AMENDED DECISION
SEPTEMBER 10, 2021
This amended decision removes two inadvertent mentions of Student's first name. It is otherwise identical to the original decision in this matter.
On May 7, 2021, Student filed a due process hearing request with the Office of Administrative Hearings, called OAH, naming Los Alamitos Unified School District, called Los Alamitos.
Administrative Law Judge Robert G. Martin heard this matter by videoconference on June 29 and 30, and July 1, 6, 7 and 8, 2021.
Attorney Michael Jewell represented Student. One or both Parents attended all days of hearing. Attorney Tracy Petznick Johnson represented Los Alamitos. Grace Delk, Director of Special Education and Mental Health, attended all days of hearing on Los Alamitos' behalf. Amanda Smith, Program Coordinator, attended the hearing on the afternoon of July 8, 2021, on Los Alamitos' behalf.
At the request of the parties, OAH granted a continuance to August 4, 2021, to file written closing briefs. OAH closed the record and submitted the case for decision on August 4, 2021.
ISSUES
1. Did Los Alamitos deny Student a free appropriate public education, called a FAPE, from May 7, 2019 to the end of the 2018-2019 school year, and the 2019 extended school year, by:
a. failing to conduct any assessment of Student?
b. failing to hold any individualized educational program team meeting for Student or develop any IEP?
c. failing to make any offer of FAPE to Student?
2. Did Los Alamitos deny Student a FAPE in the 2019-2020 school year and 2020 extended school year, by:
a. failing to complete an appropriate review of Student's prior records, data, and observations to determine the type, nature and extent of its initial assessment of Student?
b. failing to have Student's assessment plans identify recent assessments and information Parents wished considered?
c. failing to have qualified individuals conduct Student's assessments?
d. failing to conduct a sufficiently comprehensive initial assessment of Student prior to Students' initial December 2019 IEP team meeting, to assess Student in all areas of suspected disability?
e. failing to identify Student as eligible for special education under the category of specific learning disability?
f. failing to consider information, and/or recommendations of outside professionals?
g. failing to have a direct relationship between Student's present levels, goals, and services?
h. failing to develop appropriate, objective, measurable goals in all areas of need (including academics)?
i. denying Parents an opportunity to meaningfully participate in the decision-making process for Student's individualized education program, called an IEP, by, among other things, failing to timely and clearly communicate with Parents, failing to respond to communications from Parents, failing to consider Parents' input, and failing to communicate with Parents?
j. failing to offer Student appropriate placement, programs, services, accommodations, modifications, methodologies, techniques and supports to address Student's unique needs?
3. Did Los Alamitos deny Student a FAPE by failing to conduct an appropriate multidisciplinary assessment of Student, by:
a. failing to complete an appropriate review of Student's prior records, data, and observations to determine the type, nature and extent of the multidisciplinary assessment?
b. failing to have the assessment plan identify recent assessments and information Parents wished considered?
c. failing to have qualified individuals conduct Student's multidisciplinary assessment? and
d. failing to conduct a sufficiently comprehensive multidisciplinary assessment to assess Student in all areas of suspected disability?
4. Did Los Alamitos deny Student a FAPE, in the 2020-2021 school year by:
a. failing to identify Student as eligible for special education under the category of specific learning disability?
b. failing to consider the report(s), information, and/or recommendations of outside professionals?
c. failing to have a direct relationship between Student's present levels, goals, and services?
d. failing to develop appropriate, objective, measurable goals in all areas of need (including academics)?
e. denying Parents an opportunity to meaningfully participate in the IEP decision-making process by, among other things, failing to timely and clearly communicate with Parents, failing to respond to communications from Parents, failing to consider Parents' input, and failing to communicate with Parents? and
f. failing to offer Student appropriate placement, programs, services, accommodations, modifications, methodologies, techniques and supports to address Student's unique needs?
5. Will Los Alamitos' procedural and substantive violations of the IDEA committed prior to the filing of the complaint, as identified in Issue 4, result in a denial of Student's right to a FAPE for the extended school year 2021, and the 2021-2022 school year to the date of Student's next IEP due to be held by September 28, 2021?
JURISDICTION
This hearing was held under the Individuals with Disabilities Education Act, its regulations, and California statutes and regulations. (20 U.S.C. § 1400 et. seq.; 34 C.F.R. § 300.1 et seq. (2006); Ed. Code, § 56000 et seq.; Cal. Code Regs., tit. 5, § 3000 et seq.) The main purposes of the Individuals with Disabilities Education Act, referred to as the IDEA, are to ensure:
• all children with disabilities have available to them a free appropriate public education that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment and independent living, and
• the rights of children with disabilities and their parents are protected. (20 U.S.C. § 1400(d)(1); See Ed. Code, § 56000, subd. (a).)
The IDEA affords parents and local educational agencies the procedural protection of an impartial due process hearing with respect to any matter relating to the identification, assessment, or educational placement of the child, or the provision of a FAPE to the child. (20 U.S.C. § 1415(b)(6) & (f); 34 C.F.R. § 300.511; Ed. Code, §§ 56501, 56502, 56505; Cal. Code Regs., tit. 5, § 3082.) The party requesting the hearing is limited to the issues alleged in the complaint, unless the other party consents, 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, 56-62 [126 S.Ct. 528, 163 L.Ed.2d 387]; and see 20 U.S.C. §1415(i)(2)(C)(iii).) Student, as the filing party, had the burden of proof by a preponderance of the evidence in this matter. The factual statements below 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 eight years old at the time of hearing and had recently completed second grade in a private placement in a certified non-public school. Parent and Student resided within Los Alamitos's attendance boundaries at all relevant times. Los Alamitos initially found Student eligible for special education in December 2019, as a child with speech or language impairment. Los Alamitos changed Student's primary eligibility to the specific learning disability of dyslexia in September 2020, a few months before his eighth birthday. (See 20 U.S.C. § 1401(30)(B) [the term “specific learning disability” includes the condition of dyslexia].)
