristic within the autism spectrum, which were also specifically related to attention, socialization, and behavior. Each of the test scores was included in the assessment report for review.
Student contends Rubin predetermined her assessments by considering only those elements which supported Beverly Hill's opinion that Student's behaviors were not significant enough to warrant goals or services. As example, Parent argued Rubin failed to consider the JNK assessment, because it was not summarized in the district's assessment. Rubin's unrefuted testimony indicated she reviewed the JNK assessment and considered its findings. Although Rubin did not include a specific summary of the JNK assessment in her written report, she referenced it in several areas, and noted several of the JNK assessment findings. The autism spectrum assessment was specifically conducted in response to the JNK assessment identification of autism as a suspected area of disability.
Rubin utilized a variety of assessment tools and strategies to assess Student. Student presented no evidence to suggest the selected assessments were inappropriate or failed to address Student's areas of suspected need.
COMPLIANCE WITH THE IDEA
Apart from Student's contentions regarding mental health and the omission of the ERICS assessment, Student presented little argument in support of regarding Beverly Hills failure to comply with the statutory requirements of the IDEA pursuant to the relevant subsections of section 1414 of Title 20 of the United States Code, and Education Code, section 56320. Both Rubin and Warren were qualified to conduct their portions of the assessment. The assessors used a variety of tests and assessment tools designed to provide relevant information to assist in determining Student's educational needs. The assessment tools were not discriminatory on a racial or cultural basis and were administered in the language and form most likely to yield accurate information on what Student knew and could do academically, developmentally, and functionally.
At hearing, Student ineffectively challenged the validity of Warren's use of the Woodcock-Johnson-IV in assessing Student's academic skills. The Woodcock-Johnson is a technically sound assessment for measuring academic skills when used appropriately. Both JNK assessors and Warren assessed Student within a three-month period, which is contra to the test instructions which suggest a period of one year between assessments, to avoid unreliability due to “practice effect” or independent recall of test protocols. Student presented no information other than the three-month period between tests, to support contention of non-compliance with the relevant portions of Section 1414 of Title 20 of the United States Code or Education Code, section 56320. Warren's testimony was more persuasive. The JNK assessors utilized only three subtests for academic fluency. Warren administered fourteen subtests, which did not invalidate the Woodcock-Johnson as a whole. Further, Warren questioned Student's poor performance on the Woodcock-Johnson and followed up with additional assessments for audio processing and visual perception. Beverly Hills psychoeducational complied with statutory requirements.
ISSUE 6: DID BEVERLY HILLS DENY STUDENT A FAPE IN THE MAY 2021 ERICS ASSESSMENT BY FAILING TO CONDUCT AN APPROPRIATE EVALUATION THAT WAS SUFFICIENTLY COMPREHENSIVE TO IDENTIFY ALL OF STUDENT'S UNIQUE SPECIAL EDUCATION AND RELATED SERVICES NEEDS AND THAT COMPORTED WITH THE STANDARDS OF THE IDEA?
Student contends Beverly Hills failed to assess Student in all areas of disability when it failed to initiate the ERICS assessment in a timely manner during the 2020-2021 school year.
As discussed at Issue 4, Beverly Hills did not have information to warrant an ERICS assessment as part of Student's initial assessment during the 2019-2020 school year. As of February 2020, the psychoeducational assessment appropriately and JNK assessment report appropriately identified and addressed Student's social-emotional and behavioral needs. Although the JNK assessment reported areas of concern regarding emotional dysregulation, Student's behaviors at school had thus far been sufficiently addressed through general education intervention and IEP accommodations. Student did well academically during distance learning.
Commencing at the beginning of the 2020-2021 school year however, Student's grades and work completion declined significantly. Student often utilized online distractions rather than attend to lessons and classwork. Beverly Hills staff worked informally with Parent, Benefield and Karp to address Student's lack of progress and increasing anxiety when overwhelmed by schoolwork. Beverly Hills convened an IEP team meeting on November 12, 2020, to consider changes in Student's educational program and offer additional support. Things did not improve. On November 18, 2020, Parent notified Hartley-Delfosse of Student's involuntary psychiatric hold, and subsequent week-long psychiatric hospitalization. Beverly Hills knew Parents were seeking help in seeking therapeutic support and possible residential treatment for Student. As of the December 15, 2020 IEP team meeting, the few IEP team members present knew Student had been privately placed in the partial hospitalization program at Visions, and that Student would remain in this therapeutic program for at least 90 days. Admittedly, Beverly Hills knew very little, however, what it did know was significant enough to create a reasonable suspicion that Student's mental health now constituted an area of need which required additional assessment, regardless of whether Student's need was triggered in the home setting. Student's involuntary psychiatric hold, alone, suggested a likely barrier to Student's access to her education. Student's placement in Visions, suggested circumstances in which Student might now require more therapeutic support than could be provided by the school psychologist. At minimum, the February 27, 2020 IEP would need review and revise Student's annual IEP, which was dependent upon obtaining more information regarding her status. Initiation of an ERICS assessment was precisely the means with which to obtain the information required to reconsider Student's special education services and placement. Ironically, the IEP notes from the April 29, 2021 IEP stated the IEP team needed further information to make an appropriate placement offer. The ERICS assessment would help the IEP team with information that would guide the team in identifying Student's current needs, and allow the IEP team to review appropriate goals, programs, and placement option to address her needs. This statement reiterated the same concerns and rationale as those expressed by the December 15, 2020 IEP team, yet the IEP team failed to act on their concerns when they first arose in December 2020.
Beverly Hills contended that Parent did not initially want the ERICS assessment when offered at the March 5, 2021 IEP team meeting. The contention is without merit. It was Beverly Hills' obligation to seek the assessment when the suspicion of need arose on November 18, 2020. This constituted an unreasonable delay in assessing Student in all areas of suspected disability. Further, Parent signed the assessment plan on March 19, 2021.
A failure to properly assess is a procedural violation of the IDEA. (Park, supra , 464 F.3d at 1032.) As previously indicated a procedural violation results in a denial of FAPE only if it impedes the child's right to a FAPE, significantly impedes the parent's opportunity to participate in the decision-making process regarding the provision of a FAPE to the parent's child or causes a deprivation of educational benefits. (20 U.S.C. § 1415(f)(3)(E)(ii); Ed. Code, § 56505, subd. (f)(2).); see Target Range, supra, 960 F.2d at p. 1484.)
Had the ERICS assessment been offered at the December 15, 2020 IEP team meeting, and completed within the statutory timeline, it would have been completed and reviewed in early March 2021; around the same time as the IEP team meeting to determine Student's annual IEP. This delay unreasonably denied the IEP team of crucial information needed to review and revise Student's eligibility, services, and placement; the same information the IEP team sought on March 5, April 27, and May 27, 2021. This delay significantly impeded parental participation in the decision-making process regarding the provision of a FAPE and caused a deprivation of educational benefits resulting in a denial of FAPE.
ISSUE 7: DID BEVERLY HILLS DENY STUDENT A FAPE IN THE MAY 2021 ERICS ASSESSMENT BY FAILING TO CONDUCT AN APPROPRIATE EVALUATION THAT WAS SUFFICIENTLY COMPREHENSIVE TO IDENTIFY ALL OF STUDENT'S UNIQUE SPECIAL EDUCATION AND RELATED SERVICES NEEDS AND THAT COMPORTED WITH THE STANDARDS OF THE IDEA?
Student contends Beverly Hills failed to conduct a sufficiently comprehensive ERICS assessment which failed to identify all of Student's unique needs and did not comport with the standards of the IDEA.
Beverly Hills contends it conducted a comprehensive ERICS assessment which met all statutory requirements.
Niija McMillon conducted the ERICS assessment and completed an assessment report dated May 27, 2021. McMillon held a bachelor's degree in psychology, master's degree in clinical psychology with an emphasis on marriage and family therapy, and a master's level educational specialist degree. She was a licensed marriage and family counselor and held a pupil personnel service credential for school psychology. McMillon was the mental health assessment case manager and school psychologist for Culver City Unified School District as well as the ERICS assessor for the Tri-Cities Special Education Local Area Plan. Her duties included conducting comprehensive social-emotional assessments for students referred for ERICS services. McMillon presented with an extensive resume of psycho-social training and qualifications. McMillon was qualified to conduct the ERICS assessment.
Parents immediately took offence to the information contained in the referral information provided for Student's ERICS assessment. Some of the information was inaccurate and carelessly phrased to insinuating a preexisting bias. The social-emotional considerations reported an issue of running away which did not exist. The record of social-emotional and behavior interventions stated Student was not accessing her special education program while attending an outpatient treatment program when Student was in residential treatment. Instead of simply stating Student's participation in the Independent Learning Center program prevented implementation of her IEP, the referral indicated Parent declined to provide school staff with access to Student to implement IEP services, and Parent declined services. The referral drew the conclusion that Student's issues were not previously addressed in her IEP because she did not previously need social-emotional goals or services. While Parent considered the errors in the referral a premonition of bias and every omission of detail designed to undermine residential placement, McMillion's assessment was professional and comprehensive.
The assessment report contained extensive information, much of which was reported in the prior assessments and reports. Student's academic history was reported, beginning in preschool. Prior to middle school, Student's reported behaviors occurred primarily in the home setting, although in the fifth grade Student developed some difficulties at school and with peers. Once Student matriculated to middle school for the 2018-2019 school year, Student's grades were average. General education interventions were created to support Student in math class, to address concerns regarding fear of the math teacher, and interpersonal challenges with peers reported by Parents. During March and April 2019, Student was disciplined on eight occasions for talking/disruption, not following directions, disrespect, and defiance. Beverly Hills placed Student on a general education behavior plan which addressed these behaviors.
At the beginning of the 2019-2020 school year, Student's grades began declining, with an F in math and social studies. The ERICS report recited the available information regarding the Student Success Team meeting and interventions.
McMillon reviewed the JKN assessment and summarized portions of its findings. She reviewed the district psychoeducational assessment and summarized its findings. Nothing new or different was presented to this point.
McMillon summarized the records from Student's November 2020, 72-hour involuntary psychiatric hold, and hospitalization, noting UCLA placed Student on the hold for further observation due to concerns regarding potential self-harm, as Student had stated she wanted to slit her wrists and bleed to death.
McMillon reviewed the November 25, 2020 Bio-psychological assessment which was completed following Student's admission to the partial hospitalization program at Visions. The ERICS assessment report reiterated pertinent information contained in the November 25, 2020 report. Prior to Visions out-patient program, Student stayed at a psychiatric hospital for one week. Student reported self-harming by cutting, at least twice a week, and had attempted suicide twice by cutting deeper than usual. She experienced a tumultuous relationship with her parents. Student expressed a concern about an eating disorder due to her recent lack of eating. Student continued with suicidal ideations. As of November 25, 2020, Student presented with suicidal ideation, depression, anxiety, attention deficit hyperactive disorder, parent-child conflict, and struggle with school and peer relationships.
McMillon reviewed Dr. Morrison's March 19, 2021 assessment report which was completed upon Student's transfer to the Visions short-term residential program. The report was reiterated at length in the ERICS assessment. Of note, McMillon referenced Student's self-ratings scales which reported Student suffered from low self-esteem, excessive anxiety, depressed mood, and significant feelings of frustration and anger. Student described much emotional distress regarding socialization difficulties, academic pressure, not understanding instruction in class, frustration with having learning challenges which required extra support from teachers and tutors, and feeling misunderstood by family, teachers, and peers. Dr. Morrison reported Student's pervasive feelings of inadequacy, worthlessness and guilt have transitioned into suicidal ideations. Student self-rated herself at risk for self-harm by stating “I think everyone would be better off if I were dead”; “more and more I have thought of ending my life.”; “no one really cares if I live or die.”; and “Killing myself may be the easiest way of solving my problems.”
McMillon reviewed Student's history in the Visions Partial Hospitalization Program and short-term residential program. She summarized Student's residential treatment Master Plan from February 20, 2020 and reported on the goals for treatment. The treatment plan reports Student reached her goal of reducing her suicidal ideation from three times a week to once a week. The other goals addressed daily low mood, fidgeting, worrying daily, and fighting with her parents.
McMillon obtained feedback from Parent regarding Student's social-emotional and mental health history, much of which had been previously reported in other assessment reports. Educational feedback related to Student's mental health was reported as Student's present levels of performance determined in the February 27, 2020 IEP.
INPUT FROM STUDENT
McMillon interviewed Student, on May 19, 2021, at New Leaf after her transition there on April 23, 2021. Student reported she was terrified of school shootings and threats of shootings in the neighborhood. Her worries were further exacerbated when she began researching crimes in Beverly Hills daily. Ironically, Student liked to read murder mysteries and watch television programs like Criminal Minds, and American Horror Story. She wanted to become a detective or work with the Federal Bureau of Investigation.
Student reported she had difficulty making friends, but she had developed friendships with at least three peers at New Leaf. She acknowledged she could be very annoying to people, but she did not do it on purpose. Student reported she was always sad; she reported daily worries, and she was not happy every single day. When asked what made her sad, Student responded,” everything, every single thing” but she refused to elaborate.
Student reported she hated school. Tests, pop quizzes, just being at school was stressful. Student acknowledged the most difficulty with math and science. At New Leaf Student felt supported by her math teacher, who made math easy to understand. Student expressed a desire to return home and attend Beverly Hills High or homeschool with online instruction. Student believed online learning worked best for her as it was easier and less stressful. She did not want to go to another school or make a fresh start. Student did not like one-to-one support and felt tutoring was ineffective for her.
INPUT FROM DISTRICT STAFF
According to a report from the Kaber, the Hawthorne principal, Student began presenting with challenges in March 2019. Toward the end of the sixth grade, Student had a particularly difficult time with a specific teacher. Student became easily frustrated and thought people were purposefully trying to upset her resulting in her becoming upset. Student would get out of her seat, walk around, disrupt the class by blurting out or screaming in class. The school psychologist followed up and provided informal support.
McMillon interviewed Zahirpour, the school psychologist at Hawthorne, Student's elementary school during the 2018-2019 school year. Zahirpour described Student as a child with a huge personality, but her attention span appeared to impact her functioning in the classroom setting. In the spring of 2019, Zahirpour provided informal support to Student to address behavioral challenges by creating a behavior chart which Student took to each class. The strategy utilized reinforcements, for appropriate behavior. Initially Student was not receptive, but she gained momentum, liked the additional attention, received positive feedback from teachers, and started to feel good about herself. Student's behaviors improved tremendously, and the behavior chart remained in place for the remainder of the 2018-2019 school year.
McMillon interviewed Schmidt, Student's eighth grade math teacher who described Student as polite and capable. Schmidt expressed concerns regarding Student's resilience, organization, perseverance, and follow-through. Student had a very difficult time starting, continuing, and completing independent work; she had a difficult time engaging online, both in attendance and staying throughout the class.
McMillon interviewed Kelly Kertesz, Student's online teacher in the Independent Learning Center program, while at Visions. Student worked independently and met with Kertesz once a week or as needed for check-ins. Kertesz described Student as a sweet girl with an outgoing personality. Student was proud of herself for her progress in some of her classes and often checked in to submit work before it was due. Student had challenges grasping concepts in the past, but she was gaining awareness and understanding. Student was sometimes distracted but could return to task. She was sometimes anxious. At times, Student appeared frustrated when she did not do well on a test. In general, Kertesz reported Student enjoyed the independent learning platform, because she could complete assignments when she wanted and at her own pace.
INPUT FROM PRIVATE PROVIDERS
Benefield tutored Student from once a week to five times a week depending on the time of year. Benefield reported that although she tutored Student in all subjects, initially her primary focus was on math, as it was incredibly hard for Student. She did not exhibit an understanding on tests and schoolwork. She noted a change in Student's presentation when she transitioned to puberty. Her grades declined, she was overwhelmed with the amount of work and was unable to keep up academically. Student presented with a decline in her ability to pay attention, focus and complete tasks. As Student fell further behind, she exhibited increased anxiety and was upset with herself for her lack of academic progress. In response to these emotions, Student lashed out, cried, was anxious, and developed difficulties getting along with friends and teachers at school. At times, Student sought avoidance behaviors when she did not want to participate in her tutoring sessions. Student's functioning continued to decline during distance learning.
Benefield relayed that Student experienced significant challenges at school and did not feel supported by her teachers. She opined that the extra math class was ineffective. Student better understood concepts when they were related to real work issues and problems which Student could use in her daily life. Student did not like being pulled aside to take tests; she felt dumb. Instead, Student benefited from setting boundaries. Benefield believed Student needed daily prompting for things like checking in for online classes and following her schedule. Student needed to be held accountable. Over the course of her tutoring sessions, Benefield observed Student's anger, low self-esteem, and sadness. She did not observe self-harm or suicidal ideations.
McMillon interviewed Dr. Karp, Student's private therapist. Dr. Karp reported Student was initially referred to her for therapy based upon the JNK Assessment recommendations, primarily based upon her behaviors in the home. Student participated in approximately ten virtual sessions intermittently between August 2020 and November 2020. Dr. Karp's private therapy terminated a few weeks prior to Student' hospitalization, as Student did not want to participate in sessions. Based upon her sessions with Student, Dr. Karp agreed Student required a higher level of care as of November 2020. She believed the family would benefit from wraparound services and Student would benefit from additional support in the educational setting to address learning issues. She also recommended Student's access to media, such as American Horror Story, be decreased, as it appeared to impact Student's functioning.
INPUT FROM VISIONS
McMillon interviewed Robles, the Visions educator. Positive observations included Student's passion for certain subjects, especially art. When engaged, Student grasped concepts quickly. Student was friendly, had some friends, and overall, was compliant. On the other hand, Robles reported initially Student presented with frequent crying episodes and a lot of dysregulation and behavioral issues especially directed toward her teachers. Student did not like school and exhibited difficulty with authority. Student spiraled when overwhelmed, often leading her unmotivated and unproductive. During these episodes, Student would only perform the bare minimum for the assignment.
Robles agreed Student did not like one-to-one support. She developed a “safe word” to be used when overwhelmed and needed a break to regroup and return to task. Student required frequent breaks. Student needed to break tasks down into simpler steps and needed prompts to avoid becoming hyper-focused on one thing, while forgetting other things.
McMillon interviewed Dr. Morrison on May 3, 2021. Dr. Morrison described Student as a good kid with a bubbly personality who is trying to find her sense of identity. She exhibited the capacity to learn and understands coping skills for age and development, but she struggled with employing and using coping skills consistently and effectively. Dr. Morrison also described Student as distressed, emotionally fragile, and easily triggered when feeling nothing was going to help. She was immature for her age, emotionally dysregulated and had difficulty relating to others. Her social challenges were further impacted by her attention deficit hyperactivity disorder and anxiety. Student presented with irrational anxiety about school shootings, and suffered from significant self-esteem and self-confidence issues, socially and academically. Additionally, there were issues with the family system at home. Student felt Parents did not understand her and Parents had trouble managing Student's behaviors.