Dyslexia is a neurobiological disorder characterized by difficulties with accurate and/or fluent word recognition, and by poor spelling and decoding abilities. (California Dyslexia Guidelines, California Department of Education (2018), p. 3. (Dyslexia Guidelines).) Children with dyslexia exhibit atypical brain patterns that reflect poor phonological and orthographic processing, as did Student here. Given appropriate reading intervention these brain patterns are likely to change, and children can develop a pattern similar to that seen in students without dyslexia. (Id. at pp. 6-7.) “For 90 to 95 percent of poor readers, prevention and early intervention programs that combine instruction in phonemic awareness, phonics, fluency development, and reading comprehension strategies—provided by well-trained, linguistically informed teachers—can increase reading skills to average reading levels or above.” (Id. at p. 65.) Early identification of and intervention with students who show the warning signs of dyslexia are critical for achieving better outcomes. (Id. at p. 96.)
The numerous issues and sub-issues in this case revolve around two questions: did Los Alamitos assess Student as soon as it should have, and did it offer Student an appropriate intervention program to address his dyslexia after assessing him?
ISSUES 1(A)-(C): DID LOS ALAMITOS DENY STUDENT A FAPE FROM MAY 7, 2019 TO THE END OF THE 2019 EXTENDED SCHOOL YEAR, BY FAILING TO ASSESS STUDENT, FAILING TO HOLD AN IEP MEETING FOR STUDENT, AND FAILING TO DEVELOP ANY IEP FOR STUDENT?
STUDENT CONTENDS LOS ALAMITOS DENIED STUDENT A FAPE IN DURING HIS 2018-2019 KINDERGARTEN SCHOOL YEAR BY FAILING TO CONDUCT ASSESSMENTS TO DETERMINE ELIGIBILITY FOR SPECIAL EDUCATION, HOLD AN IEP TEAM MEETING, AND OFFER STUDENT A FAPE. STUDENT CONTENDS THAT HIS LACK OF PROGRESS IN READING PUT LOS ALAMITOS ON NOTICE OF A SUSPECTED DISABILITY, SUCH AS SPECIFIC LEARNING DISABILITY.
Los Alamitos contends it did not have reason to suspect Student might have a disability requiring special education because Student made progress in reading during kindergarten. Los Alamitos contends Student benefitted from two tiers of general education reading interventions that used Los Alamitos' Structured Literacy approach, as part of the three-tiered response to instruction and intervention approach Los Alamitos used to identify and assist students with reading difficulties.
The IDEA places an affirmative, ongoing duty on the state and school districts to identify, locate, and assess 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); Ed. Code, § 56301, subd. (a).) This duty is commonly referred to as “child find.” The purpose of the child find evaluation is to provide children with disabilities access to special education. (Fitzgerald v. Camdenton R-III School Dist. (8th Cir. 2006) 439 F.3d 773, 776.) This reflects the IDEA's overall purpose “to ensure that all children with disabilities have available to them a free appropriate public education.” (20 U.S.C. § 1400(d)(1)(A); Cedar Rapids Community School Dist. v. Garret F. ex rel. Charlene F., 526 U.S. 66, 73, 119 S.Ct. 992, 143 L.Ed.2d 154 (1999).) A school district has a child find duty even if the parent has not requested special education testing or services. (Reid v. Dist. of Columbia (D.C. Cir. 2005) 401 F.3d 516, 518.)
A district's duty to assess a child for a possible disability is broader than its duty to provide special education, and more easily triggered. A school district's child find obligation toward a specific child is triggered when there is reason to suspect the child may have a disability, and may need special education and related services. (Ed. Code, § 56301, subd. (a).) The Education Code describes such a child as "an individual with exceptional needs." (Ed. Code, § 56026.) The obligation to assess for possible exceptional needs applies even if the child is advancing from grade to grade. (Ed. Code, § 56301, subd (b)(1).)
A disability becomes “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 School Dist. (9th Cir. 2016) 822 F.3d 1105, 1119-20, cert. denied, 137 S. Ct. 1578 (2017) (Timothy O.) A district may be put on notice through concerns expressed by parents about a child's symptoms, opinions expressed by informed professionals, or by other less formal indicators, such as the child's behavior. (Id. at pp. 1119-1121 [citing Pasatiempo v. Aizawa (9th Cir. 1996) 103 F.3d 796, and N.B. v. Hellgate Elementary School Dist. (9th Cir. 2008) 541 F.3d 1202].)
A school district's appropriate inquiry is whether the student should be referred for an assessment, not whether the student actually qualifies for special education services. (Dept. of Education, State of Hawaii v. Cari Rae S. (D. Hawaii 2001) 158 F.Supp. 2d 1190, 1195 (Cari Rae S.).) School districts cannot rely on informal observations, or the subjective opinion of a staff member, to circumvent the district's responsibility to use the thorough and reliable procedures specified in the IDEA to assess a child in all areas of suspected disability. (Timothy O., supra, 822 F.3d at p. 1119.) Thus, the suspicion that a student might have an impairment affecting the student's educational performance is enough to trigger a need for assessment. (See, e.g., Park v. Anaheim Union High School Dist., et al. (9th Cir. 2006) 464 F.3d 1025, 1032.)
The relationship between the duty to assess, the duty to provide special education services, and the duty to utilize general education resources where appropriate was concisely summarized in Los Angeles Unified School District v. D.L. (C.D. Cal. 2008) 548 F.Supp.2d 815, 819-820:
To prevent districts from "over-identifying" students as disabled, Congress mandated that states develop effective teaching strategies and positive behavioral interventions to prevent over-identification and to assist students without an automatic default to special education. (20 U.S.C. § 1400(c)(5)(f).) Schools, however, are charged with the "child find" duty of locating, identifying and assessing all children who reside within its boundaries who are in need of special education and related services. (20 U.S.C. § 1400(a)(3); [Ed. Code, §§ 56300-56303].) If a school district suspects that a general education student may have a disability, it must conduct an initial special education assessment to determine whether the student qualifies for special education services. (20 U.S.C. § 1414(a)(1)(a); Ed. Code, § 56320.) However, a student "shall be referred for special education instruction and services only after the resources of the regular education program have been considered, and, where appropriate, utilized." ([Ed. Code, § 56303].)
The decision whether the degree of the student's impairment requires that the student be referred for actual special education instruction or services, as opposed to an assessment for possible eligibility, must be made by the student's IEP team after the student has been assessed, and take into account all the relevant material which is available on the child. (Cal. Code Regs., tit. 5, § 3030(a); Ed. Code, § 56337.5, subds. (a) and (b) [If a pupil who is assessed as being dyslexic is not found to be eligible for special education, the pupil's instructional program shall be provided in the regular education program.].) A district may not delay its assessment of a student with a suspected disability on the basis that it is utilizing a response to intervention approach to accommodate the student in the regular education program. (Office of Special Education Programs (OSEP) Memorandum 11-07 to State Directors of Special Education, A Response to Intervention Process Cannot Be Used to Delay-Deny an Evaluation for Eligibility under the IDEA (January 21, 2011) 56 IDELR 50.)
Violations of a district's child find duties, and of the obligation to assess a student, are procedural violations of the IDEA and the Education Code. (Cari Rae S., supra, 158 F.Supp. 2d 1190 at p.1196); Park v. Anaheim, supra, 464 F.3d 1025 at p. 1031.) In Rowley, the Court recognized the importance of adherence to the procedural requirements of the IDEA. (Rowley, 458 U.S. 176 at pp. 205-06.) However, a procedural violation does not automatically require a finding that a FAPE was denied. A procedural violation results in liability for denial of a FAPE only if the violation: (1) impeded the child's right to a FAPE; (2) significantly impeded the parent's opportunity to participate in the decision-making process; or (3) caused a deprivation of educational benefits. (20 U.S.C. § 1415(f)(3)(E)(ii); Ed. Code, § 56505, subd. (f)(2); see W.G. v. Board of Trustees of Target Range School Dist. No. 23 (9th Cir. 1992) 960 F.2d 1479, 1484.) (Target Range).)
PRESCHOOL AND KINDERGARTEN
Student attended Los Alamitos' full-time preschool program from fall 2016 to spring 2018. At the time, Student had not been diagnosed with a disability or found eligible for special education. The preschool curriculum included working with Student on foundational pre-academic skills such as recognizing letter sounds, recognizing numbers, and writing his name, all of which were difficult for Student.
On August 8, 2018, Student began kindergarten at Los Alamitos' Hopkinson Elementary School, in the general education class of teacher Tere Fieldson. Fieldson had 34 years' experience teaching kindergarten at Hopkinson. During that time, Fieldson had rarely referred children in her class for special education assessments, and had few children in her class who had already been found eligible for special education for disabilities other than speech and language impairment. Fieldson had referred students in her class for special education approximately once every five years, taught a few students every year who were receiving special education for speech and language needs, and had students with other special education eligibilities in her class approximately once every five years.
Fieldson's general education classroom, like all general education classrooms at Hopkinson, was part of Tier 1 in the three-tiered response to instruction and intervention approach Los Alamitos used to identify and assist students with reading difficulties. In its instruction and interventions, Los Alamitos taught students using a Structured Literacy program taken from the Dyslexia Guidelines, which were published by the California Department of Education pursuant to Education Code section 56335. Education Code section 56335 states the Dyslexia Guidelines are “to be used to assist regular education teachers, special education teachers, and parents to identify and assess pupils with dyslexia, and to plan, provide, evaluate, and improve educational services to pupils with dyslexia. . . . The program guidelines shall include, but shall not be limited to, characteristics typical of pupils with dyslexia and strategies for their remediation, as well as information to assist educators in distinguishing between characteristics of dyslexia and characteristics of normal growth and development.” The Dyslexia Guidelines are not legally binding on local educational agencies, but the goal in publishing them was “to create a document that provides practical resources for identifying and educating students who are struggling academically because they cannot read.” (Dyslexia Guidelines (2018), p.1.)
The nature and purpose of Los Alamitos' response to instruction and intervention approach was to use a three-tiered system of supports based on response to intervention methodologies to systematically identify students' learning needs, and possible disabilities, in the area of reading, through implementation of evidenced-based instruction and assessment. Los Alamitos' three-tiered was similar to that described by the California Department of Education. (See, Determining Specific Learning Disability Eligibility Using Response to Instruction and Intervention, California Department of Education (2009), pp. 1-3.) Tier 1 included instruction and screening of all students by a general education teacher, using a scientifically validated curriculum in the general education classroom. Ms. Fieldson taught her class foundational reading skills for the Common Core State Standards in English Language Arts adopted by California in 2010, using methodologies from Fountas and Pinnell's Comprehensive Phonics, Spelling, & Word Study Guide to teach letter knowledge, high-frequency words, phonics, spelling patterns, word meaning, word structure, and word-solving actions. Student's Tier 1 kindergarten curriculum consisted of early literacy behaviors that were foundational for reading, including tracking words across a page, letter identification, counting syllables and words, beginning letter-sound association, and rhyming. In addition, the curriculum included basic sight words such as I, a, to, go, see, the, and, and me, spelling phonetically based on the sounds of letters, and answering comprehension questions based on text with picture support.
Fieldson periodically tested her Tier 1 students to identify each student's proficiency in key academic areas. Based on her student's test results, she differentiated instruction for small groups of students and individual students. Student, and others who lagged behind their peers despite the provision of targeted instruction, received more intensive interventions in Hopkinson's Reading Lab at Tier 2.
Los Alamitos' Tier 2 Reading Lab employed credentialed, trained general education teaches to provide targeted short-term interventions and supplemental instruction, delivered through an individualized problem-solving approach or a standard treatment protocol. The Reading Lab interventions used Fountas and Pinnell and Lindamood-Bell strategies. The IDEA provides funding for such scientifically based literacy instruction as a coordinated early intervening service for students in kindergarten through grade 12 (but particularly for students in kindergarten through third grade) who have not been identified as needing special education or related services, but who are at risk for academic or behavioral problems and need additional academic and behavioral support to succeed in a general education environment. (20 U.S.C. § 1413 (f); 34 C.F.R. § 300.226; Ed. Code, § 56842; OSEP Memorandum 08-09 to Chief State School Officers and State Directors of Special Education Coordinated Early Intervening Services Under the IDEA (July 28, 2008), page 6.) Congress' support for early intervening services was motivated in part by research showing the longer a child went without assistance, the longer the remediation time and the more intense and costly the remediation services required. (20 U.S.C. §§ 1400(c)(5)(F); OSEP Memorandum 08-09, supra. at page 2.) Emphasizing that early intervening services are intended to expedite, not slow down, identification of children with disabilities, the implementing regulations for early intervening services state, “Nothing in this section shall be construed to . . . delay appropriate evaluation of a child suspected of having a disability.” (34 C.F.R. § 300.226(c).)
Students who failed to display meaningful progress in spite of Reading Lab were considered for more intensive interventions in Tier 3. Tier 3 was for students who had been found eligible for special education, who were provided specialized academic instruction by a special education teacher. Los Alamitos offered Student Tier 3 interventions in September 2020, but Student did not agree to those services.