Dr. Morrison recommended a residential treatment center placement for Student due to safety concerns associated with self-harm in addition to her deficits with socialization skills, and difficulty returning to school due to her irrational fears of school violence. In an educational setting, Student required support to maintain her safety, and she required a lot of structure and support. Student contends the ERICS assessment was biased because it did not include Dr. Morrison's report at length and did not include the entirety of his recommendations. The contention is without merit. Beverly Hills already had Dr. Morrison's entire report which was presented to the IEP team on April 29, 2021. McMillon's interview with Dr. Morrison confirmed his prior recommendations. Nothing was changed in the ERICS assessment to invalidate the information and opinions of Dr. Morrison's assessment. The ERICS assessment report reiterated Dr. Morrison's opinion that Student required long-term residential treatment.
McMillon interviewed Melissa Scharf and Brittany Williams, members of the Visions therapy team. As with everyone who described Student, Scharf and Williams found Student a sweet, creative, and sociable kid, however she presented with emotional dysregulation and struggled with boundaries. Student required a lot of daily containment and one-to-one support, including removal from the school or group setting, as she struggled to stay present and participate. Her ability to re-engage varied, lasting up to two hours, and at times, Student required three staff members to support her. While at Visions, Student reported self-harm urges, but asked for help. In the school setting, Student had difficulty sitting still. She had a low tolerance for frustration and was easily annoyed.
Visions discontinued family visits because Student could not deal with Parents, often dwelling on the past. Student's ability to participate in family therapy varied depending on her mood. She often deregulated during family sessions and presented with anxiety.
Over the course of treatment Student's emotional regulation became slightly better, but her anxiety and worry remained constant with minimal progress. Visions did not recommend a return to the home environment where Student spiraled and was emotionally dysregulated. Student continued to talk of self-harm which appeared triggered by family calls and visits. Student required continued family therapy, which in Scarf and Williams' opinion was why a return home and intensive outpatient support was not successful.
INPUT FROM NEW LEAF
McMillon interviewed Amber Simmons, Student's house manager and therapeutic advisor at New Leaf. At the time of the interview, Simmons knew Student for approximately three weeks. Student resided in the Tumbleweed House residence with ten other young adolescent females. The residence could house up to 14 students. Simmons provided one-to-one support with social and life skills, emotional regulation, self-development, academics, and stress tolerance. She met with Student individually for 30 minutes at least once a week, with check-ins for five minutes a few times a week as needed. Simmons attended three dinners per week with Student and other residents in Tumbleweed. She also facilitated Parent's contact for one hour per week during the first four weeks of placement. Simmons provided Parents with in-depth information regarding the program, Student's adjustment to New Leaf, and answered questions. Simmons' job included developing a connection with Parents and acting as a liaison with Student and her family. She educates parents about triangulation and holding boundaries. The amount of work differed with each family depending on the level of need. Student's family demonstrated a high level of need and required two check-ins per week.
Simmons described Student as resilient. She engaged with peers very naturally and did well adjusting to the program. Student verbalized difficulties when she had a hard time and asked for support in the residence. The structure at New Leaf however, challenged Student. Student wanted to do what she wanted to do. She had difficulty understanding and managing the different aspects of the program and why there were specific rules and expectations. Simmons indicated this pushback was typical and related to adjusting to an environment with extreme structure.
Student presented with a lot of insecurities and had difficulty accepting positive feedback. Her lack of social awareness contributed to her insecurities. Student reported daily anxiety and experienced significant stress and anxiety about school, with fears about school shootings. Student's heightened anxiety appeared in the mornings before school; this anxiety did not appear on weekends. Student reported anxiety with social interactions and felt she was not smart enough. Simmons opined Student referred to negative emotions as anxiety and may lack the emotional language to adequately express her emotions and feelings. In her three weeks in Tumbleweed, Student did not exhibit risky behaviors.
McMillon interviewed Ms. Diane, Student's language arts teacher at New Leaf. Diane noted Student had been in the classroom setting only two weeks. Student appeared good natured and interactive with peers in positive ways, and she interacted with adults respectfully most of the time. Her completed assignments indicated she was at grade level. Student did not interrupt others and was fairly responsive to teacher direction and feedback. On the other hand, the quality and effort of Student's work was inconsistent. She often self-distracted by reading or doodling when she needed to focus on the lesson. Student was non-compliant to expectations which led to extended arguing and negotiating to get what she wanted. Student was not quick to respond to teacher re-direction about choices and behavior. Student required a lot of re-direction on non-preferred tasks. Diane found Student very impulsive. Student often acted without permission and did things without considering the impact on others in the moment. In class for only two weeks, Student did not participate much in class discussion. Student gave up rather quickly if the work was demanding of time or thought. Diane did not observe sadness, withdrawal, anger, anxiety, moodiness over-reactivity or risky behavior “yet.”
McMillon interviewed Deke, Student's math teacher at New Leaf. Deke indicated Student wanted to learn and when focused will concentrate and work hard to ensure she gets the correct answer and understands the topic. With practice and prompting, Student could recall what she previously learned.
Student's math class consisted of four students. Student sat next to Deke and met with her in study hall for extra practice. Student worked slowly but kept up with the class. Thus far, Student was 100 percent fully involved in class, was on time, and followed rules without prompting. On the other hand, Deke indicted Student often became distracted in class. She doubted herself and needed encouragement to push through her negative self-talk. Student worked independently, but at times she stopped work and waited for help instead of asking for help. She had not yet presented with class avoidance or attendance issues in the two weeks in class at New Leaf. Deke observed Student as anxious, and moody, but opined it appeared appropriate, such as before a quiz. Deke did not observe anger, over-reactivity, or risky behaviors.
The information attributed to Deke's interview did not include Deke's observation that Student remained unable to access her education without significant support. Student required redirection ten time per class session on average. She took frequent breaks lasting five minutes or more. Student required frequent access with adults for coregulation. Student's anxiety concerned Deke, because it made Student a follower, easily influenced by others.
McMillon interviewed Ms. Silver, Student's social studies teacher at New Leaf. The teacher's contact with Student was limited to the two weeks in her class. Silver noted Student was positive and high energy. She enjoyed reading, had good attendance, and was respectful. On the other hand, Student struggled to complete fewer desirable tasks, and as with language arts, she attempted to argue and bargain her way out of them. Student remained compliant on preferred tasks. Silver noted Student was somewhat distracted but completed most of her work on time. Silver described Student as somewhat participating; she was not disruptive and worked independently. Silver did not observe sadness withdrawal, anger, anxiety, moodiness, over-reactivity, or risky behavior.
OBSERVATIONS OF STUDENT
McMillon observed Student in her language arts class at New Leaf. There were nine students in the class. Student sat in the front. Her leg shook periodically throughout the class session. When the teacher instructed the class to begin reading, Student continued to talk to the student seated next to her, but shortly began to read as instructed. Student continued to be distracted by the student sitting next to her, trying to get her attention, and looking over her shoulder at others. During group discussion Student raised her hand to answer questions, however she failed to join group discussions, but quietly talked to the student next to her. Subsequently, during class instruction, Student got up and stood next to her desk; she asked if she could get a pencil and returned to her desk after a delayed selection from three pencils. Student returned to task, asked for clarification, and wrote down her responses. Student began to rub her eyes and told the teacher her eyes were burning. Although she continued to complain about her eyes, Student returned to task until she was allowed to go to the bathroom to splash her eyes with water. For the remainder of the class, Student alternated remaining on tasks with talking to other students or getting out of her seat. She was not disruptive and complied with teacher instructions to return to task. During breaks, Student spent time with peers and demonstrated appropriate social interactions.
McMillon observed Student in her math class where she was meeting with the math teacher and three other students. Student was on task and complied with directives. Student was highly engaged and provided correct answers. She asked for clarification for one question and continued to follow along with the lesson. The teacher utilized positive reinforcements for correct answers and earned candy for her responses.
ASSESSMENTS ADMINISTERED
McMillion administered the Behavior Assessment System for Children, third edition. This rating scale assessment was designed to evaluate behavior and self-perceptions measuring numerous aspects of behavior and personality, including positive as well as negative dimensions. It is designed to assist the diagnosis and educational classification of a variety of emotional and behavioral disorders and aid in the design of treatment plans. Parent and Student's tutor completed the ratings scale. Rogers, Student's specialized academic instruction teacher, and Schmidt, Student's general education teacher during distance learning at Beverly Vista, completed the rating scales. Robles from Visions completed the rating scale. New Leaf teachers, Diane and Mr. Sweigert completed the ratings scales, although knew Student less than one month. Student completed the self-rating scale.
The results of the Parent and teacher reports yielded varying results. Scores consistently fell in the at risk and/or clinically significant range on the adaptability and attention problem scales across all settings. Responses on the anxiety, depression leadership, study skills, and functional communication yielded scores in the at risk and/or clinically significant range by at least one rater in each setting. Responses on withdrawal and social skills yielded scores in the high risk and/or clinically significant range by at least one rater in the home, Beverly Vista, and New Leaf settings. Responses on hyperactivity, conduct problems, learning problems and atypicality yielded results in the at risk and/or clinically significant range by at least one rater in the home, Visions and New Leaf settings. Responses on aggression and somatization yielded responses in the at risk and/or clinically significant range by at least one rater in the home and New Leaf settings. McMillon found the results consistent with Student's diagnostic history and concluded the scores indicated varying levels of impairment in different settings.
Student's responses on the Behavior Assessment System for Children self-rating scales yielded results in the at risk and/or clinically significant range in all areas, including school problems, internalizing problems, inattention/hyperactivity, emotional symptoms, and personal adjustment. McMillon noted that like Dr. Morrison's conclusions, Student's scores indicated a consistent pattern of exaggerated self-expression of emotional distress and how Student perceives it. Also as reported at New Leaf, Student appeared to lack the emotional language to adequately express her emotions and feelings, often resorting to reports of anxiety. Regardless, the results of Student's standardized scores accurately reflected Student's perceived functioning. McMillon opined this might indicate the need for cognitive restructuring to identify and dispute irrational thoughts or cognitive distortions about Student's personal characteristics and qualities, abilities, and fears.
McMillon administered the Parenting Relationship Questionnaire, a standardized measure completed by Parent to obtain additional information about the parent-child dynamic. The parent-child relationship is an important component in a student's success and adjustment in the school setting. The questionnaire consisted of seven scales that measure, attachment, communication, discipline, involvement, parenting confidence, satisfaction with school, and relational frustration. The results of the Parenting Relationship Questionnaire consistently yielded scores in the significantly below average and lower extreme ranges indicating significant parent-child challenges. The results were consistent with other assessors diagnoses of parent-child relationship problem. Unsurprisingly, Parent responses indicated unhappiness with the services provided by Student's school, and a belief the school was not meeting Student's needs.in children.
McMillon administered the Children's Depression Inventory, second edition, and utilized the self-reporting subscales used to identify adolescents suffering from depressive symptoms. Student's responses consistently yielded scores in the very elevated range on all scales. Student endorsed items suggesting she experienced depressive symptoms which manifested as sadness and/or irritability, as well as with physical symptoms associated with sleep, appetite, fatigue, aches, and pains. Student's scores on the negative self-esteem scales indicated low self-esteem, self-dislike, and feelings of being unloved. She reported difficulties interacting with peers, feeling lonely at times, and unimportant to her family. Student endorsed feelings of impaired capacity to enjoy school and other activities and views her abilities and school performance negatively.
McMillon administered the Piers-Harris Children's Self-Concept Scale, third edition, which measured Student's self-concept and the correlation between how one thinks about themselves which impacts how they feel, which subsequently affects their behaviors. Student's responses consistently yielded scores in the low to very low range on all scales, including the total score, which fell in the very low range. Student's total score indicated a general lack of confidence, easy discouragement by small setback while attempting to achieve goals, and a tendency to give up instead of persevering in the face of adversity. Typically, children with very low total scores view themselves as having difficulty making friends, having poor relationships with family members, and being unpopular or socially isolated. Children with a low total score are commonly described as being anxious, depressed, and unhappy.
Specifically, Student acknowledged significant behavioral difficulties, such as frequently causing trouble with an inability to adhere to standards of conduct set by her parents and teachers. Student reported general anxiety, with specific anxiety about school-related events, such as taking tests and being called on in class. She reported generalized unhappiness and dissatisfaction with herself, including her body image, and social functioning, being unliked by her peers. Student's low scores on the intellectual and school status scale indicated Student maintained negative self-evaluations about her abilities to be successful in her schoolwork.
McMillon administered the Multidimensional Anxiety Scale for Children, second edition which assessed a broad range of emotional, physical, cognitive, and behavioral symptoms which represent important dimensions of childhood anxiety. Student's responses yielded elevated scores on the GAD index, performance fears, obsessions and compulsions, physical symptoms, total scores for panic and tension/restlessness, and total assessment score. Student's inconsistency index total score was in the acceptable range, indicating Student's responses were consistent and a valid reflection of her perceived current functioning. Specifically, Student experienced an elevated number of signs and symptoms associated with anxiety, including anticipatory worry about the future. Student had obsessive thoughts and/or engaged in compulsive behaviors. Student experienced physical symptoms associated with anxiety, including feeling sick, shaky, being on edge and/or feeling strange, weird, or unreal. Student worried about performing in public or being called on in class.
McMillon did not make recommendations for Student's placement, indicating it was a decision to be made by the IEP team upon review of all information including her ERICS assessment report. Instead, McMillon reviewed appropriate considerations for the IEP team in making its decisions. The ERICS assessment report contained a series of considerations for residential placements and the lesser restrictive placement in the Counseling Enriched Classroom program, with additional support from ERICS counseling services, and intensive support services. These considerations are examined at length in the discussion of the May 21, 2021 IEP team meeting and offer of FAPE.
Student's contentions regarding the ERICS assessment were not persuasive. The statutory requirements for an appropriate assessment were discussed at length in Issue 5. McMillon reviewed and included information derived from Student's academic history, and review of every known assessment and therapy report. McMillon interviewed an extensive number of people with personal knowledge of Student and her circumstances, including Parent, private providers, district teachers, and providers at both Visions and New Leaf. Visions and New Leaf interviewees provided additional information in their testimony which was not included in the ERICS assessment; however, it cannot be said by a preponderance of the evidence that McMillon cherry picked the information provided by the interviewees to support her own preference for the Counseling Enriched Classroom placement.
McMillon utilized a variety of assessment tools and strategies, included information provided by the parent and the content of Student's IEP, including information related to enabling the child to be involved in and progress in the general education curriculum. (20 U.S.C. § 1414(b)(2)(A)(i)(ii); Ed Code, § 56320, subd. (b)(3).)
McMillon used technically sound instruments that assessed behavioral factors (20 U.S.C. § 1414(b)(2)(B) & (c); Ed Code, § 56320, subd. (e).) The assessments were not discriminatory on a racial or cultural basis; were provided and administered in the language and form most likely to yield accurate information; and were used for purposes for which the assessments or measures are valid and reliable. (20 U.S.C. § 1414 (b)(3)(A); Ed Code § 56320, subd. (a).) The assessments and strategies were clearly selected to provide relevant information that directly assisted in the determination Student's educational needs. (20 U.S.C. § 1414(b)(3)(C).) All in all, the ERICS assessment was extremely comprehensive, put forth the opinions of all professionals with relevant knowledge of Student, included parental and Student input and complied with statutory requirements.
Student's objection to the ERICS assessment did not arise from the procedural format of the assessment report. McMillon formally left the issue of placement determination to the IEP team. Student simply did not agree with her opinions and conclusions, which guided the IEP team to the Counseling Enriched Classroom instead of residential placement. This difference of opinion and interpretation of information did not render the ERICS assessment inappropriate or invalid. It still contained abundant information obtained from a variety of sources on which to base an appropriate offer of FAPE.
At hearing McMillon defended her assessment. In considering residential treatment placement, her focus was on determining whether Student had educational needs which required this more restrictive environment. In justifying her preference for the Counseling Enriched Classroom, McMillon relied heavily on Student's 2018-2019 behaviors which responded well to positive behavior interventions. At the same time, McMillon discounted Student's escalating anxiety and drop in grades which became evident during the 2019-2020 school year. She did not dispute that Student's anxiety impacted her educational performance; only the level of anxiety exhibited in the school setting. Further, McMillon concluded that Student's emotional impairments, self-harm and suicidal ideations were triggered by family dynamics and events in the home. As example, while at Visions, Student's threats of self-harm coincided with family visits. Student did not self-harm at Visions or New Leaf where she could seek out non-family support.
Interviews and observations indicated Student benefited from a small classroom with constant feedback from the teacher. Student was still distracted in class but could be redirected. Student's academic plan and accommodations provided at New Leaf could be provided in the Counseling Enriched Classroom. She did not recommend residential placement because Student was not exhibiting self-harm or safety concerns at New Leaf.
ISSUE 8: DID BEVERLY HILLS DENY STUDENT A FAPE FROM FEBRUARY 2020 THROUGH THE END OF THE 2020-2021 REGULAR AND EXTENDED SCHOOL YEARS BY FAILING TO INCLUDE ALL REQUIRED CONTENT AND SUFFICIENT DETAIL TO PROVIDE PARENTS WITH SUFFICIENT INFORMATION, FAILING TO INCLUDE PARENTS AS MEANINGFUL PARTICIPANTS IN THE DECISION-MAKING PROCESS AND REFRAINING FROM PREDETERMINING ITS OFFER OF PLACEMENT AND SERVICES, FAILING TO PROVIDE PRIOR WRITTEN NOTICE WITH ALL REQUIRED INFORMATION OF PROPOSED AND REFUSED ACTION, AND FAILING TO CONSIDER THE PRIVATE ASSESSMENT IN DETERMINING RELATED SERVICES, PLACEMENT, AND THE PROVISION OF FAPE AND FAILING TO OFFER AND PROVIDE A SUBSTANTIVELY APPROPRIATE IEP WHICH PROVIDED STUDENT WITH DESIGNED TO MEET HER NEEDS AND PROVIDE HER WITH MEANINGFUL EDUCATIONAL BENEFIT IN THE FEBRUARY 27, 2020-MARCH 5, 2020 IEP?
Student contends Beverly Hills failed to include all required content and sufficient detail to provide Parents with sufficient information, failed to include Parents as meaningful participants in the decision-making process and Beverly Hills predetermined its offer of placement and services, failed to provide prior written notice with all required information of proposed and refused action, failed to consider the private assessment in determining related services, placement, and the provision of FAPE and failed to offer and provide appropriate a substantively appropriate IEP which provided Student with designed to meet her needs and provide her with meaningful educational benefit in the February 27, 2020 IEP.
Beverly Hills contends it offered Student a FAPE in each IEP.
The IEP is a written document that states the child's present levels of academic achievement and functional performance, creates measurable annual goals for the child, describes the child's progress toward meeting the annual goals and explains the services that will be provided to the child to help him advance toward attaining his goals. (Timothy O. v. Paso Robles Unified School Dist., (9th Cir. 2016) 822 F.3d. 1105, 1111.)
The February 27, 2020 IEP found Student eligible for special education and related services under the primary category of other health impairment due to attention deficits and related anxiety. Beverly Hills offered Student placement in the general education setting, with specialized academic instruction for one hour per day in the co-taught math class. The IEP team created a math goal to improve Student's math skills and a work completion goal to address Student's attention deficits. The IEP team drafted extensive accommodations to address Student's attention and classroom anxiety related to test-taking and work completion. Parent consented to the IEP.