A critical element in Los Alamitos Structured Literacy program was the use of diagnostic progress monitoring of each student's response to intervention to develop future interventions for the student. As described in Los Alamitos' Structured Literacy Elements worksheet, classroom teachers and Reading Lab instructors were to individualize instruction based on continuous informal and formal assessment to measure whether a student had mastered content “to the degree of automaticity needed to free attention and cognitive resources for comprehension and oral/written expression.” Classroom teachers were to assess students formally using specified standardized assessments, and district benchmark assessments in specified reading skills areas. Reading Lab instructors were to conduct formal assessments in the areas of phonological awareness, letter knowledge, letter sounds, and phonics, and informally assess every day where the student was successful and where the student still needed intervention. Reading Lab instructors were to maintain session summary reports at the Reading Lab, and send periodic progress reports to classroom teachers. Los Alamito's Structured Literacy program did not call for the educators implementing the interventions to develop clear intervention and progress tracking plans, with beginning and ending dates, or to reconvene to review data and determine whether the student was making adequate progress, as suggested by the Dyslexia Guidelines. (Id., pp. 73-74.)
In August 2018, during the first two weeks of school, Fieldson administered an English Language Arts district benchmark assessment to her class to evaluate each student's performance with respect to early literacy behaviors, such as knowing where words are on a page, reading left to right, tracking text to find a letter or word, pointing to sentences in text as the teacher reads them, and identifying end punctuation. The assessment evaluated each student's ability to identify words that rhymed, identify upper and lower-case letters, and make the sounds associated with each consonant. Los Alamitos district benchmarks were based on California Common Core Standards, and the benchmark assessment measured each student's performance with respect to each benchmark.
Despite attending two years of Los Alamitos' preschool program before starting kindergarten, Student performed poorly on the August 2018 English Language Arts benchmark assessments. He scored 4 of 10 on early literacy behaviors, and 2 of 5 on rhyming. Student recognized 17 upper case and 17 lower case letters out of the 26 letters of the alphabet and knew 10 of 21 consonant sounds.
Based on her students' scores on early literacy behaviors, rhyming, and letter identification benchmarks, Fieldson drafted a one-page “forced ranking,” that listed the 24 students in her class in order of their performance on the district English Language Arts benchmarks, with Student ranked 21st. Los Alamitos used such forced rankings lists in part as a tool to help identify students who might need intervention to help develop their reading skills. Because of Student's low benchmark scores, Fieldson recommended Student receive reading intervention in Hopkinson's Reading Lab.
Beginning in August 2018, Student attended 40-minute sessions of Reading Lab four days per week. The credentialed general education teachers who taught in the Reading Lab had received additional training in reading instruction from Los Alamitos' teacher on special assignment for reading, Evan Grandon. Grandon explained one hope, goal and intention of the Reading Lab was “catching the 15 to 20 percent [of students] we would probably see slide along the dyslexia continuum.” Grandon's estimate of the incidence of dyslexia, and the amount of Reading Lab services provided Student, were consistent with the Dyslexia Guidelines estimate that approximately 15% of California's student population needs help with targeted skills in the areas of reading, spelling, and writing that would require Tier 2 intervention, such as small-group instruction in up to three of the foundational reading skills, three to five days per week, 20 to 40 minutes per session. (Dyslexia Guidelines, p. 48.) Approximately two to five percent of students with the most intensive needs require more intensive instruction in Tier 3, focused on fewer skills and providing extended daily sessions in addition to core curriculum instruction. (Ibid.)
Student finished his first trimester of kindergarten on November 2, 2018. By that time, Student had received 12 weeks of instruction from Fieldson, and 10 weeks of Reading Lab intervention. Student was still struggling with reading. As an overall measure of her students' reading ability and comprehension, Fieldson in November assessed her class using the Fountas and Pinnell Benchmark Assessment System. Los Alamitos used the Fountas and Pinnell Leveled Reading System to teach students, which used books containing text at increasingly difficult levels rated from A through Z. The Fountas and Pinnell Benchmark assessment system measured the ability of students to read text independently, and with instruction and assistance from a teacher. By the end of the kindergarten year, Los Alamitos' goal was for students to be able to read a story at an instructional Level D. In November 2018, Student was only able to read text rated at Fountas and Pinnell's lowest level, Level A, with instructional assistance.
Student continued with a second session of Reading Lab in his second trimester of kindergarten which ended February 14, 2019. Fountas and Pinnell testing of Student on January 23, 2019 showed Student had progressed only to instructional reading Level B. On Student's report card for the second trimester, Fieldson expressed concern Student was losing confidence in his ability and slowing down in his effort as the academic pace of the class increased. Student was particularly weak in the areas of phonics and word recognition, and production of writing, where he received grades of 1, the lowest grade, signifying limited ability. Student required growth in all three phonics and word recognition sub-areas of using phonetic spelling, reading high-frequency words used often in kindergarten texts, and spelling high-frequency words. Student required growth in three of four sub-areas of writing production, in producing correctly formed letters, using capitalization, and writing sentences. Student was also weak in foundational skills, reading fluency, and understanding literature and informational text, where student received grades of 2, signifying ability that approached but did not meet trimester standards.
Student's progress report from Reading Lab for the second trimester showed continuing areas of concern in reading, with Student able to read only 13 of 25 kindergarten level words fluently, showing difficulty following sentences and pointing to each word in a sentence, and difficulty using phonetic spelling in his writing. Student also had low scores on English Language Arts benchmark assessments Fieldson administered in the areas of phonemic awareness, ability to read or spell three-letter, consonant-vowel-consonant words like cat or dog, read high frequency first grade words, and write picture names.
In his third trimester of kindergarten, Student received another 12 weeks of instruction form Fieldson, and another 10 weeks of Reading Lab Tier 2 intervention, and completed kindergarten on May 30, 2019. Student's report card for the year demonstrated that he fell below standards in reading and writing throughout the year, while meeting other standards. Student was consistently well-behaved and exhibited satisfactory to excellent learning behaviors. In mathematics, Student was meeting common core academic standards by the third trimester in all six areas except cognitively guided instruction, where Student was graded as approaching rather than meeting standards because he could not accurately solve word problems. Student was also meeting standards for speaking and listening comprehension. In contrast to his grade-level performance in these areas, Student met Los Alamitos reading and writing standards for the third trimester in only two of eight areas. Student showed limited skills in production of writing, and was only approaching standards in foundational skills, phonological awareness, phonics and word recognition, reading fluency, reading literature and informational text, production of writing, and distribution of writing. Within sub-areas, Student showed no progress in using phonetic spelling, reading high frequency words used often in kindergarten texts, reading texts accurately, reading texts with purpose and understanding, or writing sentences.