Rubin described the February 27, 2020 IEP team meeting as collaborative and pleasant. The inclusion of the JNK assessment and assessors provided a comprehensive look at Student from different perspectives.
Student contends Beverly Hills failed to provide required content and adequate detail to provide Parents with sufficient information in the February 27, 2020 IEP.
The IDEA requires a school district to make a clear written FAPE offer. (Union v. Smith (9th Cir. 1994) 15 F.3d 1519, 1526, cert. denied (1994) 513 U.S. 965 (Union).) The school district must offer a single, specific program, in the form of a clear, coherent offer which parents can reasonably evaluate and decide whether to accept or reject. (Glendale Unified Sch. Dist. v. Almasi (C.D. Cal. 2000) 122 F.Supp.2d 1093, 1107-1108.) This requirement “should be enforced rigorously” as it creates a clear record to help eliminate factual disputes. (Union, supra, 15 F.3d at p. 1526.) It also assists the parents in presenting complaints with respect to any matter relating to the educational placement of the child. (Ibid.; J.W. ex rel. J.E.W. v. Fresno Unified Sch. Dist. (9th Cir. 2010) 626 F.3d 431, 459-460.) The IEP is to be read as a whole. There is no requirement that necessary information be included in a particular section of the IEP if that information is contained elsewhere. (20 U.S.C. § 1414(d)(1)(A)(ii); 34 C.F.R. § 300.320(d)(2); Ed. Code, § 56345, subd. (h).)
The IEP must comprehensively describe the child's educational needs and the corresponding special education and related services that meet those needs. (School Comm. of Burlington v. Department of Educ. (1985) 471 U.S. 359, 368 [105 S.Ct. 1996] (Burlington).) The IEP must identify the special education and related services and supplementary aids and services, including program modification or supports. (Id., 471 U.S. at 368; 20 U.S.C. § 1414(d)(1)(A); 34 C.F.R. § 300.324(a)(2)(iv); Ed. Code, § 56345, subd. (a)(4).) The frequency, location and duration of a related service is an IEP team decision that must be included in the school district's written offer of FAPE.
Rubin described the February 27, 2020 IEP team meeting as collaborative and pleasant. The inclusion of the JNK assessment and assessors provided a comprehensive look at Student from different perspectives.
Based upon the findings of the February 2020 psychoeducation assessment and the JNK assessment report, the IEP determined Student required goals in math and work completion to assist her in accessing her education. The IEP team found Student's poor performance in math resulted from her attention deficit, rather than from a specific learning disability. Accordingly, the areas of need targeted by the two goals were appropriate.
Student's present levels or baselines were determined from the assessments and teacher observations and input. Again, Student's contention is veiled in Parent's disagreement regarding Student's mental health at school. Parental disagreement with the IEP in hindsight, however, does not equate to lack of information or understanding. Based upon the testimony of Student's teachers, as well as the assessment findings, Student did not exhibit the same intensity in anxiety or behavior at school as she did in the home setting.
An IEP requires a statement of measurable annual goals including academic and functional goals, designed to Meet the needs of the student that result from the disability to enable the student to be involved in and make progress in the general education curriculum, and meet each of the other educational needs of the student that result from the disability. (Ed. Code, § 56345, subd. (a)(2)(A)(B).)
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].)
As of February 27, 2020, Student's behaviors were relatively mild and did not merit additional goals. Student's anxiety was addressed in accommodations and placement in the co-taught math class.
The IEP team created a math goal to increase Student's ability to solve linear equations in one variable with at least 80 percent accuracy. The goal sought to enable Student to progress in the general curriculum and reach state standards. The goal required the special education teacher to measure Student's progress based upon Student's work samples and teacher records. The math goal was appropriate and clear.
The IEP team created a work completion goal which required Student to complete and turn in assignments 90 percent of the time as measured by progress and teacher reports per ten weeks. The goal sought to address Student's educational needs resulting from her attention deficits. The work completion goal was appropriate and clear.
Rubin indicated the JNK assessors were heavily involved in the development of the IEP goals. While the JNK assessment identified a learning disorder, it did not translate to a specific learning disability. The JNK finding were diagnostic, and not based upon the educational definition. Although exhibiting a weakness in math, Student did not exhibit a significant discrepancy between her ability and performance. The JNK assessors did not disagree and found no other areas of need to be addressed. They encouraged Parent to consent to the IEP. Warren reported that, at the end of the meeting, everyone was feeling good about the IEP team meeting, and felt the IEP was a good result for Student. Everyone left smiling.
The IEP notes indicated a discussion of a continuum of placements in the least restrictive environment including general education, specialized academic instruction, co-teaching, support services and non-public school. The IEP team, including Parent, decided to provide Student specialized academic instruction of 240 minutes per week in the co-taught math class for the remainder of the 2019-2020 school year, which Parent previously accepted. For the eighth grade commencing in August 2020, the IEP team offered one hour of specialized academic instruction in math intervention class in lieu of the general education math support class, Student began in January 2020.
Student contends the specialized academic instruction was confusing. The co-taught math class provided a start date of February 27, 2020, and an end date of February 26, 2021. The math intervention class provided a start date of August 17, 2020 and an end date of February 26, 2021. However as of the beginning of the 2020-2021 school year, Student was removed from the co-taught math class, and specialized academic instruction was reduced to 210 minutes per week. This was a particularly disingenuous contention. Laura Rogers, Student's new case manager for the 2020-2021 school year, discovered the eighth-grade co-taught math class would be taught by Schmidt, with whom Student had significant personal difficulties.
Rogers held a telephone conference with Parent, who requested Student to be removed from Schmidt's class. Rogers removed Student from the co-taught math class and adjusted her specialized academic instruction to 210 minutes to reflect the change. Rogers subsequently forwarded the changes to the February 27, 2020 IEP in the non-appearance August 21, 2020 IEP amendment, discussed further below. Parent was aware of the change to the IEP which was made with her participation and at her request. The purported inconsistency did not constitute a Union violation or denial of FAPE.
PARENTS AS MEANINGFUL PARTICIPANTS IN THE DECISION-MAKING PROCESS
Student's contends Beverly Hills failed to include Parents as meaningful participants in the IEP process for the February 27, 2020 IEP.
Beverly Hills contends Parent was an active and meaningful participant in the IEP process.
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].)
Beverly Hills offered Parent a copy of Parental Safeguards and offered to review the safeguards with Parent. Parent voiced her concerns regarding Student's educational performance and Student's math grade. Parent reported Student was highly sensitive, had a hard time reading social cues, and therefore struggled with how others feel in certain situations.
The IEP team discussed the assessment findings and determined Student's present levels of performance based upon those assessments. Several of the determinations were taken directly from the JNK assessment report. The IEP team determined Student required goals for math and work completion.
The IEP team reviewed the district's psychoeducational assessment and considered the JNK assessment in determining Student's eligibility for special education and related services as other health impairment due to Student's identified attention deficit and anxiety, and secondarily under autism pursuant to the JNK diagnosis.
The IEP team discussed the proposed accommodations. Many of the accommodations were already implemented pursuant to the Student Success Team interventions. Other proposed accommodations were recommended in the JNK assessment.
The IEP team asked Parent if there were any further questions or concerns to be addressed. Parent asked about services in the high school setting, and what would be done in eighth grade to ease her transition to high school. School team members described a range of programs and support options at the high school level and explained how the IEP process worked; the IEP could be changed; the IEP was reviewed annually; and Parent could ask for an IEP team meeting at any time. Parent consented to the IEP.
In addition to providing consent to the IEP, Parent acknowledge receipt of Parental Safeguards, a copy of the psychoeducational assessment, and a copy of the IEP. The evidence supports a finding that Parent fully and meaningfully participated in the IEP decision-making process.
CONSIDERATION OF JNK ASSESSMENT
Student contends Beverly Hills failed to consider the results of the privately obtained JNK assessment in determining Student's related services, placement, and the provision of FAPE.
Beverly Hill contends the JNK assessment was presented to the IEP team and the assessors actively participated in the IEP team meeting and contributing to the drafting of the IEP.
A school district must consider an independent educational evaluation that parent obtains and gives to the district in any decision made with respect to the provision of FAPE to the child, so long as the evaluation meets agency criteria. (34 C.F.R. § 300.502(c) (2006); Ed. Code, § 56329, subd. (c).)
In this matter the evidence abundantly demonstrated that the JNK assessment was fully considered by the February 27, 2020 IEP team.
The JNK assessors attended the February 27, 2020 IEP team meeting. The IEP team found Student eligible for special education and related services under the category of autism as suggested by the JNK assessment. The IEP team agreed with the JNK findings that Student's anxiety presented as avoidance behaviors, primarily by losing focus and selective attention. Student struggled to work through her discomfort and tended to withdraw and engage in more passive avoidance behaviors, such as doodling or fidgeting. Student exhibited reduced stamina when overwhelmed which interfered with her capacity to focus or engage in a task as expected. This finding was utilized in determining Student's eligibility category of other heath impairment. The IEP team adopted many of the JNK assessment recommendations, such as extended time for testing, scheduled breaks, and breaking down questions and assignments.
The JNK assessment determined Student required academic supports and accommodations to ensure she remained confident and motivated with her academic pursuits. The accommodations included extra time for tests, scheduled breaks during testing, and testing in a quiet room without distractions. Supports included rephrasing questions, checking for understanding, and breaking down questions and assignments.
The IEP team considered the findings of the JNK assessment and appropriately included portions of the assessment in the February 27, 2020 IEP.
Student contends Beverly Hills predetermined its offer of placement and services in the February 27, 2020 IEP. Predetermination occurs when an IEP team unilaterally determines a student's placement in advance of the IEP team meeting, thereby denying the parent meaningful participation in determining their child's special education placement pursuant to Title 34 of Code of Federal Regulations, parts 300.327 and 300.501(c)(1).
Student's arguments regarding lack of meaningful parental participation and predetermination in the February 27, 2020 IEP was unsupported by the evidence. Prior to February 2020, Student attended class in the general education classroom. The February 27, 2020 IEP continued to offer placement in the general education classroom. Student's placement in the general education setting was not challenged. Student only required additional supports which were addressed through specialized academic instruction and accommodations. Parent did not request a change in placement nor was one recommended in any of the assessments. Parent participated in the IEP team discussions and the IEP team considered the JNK assessment in determining the provisions of the IEP.
PROVISION OF PRIOR WRITTEN NOTICE
Student contends Beverly Hills failed to provide prior written notice of its proposed and refused actions in the February 27, 2020 IEP.
As indicated in Issue 3 above, a school district must provide the parents of a child with a disability prior written notice whenever it proposes or refuses to initiate or change the identification, evaluation or educational placement of the child or the provision of FAPE to the child. (34 C.F.R § 300.503 (a).)
In reviewing the February 27, 2020 IEP as well as the testimony, it remains unclear what actions or services Beverly Hills refused to provide. In her closing argument, Student provided a blanket contention that in each IEP in 2020 and 2021, Beverly Hills knew Student received parent-funded counseling services, but it failed to offer or provide such services to Student as part of her program. Student equated this event as a refusal to initiate a service which triggered the requirement for prior written notice.
The information provided to Beverly Hills as of February 27, 2020, indicated Student received private counseling primarily for dysregulation in the home and family conflict. Student's identified issues at school consisted of academic difficulties in math primarily associated with Student's attention deficits and work completion. Neither of these issues required counseling goals or services. Parent identified Student's school related anxiety issues as test anxiety, and the JNK assessment identified Student's social issues as autism-related, both of which were addressed in the IEP accommodations. Beverly Hills neither proposed nor refused any actions which were not agreed upon in the IEP team meeting. There was no requirement for prior written notice where there was no disagreement.
The February 27, 2020 IEP complied with all procedural requirements. Parents meaningfully participated in the IEP team meeting and provided additional input with their private assessor's participation. Student's social-emotional needs were appropriately addressed through accommodations, as recommended in the psychoeducational assessment and JNK assessment. While Student's emotional needs later increased, the known information regarding Student's academics and behaviors was valid at that time. The IEP determined Student's educational needs in the areas of math and work completion and created goal in each area which were sufficiently clear and measurable. The goals were supported by specialized academic instruction which provided Student support to obtain meaningful benefit from her education. Student's placement in the general education setting was not disputed by the parties. Further, Parents consented to the IEP at that time. Student failed to establish by a preponderance of the evidence that the February 27, 2020 IEP failed to provide Student a FAPE.
COVID-19 PANDEMIC
A few weeks after initial implementation of the February 27, 2020 IEP, the COVID-19 pandemic intervened and presented new difficulties with the delivery of educational benefit to all students.
While California provided emergency guidance for special education and related services provided through distance learning, the U.S. Department of Education did not suspend the requirement that school districts provide student with a FAPE or any regulation regarding their obligations, thereby leaving all federal requirements for provision of FAPE, in full force and effect when delivering services through distance learning methods.
On March 12, 2020, Beverly Hills sent all parents a COVID-19 Communication. Effective March 13, 2020, Beverly Hills physically shut down classes on all school sites within the district due to state mandates resulting from the COVID-19 pandemic. Beverly Hills initiated home-learning for each core subject and electives through its Beverly Hills Live online program as of March 24, 2020, after the scheduled Spring Break. Beverly Hills indicated instructional staff that provided special education and related services would make every effort to deliver the service minutes in each student's IEP using the platforms available. When services returned to the classroom setting, IEP teams would determine if compensatory services were needed.
As explained by Dr. Laura Chism, the Assistant Superintendent of Student Services, the COVID-19 pandemic caused several changes in the delivery of education for kindergarten through the eighth grade. As of the end of the school day on March 14, 2020, all in-person school ended. School resumed on March 24, 2020, for online learning only. For the remainder of the 2019-2020 school year, all classes were provided through distance learning in either Beverly Hills Live, a structured online program which provided both live instruction and asynchronous assignments, or the Independent Learning Center, an independent study program available at parent's election. Student participated in Beverly Hills Live until December 2020, when Parent enrolled her in the Independent Learning Center. As of April 8, 2021, Beverly Hills reopened in-person classes on a limited basis, two-to-three times per week. On April 26, 2021, all classrooms reopened for in-person instruction through the remainder of the 2020-2021 school year. Those students who opted for the Independent Learning Center remained in on-line independent study.
Student's grades, immediately preceding the initiation of remote learning, reflected passing grades in all subjects, except math, which Student was failing. Student completed the 2019-2020 school year at home via the Beverly Hills Live remote learning platform. The initial phases of distance learning proved a rocky experience for most students, with program glitches, individual dislike of the remote platform, and off task behaviors due to diversions at home and unsupervised internet access. Warren, Student's special education teacher during the 2019-2020 school year, reported Student struggled with virtual learning and class attendance, but Beverly Hills Live provided multiple time periods for attendance, and additional teacher office hours for extra support for students and their families. In completing the 2019-2020 school year, Student presented no significant evidence to suggest her IEP was not appropriately implemented or she suffered any educational detriment from remote learning at this time. By the end of the second semester of seventh grade, January to June 2020, Student's grades improved to five B's and two C's. Report card comments included the quality of Student's work was improving; Student was respectful and polite; and Student's effort was strong and consistent. Student raised her math grade from an F to a C.
Overall, the IEP must provide the child with a disability a “meaningful” educational benefit. (J.L. v. Mercer Island Sch. Dist. (9th Cir. 2010) 592 F.3d 938. 951, n. 10.)
As of the December 12, 2020 IEP team meeting Beverly Hills was aware Student had been placed in a psychiatric hospital and released upon her enrollment in a partial hospital placement at Visions for therapeutic services. The IEP team knew Student recently enrolled in the Independent Learning Center for use in the classroom while at Visions.
Beverly Hills conducted an IEP team meeting on December 12, 2020, which failed to have all required members of the IEP team present. While the non-attendance of Parents at the IEP team may have been voluntary, it occurred at a crisis time for Student where additional information and parental participation was critical. Beverly Hills failed to have the school psychologist present for discussion of developing concerns regarding Student's mental health needs. The three-member IEP team did indeed need additional information. Without the presence of the school psychologist, the IEP team failed to discuss a change in eligibility to emotional distress or consider an ERICS assessment despite knowledge of Student's deteriorated mental state, and a more than reasonable suspicion Student might require mental health services beyond those traditionally provided at a public school.
Beverly Hills also failed to have a general education teacher present for the December 12, 2020 IEP team meeting for an active and thorough discussion of Student's recent transition to the Independent Learning Center. Even without Student's mental health crisis, her participation in the Independent Learning Center precluded implementation of Student's goals and specialized academic instruction. Independent of the Visions issue, the IEP team failed to discuss whether Student's special education program could be modified for implementation in the Independent Learning Center. As example, Rogers was present at the IEP team meeting, but there was no discussion of whether Student's general studies pull-out services could be modified implementation in the Independent Learning Center. Student's participation in the Independent Learning Center plan may not ultimately have been workable or sustainable, but the IEP team was required to evaluate it and discuss it. Without all members present, including Parents for consideration of placement, the IEP team was unable to appropriately discuss a continuum of placements, even that of Beverly Hills Live versus the Independent Learning Center. The IEP team's decision to rubber stamp the February 27, 2020 IEP resulted in a predetermined offer of FAPE which Beverly Hills knew could not be appropriately implemented under the current circumstances. Beverly Hills failed to substantively offer and provide Student an appropriate special education program, in the December 15, 2020.
ISSUE 9: DID BEVERLY HILLS DENY STUDENT A FAPE FROM FEBRUARY 2020 THROUGH THE END OF THE 2020-2021 REGULAR AND EXTENDED SCHOOL YEARS BY FAILING TO INCLUDE ALL REQUIRED CONTENT AND SUFFICIENT DETAIL TO PROVIDE PARENTS WITH SUFFICIENT INFORMATION, FAILING TO INCLUDE PARENTS AS MEANINGFUL PARTICIPANTS IN THE DECISION-MAKING PROCESS AND REFRAINING FROM PREDETERMINING ITS OFFER OF PLACEMENT AND SERVICES, FAILING TO PROVIDE PRIOR WRITTEN NOTICE WITH ALL REQUIRED INFORMATION OF PROPOSED AND REFUSED ACTION, AND FAILING TO REVISE THE IEP AND INCLUDE ALL REQUIRED CONTENT TO ADDRESS THE PROVISION OF FAPE DURING SCHOOL CLOSURES AND FAILING TO OFFER AND PROVIDE A SUBSTANTIVELY APPROPRIATE IEP WHICH PROVIDED STUDENT WITH DESIGNED TO MEET HER NEEDS AND PROVIDE HER WITH MEANINGFUL EDUCATIONAL BENEFIT IN THE AUGUST 21, 2020 IEP?
Student contends Beverly Hills failed to include all required content and sufficient detail to provide Parents with sufficient information, failed to include Parents as meaningful participants in the decision-making process and refrain from predetermining its offer of placement and services, failed to provide prior written notice with all required information of proposed and refused action, and the provision of FAPE and failing to offer and provide a substantively appropriate IEP which provided Student with designed to meet her needs and provide her with meaningful educational benefit in the August 19, 2020 IEP.