Based on his report card, Student in his third trimester exhibited to some degree all of the symptoms of dyslexia identified in the Dyslexia Guidelines. He had difficulty sounding out unfamiliar words, a limited sight-word vocabulary, listening comprehension that exceeded his reading comprehension, and an inadequate response to effective instruction and intervention. (Dyslexia Guidelines, pp. 14-15.)
Student's overall reading performance, as measured by Fountas and Pinnell benchmark testing in May 2019, did not improve during his third trimester, but remained at the same Level B as in February. Forced rankings prepared by Fieldson in May 2019, based on her class's Fountas and Pinnell assessments, indicated that all but three students in the class were able to perform at Level D or better. This indicated that the low-performing students' reading difficulties were not due to a lack of appropriate instruction. Student ranked last in the February 2019 forced ranking, and next to last in May 2019. The amount of instruction Student received, combined with his forced ranking demonstrated that Student required more than Tier 2 interventions, and put Los Alamitos on notice that he required an assessment for special education eligibility.
Student's scores on the English Language Arts benchmark assessments Fieldson administered were inconsistent with his report card. Fieldson testified that Student's scores on the May 2019 benchmark assessment were below Los Alamitos' standards for deciding whether a student met the State benchmarks only with respect to Student's ability to read or spell three-letter, consonant-vowel-consonant words like cat or dog, read high frequency first grade words, and write picture names. The May 2019 benchmark assessment scored Student with maximum or nearly maximum possible scores in early literacy behaviors, phonological awareness, phonics except for ability to read or spell three-letter consonant-vowel-consonant words, and reading and spelling high frequency words. However, Student's third trimester report card graded Student as below standards in all of those areas. There was no evidence this discrepancy was discussed by the instructors providing Student's intervention, or with Parents.
Student's response to the Reading Lab's Tier 2 interventions also demonstrated he required more effective intervention than Reading Lab was providing him, and that Los Alamitos needed to assess him for special education to determine his needs. The Dyslexia Guidelines suggest a reasonable duration for a Tier 2 intervention would be four to eight weeks, with students then assessed in targeted areas one to two times a week with materials at their instructional level. (Dyslexia Guidelines, p. 48.) Over the course of his kindergarten school year, Student received three 10-week sessions of Reading Lab. Student's progress was minimal as reflected in the two Reading Lab progress reports sent to parents about six weeks before the end of the second and third trimesters, one in January 2019, and one in April 2019. Student's January 2019 Reading Lab progress report showed areas of concern in Student's ability to point under each word in a sentence, read high frequency kindergarten words, and write using phonetic spelling. Student's April 2019 Reading lab progress report indicated continued concerns with Student's skills in five of six areas in reading, writing, and math, addressed by the Reading Lab. The progress report marked areas of concern with an “X” including reading skills in word accuracy, comprehension and fluency, and with Student's ability to write phonetically, recognize sight words, and use capitols, spacing and periods. Mother signed and returned a copy of the April 2019 Reading Lab progress report to Fieldson, as requested, adding the comment, “A little concerned. Seems like everything is X. Not sure this is helping him and is just taking him out of class time.” Fieldson and Los Alamitos did not respond to Parent's concern that Student was not benefitting from Los Alamitos' Tier 2 Reading Lab intervention.
Because of Student's slow progress and below grade-level performance, Fieldson referred Student to participate in Los Alamitos' Summer Academy, an optional general education academic enrichment program offered to students performing below grade level. Student attended Summer Academy in 2019 for four 20-hour weeks, working on kindergarten-level skills in reading, writing, and math.
Fieldson testified she did not refer Student for assessment for dyslexia or another possible disability affecting his reading because she did not have reason to suspect student might have such a disability. Fieldson cited to Student's academic progress during kindergarten as the reason she did not suspect he might have a disability. However, after starting kindergarten prepared by two years of Los Alamitos' preschool program, demonstrating good learning behaviors and academic competency in mathematics, and receiving appropriate classroom instruction and 30 weeks of Los Alamitos' Tier 2 intervention of Reading Lab providing a total of 80 hours of scientific, research-based intervention, Student failed to make sufficient progress to meet State-approved grade-level standards in written expression, basic reading skills, reading fluency skills, reading comprehension, and mathematics word problem solving. This information was arguably sufficient to not only require an assessment be conducted, but also to support a finding that Student qualified as eligible for special education under the category of specific learning disability, under the response to intervention model used for making such determinations, if it had been included and reviewed by an IEP team as part of a comprehensive assessment. (34 C.F.R. § 300.309(a)(2)(i) and (ii); Cal. Code Regs., tit. 5, § 3030, subd. (b)(10)(C)2.(i) and (ii).) Student also exhibited to some degree all of the symptoms of dyslexia identified by the Dyslexia Guidelines. Student's academic history was sufficient to put Los Alamitos on notice that Student should be assessed for a possible reading disability to determine whether his IEP should be amended to allow Student to start first grade with appropriate reading interventions. This is especially true in light of the consistent, repeated messages from the IDEA, Education Code, the Dyslexia Guidelines, and other sources that dyslexia should be identified and addressed as early as possible, without delaying a referral for assessment to continue a response to intervention strategy producing inadequate progress. (See, e.g., 34 C.F.R. § 300.226(c), supra; Memorandum 11-07 to State Directors of Special Education, A Response to Intervention Process Cannot Be Used to Delay-Deny an Evaluation for Eligibility under the IDEA. (OSEP January 21, 2011), supra, 56 IDELR 50; Dyslexia Guidelines, pp. 48, 55 and 98.), Moreover, based simply on the statistics found in the Dyslexia Guidelines that were used in training Hopkinson staff in the school's Structured Literacy program that approximately 15 percent of students have dyslexia, and two to five percent require special education (Dyslexia Guidelines, p. 48), Fieldson and Student's Reading Lab instructors, who did not testify at hearing, should have been alert to the possibility that in an average year, three or four students in a class of 24 like Fieldson's might have dyslexia, and one of them might be impaired to a degree requiring special education.