In making changes to a child's IEP after the annual IEP team meeting for a school year, the parent and the school district may agree not to convene an IEP team meeting for the purposes of making such changes, and instead may develop a written amendment to the IEP. (20 U.S.C. § 1414(d)(3)(D) & (F); 34 C.F.R. § 300.324(a)(4)(i).)
On August 21, 2020, Beverly Hills drafted a non-appearance IEP amendment in which Rogers spoke with Parent by telephone to clarify Student's specialized academic instruction in math upon transitioning to the eighth grade. As previously determined, Parent participated in the discussion and did not want Student in the co-taught math class with Schmidt. Accordingly, Rogers prepared an IEP amendment which reflected the discussion. The August 21, 2020 IEP amendment removed Student from the co-taught math class at Parent's request and adjusted her specialized academic instruction time accordingly. Parent consented to the amendment. All other terms of the IEP remained as determined on February 27, 2020. The changes were discussed with Parent and made at Parent's request and immortalized in an agreed upon IEP amendment. Beverly Hills did not deny Student a FAPE in the August 19, 2020 IEP.
ISSUE 10: DID BEVERLY HILLS DENY STUDENT A FAPE FROM FEBRUARY 2020 THROUGH THE END OF THE 2020-2021 REGULAR AND EXTENDED SCHOOL YEARS BY FAILING TO HOLD AN IEP TEAM MEETING FOR LACK OF ANTICIPATED PROGRESS AND REVISE THE IEP TO ADDRESS LACK OF ANTICIPATED PROGRESS?
Student's contends Beverly Hills failed to hold an IEP team meeting to consider Student's anticipated lack of progress during the pandemic and failed to revise and include all required content to address the provision of FAPE during school closures. By failing to conduct such IEP team, Beverly Hills failed to include Parents in determinations regarding the implementation of services during school closures.
Although the March 12, 2020 COVID-19 communication indicated IEP teams would determine if individual compensatory services were needed to supplement educational losses due to distance learning, the revision of Student's IEP was not automatic; distance learning did not per se, or prospectively impact Student's access to education in a negative manner. Based upon the information available as of August 2020, the evidence supports a finding that Student successfully participated in the Beverly Hills Live program, and her grades improved by the end of the 2019-2020 school year. Parent indicated reported she continued to provide Student private supports for Student's participation in Beverly Hills Live. Courtney Karp, Student's private therapist, provided no information to Beverly Hills regarding Student's anxiety and task avoidance until mid-October 2020 when she met with Parent, Benefield and Hartley-Delfosse. Most of Dr. Karp's input was reserved until the ERICS assessment in May 2021. Benefield also continued to tutor Student during distance learning, and testified Student required help keeping on track and motivated. This information was not provided to Beverly Hills either. Based upon Warren's testimony regarding Student's performance in distance learning during the 2019-2020 school year, Student experienced some difficulties with remote learning, but successfully completed the seventh grade. Student's IEP remained fully implemented through Beverly Hills Live. Beverly Hills was not required to hold an IEP team meeting to review and revise Student's IEP simply based upon a change in class format to distance learning. Beverly Hills was not required to convene an IEP meeting unless advised of significant difficulties accessing remote learning, more than those challenges typically experienced with the utilization of a new medium of learning at home.
Student repeated this contention regarding the August 31, 2020, notice sent to Parents. On August 31, 2020, Beverly Hills sent Parents a letter of prior written notice which described potential emergency changes to Student's IEP due to school closures for more than ten days pursuant to Education Code, section 46932. Beverly Hills offered Student's IEP program through a combination of in-person instruction and distance learning or, only through distance learning provided to the greatest extent practicable. Specifically, Student's anticipated program consisted of access to the general curriculum, and 210 minutes per week of specialized academic instruction, specifically as offered in the August 21, 2020 IEP amendment. Student's goals, accommodations and supplementary aids and services, where appropriate, would be implemented according to Student's last signed and implemented IEP. Student argued this communication failed to consider any individualized information, including whether Student's struggles to access distance learning indicated a need for additional supports or services while schools remained closed.
Student correctly identified the August 31, 2020 letter as a communication regarding emergency changes contemplated in the face of the pandemic. It was not intended as a permanent modification of Student's IEP. It merely constituted a statement of Beverly Hill's intended response to emergency circumstances. It changed nothing about Student's placement or the implementation of Student's IEP. As such it did not require parental participation or further consideration of procedural issues usually required when creating or modifying an IEP. Further Student did not present any information to suggest Student required additional supports at that time. Beverly Hills was not required to hold an IEP team meeting to review and revise Student's IEP simply based upon a change in lesson delivery format to distance learning.
A school district is required to convene an IEP team meeting whenever the student demonstrates a lack of expected progress towards the annual goals and in the general education setting. (Ed. Code, § 56341.1, subd. (d)(1).)
Student's first quarter eighth grade report card for August 18 through October 23, 2020, indicated a sharp decline in Student's grades and behaviors. Her grades included two C's and 2 D's. Teacher comments in her D classes indicated a lack of effort on homework; failure to use class time effectively, and low scores on test and quizzes.
On October 16, 2020, via email Parent introduced Kristen Hartley-Delfosse, Student's eighth grade counselor to Shelby Benefield, Student's tutor and Courtney Karp, Student's private therapist. Hartley-Delfosse was a school counselor at Beverly Vista. She held a master's degree in school counseling, and a Pupil Personnel Service credential. In addition to her administrative duties with Beverly Hills, Hartley-Delfosse provided academic and social-emotional supports to students through individual counseling, conflict mediation, and collaboration with parties. She did not provide counseling services pursuant to an IEP but rather as part of general school-based need. She did not generally attend IEP team meetings. During Fall 2020, Parent maintained frequent and amicable contact with Parent. Hartley-Delfosse occasionally spoke with Student, however Student did not share her anxiety issues with Hartley-Delfosse. She did not observe Student's anxiety but knew Student did not want to be in remedial or special education classes. Hartley-Delfosse did not observe Student during distance learning.
Parent observed that Student continued to struggle with the remote learning program, and she saw signs of Student avoiding assignments because she was overwhelmed. Parent sought collaboration to come up with a plan to help Student. The parties collaborated, and came up with a plan, independent of the IEP team.
On November 3, 2020, Hartley-Delfosse, reported back to the collaboration team regarding her collaboration with Benefield in identifying Student's concerns. Student wanted her tutoring time reduced, but she needed to earn the reduction. Student was not holding up her end of the bargain as she was not paying attention in class and keeping up with her homework.
Hartley-Delfosse suggested that Student could earn the scaling back of tutor time by proving she could maintain a significant amount of fully completed work in all classes, completed to the best of her ability. No assignment should be missing for more than her accommodation extension of time. Student needed to remain attentive and participatory in her classes instead of playing computer games. Aware that Student did not like placement in remedial math, Student could be motivated to work hard to work herself off the “list” for remedial math for the ninth grade.
The proposed plan provided that at home, Benefield would work with Student to use her tutoring time successfully and reinforce the above school expectation. Benefield would revert to teaching only and require Student to independently complete her homework. Hartley-Delfosse and Benefield would monitor and adjust Student's tutoring time accordingly.
Hartley-Delfosse and Benefield suggested Parent revisit the idea of Student earning her time on her cell phone. Student was not doing her “job” as a student. Student needed to be successful in initially getting focused and on track. Student was not always using her school computer during the day, and needed to do so, so her unauthorized usage could be monitored. Student did not buy-in to the proposals.
On November 3, 2020, Camille Campion, one of Student's math teachers, emailed Parent with concerns about Student's progress in class. Student often showed up late and struggled with following along with the lessons and activities. When in class, Student often utilized internet sites, such as Amazon or Netflix, rather than complete her math assignments. On November 3, 2020, Student was completely absent from class, but her computer screen was playing a Netflix show. Student had a 32 percent average in her other math class with Schmidt, and her standardized test scores in math, dropped dramatically since last year. In response, Beverly Hills set an IEP team meeting for November 12, 2020.
On November 12, 2020, the IEP team met with Student and Parent in attendance. The IEP team met to discuss Student's declining grades and progress on her goals. The IEP team noted Student remained off-task during on-line learning and needed additional support and structure to help her make progress towards her IEP goals. The IEP team determined Student's specialized academic instruction would include one period of a general studies class to improve Student's organization and work completion, and return to one period of the co-taught math class for more support and structure. Parent consented to the change in the February 27, 2020 IEP.
Beverly Hills responded to Student's increasing difficulties in Fall 2020, by collaborating with Parent and Student's outside service providers to develop a positive intervention plan designed to motivate Student into improving her grades and class-time compliance. Within a month of exploring options, it became apparent Student's behavior and compliance had not improved, and Beverly Hills appropriately convened an IEP team meeting to address Student's noncompliance and lack of expected progress towards the annual goals.
Beverly Hills responded appropriately to Student's academic decline and increase in behaviors by initially collaborating with Parent and Student's outside providers to develop a behavior plan intended to support Student's academics. After a short period, when it became apparent Student would not participate in the behavior plan, Beverly Hills again acted appropriately and convened an IEP team, with Parent and Student present, to modify Students specialized academic instruction in math and work completion. Parent fully participated in the IEP team meeting and Parent consented to the amendments. Beverly Hills did not deny Student a FAPE by failing to convene an IEP team meeting to discuss and modify Student's IEP to address Student's decline in academics and behaviors.
On November 16, 2020, Beverly Hills provided Parent with an update on Student. Student did not complete an in-class assignment and left the class early. Student's computer camera was off for a few minutes, and when asked to turn it on, Student went radio silent for approximately ten minutes. The teacher indicated she wanted to help Student, but Student needed to meet her half-way. Parent's response, although appropriate, is unprintable. Suffice it to say, Student's noncompliance did not bode well with Parent.
Student did not establish by a preponderance of the evidence that Beverly Hills was required to hold an IEP team meeting to discuss an anticipated lack of progress or revise the IEP to address an anticipated lack of progress. Upon obtaining information regarding actual declines in Student's progress, Beverly Hills acted appropriately and in a timely manner by holding an IEP team meeting and modifying Student's IEP on November 12, 2020.
NOVEMBER 17, 2020 PSYCHIATRIC HOLD
On November 17, 2020, Student had a fight with Parents where she stated she wanted to slit her wrists and kill herself. Student told Parent she was going to run in front of a car to be hit, and then ran out of the house. Instead of harming herself, Student asked Parent to take her to the hospital. Student was placed under an involuntary psychiatric observation at UCLA, and subsequently transferred to a psychiatric facility for approximately one week.
Parent contacted Student's school psychologist, Hartley-Delfosse, with whom both Parent and Student maintained a good relationship. Parent informed her of Student's hospitalization, without providing details. The extent of the information provide remains unknown. Hartley-Delfosse described this contact as personal rather than as a formal notification of Student's increasing mental health concerns, however, she offered to schedule a meeting. Hartley-Delfosse responded to Parent's inquiries regarding outpatient and residential therapeutic educational facilities and provided Parent with a list of three therapeutic programs. It does not matter whether Hartley-Delfosse provided this information to Parent based upon their personal relationship outside the school setting. Hartley-Delfosse was a Beverly Hills employee with an obligation to relay information pertinent to Student's IEP team describing Student's new and acute difficulties. Hartley-Delfosse informed Rogers of Student's hospitalization, as was evidence by a short email sent to Parent on November 18, 2020, acknowledging Student's situation and family difficulties and offering support.
Due to immediate and exigent needs for Student and without sufficient time to obtain additional assistance or consideration by the IEP team, Parents enrolled Student in the partial hospitalization program at Visions. Parent reported Student's suicidal ideations began in the sixth grade and she self-harmed on multiple occasions. In the seventh grade, Student exhibited self-harm by cutting with razor blades and bottle caps. Parents never shared this information with Beverly Hills.
Visions admitted Student to the partial hospitalization program on November 23, 2020 and conducted a biopsychosocial assessment of Student on November 25, 2020. This report was not provided to Beverly Hills for review or consideration.
ISSUE 11: DID BEVERLY HILLS DENY STUDENT A FAPE FROM FEBRUARY 2020 THROUGH THE END OF THE 2020-2021 REGULAR AND EXTENDED SCHOOL YEAR BY FAILING TO INCLUDE ALL REQUIRED CONTENT AND SUFFICIENT DETAIL TO PROVIDE PARENTS WITH SUFFICIENT INFORMATION, FAILING TO INCLUDE PARENTS AS MEANINGFUL PARTICIPANTS IN THE DECISION-MAKING PROCESS AND REFRAIN FROM PREDETERMINING ITS OFFER OF PLACEMENT AND SERVICES, FAILING TO PROVIDE PRIOR WRITTEN NOTICE WITH ALL REQUIRED INFORMATION OF PROPOSED AND REFUSED ACTION, AND THE PROVISION OF FAPE AND FAILING TO OFFER AND PROVIDE A SUBSTANTIVELY APPROPRIATE IEP WHICH PROVIDED STUDENT WITH DESIGNED TO MEET HER NEEDS AND PROVIDE HER WITH MEANINGFUL EDUCATIONAL BENEFIT IN THE DECEMBER 15, 2020 IEP?
Student contends Beverly Hills failed to include all required content and sufficient detail to provide Parents with sufficient information, failed to include Parents as meaningful participants in the decision-making process and refraining from predetermining its offer of placement and services, failed to provide prior written notice with all required information of proposed and refused action, and failed to revise the IEP and include all required content to address the provision of FAPE during school closures, and failed to offer and provide a substantively appropriate IEP which provided Student with designed to meet her needs and provide her with meaningful educational benefit in the December 15, 2020 IEP.
Student made several contentions alleging procedural violations which were insignificant in consideration of the December 15, 2020 IEP as a whole and will not be analyzed further. Student's contentions that Beverly Hills failed to include Parents as meaningful participants in the decision-making process, and failed to provide prior written notice, presented far more significant issues.
One of the procedural requirements of IDEA is that the IEP team must include a parent (20 U.S.C. § 1414(d)(1)(B)(i); 34 C.F.R. § 300.344(a)(1); Cal. Ed. Code, § 56341, subd. (b)(1)), and the IEP team must consider the concerns of the parent throughout the IEP process. (20 U.S.C. §§ 1414(c)(1)(B), (d)(3)(A)(i), (d)(4)(A)(ii)(III); 34 C.F.R. § 300.343(c)(2)(iii); Cal. Ed. Code, § 56341.1, subd. (a)(1).) Parents play a “significant role” in the development of the IEP and are required and vital members of the IEP team. (Winkelman v. Parma City School Dist. (2007) 550 U.S. 516, 524 (Winkelman); 20 U.S.C. § 1414(d)(1)(B)(i); 35 C.F.R. § 300.322; Cal. Ed. Code, § 56341, subd. (b)(1).)
Beverly Hills held an IEP team meeting on December 15, 2020, to discuss Student's current placement and program needs. Only Hartley-Delfosse, Kari Marlow, the program specialist, and Laura Rogers, the case manager, attended the IEP team meeting. Rogers invited Parent to the December 15, 2020 IEP team meeting. She knew Student had been hospitalized, and as she described, “it was a challenging time for Parent.” Rogers offered to accommodate Parent by conducting the IEP team meeting outside of her presence. Parent agreed. Rogers obtained an authorization for release of information from Parent and “respected Parent's request to limit the release to educational matters.”
Beverly Hills failed to have all required parties present for this IEP team meeting, pursuant to Education Code, Section 56431. In addition to Parent's absence, the IEP team lacked school psychologist who was knowledgeable about Student's academic performance and social-emotional and behavioral issues at school. Rogers, the resource specialist at Beverly Vista, acted as Student's case manager. She did not regularly meet with Student as her job was more administrative in nature to ensure implementation of the IEP. She had never seen Student prior to the November 12, 2020 IEP team meeting. Rogers, who set up the December 15, 2020 IEP team meeting, forgot to invite the school psychologist. When the error was discovered, the school psychologist was unavailable. The IEP team triumvirate decided they would meet with the school psychologist later and schedule another IEP team meeting with both Parent and the school psychologist present. This was never done.
Based upon the IEP team notes, Beverly Hills knew Parents placed Student in the partial hospitalization program at Vision's Day School; Student would remain in the program at least 90 days. The IEP team reviewed a letter from Visions regarding computer-based distance learning to be provided by Beverly Hills at the Visions site. The IEP team knew Parent enrolled Student in the Independent Learning Center program, in lieu of Beverly Hills Live, due to its compatibility for use at Visions, and Student's preference for less stress in independent study. The IEP offered Student continued participation in the Beverly Hills Live program and 420 minutes of specialized academic instruction. The IEP team did not change Student's placement in the Beverly Hills Live program which implemented Student's goals and specialized academic instruction.
The IEP team was aware Parent enrolled Student in the Independent Learning Center on November 30, 2020. The IEP team expressed concern regarding the inability to implement Student's specialized academic instruction in the Independent Learning Center. The IEP notes acknowledge that, in the Independent Learning Center, Student would only have the support of a general education teacher one hour per week to provide assistance and discuss her progress on the computer-based program. The special education teacher would provide collaboration with the Independent Learning Center teacher about accommodations and goals. These caveats discussed amongst Beverly Hills staff members, did not constitute meaningful participation for Parent.
Prior to the IEP team meeting, Parent executed a release of information for Beverly Hills to obtain information from Visions. Parent however, requested to limit the release to educational matters only. This added to Beverly Hills dilemma regarding lack of relevant information regarding Student's current emotional status, but Parent's lack of meaningful cooperation is not the determining factor in developing an appropriate IEP. The validity of the IEP is based upon what Beverly Hills knew, not on what else they wanted to know. Beverly Hills had sufficient information from the November 12, 2020 IEP team meeting to establish Student's increasing anxiety and academic difficulties, and appropriately made modifications to Student's IEP at that time to increase academic support in math.
Beverly Hills maintained Student's anxiety and behavioral issues were based on the family dynamic in the home setting. At minimum, the IEP team failed to address the fact that this anxiety permeated into the school setting and was increasing during the 2020-2021 school year. Admittedly, Beverly Hills had little information, and Parent was not forthcoming with much. Nevertheless, the mere fact that Student had been placed on an involuntary psychiatric hold, and hospitalized in a psychiatric facility for a week, created more than a suspicion that Student's mental health was no longer limited to test anxiety and attention deficit hyperactivity disorder. The IEP team failed to even consider conducting an ERICS assessment to obtain vital information.
PRIOR WRITTEN NOTICE
Student contends Beverly Hills failed to provide prior written notice regarding the actions taken at the December 15, 2020 IEP team meeting, particularly in an IEP team meeting held without parental participation.
Prior written notice must include a description of the action proposed or refused by the school district; an explanation of why the school district proposes or refuses to take the action; a description of each evaluation procedure, assessment, record or report the school district used as a basis for the proposed or refused action; a statement that the parents have protections under the Procedural Safeguards of Part B; sources for parents to contact to obtain assistance in understanding the provisions of Part B; and a description of other options the IEP team considered and the reasons why those options were rejected. (34 C.F.R. § 300.503.)