Los Alamitos had a child find obligation to refer Student for assessment after his second trimester of classroom instruction and Tier 2 Reading lab intervention based on Los Alamitos' Structured Literacy program produced inadequate progress in Student's ability to read. Los Alamitos failed this obligation. Los Alamitos should have begun the assessment process at least by February 14, 2019, and prepared an assessment plan to submit to Parents for their consent. Upon referral for an assessment, a school district has 15 days to develop the proposed assessment plan, not counting calendar days between the pupil's regular school sessions or calendar days of school vacation in excess of five school days, from the date of receipt of the referral, unless the parent or guardian agrees in writing to an extension. (Ed. Code, § 56043, sub. (a).) If Los Alamitos had sent a timely assessment plan to Parents on March 1, 2019, Parents would have had at least 15 days to review, sign, and return the proposed assessment plan by March 18, 2019. (Ed. Code, § 5043, subd. (b).) The evidence shows Parents would have consented to an appropriate assessment plan. Los Alamitos would then have had more than 60 days from the date of Parents' consent for assessment, excluding vacation and days when school is not in session, to complete the assessments and develop an initial IEP by the end of the 2018-2019 school year on May 30, 2019.
Student presented evidence sufficient to prove that if Los Alamitos had referred Student for assessment after his second trimester, an assessment completed by May 30, 2019 would have found Student had dyslexia and an IEP team would have found Student eligible for special education under the category of specific learning disability and made Student an offer of FAPE to address the disability. This was the result when Los Alamitos ultimately assessed Student for a possible specific learning disability and held an IEP to review the results in September 2020. Student's expert Jeanette Morgan, Psy.D. testified an assessment of Student during kindergarten also would have found Student had dyslexia. This is consistent with the Dyslexia Guidelines characterization of dyslexia as a neurobiological disorder of genetic origin, and Los Alamitos did contend that Student developed his specific learning disability after kindergarten, or otherwise dispute that a comprehensive assessment conducted in May 2019 would have found Student eligible for special education.
Student proved by a preponderance of the evidence that Los Alamitos denied him a FAPE by failing to refer him for assessment after two trimesters of classroom instruction and reading intervention, failing to assess him, failing to hold an IEP team meeting, and failing to offer him FAPE in an IEP by the end of kindergarten. Los Alamitos' liability for failing its child find obligation arose as of the start of Student's first grade school year on August 7, 2019.
EXTENDED SCHOOL YEAR
Student contends Los Alamitos' denied him a FAPE by failing to provide Student special education during the extended school year. Los Alamitos' September 2020 IEP concluded Student did not require extended school year services.
The purpose of special education during the extended school year is to prevent serious regression over the summer months. (Hoeft v. Tucson Unified Sch. Dist. (9th Cir. 1992) 967 F.2d 1298, 1301; Letter to Myers (OSEP 1989)16 IDELR 290.) The mere fact of likely regression is not enough to require an extended school year placement, because all students "may regress to some extent during lengthy breaks from school." (MM v. School Dist. of Greenville County (4th Cir 2002) 303 F.3d 523, 538.) In California, eligibility for extended school year requires, among other things, a finding by the IEP team that “interruption of the pupil's educational programming may cause regression, when coupled with limited recoupment capacity, rendering it impossible or unlikely that the pupil will attain the level of self-sufficiency and independence that would otherwise be expected in view of his or her disabling condition.” (Cal. Code Regs., tit. 5, § 3043.)
Student's sole evidence in support of his contention that he should have received extended school year services was the testimony of Student's expert, Dr. Morgan, that Student required extended school year services because of how slowly he was learning. A slow rate of learning is not the standard for providing a student extended school year services. Student failed to prove Los Alamitos should have provided him extended school year services at any time, and failed to demonstrate Los Alamitos' denied him a FAPE by failing to offer extended school year services. Accordingly, no remedy is awarded with respect to any extended school year. Los Alamitos prevailed on this sub-issue in Issues 1, 2 and 5 in which Student contends Los Alamitos denied him a FAPE during an extended school year.
ISSUES 2(A)-(E), (G), (H) AND (J): DID LOS ALAMITOS DENY STUDENT A FAPE DEVELOPING HIS INITIAL IEP DATED DECEMBER 6, 2019, BY FAILING TO CONDUCT AN APPROPRIATE COMPREHENSIVE INITIAL ASSESSMENT OF STUDENT, FAILING TO FIND STUDENT ELIGIBLE UNDER THE CATEGORY OF SPECIFIC LEARNING DISABILITY, AND FAILING TO OFFER STUDENT ANY SERVICES ADDRESSING STUDENT'S SPECIFIC LEARNING DISABILITY?
ISSUES 2(F) AND (I): DID LOS ALAMITOS DENY STUDENT A FAPE IN HIS APRIL 30, 2020 IEP AMENDMENT BY FAILING TO OFFER STUDENT SPECIALIZED ACADEMIC INSTRUCTION?
With respect to Issues 2(A)-(E), (G), (H) and (J), Student contends Los Alamitos denied Student a FAPE by failing to collect information to develop an appropriate assessment plan that included assessing him for a specific learning disability as part of Student's initial assessment and IEP held December 6, 2019. In so doing, Student contends, Los Alamitos failed to identify and address needs related to his specific learning disability. Instead, Los Alamitos assessed only for speech or language impairment, finding Student eligible for special education only under that category.
Los Alamitos contends it was not required to assess Student for a specific learning disability as part of his initial assessment for his initial IEP because it had no reason to suspect Student might have such a disability.
With respect to Issues 2(F) and (I), Student contends Los Alamitos denied Student a FAPE by failing to offer him specialized academic instruction in his April 30, 2020 IEP Amendment at the request of Student's Uncle, a special education teacher and outside professional. Student contends information available as of April 30, 2020 from Student's then-pending multi-disciplinary assessment was sufficient to conclude the completed assessment would find Student had a specific learning disability and required specialized academic instruction, which it ultimately did, and which Los Alamitos ultimately offered in Student's September 2020 IEP. Student contends that information would have supported an offer of specialized academic instruction under Student's existing eligibility of speech and language. District contends it was not required to provide Student specialized academic instruction because the testing completed at that time was not sufficient to show Student qualified for special education under the category of specific learning disability, or required specialized academic instruction.