Beverly Hills failed to provide Parent with a prior written notice regarding the events and business conducted at the December 12, 2020 IEP team meeting. The IEP team meeting was significant in several ways. The meeting was called in response to learning of Student's involuntary psychiatric hold, and therapeutic placement in the partial hospitalization program at Visions upon her release from psychiatric hospitalization. Parent did not attend the IEP team meeting and was not included in the decision-making process. No prior written notice was provided to explain the IEP team decision to refrain from assessing Student, ERICS or otherwise, to consider emotional disturbance eligibility and determine if additional goals were required. No prior written notice was provided to explain why Student's goals were not being changed based upon her developing mental health needs. No prior written notice was given to explain why the IEP team continued to offer placement in the Beverly Hills Live program, instead of the Independent Learning Center. No prior written notice was given to explain why Beverly Hills could not implement Student's IEP in the Independent Learning Center or why new goals and services were not considered to provide Student FAPE in the Independent Learning Center. At minimum, Beverly Hills needed to provide prior written notice to explain why it did not have sufficient information to make alternate decisions regarding placement and services; why it needed information regarding Student's social-emotional status; and what specific information was needed. Beverly Hills' failure to provide Parent with prior written notice for actions taken in an IEP meeting Parent did not attend, denied meaningful parental participation in the IEP process surrounding the December 15, 2020 IEP team meeting which denied Student educational benefit.
As of the December 12, 2020 IEP team meeting Beverly Hills was aware Student had been placed in a psychiatric hospital and released upon her enrollment in a partial hospital placement at Visions for therapeutic services. The IEP team knew Student recently enrolled in the Independent Learning Center for use in the classroom while at Visions.
Beverly Hills conducted an IEP team meeting on December 12, 2020, which failed to have all required members of the IEP team present. While the non-attendance of Parents at the IEP team may have been voluntary, it occurred at a crisis time for Student where additional information and parental participation was critical. Beverly Hills failed to have the school psychologist present for discussion of developing concerns regarding Student's mental health needs. The three-member IEP team did indeed need additional information. Without the presence of the school psychologist, the IEP team failed to discuss a change in eligibility to emotional distress or consider an ERICS assessment despite knowledge of Student's deteriorated mental state, and a more than reasonable suspicion Student might require mental health services beyond those traditionally provided at a public school.
Even without Student's mental health crisis, her participation in the Independent Learning Center precluded implementation of Student's goals and specialized academic instruction. The IEP team knew the goals could not be implemented in the Independent Learning Center. Kertesz was not special education teacher. Without specialized academic instruction, Student received no special education services.
Independent of the Visions issue, the IEP team failed to sufficiently discuss whether Student's special education program could be modified for implementation in the Independent Learning Center. As example, Rogers was present at the IEP team meeting, but there was no discussion of whether Student's general studies pull-out services could be modified implementation in the Independent Learning Center. It appeared Rogers intended to provide some form of special education services, but nothing was specified other than meetings with Student.
Student's participation in the Independent Learning Center plan may not ultimately have been workable or sustainable, but the IEP team was required to evaluate it and discuss it. Without all members present, including Parents for consideration of placement, the IEP team was unable to appropriately discuss a continuum of placements, even that of Beverly Hills Live versus the Independent Learning Center. The IEP team's decision to rubber stamp the February 27, 2020 IEP resulted in a predetermined offer of FAPE which Beverly Hills knew could not be appropriately implemented under the current circumstances. Beverly Hills failed to substantively offer and provide Student an appropriate special education program, in the December 15, 2020.
A school district may only implement those portions of an IEP to which the parent consents. (Ed. Code, § 56346, subd. (f); I.R. v. Los Angeles Unified School Dist. (9th Cir. 2015) 805 F.3d 1164, 1168-1169.) Accordingly, an IEP is not effective until consent is given.
On January 4, 2021, Rogers initiated an email chain with Parent. The emails were a set up to adjust the December 12, 2020 IEP without convening another IEP team meeting to discuss changes in the provision of services. Rogers wrote Parent that she needed to let the special education department know Parent was declining Student accessing her services at that time. Rogers stated, “If we are providing services, I will need to meet with Student weekly to whatever extent possible….you can indicate you do not want IEP services at this time.” Parent responded Rogers was not needed to provide IEP services as Student's case worker. Rogers responded, “So to clarify, you would like for Student to still have an IEP, but you are declining her participation in all specialized academic instruction at this time…you are declining my services at this time.”
Rogers failed to explain what she was specifically offering in lieu of the specialized academic instruction which was not being implemented. She did not indicate when meetings would occur, how long, or even what they were intended to provide, such as specialized academic instruction in math. The communication was unilateral from Rogers. There was no IEP team discussion of what was proposed by Rogers, nor was the IEP changed. By obtaining Parent's permission to discontinue specialized academic instruction, Roger's unilaterally reduced Student's program to that of accommodations only, the equivalent of the Student Success Team plan, disguised as an IEP. Rogers' email chain, however, further established that options existed for delivery of special education services in the Independent Learning Center program and/or Visions, which were not discussed at the December 12, 2020 IEP team meeting.
ISSUE 12: DID BEVERLY HILLS DENY STUDENT A FAPE FROM FEBRUARY 2020 THROUGH THE END OF THE 2020-2021 REGULAR AND EXTENDED SCHOOL YEARS BY FAILING TO INCLUDE ALL REQUIRED CONTENT AND SUFFICIENT DETAIL TO PROVIDE PARENTS WITH SUFFICIENT INFORMATION, FAILING TO INCLUDE PARENTS AS MEANINGFUL PARTICIPANTS IN THE DECISION-MAKING PROCESS AND REFRAIN FROM PREDETERMINING ITS OFFER OF PLACEMENT AND SERVICES, FAILING TO PROVIDE PRIOR WRITTEN NOTICE WITH ALL REQUIRED INFORMATION OF PROPOSED AND REFUSED ACTION, AND THE PROVISION OF FAPE AND FAILING TO OFFER AND PROVIDE A SUBSTANTIVELY APPROPRIATE IEP WHICH PROVIDED STUDENT WITH DESIGNED TO MEET HER NEEDS AND PROVIDE HER WITH MEANINGFUL EDUCATIONAL BENEFIT IN THE FEBRUARY-MARCH 5, 2021 IEP?
Student contends Beverly Hills failed to include all required content and sufficient detail to provide Parents with sufficient information, failed to include Parents as meaningful participants in the decision-making process and refraining from predetermining its offer of placement and services, failed to provide prior written notice with all required information of proposed and refused action, and failing to offer and provide a substantively appropriate IEP which provided Student with designed to meet her needs and provide her with meaningful educational benefit in the February-March 5, 2021 IEP?
INFORMATION PROVIDED BY VISIONS
Upon Student's release from her psychiatric hospitalization, Parent sought additional therapeutic assistance for Student. Parent contacted Visions Treatment Center. Visions provided both residential and out-patient treatment for adolescents. Both programs at Visions were intended to provide short-term therapeutic treatment for to stabilize the patient over a period of 45 to 90 days, and then make plans for the next step of long-term treatment.
Garth LeMaster, a clinical psychologist at Visions, conducted Student's intake assessment on November 20, 2020, as well as her individual and family counseling while in the partial hospitalization program. LeMaster held a master's degree in clinical psychology and was a licensed marriage and family therapist.
LeMaster spoke with Student during the intake assessment and found her suicidal ideations an immature cry for help. She was unable to cope with her problems or self-regulate her emotions. The intake assessment primarily identified Student's disfunction at home. LeMaster opined Student' inability to self-regulate increased at home, to the point it became a safety issue for Student.
Student's home environment, however, was only one of several issues. Student exhibited anxiety and appeared lost within herself. Student's anxiety overrode everything in her life. She was anxious about her school performance and was unable to implement coping skills. She maintained a low tolerance for expressing her feelings.
Although LeMaster did not address educational issues in his therapy sessions with Student, he frequently interacted with the educational staff in the partial hospitalization program. He knew there were eight-to-ten students in the classroom. He reported Student could not stay on task “to save her life.” Student was disruptive in class. She walked around, danced, or talked; anything to get away from academics. Her behavior was not malicious. It was a means of avoidance. LeMaster reported that for the most part, Student did not make much progress in the partial hospitalization program. Student required a more controlled setting in which she could feel safe to benefit from therapy.
Visions determined Student remained subject to self-harm and required support of a residential treatment program. On January 22, 2021, Student transitioned to the residential treatment program at Visions. Melissa Scharf provided Student's therapy in the residential program. Scharf held a master's degree in psychology and was a licensed marriage and family therapist.
Scharf described Student's residential program. Visions provided 24-hour support. For safety purposes, Student sometimes required one-to-one attention or adult check-ins every 15 minutes. While in the program, Student talked of self-harm twice a month, on average. She picked at her skin with whatever instrument she could find, but fortunately did not have access to much.
In addition to attending school, Student saw a psychiatrist once a week and participated in group therapy. Scharf provided individual therapy sessions four times per week which focused on self-regulation, peer relationships and communication skills. Scharf also provided family therapy once per week.
Scharf prepared Student's master treatment plan dated February 20, 2021. She opined that Student was emotionally immature and struggled with the will to live. Student exhibited a severe struggle dealing with Parents. Scharf reported that during her stay at Visions, Student did not complete her therapy goals to a level which would allow her to progress to a lesser secured environment. Student's progress was often, one step forward, and two steps back. Student frequently failed to utilize her allotted time for family contact. She would simply not show up.
Jessica Robles, the educational manager for the Visions residential program testified at hearing. Robles held a bachelor's degree in social and behavioral sciences and was working on a master's degree in educational therapy. She was not a credentialed teacher and respected her limitations as a non-educator. Robles worked under the direction of teachers or administrators. She managed resident's schoolwork and coordinated their individual academic plans with the residential clinical team, parents, teachers, and school districts. As part of her job, Robles monitored students during online instruction, and tutored students on difficult subjects or concepts.
Robles noted that Student initially struggled with school, needed supports and positive reinforcements to perform at grade level. Beverly Hills provided Student's education program, which was the asynchronous independent study program. Kelly Kurtesz, Student's teacher, met with Student online one time per week. Robles communicated with Kurtesz two-to-three times per week for updates and to exchange information. They often brainstormed on ideas for support, as Student required prompting and lots of one-to-one assistance due to task avoidance and acting out. When Student became overwhelmed, she was given space to allow her to decompress, but she continued to need frequent breaks and one-to-one redirections.
The educational setting at Visions was set up like a classroom, but each student worked on an individual online program. Robles and two other staff members supervised six-to-eight students in the classroom. Student attended class Monday through Friday, between 3:00 PM. and 5:10 PM.
FEBRUARY19, 2021-MARCH 5, 2021 IEP
Beverly Hills set Student's annual IEP team meeting for February 19, 2021. Parent could not attend the IEP team meeting on that date. Therefore, the IEP team members present on February 19, 2021, opened the meeting to comply with required timelines, then closed the meeting without further discussion, due to Parent's absence.
The rescheduled IEP team meeting occurred on March 5, 2021, with Parent and all other required parties present. Parent's participation in the IEP team meeting was self-limited. Parent indicated she had only 30 minutes available for the IEP team meeting.
When asked how Student was doing in partial-day Visions program, Parent reported Visions was not looking at discharging Student at that time. The Visions program was working well, and Student had improved while in the program. Parent however, indicated she did not want to discuss Student's social, emotional, or behavioral progress with the IEP team; she only wanted to review the other parts of the IEP. Parent did not correct the IEP team by indicating Student was now receiving residential treatment from Visions. Parent also did not want to disclose Student's health information or medications.
The IEP team discussed Student's academic progress. IEP notes indicated that overall, Student did well in the Independent Learning Center program. Student turned in her assignments and earned good grades. Information obtained from Visions, meaning Robles, indicated that although Student was completing her work in on-line classes, she kept other tabs on her computer open, and was sometimes distracted. Student remained stressed and anxious about school and did not want assistance from school staff. Visions staff reported they wanted to see Student show greater effort in her schoolwork. Student improved in self-advocacy and demonstrated understanding of concepts when she could explain them in her own way. Kertesz reported Student advocated well for herself and attended all her meetings. Student completed her assignment within the two-week grace period allotted each student. Rogers reported Student also received additional time as an accommodation.
Robles provided the information from Visions to Beverly Hills regarding Student's academic performance for the February-March 5, 2021 IEP, specifically regarding Student's present levels of performance in academics. At hearing, Robles credibly testified that the present levels of academic performance did not contain all the information she provided. The information reported in the IEP made Student's performance sound better than it was. Robles had stated Student made some progress but was not ready to return to a mainstream classroom. Robles reported Student still needed much more one-to-one instruction. As example of omission of information, Beverly Hills reported Robles indicated Student was completing sufficient work in class but omitted the context that she cheated without one-to-one supervision. Cheating was also a motivating factor for Student's desire to become independent and discontinue adult support.
Kertesz described Student's progress in a brighter light. Contrary to Robles who interacted with Student daily, Kertesz reported Student did not require lots of redirection in class. She did not observe emotional distress in their weekly meetings. Student was mostly positive and happy. Kertesz reported Student chose not to supplement supports available to her. Kertesz suggested Student utilize the additional math tutoring available to her which indicated an ongoing weakness in math. Student declined. Student complied with the requirements of the Independent Learning Center, and by the second semester, she was doing her assignments and was proud she was ahead of schedule. In making her report to the IEP team, Kertesz was either unaware Student was then in residential treatment at Visions or believed the residential treatment insignificant to Student's academic progress. Assuming Student was doing so well in the Independent Learning Center administered by Visions, gave additional motivation to consider this academic program instead of Beverly Hills Live.
Rubin, the school psychologist, reported information provided by Visions regarding Student's ability to self-regulate. Visions reported Student initially struggled with dysregulation several times a day in class, but now dysregulated only two-to-three times a week. Parent indicated Student could now identify triggers and was working on her emotional regulation.
The IEP team discussed Student's progress on goals and made recommendations for new goals addressing proof reading and organization, mathematical reasoning, and managing emotions and self-advocacy.
The IEP team created Goal One to address proofreading and organization. While Student's ability to complete and turn in assignments had improved, she still struggled with taking the time to answer completely and review her work prior to submission. The goal required Student to stop, review, revise and reflect upon her responses prior to submission, four-out-of-five times, measured by special education teacher charted observation and data.
The IEP team created Goal Two to support Student's progress in the general education curriculum and state standards in math. Student could solve linear equations in one variable with reasonable accuracy. The goal sought to increase Student's ability to solve linear equations and inequalities in one variable, including equations with coefficients represented by letters with eighty percent accuracy in three-out-of-four trials, based upon Student work samples and special education teacher records.
The IEP team created Goal Three to improve managing emotions. Student struggled with managing her emotions when presented with frustrating or bothersome situations. Through counseling sessions at school, the goal required Student to identify upsetting situation triggers and related worrying or negative thoughts with minimal prompting, demonstrate improved coping skills by reframing negative thinking and identifying at least two problem-solving, self-help strategies to manage her emotions effectively and safely in three-out-of-five situations as measured by data collection by the school psychologist.
To support the three goals, the IEP team offered 210 minutes per week of one period per day of co-taught math through the end of the 2020-2021 school year, 210 minutes per week of specialized academic instruction in a general studies classroom, and 400 minutes per year of psychological services, delivered either once per month, or in smaller increments of ten-to-twenty minutes as needed. Psychological services would be provided on an individual basis unless an appropriate peer group became available.
As of March 5, 2021, the COVID-19 distance learning restrictions were still in place. The IEP team continued to offer Student placement in Beverly Hills Live program which could implement Student's goals and services. This time Parent was present for the discussion of the impact of the Independent Learning Center on availability of remote services. Parents however, elected to continue Student's participation in virtual learning through the Independent Learning Center program, which could not provide the co-taught math or general studies. Reliance on the Senate Bill 98 distance learning restrictions was a red herring, as both Beverly Hills Live and the Independent Learning Center relied on COVID-19 friendly remote learning programs.
In a discussion of least restrictive environment options upon school reopening, the IEP team asked if Student would return to school and transition to Beverly Hills High School for the 2021-2022 school year. Parent reported the comprehensive high school was too large. Student required a smaller classroom environment. Members of the IEP team informed Parent there were a range of special education programs and service options within the public-school setting which could provide a smaller, more therapeutic, and structured setting for Student. The IEP team introduced the idea of its counseling enriched classroom program, described as a therapeutic special day class that provided support to students for most of their academic day. The counseling enriched classroom emphasized counseling and provided behavior support in the classroom. Parent balked at the idea of a public-school placement. At that point, placement for the 2021-2022 school year was tabled, and the IEP team offered the ERICS assessment to look deeper into Student's social-emotional and behavior needs. The IEP notes states the IEP team needed further information to make an appropriate placement offer. The ERICS assessment would help the IEP team with information that would guide the team in identifying Student's current needs, and allow the IEP team to review appropriate goals, programs, and placement option to address her needs.
Although the February 19, 2021 IEP was not completed until March 5, 2021, Beverly Hills did not provide Parent with prior written notice until April 19, 2021, and then only motivated by Student's advocates communications on April 1, and April 8, 2021, which communicated Student's disagreement with the February-March 5, 2021 IEP. The prior written notice addressed the contentions made in Student's letter, and merely restated the information in the IEP notes. It did not expressly discuss Beverly Hills reasons for its actions and refusal to consider residential placement other than to indicate the district required more information and would revisit placement after completion of the ERICS assessment. Given the information exchanged between Beverly Hills and Student's advocate, subsequent to March 5, 2020, Parents unilateral decision to limit the IEP team meeting to 30 minutes, and Parent's initial consent to all terms of the IEP, Student did not establish by a preponderance of the evidence that Beverly Hills' failure to provide timely prior written notice to Parent regarding the February-March 5, 2021, resulted in a lack of meaningful parental participation in the IEP process. Procedurally, the February-March 5, 2021 IEP did not deny Student a FAPE.
Despite Parent's desire to avoid discussion of Student's therapy, Beverly Hills knew or should have known Student was in the Visions residential program, not the partial hospitalization program. Visions provided educational information through Robles, the residential program education manager. If Student was as successful in the Independent Learning Center program as reported by Kertesz, the program was a viable option for Student's continued attendance. Rogers' January 4, 2021, emails with Parent confirmed Beverly Hills was willing to provide some unspecified form of special education support to Student while in the Independent Learning Center and Visions, but there was no thoughtful discussion of options or consideration of developing an alternate service plan for Student. Distance learning under the emergency IEP could be implemented in either program, yet Student could not have specialized academic instruction in the Independent Learning Center, period. This was predetermination at its best. The IEP team was required to at least consider other reasonable options and revamp Student's goals and services to collaborate within the Visions residential program. It could do so without committing to the residential placement itself.
The most disquieting statement at hearing came from Parent who found the IEP team offer of placement offensive. She felt Beverly Hills would not acknowledge what was going on with Student. There was a clear disconnect with Parent regarding the symbiotic relationship between Student's therapeutic needs and her education. While this is not intended as an indictment of Parent, Parent's refusal to share vital therapy information prevented the IEP team from offering a detailed counseling program. Beverly Hills had a working knowledge of Student's therapeutic treatment, but no specific knowledge which would allow it to craft appropriate goals. The offer of counseling services provided a bandage pending the ERICS assessment, an assessment.