Because this Decision affords relief to Student for the substantive denial of a FAPE for Los Alamito's failure to offer him a FAPE addressing his specific learning disability of dyslexia from October 6, 2019, it is not necessary to decide Issues 2(A)-(J), arising from Los Alamito's alleged acts and omissions from October 6, 2019 until Los Alamitos first made a FAPE offer to Student in Student's September 2020 IEP. Any relief that might be ordered for those violations, if proved, is included in the relief this Decision affords.
As discussed in Issue 1, Student proved Los Alamitos denied Student a FAPE when it failed to refer Student for assessment of a possible specific learning disability, find him eligible for special education under the category of specific learning disability, and offer him a FAPE addressing his needs arising from that disability, no later than October 6, 2020. Thus, Student also proved by the preponderance of the evidence that Los Alamitos denied Student a FAPE by failing to do those same things as of December 6, 2019. Student also proved by a preponderance of the evidence that if Los Alamitos had included an assessment for possible specific learning disability as part of Student's initial assessment and IEP held December 6, 2019, Los Alamitos should have offered Student special education and services to address his specific learning disability. When Los Alamitos ultimately assessed Student for a possible specific learning disability and held an IEP to review the results in September 2020, it offered Student specialized academic instruction and program accommodations and modifications to address his specific learning disability. This Decision includes relief for failure to provide any services, accommodations, or modifications ultimately offered by Los Alamitos in the September 2020 IEP.
ISSUES 3(A)(B)(D) AND 4(E): DID LOS ALAMITOS DENY STUDENT A FAPE, IN THE 2020-2021 SCHOOL YEAR BY FAILING TO COMPLETE AN APPROPRIATE REVIEW OF STUDENT'S PRIOR INFORMATION TO DETERMINE THE TYPE, NATURE AND EXTENT OF STUDENT'S MULTIDISCIPLINARY ASSESSMENT, FAILING TO IDENTIFY IN THE ASSESSMENT PLAN RECENT ASSESSMENTS AND INFORMATION PARENTS WISHED CONSIDERED; FAILING TO CONDUCT A SUFFICIENTLY COMPREHENSIVE ASSESSMENT, AND DENYING PARENTS THE OPPORTUNITY TO PARTICIPATE IN THE IEP DECISION-MAKING PROCESS?
Student contends Los Alamitos procedurally violated the IDEA, and denied Student a FAPE, by failing to complete an appropriate review of student's prior records, data and observations when developing its February 25, 2020 assessment plan for a multidisciplinary assessment to determine the reasons for Student's continuing difficulties learning to read, failing to identify recent assessments and information including Student's past reading assessments, and failing to conduct a sufficiently comprehensive assessment. Student further contends Los Alamitos denied meaningful parental participation in the development of the assessment plan and failed to provide Parents with Student's prior records, data, or observations needed to develop an appropriate assessment plan and IEP.
Los Alamitos contends it prepared an appropriate assessment plan for Student's multidisciplinary assessment, conducted an appropriate multidisciplinary assessment, and afforded Parents a meaningful opportunity to participate in the development of Student's IEP.
DEVELOPMENT OF STUDENT'S MULTIDISCIPLINARY ASSESSMENT AND SEPTEMBER 2020 IEP DURING STUDENT'S FIRST AND SECOND GRADE SCHOOL YEARS
Los Alamitos developed and conducted its multidisciplinary assessment of Student during the spring of Student's first grade year and the fall of Student's second grade year, and ultimately held an IEP to review the assessment in September 2020. In August 2019, Student entered first grade at Hopkinson in the general education class taught by Erica Chung and Sara Carinchi, and resumed receiving Tier 2 reading interventions in the Hopkinson Reading Lab, 40 minutes per day, four days per week. Student continued to have difficulties with phonemic awareness, reading fluency, and comprehension.
Student also had some difficulties with speech articulation, and his teachers referred him in October 2019 for an initial assessment for eligibility for special education, encompassing only the speech articulation issue. Parents consented to the speech and language assessment, which was completed in November and discussed at a December 6, 2019 IEP.
At Student's initial IEP held December 6, 2019, Student's IEP team discussed Student's speech and language assessment and found him eligible for special education under the category of “speech or language impairment,” based on his articulation difficulties. (The Education Code refers to “language or speech disorder.” [Ed. Code, §56333; 5 C.C.R. § 3030 (b)(11)].) The IEP team also discussed Student's reading and writing difficulties. Parent expressed concerns Student was falling behind his peers academically, and Carinchi had started to suspect Student might have a disability. This was based on her classroom observations that Student had reading problems because of difficulties with phonemic awareness, reading multi-syllable words and some single-syllable words, reading fluency, and reading comprehension. Carinchi also observed Student had difficulty writing and spelling. Carinchi's concern was also based on November 2019 Fountas and Pinnell testing in which Student tested at Level C, and had low reading fluency and comprehension scores.
At the December 6, 2019 IEP, Carinchi recommended that Hopkinson's education specialist observe Student and informally assess him to determine his baseline performance, and that the IEP team meet again in 10 weeks. The IEP team agreed to this plan.
After the December 6, 2019 IEP team meeting, Student continued to struggle with reading. On January 28, 2020, Carinchi again evaluated Student using the Fountas and Pinnell benchmark assessment. Student scored at Level D. This was approximately six months behind the Fountas and Pinnell target for mid-year first grade, which was Level I. Carinchi decided to discuss with Parent at the next parent-teacher conference in February 2020 whether to refer Student for a special education assessment for a specific learning disability.
The December 6, 2019 IEP team meeting was the first time that Los Alamitos provided Parent an objective measure of how Student was performing relative to children his age. Subsequently, Mother researched Student's Fountas and Pinnell scores discussed the December 6, 2019 meeting. After researching the meaning and implications of Student's Fountas and Pinnell scores, Parents reached the same conclusion as Carinchi – that Student needed to be assessed for specific learning disability. At the Parent-teacher conference on February 14, 2020, Parent gave Carinchi a written request that Student be assessed for special education.