Nevertheless, Beverly Hills had enough information to know that only months earlier Student had been placed in a psychiatric hospital, had previously been treated by a private therapist, and was currently in a residential treatment center. That information alone, was sufficient to determine an offer of a meager 400 minutes per year, the equivalent of ten minutes per month of individual counseling was insufficient and inappropriate support for a student with Student's psychological history. The March 5, 2021 IEP denied Student a FAPE.
ISSUE 13: DID BEVERLY HILLS DENY STUDENT A FAPE FROM FEBRUARY 2020 THROUGH THE END OF THE 2020-2021 REGULAR AND EXTENDED SCHOOL YEAR BY FAILING TO IMPLEMENT THE IEP AND BY FAILING TO CONVENE AN IEP TEAM MEETING TO INCLUDE PARENTS IN DETERMINATIONS REGARDING THE IMPLEMENTATION OF SERVICES DURING SCHOOL CLOSURES?
Student contends Beverly Hills failed to fully implement Student's services during school closures and failed to hold an IEP team meeting to include Parents in determinations regarding the implementation of servcies during school closures.
When a school district does not perform exactly as called for by the IEP, the district does not violate the IDEA unless it is shown to have materially failed to implement the child's IEP. (Van Duyn v. Baker School Dist. 5J (9th Cir. 2007) 502 F.3d 811, 815 (Van Duyn).) Implementation failures are not procedural errors. (Id., at p. 819.) The Ninth Circuit held that state contract law does not apply to the interpretation of an IEP and that only material failures to implement constitute violations of the IDEA. (Ibid.)
As previously discussed, Student's designated instructional services consisted of specialized academic instruction in math pursuant to the February 27, 2020 IEP which was fully implemented through the end of the 2019-2020 school year. Upon commencement of the 2020-2021 school year, Parent consented to a modification of Student's specialized academic instruction on August 21, 2020, deleting the co-taught math class, due to Student's conflict with the general education teacher. The August 21, 2020 IEP amendment was fully implemented. Student presented no evidence to suggest Beverly Hills failed to implement Student's IEP with fidelity while Student was enrolled in the Beverly Hills Live remote learning program.
After Student' psychiatric hospitalization and partial hospitalization program placement at Visions, Parent elected to remove Student from the Beverly Hills Live program and place her in the Independent Learning Center. The Independent Learning Center provided independent study only. Beverly Hills could not implement Student's specialized academic instruction without her participation in the Beverly Hills Live classes as offered in her IEP. As indicated in Issue 10, Beverly Hills failed to have Parent present for the IEP team meeting and failed provide prior written notice to Parent of why the IEP team denied placement in the Independent Learning Center in the December 15, 2020 IEP. The reasons may have been clear to the IEP team, but not necessary so to Parent.
As a result, and without further discussion, the IEP team made no changes to the IEP. Theoretically, the February 27, 2020 IEP provided Student's placement and services in the in-person classroom at Beverly Vista. The change to remote learning was made pursuant to the emergency provisions of Senate Bill 98. Both Beverly Hills Live and the Independent Learning Center provided remote learning attainable under emergency circumstances. The August 31, 2020, notice to Parent indicated her IEP would be fully implemented. Therefore, without notice to Parent, Beverly Hills simply ceased providing special education services to Student. Student could not access any specialized academic support in the Independent Learning Center program, thusly Beverly Hills materially and completely failed to implement Student's specialized academic instruction.
Beverly Hills does not get a pass for maneuvering Parent into rejecting all special education services pursuant to the January emails. In essence, Beverly Hills terminated Student's IEP without holding an IEP team meeting and providing Parent with prior written notice of their intent to do so. Rogers' email chain failed to provide sufficient information to Parent for an informed decision to terminate services. Beverly Hills denied Student a FAPE by failing to materially implement Student's IEP from December 15, 2020, until the subsequently scheduled February-March 5, 2021 IEP team meeting, thusly denying Student of any benefit from her IEP.
ISSUE 14: DID BEVERLY HILLS DENY STUDENT A FAPE FROM FEBRUARY 2020 THROUGH THE END OF THE 2020-2021 REGULAR AND EXTENDED SCHOOL YEARS BY FAILING TO INCLUDE ALL REQUIRED CONTENT AND SUFFICIENT DETAIL TO PROVIDE PARENTS WITH SUFFICIENT INFORMATION, FAILING TO INCLUDE PARENTS AS MEANINGFUL PARTICIPANTS IN THE DECISION-MAKING PROCESS AND REFRAINING FROM PREDETERMINING ITS OFFER OF PLACEMENT AND SERVICES, FAILING TO CONSIDER DR. MORRISONS ASSESSMENT PROVIDED BY PARENTS, AND FAILING TO OFFER AND PROVIDE A SUBSTANTIVELY APPROPRIATE IEP WHICH PROVIDED STUDENT APPROPRIATE PLACEMENT IN A RESIDENTIAL TREATMENT CENTER SETTING TO MEET HER NEEDS AND PROVIDE HER WITH MEANINGFUL EDUCATIONAL BENEFIT IN THE APRIL 29, 2021 IEP?
Student contends Beverly Hills failed to include all required content and sufficient detail to provide Parents with sufficient information, failed to include Parents as meaningful participants in the decision-making process and refrain from predetermining its offer of placement and services, failed to consider Dr. Morrison's assessment provided by Parents, and failed to offer and provide a substantively appropriate IEP with placement in a residential treatment setting to meet her needs and provide her with meaningful educational benefit in the April 29, 2021 IEP.
Beverly Hills contends each of Student's IEPs provided Student a FAPE. Residential placement failed to qualify as the least restrictive environment and was neither required nor appropriate for Student.
Based upon a psychological assessment conducted by Dr. David Morrison, prepared for Visions, Parent notified Beverly Hills that as of March 23, 2021, Student required long-term residential treatment and requested an IEP team meeting to discuss changes in Student' placement.
DR. MORRISON REPORT
Dr. Morrison conducted a psychological evaluation of Student. His report, dated March 19, 2021, was prepared prior to Student's release from the Visions residential treatment program, but was not provided to Beverly Hills at that time. Dr. Morrison, a licensed psychologist, held a doctorate degree in psychology, and had been in private practice since 2009. Although Dr. Morrison conducted a thorough psychological evaluation, it was not intended as an educational evaluation of Student. No information was obtained regarding Student's educational history, other than that provided by Parents or contained in the JNK assessment report.
Based upon his assessments, Dr. Morrison determined Student presented with a complex profile that was not easily treated. Her attention deficit hyperactivity disorder, severe anxiety, low self-esteem, and depressed mood were evident; her emotional and behavioral dysregulation have been pronounced for many months. Student's academic and socialization difficulties were long standing. Student's pervasive feelings of inadequacy, worthlessness, and guilt transitioned into suicidal ideation and non-suicidal self-harm, such as cutting. Given this history, Student's unilateral inpatient treatment at Visions was warranted.
Dr. Morrison disagreed with the JKN assessment finding of autism spectrum disorder. Instead, Dr. Morrison agreed that Student demonstrated social-emotional immaturity and difficulties, but her interpersonal and emotional issues were associated with non-autism-related conditions, such as attention deficit hyperactivity disorder, learning challenges, and excessive anxiety.
While Dr. Morrison conducted no educationally specific assessments, his diagnosis of attention deficit hyperactivity disorder identified Student's problems with attention, impulsivity, restlessness, executive functions, and academic functioning which were notable and predated the COVID-19 quarantine. Specifically, the persistent pattern of inattention and/or hyperactivity-impulsivity interfered with Student's functioning and development, and those symptoms were apparent across settings. Signs of Student's attention deficit hyperactivity disorder might be minimal when Student received frequent rewards for appropriate behavior, was under close supervision, engaged in interesting activities, had consistent external stimulation, or was interacting in one-to-one situations. Correspondingly, inadequate, or variable self-application to tasks that required sustained effort could be misinterpreted as laziness, irresponsibility, or failure to cooperate. Dr. Morrison opined that oppositional features and social-emotional immaturity were common features of attention deficit hyperactivity disorders. Learning disorders, anxiety, and depression were commonly comorbid disorders with attention deficit hyperactivity disorder.
Dr. Morrison concurred that Student had a long-standing history of problematic anxiety. Student presented with severe anxiety, which coupled with difficulty controlling her worries and fears, impacted her functioning across environments.
Dr. Morrison expressed significant concern over Student's demonstrated self-harm and suicidal ideation which continued beyond Student's initial psychiatric hold in November 2020. He considered it a serious and ongoing safety risk for Student which required long-term residential care. Dr. Morrison, along with the Visions staff, recommended continued residential placement. In their opinions, Student did not respond to her psychiatric hospitalization, intensive out-patient treatment, or short-term residential treatment experiences. Student remained a safety risk and she remained at risk for worsening mental health and behavioral problems.
Dr. Morrison recommended residential treatment included a relational program with interventions and services in place to address her educational social-emotional needs as well. He recommended a series of “tips” which were similar if not the same as the accommodations provided as Student's IEP. Once Student became more stable with improved mood and anxiety-stress regulation, he suggested an updated educational assessment later in 2021.
Dr. Morrison determined Student's individual counseling was important, and the treating clinician needed to account for Student's attention, information processing and learning challenges. Identified areas for treatment included effective communication, general anxiety, and stress management, understanding of emotions, frustration tolerance, problem solving skills, self-esteem, coping with peer pressure, rejection and social drama, and unresolved feelings surrounding her learning disabilities. Continued family therapy and psychiatric care was also recommended.
At hearing, Dr. Morrison provided additional information regarding his findings and opinions. He opined that Student's difficulties were not due to the “COVID Bump.” Distance learning may have exacerbated Student's anxiety, but she experienced increasing difficulties before the COVID-19 pandemic, such as self-harm. Student was very afraid of attending high school. Dr. Morrison stressed that in March 2021, Student exhibited a high level of mental health distress. He was very concerned about Student's safety and suicidal ideations. He opined that as of March 2021 Student could not handle a comprehensive general education campus. Although he was uninformed about available district placements and services, he nevertheless indicated Student required a more therapeutic and structured program than was available outside of residential treatment. In summary, Student could not access her education until she stabilized her anxiety and mental health issues.
In response to Dr. Morrison's recommendation for long-term residential treatment center placement, Parent, through Student's advocate, requested that Beverly Hills call an emergency IEP to provide Student immediate placement in a residential treatment center, as Student's short-term residential placement at Visions, ending on March 23, 2021. Beverly Hills documents identify Ms. Watts as Student's attorney. Watts has constantly identified herself as Student's advocate rather than attorney. After a series of increasingly hostile email chains between the parties, Beverly Hill finally convened an IEP team meeting on April 29, 2021, at the far end of the 30-day statutory time frame for holding an IEP team meeting at parental request pursuant to Education Code, Section 560431.
Watts attended the IEP team meeting with Parent. Beverly Hills had its attorney present as well. In addition, Robles and Scharf from Visions, McMillon, the ERICS assessor, and Joshua Reitzenstein, the special education teacher in the counseling enriched classroom, attended the IEP team meeting. Several witnesses described the IEP team meeting as difficult and tense.
Parent contributions to the IEP team meeting were made through their advocate. Student currently attended New Leaf. Parents reported that even with all the supports that Visions provided, Student was not stable enough to return home, and it was recommended by both Visions and Dr. Morrison that Student remain in a long-term residential facility.
Scharf attended the April 29, 2021 IEP team meeting to provide her observations and recommendations for Student's long-term residential placement. She believed her input represented a big part of the IEP team meeting and answered lots of questions. Scharf informed the IEP team she still maintained safety concerns regarding self-harm and Student's relationship with Parents. Student verbalized she would not feel safe if returned home. Student needed long-term residential placement to slowly transition back home. The outside counseling offered for the family was insufficient. Student still experience significant dysregulation, which often cycled. When Student was unable to communicate effectively, her emotions heightened, which led to a meltdown, and then the threat of self-injury.
Rubin added that Scharf described Student's social-emotional status for anxiety as she looked like she was crawling out of her skin, fidgeting, but Student had not expressed suicidal ideations or self-harm at Visions. Student would seek out help from staff or take breaks to reregulate. Therefore, Rubin did not believe Student presented with safety issues.
Rubin discounted Dr. Morrison's report for several reasons. She felt a great deal of Dr. Morrison's report relied on Student's self-reporting, and as previously noted by prior assessors, Student exaggerated negative responses. As example, Student self-reported her terror at school shootings. Dr. Morrison relied on general impressions rather than on hard data. This explained the drastic difference between her conclusions and Dr. Morrisons opinions. Rubin supported placement in the counseling enriched classroom, which she believed could meet Student's needs within the public-school setting.
In addition to the three existing goals created in the February-March 5, 2021 IEP, the IEP team crafted a fourth goal for social skills. The goal's baseline acknowledged Student's socialization difficulties and lack of self-confidence. Student often became dysregulated and engaged in behaviors disruptive to others, or viewed as inappropriate for the situation, which led to social conflicts, increasing her feelings of rejection. Using the concepts of “expected” or “unexpected” the goal sought to have Student identify what others might think of her behaviors, how it might make them feel, and in turn, treat and make Student feel. The goal, implemented during counseling sessions, would seek 80 percent accuracy, in four-out-of-five trials measured by the school psychologist. The goal was clear and measurable.
Attempting to collaborate, the IEP team discussed the proposed counseling goal with Scharf. Scharf believed it a good goal. Taken in context however, agreement to goal was not an acquiescence to accepting the counseling enriched classroom placement.
Scharf expressed her belief that the Counseling Enriched Center would not be appropriate for Student. Student struggled in her relationship with peers, often modeling the behaviors of those around her. Scharf opined Student's copy-cat behaviors represented Student's immature attempts to connect with her peers. As example, Student also used these behaviors to keep her within the attention of the therapy team, because she did not have adequate self-advocacy skills, to appropriately seek help. During the hearing, Beverly Hills pointed out a troubling communication written by Student. The writing suggests Student was manipulating the program and emphasized how much she was enjoying her privileges and time away from home. The content of the writing demonstrated teenage puffery expressed in immature language intended to impress Student's peers. This was an excellent example of Student's inability to communicate and inappropriate means to seek attention from peers.
The IEP team including Marlow, the special education program specialist, reviewed Student's academic information. Kertesz reported Student accessed her education and had done well in the Independent Learning Center while at Visions. Student really made improvement in her work habits at Visions. Robles reported only one incident of distress, which after talking it out, Student calmed down and returned to her lesson. Based upon the descriptions of Student in the educational setting, Marlow felt Student could handle placement in the counseling enriched classroom which returned to in-person classes in April 2021. Dr. Morrison's assessment contained no educational information. Marlow still wanted the ERICS assessment to determine if Student could be appropriately supported in a lesser restrictive environment.
Reitzenstein, described the counseling enriched classroom to the IEP team. At hearing, Stephanie Diebel, a current teacher in the counseling enriched classroom, testified in lieu of Reitzenstein regarding the district program. Diebel held bachelor's degree in special education and an emergency teaching credential for special education. Diebel had previous experience as a special day class math teacher.
The counseling enriched classroom was designed to respond to a variety of emotional behaviors, including suicidal ideations, class aversion, and anxiety. Students in the program academically functioned within grade level, but the program provided a safety zone for the students not found on the general education campus. All students had access to mental health counseling, parent counseling and behavior supports. A form of group therapy which focused on anxiety and regulation strategies was provided as an elective. A mental health clinician was in the classroom daily to address any needs a student had which needed to be addressed outside of their individual counseling sessions. The program provided small classrooms with a registered behavior technician, classroom instructional assistants, special education teacher, and mental health clinician. A board-certified behavior analyst came to the classroom to provide services to students and staff.
The counseling enriched classroom campus was located across the street from the comprehensive high school campus. At the time of hearing, the counseling enriched classroom had 19 students in the program, however no more than ten students were present at a time, due to differing schedules. Most of the students attended at least some of their classes at the high school. The campus consisted of a large classroom and two smaller rooms. One room acted as a breakout room for co-teaching via Zoom, art programs, and as a break area for sensory support. The other room was utilized for small group learning and group counseling sessions.
Diebel described the current demographics of the counseling enriched classroom. The students were internalizers, who tried to hide their problems and blend into the scenery. Diebel did not utilize a tier or level system for behavior. As internalizers, the students do not act out so there was no need for behavior plans. Positive reinforcement was utilized in the form of praise and prizes. Individual strategies were created for those students who required adult assistance for deregulation. Many students had attention deficit hyperactivity disorders and were allowed to go for walks and use the trampoline or fidgets. Some students received school-based counseling, others outside ERICS counseling.
The counseling enriched classroom was a half-day program based upon the student's needs. Extended school year was available.
Each of the instructional assistants received training from Beverly Hills trainings and the classroom teacher. Teacher supervision of the assistants was important, and detailed information maintained on each student. The assistants received additional training for crisis intervention and de-escalation of students.
The counseling enriched classroom program had a behavior intervention component which tracked behaviors and collected data on the students who took classes at the high school. A staff member stayed in the back of the classroom to monitor and observe the student, working towards phasing out the need for the behaviorist in the general education setting.
Diebel offered to virtually meet with Student prior to attending the counseling enriched classroom. She could receive ISS, and communication could be coordinated between the counseling enriched classroom, ISS, and parent. The program staff could collaborate with therapists with authorization from parents.
Parents attorney indicated the counseling enriched program might have been a good program for Student prior to November 2020, but Student was not presently safe going home to access her education.
The IEP team offered Student placement in the counseling enriched classroom. This was phrased as specialized academic instruction for five period per day in the counseling enriched classroom effective April 29, 2021.
In addition to the therapeutic supports built into the counseling enriched classroom, the IEP offered Student 60 minutes per week of individual counseling from a mental health clinician provided by a non-public agency. Additionally, the IEP offered 30 minutes per month of parent counseling consultation, from a mental health provided by a non-public agency.
The IEP offered extended school year services for the period of June 11, 2021 through July 7, 2021, consisting of 240 minutes per day of specialized academic instruction in the counseling enriched classroom, 60 minutes per week of individual counseling, and 30 minutes per month of parent counseling.
In her testimony, Scharf opined that by the end of the IEP team meeting she felt the district members of the IEP team already had a plan to return Student to the Counseling Enriched Center. She did not feel the IEP team sincerely considered her concerns, and she concluded the team members did not understand Student's unique needs. The IEP team did not consider alternate placements for Student. Parents immediately rejected the offer.
McMillon attended this IEP team meeting to report she had not completed the ERICS assessment. This raised an element of concern regarding the appropriateness of her presence at an IEP team meeting where placement was aggressively disputed prior completing her assessment. Student subsequently contended the ERICS assessment was biased in favor of Beverly Hills.
Procedurally, Beverly Hills did not deny Student a FAPE. The IEP contained required content and was sufficiently detailed. The goals were appropriate and sufficiently clear for Parent's understanding. Parent attended the IEP team meeting with her advocate, and meaningfully participated throughout the IEP team meeting. Relevant information and recommendations were presented by Student's outside providers at Visions and Dr. Morrison. As with the PNK assessment previously discussed, the IEP is merely required to consider the outside assessment. To comply with procedurally providing meaningful parental participation, Beverly Hills was not required to provide placement in Parent's preferred program, nor is it required to adopt all outside recommendations supported by Parents.
The school district is ultimately responsible for ensuring that a student if offered an appropriate program. If the IEP team cannot reach consensus, the school district must determine services and provide parent with prior written notice. (Letter to Richards (OSEP 2010).
The evidence indicated that the IEP team considered the recommendations of Dr. Morrison, Schraf, and Robles and held a healthy discussion comparing the proposed placements with the information provided by all sources. As with the PNK assessment, disagreement with recommendations does not equate to a lack of parental participation or predetermination of outcome. As it applied to the April 29, 2021 IEP, the parties' disagreement constituted nothing more than a serious disagreement regarding placement.
It is unnecessary to debate the appropriateness of residential placement in analyzing whether the April 29, 2021 IEP provided Student a FAPE. Assuming placement in the counseling enriched classroom as offered by Beverly Hills was an appropriate educational setting, the IEP failed on another level by failing to propose a sufficient transition plan to return Student home and re-enter the public-school setting. The IEP team offered immediate placement as of April 29, 2021, in the counseling enriched classroom. The IEP offered Student one hour per week of individual counseling and 30 minutes per month of Parent counseling, however the counseling did not commence until Student returned to school. The only transition service offered was to allow Student to visit the counseling enriched classroom, teacher, and staff prior to returning to school.
Eileen O'Connor, the mental health case manager for the Tri-Cities special education local plan area provided sound testimony at hearing. O‘Connor held a bachelor's degree in psychology, master's degree in education with a multiple subject credential, a special education specialist credential, and a pupil personnel services credential. O'Connor had 15 years of experience as a special education teacher and 15 years of experience as a school psychologist. Usually, O'Connor did not come into a case until a school district placed a student in a residential treatment center. Once placed, O'Connor remained with the case until the student left residential placement. O'Connor acknowledged Beverly Hills initially brought her into this matter for hearing preparation. Nevertheless, O'Connor's testimony remained unbiased and presented professional opinions which qualified as expert testimony regarding residential placement.
O'Connor testified about transitions home from residential treatment. Generally, a family plan was developed and implementation commenced at least three months prior to transitioning home. This plan transition generally included a plan for continuing therapy program, a plan for school counseling, intensive support services if appropriate, and accommodations and supports necessary upon return home and to the school setting. O'Connor acknowledged a three-month leeway on transition was not necessary where residential placement had only been for a short period of time. The intent of the planning was to facilitate a soft handover from the residential placement to the home or school; to have everything in order before the transition. O'Connor acknowledged a three-month leeway on transition varied case-to-case and was probably not necessary where residential placement had only been for a short period of time. McMillion and other IEP team members contended Student had only been in residential placement for a few weeks. This was incorrect as Student transferred to the Visions residential program in January 2021 making it over a three-month stay. Further, Student had been out of the classroom since March 23, 2020, making her time away from in-person teaching a period of over one year. While the IEP team focused their arguments on Student's safety issues, and focused on discounting Dr. Morrison's findings, they undervalued the academic impact on a quick return to school without a safety net. Schraf, Student's counselor at New Leaf told the IEP team Student needed long-term residential placement to slowly transition back home, and the outside counseling offered the family was insufficient. Student may have appropriately progressed on her academic issues, but she had not developed as well with the family dynamics. Deke, Student's teacher, reported Student was not ready to mainstream back to a comprehensive school campus. Student still experience significant dysregulation. The IEP had no plan in play to immediately support Student in avoiding or facing her triggers to dysregulation. Student required more than a meet-and-greet for a successful transition back to school.
While at Visions, Student received four hours per week of individual counseling, one hour per week of family counseling and group counseling in the residence. Hypothetically, if Student was transferring from another school district with an IEP, Beverly Hills was required to initially offer the same amount of counseling pending a 30-day review or reassessment. In a similar manner, Student should have been offered a more robust counseling program until she acclimated into the counseling enriched classroom.
The IEP team's failure to provide an adequate transition plan, and failure to offer sufficient counseling services to support Student on her transition home and back to school, constituted a denial of FAPE.
NEW LEAF ACADEMY
Parents rejected the April 29, 2021 IEP offer of FAPE, and unilaterally placed Student at New Leaf Academy in Bend Oregon. New Leaf self-described as a boarding school for girls aged 10-to-15, who exhibit social-emotional disabilities that require residential treatment. New Leaf was a California Department of Education approved non-public school and residential treatment center which allowed placement for students in California public school districts. New Leaf provided a full range of therapeutic services and provided 24-hour supervision of students. It was described as both therapeutic and family friendly. As of the hearing date, there were 23 students in residence.
Joshua Goldstein, Academic Director at New Leaf, described the protocols at New Leaf. In general, once a student was enrolled at New Leaf, a therapeutic treatment plan was developed. The academic side of New Leaf was not involved in development of the treatment plan. The therapists provided a summary of relevant information to the teachers. The special education teacher prepared a separate academic plan, similar to an IEP, which identified needs, and created goals and accommodations. The teachers independently prepared student grades and progress reports. All students were allowed to take breaks or miss class-time. Teachers provided academic support if a student earned below a C or if their performance dropped. It was typical of students to hate school, and math was commonly a struggle for each student.
Initially, on March 23, 2012, Maddison Montana, New Leaf therapist, conducted an inhouse safety interview and suicide screening of Student. Neither Montana nor Student testified at hearing. Student acknowledged a history of active suicidal ideation for a period of over two years, having a plan, and being hospitalized for active suicide ideation. Student denied having attempted suicide, and further denied the presence of suicidal ideation at the present time.
Student acknowledged a history of repeatedly engaging in self-harm with a pen and razor blades primarily on her arms. Student acknowledged she self-harmed once at Visions, used her fingernails to superficially cut through her skin. Student reported she felt safe at the time and was not having any thoughts or urges to engage in self-harming behaviors.
Student denied having a history of aggressive thoughts or actions. She stated she did not want to be at New Leaf but understood why she was there. She wanted to remain at New Leaf rather than return home at that time and had no thoughts of running away.
The therapist concluded, Student was at minimal-to-no-risk of harming herself or others. She was able to report she felt safe. Overall, Student presented as slightly anxious, engaged, and willingly communicative. The therapist determined Student did not require additional supports beyond those normally provided to incoming Students at New Leaf.
Maryann Deke, the special education teacher at New Leaf, created Student's academic plan. Deke held a master's degree in teaching, an Oregon standard teaching license for kindergarten through eighth grade, and special education endorsement for pre-k through 12th grade. Deke presented as a thoughtful and credible witness who currently knew Student best. In addition to special education, Deke taught seventh and eighth grade math. She continued to teach in person throughout the COVID-19 pandemic. Deke reported teachers conferred daily about each student. Last year Deke had four students.
Deke described Student upon her arrival at New Leaf as highly anxious based upon her obvious body language; a deer in the headlights.” Academically, Student was not at an eighth-grade level in math, which was typical of others in her class. Deke initially taught Student pre-algebra. She was successful and was now learning algebra. Deke noted Student required immediate feedback, and often went off-track if other ideas in her head came forward.
Deke reviewed the math goal in Student's IEP. She reported Student was making progress in that area and would meet the goal. She opined however, that the goal was overly generalized, and addressed only part of Student's difficulties with math. Although Student was earning an A in math, she was doing so with an incredible number of accommodations. Attentiveness remained a major issue. Inattentiveness caused Student to miss almost of each class each day.
The regular 2020-2021 school at New Leaf ended June 28, 2021, and resumed on August 16, 2021 for the 2021-2022 school year. During Summer 2021, New Leaf provided a summer program, in which Student took an online math program. Student did well but became frustrated until she got positive reinforcement and feedback.
At hearing Deke acknowledged she was not involved with the residential therapy portion of New Leaf. Her understanding of Student's therapeutic needs was based upon her experience in the classroom. When students were ready to mainstream back into a lesser restricted school setting, New Leaf sent them home, but they sent them home with significant support in transition back home. Deke strongly believed Student was not able to mainstream in a comprehensive high school campus. Even the smaller school environment still challenged Student.
Amber Simmons was Student's case manager in the residential program. Simmons was currently working on a master's degree in counseling in child and adolescent disorders. As the house manager for Student's residence in Tumbleweed Home, Simmons provided in-the-moment-support in the residence. As Simmons is not yet licensed, she works under the supervision of the program director. She did not provide therapy sessions per se but collaborated with the therapists and clinical director. She also collaborated with teachers for academic supports.
Tumbleweed Home housed twelve students, with six full-time staff members. There were always usually two-to-three staff members in the home, utilizing three shifts. Each of the residential program struggled with relationships, boundaries, emotional dysregulation, and self-identity. There was a computer in the dining hall for therapy sessions and work, but residents were not allowed unregulated internet access or cell phones. Access to other electronics was limited. Residents were allowed television on Friday, a movie on Saturday and online shopping on Sunday.
When Student arrived at New Leaf, she was very anxious and scared. She was overwhelmed by the new environment. Now that she settled-in, Student developed new skills and was more able to communicate. She opined that New Leaf proved to be a positive environment for Student. She fit in with the other residents. Student responded well to the point system and token economy utilized in Tumbleweed Home. Student did not exhibit anxiety over chore points, for things like kitchen duty. Student's anxiety about school decreased, and she was more open, but other issues remained consistent. Simmons did not observe any self-harm or suicidal ideations.
Breana Stanford, Student's therapist, began working with Student in June 2021, when Student's previous therapist left New Leaf. She also updated Student's master treatment plan in July 2021. Stanford held a master's degree in social work with a concentration in mental health and addictions. She was a licensed clinical social worker in Indiana but was currently awaiting approval of her license application in Oregon. Stanford had previous experience as a school-based therapist in Indiana.
Stanford had a case load of six students at New Leaf. She provided individual and group therapy, and family therapy. She also collaborated with the house managers, teachers, and psychiatrists of each student.
Stanford reviewed Student's initial master treatment plan and reported that Student remained inattentive and distracted. She had difficulty regulating her emotions and cried often. Student still exhibited low self-esteem but responded well to the point system token economy utilized in Tumbleweed Home.
Student maintained a negative mind-set. She did not do well with transition. When faced with change, Student went into panic mode immediately, and thought about the worst possible outcome. To her knowledge, Student had not expressed any suicidal ideations at New Leaf, and her last incident of self-harm occurred at Visions. Student had not expressed thoughts of harm if returned home or returned to a public school. Nevertheless, Stanford opined Student was not ready to transition home. Student benefited from New Leaf. Stanford reported an overwhelming change in Student's catastrophic thinking and anxiety. New Leaf provided her a safe place to open up and work through problems. Admittedly, reactive family dynamics continued to represent a major issue for Student, but she was working very hard on issues with her family. At New Leaf, Student could work through difficulties with family dynamics without being in the center of them at home.
While at New Leaf, Student received 60 minutes of individual therapy once a week, and 60 minutes of group therapy twice a week. The group therapy sessions addressed coping skills and processing and relationships. Student also participated in group sessions in the residence.
ISSUE 15: DID BEVERLY HILLS DENY STUDENT A FAPE FROM FEBRUARY 2020 THROUGH THE END OF THE 2020-2021 REGULAR AND EXTENDED SCHOOL YEARS BY FAILING TO INCLUDE ALL REQUIRED CONTENT AND SUFFICIENT DETAIL TO PROVIDE PARENTS WITH SUFFICIENT INFORMATION, AND FAILING TO INCLUDE PARENTS AS MEANINGFUL PARTICIPANTS IN THE DECISION-MAKING PROCESS AND REFRAINING FROM PREDETERMINING ITS OFFER OF PLACEMENT AND SERVICES AND FAILING TO OFFER AND PROVIDE A SUBSTANTIVELY APPROPRIATE IEP WHICH PROVIDED STUDENT APPROPRIATE PLACEMENT IN A RESIDENTIAL TREATMENT CENTER SETTING, TO MEET HER NEEDS AND PROVIDE HER WITH MEANINGFUL EDUCATIONAL BENEFIT IN THE MAY 27, 2021 IEP?
Parent contends Beverly Hills failed to include all required content and sufficient detail to provide Parents with sufficient information, failed to include Parents as meaningful participants in the decision-making process and refrain from predetermining its offer of placement and services and failing to offer and provide a substantively appropriate IEP with placement in a residential treatment setting to meet her needs and provide her with meaningful educational benefit in the May 27, 2021 IEP.
Beverly Hills contends each of Student's IEPs provided Student a FAPE. Residential placement failed to qualify as the least restrictive environment and was neither required nor appropriate for Student.
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.) A school district is not required to place a student in a program preferred by a parent, even if that program will result in greater educational benefit to the student. (Ibid.) For a school district's offer of special education services to constitute a FAPE under the IDEA, the 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 some educational benefit in the least restrictive environment. (Ibid.) 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, supra at p. 1149, citing Fuhrman v. East Hanover Bd. of Education (3rd Cir. 1993) 993 F.2d 1031, 1041.)
Beverly Hills convened an IEP team meeting on May 27, 2021, to review the ERICS assessment and reconsider Students' goals, services, and placement. Watts attended the IEP team meeting as Student's advocate. Counsel attended on behalf of Beverly Hills.
McMillon presented a summary of the ERICS assessment report to the IEP team. In the assessment Parents reported suicidal ideations and self-harm at home when emotionally dysregulated. Student reported anxiety associated with school related stressors, however there was no records or reports which indicated safety risks in the school setting. The assessment found limited impact on Student's functioning in the school setting based upon educational records. Student exhibited some challenges accessing distance learning, utilizing unrelated websites in class, but she completed assignments and made progress during her enrollment in the Independent Learning Center program. Educational records did not find Student demonstrating ongoing difficulties with her education performance because of her social-emotional issues. Accommodations were effective in the school setting.
Student's advocate attacked the ERICS assessment as presenting false information indicating Parents believed Student dysregulated daily at Visions related to suicidal ideations. The evidence did not support that contention. Visions reported Student's dysregulation looked like she was coming out of her skin, fidgeting. Student shared suicidal ideations in therapy discussions, but there were no safety concerns reported in the classroom.
The IEP team reviewed a proposed goal for coping skills for social-emotional functioning. The goal baseline reported Student displayed avoidant behaviors and had difficulty expressing and controlling her impulses when presented with boundaries, delayed gratification and/or non-preferred activities daily. The goal sought for Student to identify and use a variety of adaptive coping strategies 80 percent of observed opportunities across five consecutive counseling sessions as measured by the clinician. The goal was appropriate, clear, and measurable.
District members of the IEP team discussed Student's academic status and determined Student did not present with social-emotional behavior which significantly impacted her ability to access her education or required residential placement based on educational need.
Although Parent disagreed, Beverly Hills determined the counseling enriched classroom with supports from mental health therapy and intensive support service could provide Student with meaningful educational benefit in the least restrictive environment, the IEP met all procedurally requirements and provided meaningful parental participation. Student failed to establish by a preponderance of the evidence that the May 27, 2021 IEP procedurally denied Student a FAPE.
Beverly Hills' offer of FAPE consisted of 1150 minutes per week of specialized academic instruction constituting five class periods per day in the counseling enriched classroom; 60 minutes per week of individual counseling provided by an ERICS mental health counselor; 30 minutes per week or 120 minutes per month of Parent counseling provided by an ERICS mental health counselor; 60 minutes per week of Parent counseling provided by the Intensive Support Services; 180 minutes per week of behavior intervention services provided by the Intensive Support Services; and 120 minutes per week of counseling and guidance for Intensive Support Services consultation and data collection.
The May 27, 2021 IEP contained a marked increase in counseling and therapeutic support with the addition of the Intensive Support Services which provided behavior and mental health supports in the home which was intended to assist Student and Parents in the transition back to the family home. Consultation and data collection was added to allow consultation and collaboration between the New Leaf staff, Beverly Hills staff and special education teacher, the ERICS counselors, and the Intensive Support Services staff regarding Student's current needs and strategies to support her upon transition. The IEP offered the implementation of the Intensive Support Services immediately upon Student's return to the home, and the offer of the classroom visit with the special education teacher without other students remained. A large change in the transition plan provided Student the ability to attend the counseling enriched classroom virtually, which was designed to alleviate unnecessary stress and anxiety and avoid Student' bouts of dysregulation.
O'Connor opined that the May 27, 2021 IEP provided comported with her expectations of a transition plan to return home. To conduct what was referred to as a soft hand off to the school district, the IEP should include a visit to the school site before commencing attendance in the program. This would assist in expected anxiety control and allow the student to become familiar with the classroom setting.
O'Connor visited New Leaf and observed that the program offered by Beverly Hills paralleled Student's program at New Leaf in many ways. The demographics of the students were similar. She described the residents at New Leaf as softer kids who were younger and socially immature with no hard-core behaviors. Most of the residents were internalizers and did not require tiered behavior programs. She best described New Leaf as “residential treatment center lite.” The residents were not at high risk for self-harm; hands on restraints were not needed. The counseling enriched classroom served students who were internalizers, who tried to hide their problems and blend into the scenery. The counseling enriched classroom did not utilize a tier system for the same reason; internalizers, do not act out; there was no need for behavior plans.
The program provided small classrooms with a registered behavior technician, classroom instructional assistants, special education teacher, and mental health clinician. A board-certified behavior analyst came to the classroom to provide services to students and staff.
O'Connor noted the small classroom at New Leaf provided routine and structure. Classroom accommodations were similar to those offered by Beverly Hills and did not require a therapeutic setting for implementation. O'Connor found the classroom staffing appropriate. The classroom was calm, and students were interacting. Student's had access to self-coping materials such as fidgets.
O'Connor concluded there was nothing particularly special about New Leaf, and there were no significant differences between Student's educational supports at New Leaf and those offered in the counseling enriched classroom. The counseling enriched classroom also provided small classrooms with a registered behavior technician, classroom instructional assistants, special education teacher, and mental health clinician. A board-certified behavior analyst came to the classroom to provide services to students and staff. Beverly Hills provided more therapeutic classroom support than New Leaf.
Student received one hour per week of individual counseling and two hours per week of group counseling as well as additional group sessions in the residence. The May 27, 2021 IEP offered two hours per week of individual counseling as well group sessions embedded in the counseling enriched classroom. Each program offered Parent counseling.
Students request for residential treatment center placement is legitimately motivated by their concerns for Student's safety. The preponderance of the evidence gleaned from the assessments, including both Dr. Morrison and the ERICS, along with the intake information and treatment documents obtained from Visions and New Leaf substantiate a finding that Student exhibits serious bouts of anxiety and dysregulation which are primarily triggered in the home setting. Parents emphatically maintains Student is not safe at home but has steadfastly sidestepped discussing how their family dynamics relate to Student's safety and anxiety. Student's psychiatric hospitalization for suicidal ideations and self-harm remains concerning, but all reliable sources, including Student herself, indicate those urges are dormant and being successfully addressed in counseling. The evidence supports the finding that Student demonstrated mental health issues continued to exist at a lesser rate of anxiety, which no longer presented acute safety issues or dysregulation which were unmanageable with therapy. Further, Student failed to establish by a preponderance of the evidence, that individual and family counseling offered through a non-public agency, along with the Intensive Support Services offered in the home setting, was insufficient to appropriately support Student's safety and educational needs. A residential treatment center may provide a better therapeutic program and more emotional security for Parents, but Student has not established by a preponderance of the evidence that residential placement was necessary for Student to access her education and receive meaningful educational benefit.
LEAST RESTRICTIVE ENVIORNMENT
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) (2006); Ed. Code, § 56031.)
To determine whether a special education student could be satisfactorily educated in a regular education environment, the Ninth Circuit has balanced four factors. The first factor is whether the educational benefits of placement full-time in a regular class are outweighed by placement of a child in a more restrictive placement. The second factor is whether the nonacademic benefits are outweighed by a more restrictive placement. The third factor is what effect the student will have on the teacher and other children in a general education class. The fourth factor is the costs of mainstreaming the student. (Sacramento City Unified School Dist. v. Rachel H. (9th Cir. 1994) 14 F.3d 1398, 1404 (Rachel H.).)
Application of the Rachel H. factors are unnecessary in this matter. Student has not demonstrated that she cannot be educated in the lesser restrictive placement of the counseling enriched classroom in the public school setting as offered by Beverly Hills or that a residential treatment center is required for Student to obtain meaningful benefit from her education. Once determined that Student can be educated in the lesser restrictive environment, the discussion ends, as placement in the least restrictive environment is a mandate under federal and state law.
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.)
The evidence supports a finding that the May 27 2021 IEP was designed to meet the student's unique needs and was reasonably calculated to provide the student with meaningful educational benefit in the least restrictive environment. Beverly Hills' offer of special education and related services as contained in the May 27, 2021 IEP constitutes a FAPE.
ISSUE 16: SINCE MARCH 2020 DID BEVERLY HILLS DENY STUDENT A FAPE BY FAILING TO MAKE AN INDIVIDUAL DETERMINATION OF APPROPRIATE GOALS, ACCOMMODATIONS, SPECIALIZED INSTRUCTION, AND RELATED SERVICES NECESSARY TO MEET STUDENT'S NEEDS AND PROVIDE HER WITH MEANINGFUL BENEFIT DURING DISTANCE LEARNING?
Student contends that since March 2020 Beverly Hills failed to make an individualized determination of appropriate goals, accommodations, specialized instruction, and related services necessary to meet Student's needs and provide meaningful benefit during distance learning.
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. (Endrew F., supra at p. 1000.)
As indicated in Issue 8, the February-March 5, 2021 IEP provided Student a FAPE by offering Student placement in the general education classroom, with specialized academic support appropriate goals, accommodations, and services to be implemented in a co-taught math class and general education math support class. This IEP was implemented by in-person delivery until March 23, 2020, at which time Beverly Hills converted to distance learning via its Beverly Hills Live remote program. The Beverly Hills Live program provided daily classroom lessons and participation through remote access. Beverly Hills provided Student's IEP services, including specialized academic instruction through the Beverly Hills Life platform. The February-March 5, 2021 IEP was appropriately amended on August 27, 2020 and November 12, 2020. Neither IEP made changes to Student's placement or services which could not be implemented in the Beverly Hills Live remote program. Student continued to receive appropriate services during mandated distance learning. Although Student experience some difficulties resulting from the change to remote learning, she maintained an active presence online and ended the 2019-2020 school year with improved grades. Student did not sustain her burden of proof to establish Beverly Hills failed to provide Student meaningful in her education during distance learning prior to November 30, 2020.
On November 30, 2020, Student changed remote learning programs. Student replaced Beverly Hills Live, with the district's Independent Learning Center program. The Independent Learning Center provided primarily asynchronistic learning, with general education teacher contact for only one hour per week. Beverly Hills could not implement Student's specialized academic instruction through independent study. Beverly Hills informed Parent that Student's services could not be implemented in the Independent Learning Center, however at the December 15, 2020 IEP team meeting, Beverly Hills made no attempt to discuss possible alternatives to the specialized academic instruction which could be accessed remotely. Instead, Beverly Hills sought Parent's approval to simply decline provision of IEP services altogether. By failing to convene an IEP team meeting to discuss alterative services to meet Student's needs during remote learning, Beverly Hills effectively left Student without any special education program, except for accommodations which could be implemented in the Independent Learning Center program. This resulted in a failure to provide Student a FAPE as of December 15, 2020, which was not effectively remediated until the May 27, 2021 IEP team meeting in which Beverly Hills finally provided Student with an appropriate offer of FAPE.
As analyzed in Issue 15, the May 27, 2021 IEP provided Student access to specialized instruction and related services which was designed to provide academic goals, accommodations and therapy services through an IEP reasonably calculated to enable Student to make progress appropriate in light of her circumstances.
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.
1. Beverly Hills denied Student a FAPE by failing to meet its child find obligations to locate, evaluate, identify, and serve Student, failing to provide prior written notice of the refusal to initiate assessments, eligibility and the provision of special education and related services, and failing to provide Procedural Safeguards to Parents when it refused to initiate the process to identify Student for special education On October 2, 2019. Student prevailed on Issue 1.
2. Beverly Hills denied Student a FAPE by failing to assess Student in all areas of suspected disability prior to December 15, 2019. Beverly Hills did not deny Student a FAPE for failing to make Student eligible for special education under the category of other health impairment in a timely manner, or by failing to have an IEP in effect at the beginning of the 2019-2020 school year. Student prevailed in part on Issue 2. Beverly Hills prevailed in part on Issue 2.
3. Beverly Hills did not deny Student a FAPE by failing to make FAPE available when it failed to have an IEP in place and to offer and provide a substantively appropriate program, including appropriate goals accommodations, specialized instruction, related services, and appropriate placement during the 2018-2019 school year. Beverly Hills failure to timely assess Student in October 2019, prevented completion of assessments and determination of eligibility prior to February 2020. Student did not prevail in part on Issue 3.
4. Beverly Hills did not deny Student a FAPE by failing to assess in all areas of disability by failing to conduct an ERICS assessment, as part of Student's initial assessments. Student did not prevail on Issue 4.
5. Beverly Hills did not deny Student a FAPE by failing to conduct a sufficiently comprehensive initial multi-disciplinary assessment by failing to identify all of Student's unique needs, failing to utilize appropriate assessment tools and strategies to fully evaluate Student, and failing to conduct appropriate assessments that comported with the standards of the IDEA during the 2019-2020 school year. Student did not prevail on Issue 5.
6. Beverly Hills denied Student a FAPE by failing to assess in all areas of suspected disability when it failed to initiate an ERICS evaluation in a timely manner as of December 15, 2020. Student prevailed on Issue 6.
7. Beverly Hills did not deny Student a FAPE in the May 2021 ERICS assessment by failing to conduct an appropriate evaluation that was sufficiently comprehensive to identify all of Student's unique special education and related services needs and that comported with the standards of the IDEA. Student did not prevail on Issue 7.
8. Beverly Hills did not deny Student a FAPE by failing to include all required content and sufficient detail to provide Parents with sufficient information, failing to include Parents as meaningful participants in the decision-making process and refraining from predetermining its offer of placement and services, failing to provide prior written notice with all required information of proposed and refused action, and failing to consider the private assessment in determining related services, placement, and the provision of FAPE and failing to offer and provide a substantively appropriate IEP which provided Student with designed to meet her needs and provide her with meaningful educational benefit in the February 27, 2020-March 5, 2020 IEP. Student did not prevail on Issue 8.
9. Beverly Hills did not deny Student a FAPE by failing to include all required content and sufficient detail to provide Parents with sufficient information, failing to include Parents as meaningful participants in the decision-making process and refraining from predetermining its offer of placement and services, failing to provide prior written notice with all required information of proposed and refused action, and failing to revise the IEP and include all required content to address the provision of FAPE during school closures and failing to offer and provide a substantively appropriate IEP which provided Student with designed to meet her needs and provide her with meaningful educational benefit in the August 21, 2020 IEP. Student did not prevail on Issue 9.
10. Beverly Hills did not deny Student a FAPE from February 2020 through the end of the 2020-2021 regular and extended school years by failing to hold an IEP team meeting for lack of anticipated progress and revise the IEP to address lack of anticipated progress. Student did not prevail on Issue 10.
11. Beverly Hills denied Student a FAPE by failing to include all required content and sufficient detail to provide Parents with sufficient information, failing to include Parents as meaningful participants in the decision-making process and refraining from predetermining its offer of placement and services, failing to provide prior written notice with all required information of proposed and refused action, and the provision of FAPE and failing to offer and provide a substantively appropriate IEP which provided Student with designed to meet her needs and provide her with meaningful educational benefit in the December 15, 2020 IEP. Student prevailed on Issue 11.
12. Beverly Hills denied Student a FAPE by failing to include all required content and sufficient detail to provide Parents with sufficient information, failing to include Parents as meaningful participants in the decision-making process and refrain from predetermining its offer of placement and services, failing to provide prior written notice with all required information of proposed and refused action, and the provision of FAPE and failing to offer and provide a substantively appropriate IEP which provided Student with designed to meet her needs and provide her with meaningful educational benefit in the February-March 5, 2021 IEP. Student prevailed on Issue 12.
13. Beverly Hills denied Student a FAPE by failing to fully implement consented to services as of December 15, 2020, by failing to convene an IEP team meeting to include Parents in determinations regarding the implementation of services during school closures. Student prevailed on Issue 13.
14. Beverly Hills did not procedurally deny Student a FAPE in the April 29, 2021 IEP by failing to include all required content and sufficient detail to provide Parents with sufficient information, failing to include Parents as meaningful participants in the decision-making process and refrain from predetermining its offer of placement and services, or failing to consider Dr. Morrisons assessment provided by Parents. Beverly Hills denied Student a FAPE by failing to offer and provide a substantively appropriate IEP which met her needs and provide her with meaningful educational benefit in the April 29, 2021 IEP. Student prevailed in part on Issue 14. Beverly Hills prevailed in part on Issue 14.
15. Beverly Hills did not deny Student a FAPE failing to include all required content and sufficient detail to provide Parents with sufficient information, and failing to include Parents as meaningful participants in the decision-making process and refraining from predetermining its offer of placement and services and failing to offer and provide a substantively appropriate IEP which provided Student appropriate placement in a residential treatment center setting, to meet her needs and provide her with meaningful educational benefit in the May 27, 2021 IEP? Student did not prevail on Issue 15.
16. Beverly Hills did not deny Student a FAPE by failing to make an individual determination of appropriate goals, accommodations, specialized instruction, and related services necessary to meet Student's needs and provide her with meaningful benefit during distance learning between February 27, 2020 and December 15, 2020. Beverly Hills denied Student a FAPE between December 15, 2020 and May 27, 2021. Beverly Hills did not deny Student a FAPE as of May 27, 2021. Beverly Hills prevailed in part on Issue 16. Student prevailed in part on Issue 16.
REMEDIES
In this matter Beverly Hills denied Student a FAPE failing in its child find duties as of October 2, 2019, and subsequently failing to initiate the assessment process in a timely fashion prior to December 15, 2019, which resulted in a loss of educational benefit for a period of 44 school days. Beverly Hills procedurally denied Student a FAPE by failing to provide Parent with prior written notice and Procedural Safeguards on October 2, 2019, when it refused to assess Student, and instead developed a general education intervention plan.by failing to conduct an ERICS assessment until May 2021, by failing to provide appropriate prior written notice, and by failing to offer Student a FAPE in the December 15, 2020, February-March 5, 2021, and April 29, 2021 IEPs.
Administrative law judges have broad latitude to fashion appropriate equitable remedies for FAPE denials. (School Comm. Of Burlington v. Department of Educ. (1985) 471 U.S. 359, 370 [105 S.Ct. 1996, 85 L.Ed. 2d 385] (Burlington); Parents of Student W. v. Puyallup Sch. Dist., No. 3 (9th Cir. 1994) 31 F.3d 1489, 1496.) (Puyallup).) In remedying a FAPE denial, the student is entitled to relief that is “appropriate” in light of the purposes of the IDEA. (20 U.S.C. § 1415(i)(2)(C)(iii); 34 C.F.R. § 300.516 (c)(3) (2006).) Appropriate relief means “relief designed to ensure that the student is appropriately educated within the meaning of the IDEA.” (Puyallup, supra, 31 F.3d at 1497.)
Appropriate relief is relief designed to ensure that the student is appropriately educated within the meaning of the IDEA.” (Puyallup, supra, 31 F.3d 1489, 1497.) In seeking relief, Parents bear the burden of demonstrating the type, amount, duration, and need for any requested compensatory education.
COMPENSATORY REMEDIES
Compensatory educational services are awarded to put a student in the position she would have been in had the appropriate services been delivered at the appropriate time. This entails a fact-specific, individualized assessment of a student's current needs.” (Cupertino Union Sch. Dist. v. K.A. (N.D. Cal. 2014) 75 F.Supp.3d 1088, 1105–1106; see also Puyallup, supra, supra, 31 F.3d 1 at 1496; School Comm. of Burlington v. Dep't of Educ. (1985) 471 U.S. 359, 374.) Any award must be “reasonably calculated to provide the educational benefits that likely would have accrued from special education services the school district should have supplied in the first place.” (Reid ex rel. Reid v. District of Columbia (D.C. Cir. 2005) 401 F.3d 516, 524.) Hour-for-hour relief for a denial of FAPE is not required by law. (Puyallup, supra, 31 F.3d at p. 1497.)
Student requested reimbursement for Student's private tutoring and therapy for the period of June 10, 2018 through October 2020. Student's rationale for this reimbursement stems from her contentions that Beverly Hills failed to provide Student with appropriate special education supports and services from June 10, 2018 through February 27, 2020. Beverly Hills did not deny Student a FAPE for the 2018-2019 school year, therefore the request for reimbursement during that period is denied. Student also requested reimbursement for Benefield's tutoring for January 2020 through October 2020, which does not supply sufficient information the form of an invoice or proof of payment and is therefore denied. Student requested reimbursement for Dr Karp's therapy services between July 29, 2020 and August 26, 2020. Dr. Karp's services were provided to Student over the summer break, nor did Student connect Dr. Karp's services to Student's educational needs at the time they were provided. Student's request for reimbursement of Dr. Karp is denied.
Beverly Hills denied Student a FAPE by failing to provide Parent with prior written notice of its decision declining Parent's request for assessment on October 2, 2019, and also failed to provide Parent with Procedural Safeguards informing Parent of Student's rights under the IDEA. As indicated in this Decision, without prior written notice and safeguards, Parent was left to act on her own to obtain proof for Beverly Hills that Student required special education support. This resulted in Parent obtaining the JNK assessment. Student is entitled to reimbursement for the JNK assessment in the amount of $6800.00.
Beverly Hills failed in its child find duties and failed to assess Student in a timely fashion when it received information on October 2, 2019, which was sufficient to establish a suspicion of a disability requiring assessment. This resulted in a lack of educational benefit for a period of 44 school days. Therefore, Beverly Hills shall provide Student with ten hours of educational tutoring to be provided by a local non-public agency or Shelby Benefield, in an amount not to exceed the school district's hourly rate for such tutoring. The ten hours of educational tutoring may be accessed remotely and must be completed prior to June 30, 2022.
REIMBURSEMENT OF PRIVATE PLACEMENT
In addition to the blatant procedural violations which occurred December 15, 2020 and January 2021, the December 15, 2020 IEP, February-March 5, 2021 IEP, and April 29, 2021 IEP substantively denied Student a FAPE. The testimony of Student's experts and documentary evidence, including the ERICS assessment report supported a finding that Student required mental health support. Parents unilaterally obtained appropriate therapeutic supports provided in the partial hospitalization program at Visions, which increased to the Visions short-term residential program. Enrollment in the Visions therapeutic program presented an appropriate educational placement for Student. Without a timely ERICS assessment, Parents' reliance on information discerned from Visions, Parent's belief that Student required residential placement was reasonable. The evidence established that the programs provided at Visions and New Leaf were appropriate to support and stabilize Student's emotional functioning and safety, which impacted her academic progress, and that each program either provided or facilitated appropriate educational services. Parents are entitled to reimbursement for Student's unilateral placement and services obtained from Visions and New Leaf.
In granting appropriate equitable relief, OAH is permitted to order reimbursement for costs of unilateral placements or prospective funding by the school district through a date beyond the date of the filing of the complaint or the issuance of the decision. The May 27, 2021 IEP offered Student a FAPE and was ideally timed to provide Student a seamless transition to the counseling enriched classroom. The danger of ongoing unilateral placement and services lies in a legal determination that an IEP provides FAPE as has happened in this matter. Therefore, Student's request for prospective relief after May 27, 2021, is denied.
Parent's testimony and supporting documents demonstrated Parent incurred out-of-pocket expenses for Student's private placement and therapeutic services and are entitled to reimbursement of the following:
• Visions Treatment Centers in the amount of $15,947.66 representing Student's placement in the 60-day partial hospitalization program for the period of November 23, 2020 to January 21, 2021, and 92-day residential placement for the period of January 21, 2021 through April 22, 2021, including the supervision costs of the sober living companion. The sum of $15,947.66 represents Parent's out-of-pocket expenses after deduction of insurance payment and discount credits paid on Student's behalf.
• New Leaf Academy in the total amount of $33,630.00. This sum represents Student's tuition and residential placement at New Leaf Academy for the period of April 23, 2021 through June 30, 2021, and related expenses for Student's enrollment fee, family services fee, and individual, group and family therapy provided between April 29, 2021 and May 10, 2021. Parent is not entitled to reimbursement for the 3 percent charge for payment by credit card, which was deducted from the total amount owing in reimbursement. Payment for the June 2021 tuition is included in this amount as Parent was required to make payment prior to the May 26, 2021, offer of FAPE.
• Reimbursement for transporting Student to New Leaf Academy on April 22, 2021, including round-trip transportation for Student's escort, in the amount of $895.20.
Beverly Hills shall pay directly to Parents as reimbursement for the JNK assessment, the sum of $6800.00. In addition, Beverly Hills shall pay directly to Parents, as reimbursement for Student's tuition and related expenses described above for the period of November 23, 2020, through May 27, 2021, the sum of $51,474.24. Beverly Hills shall reimburse Parent in full within 60 days of receiving this Decision.
ORDER
1. Within 60 days of this Decision, Beverly Hills Unified School District is ordered to pay Parents the sum of $58,274.24, representing reimbursement for the JNK assessment and out-of-pocket expenses, including Student's tuition and educationally related expenses and transportation and travel incurred for Student's placement at Visions Therapeutic Center and New Leaf Academy, between November 23, 2020 and June 30, 2021. Beverly Hills is ordered to make payment directly to Parents, in-full, within 60 days of this decision.
2.Beverly Hills is ordered to provide Student with ten hours of educational tutoring to be provided by a local non-public agency or Shelby Benefield, in an amount not to exceed the school district's hourly rate for such tutoring. The ten hours of educational tutoring may be accessed remotely and must be completed prior to June 30, 2022. In the event Beverly Hills is unable to pay directly to Student's selected provider, then Parent shall be reimbursed for the tutoring by submitting a request for reimbursement to Beverly Hills, with invoice and proof of payment, and Beverly Hills shall reimburse Parent within 60 days of receiving the request.
3.All other requests for reimbursement and 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.
Judith L. Pasewark Administrative Law Judge Office of Administrative Hearings