FEBRUARY 25, 2020 ASSESSMENT PLAN
On February 25, 2020, Los Alamitos gave Parents an assessment plan for a supplemental comprehensive multidisciplinary assessment of Student in the areas of academics, health, intellectual development, speech and language, and social-emotional/behaviors. As part of any reevaluation of a child like Student who has already been found eligible for special education, the IEP team must review existing evaluation data on the child, including evaluations and information provided by the parents, current classroom-based local or State assessments, classroom-based observations, and observations by teachers and related service providers. (20 U.S.C. § 1414 (c)(1); Ed. Code, § 56381, subd. (b).) On the basis of that review, and input from the parents, the IEP team must identify any additional data needed to determine whether the child has a disability, and the educational needs of the child. (Ibid.) The district must then administer tests and other assessment materials needed to produce the data identified by the individualized education program team. (20 U.S.C. § 1414 (c)(2); Ed. Code, § 56381, subd. (c).)
By February 25, 2020, Student had participated in five 10-week sessions of Hopkinson's Reading Lab, where he had received over 130 hours of Tier 2 reading intervention from Los Alamitos' Structured Literacy program based on the Dyslexia Guidelines. Despite this intervention, Student had not achieved adequately for the student's age, or to meet grade-level standards, in the areas of written expression, basic reading skills, reading fluency skills, reading comprehension, or mathematics problem solving. This at least suggested the possibility that the intervention methods being used with Student were not effective, and the reasons why needed to be investigated by examining data from the Reading Lab, and interviewing Reading Lab instructors, as part of the multidisciplinary assessment to determine Student's educational needs. The Dyslexia Guidelines state, “pre-and post-assessments must be used to determine whether the provided supports are beneficial to the student. If students are not making adequate progress in a timely manner, the team needs to reevaluate the current interventions in place.” (Dyslexia Guidelines, pp. 44-45.)
In this matter, school psychologist Acosta, rather than Student's entire IEP team, prepared the assessment plan for Student's supplemental comprehensive multidisciplinary assessment to assess Student in the areas of academics, health, intellectual development, speech and language, and social-emotional/behaviors. There was no IEP team review of existing evaluation of data, particularly Reading Lab data documenting Student's response to intervention, which Acosta never obtained or reviewed, nor of observations of Student by his Reading Lab instructors, whom Acosta never interviewed. Parents were not provided data for review, nor given an opportunity to provide input or otherwise participate in development of the assessment plan.
Parents consented to the assessment plan on February 28, 2020, and Los Alamitos began the multidisciplinary assessment. Between February 28, 2020 and March 13, 2020, Acosta sent home parent rating scales for social/emotional behavior development, sent home a health questionnaire for Parents to complete, and obtained input from Student's first grade teachers. Acosta interviewed Student and administered the Beery-Buktenica Test of Visual Motor Integration. Education specialist Marisa Torrez-Chavez administered the Weschler Intelligence Achievement Test, Third Edition to Student. Speech and language pathologist Gasner admistered some of the subtests of the Test of Integrated Language and Literacy Skills, an assessment tool that considers the spectrum of strengths and weaknesses displayed by students suspected of having dyslexia.
DELAY IN COMPLETING MULTIDISCIPLINARY ASSESSMENT DUE TO COVID-19 PANDEMIC
March 13, 2020 was Los Alamitos' last day of classroom instruction before California schools closed as of March 16, 2020, in response to State and local orders to do so to contain the spread of the COVID-19 pandemic. Los Alamitos was prohibited from conducting in-person assessments of students for the remainder of the 2019-2020 school year, which ended May 28, 2020. Los Alamitos could not conduct four to five hours of standardized testing required to complete Student's multidisciplinary assessment. Los Alamitos ultimately completed, and the IEP team reviewed, the multidisciplinary assessment in September 2020. Student withdrew at the time of the PHC a contention the multidisciplinary assessment was not timely completed.
On August 10, 2020, Student's attorney gave Los Alamitos written notice of Parents' contention that Los Alamitos' existing IEP for Student had not provided Student appropriate goals, accommodations, programs, and services, and Parents would be acquiring programs and services for Student, and seeking reimbursement.
READING INTERVENTION BY JAMIE HERAVER
Over the summer, Parents located reading specialist Jamie Heraver at Orange County Literacy to provide Student reading instruction. Heraver holds a California Specialist Instruction Credential in reading. In July 2020, Heraver assessed Student's instructional reading level at Level D on the Fountas and Pinnell scale, the same level Student had been in January 2020. A test by Hopkinson Reading Lab instructors on August 11, 2020 before school resumed also found Student's Fountas and Pinnell instructional level was Level D. Student's instructional Level D reading ability at the end of first grade corresponded to Los Alamitos' goal for students finishing kindergarten. Student was a year behind in his reading ability, since the goal for students completing first grade was that they would be reading at Fountas and Pinnell Level J or better.
Heraver worked with Student from August 11, 2020 through the first semester of Student's second grade, which ended December 22, 2020. Heraver provided Student in-person, individual instruction in one hour sessions, three days per week. Heraver used an Orton-Gillingham based reading intervention program called Specialized Program Individualizing Reading Excellence, or SPIRE, specifically designed to help students with dyslexia. The program provided Student systematic, sequential, cumulative, phonemic instruction.
Los Alamitos started the 2020-2021 school year on August 31, 2020, with remote learning, and reopened for in-person elementary learning on September 8, 2020. Student attended second grade in teacher Traci Rynski's general education class, on a hybrid schedule. Student attended in-person class for two hours and 50 minutes on Mondays, Tuesdays, Thursdays and Fridays, and for an additional 2 hours every other Wednesday. For the rest of his instruction, Student studied from home using asynchronous learning, reviewing online materials prepared or selected by Ms. Rynski, at a self-directed pace, without real-time instruction from Ms. Rynski. Within the hybrid schedule, Student received reading, writing, and math through in-person instruction, and math review, science, music, and online reading programs through online asynchronous instruction from home.
From September through December 2020, Student received reading intervention from both Heraver using the SPIRE Orton-Gillingham approach to instruction, and from Rynski who followed Los Alamitos' Structured Literacy program. Student did not attend Reading Lab in second grade. Rynski worked with Student on his weekly spelling words, providing instruction in spelling principles, blends, digraphs (letter pairs producing a single sound, like -ng), endings, r-controlled vowels, vowel pairs, and dipthongs (sounds formed by combining two vowels in a single syllable, like the -oi in “coin). In her September 28, 2020 reading progress report for Student, Heraver noted that Student started exhibiting confusion and problems retaining new information in her sessions after he began receiving general education reading interventions from Rynski. Heraver wrote Student began to consistently mention r-controlled sounds, various reading strategies used by Rynski, and other phonemes he was aware of but confused by, like the silent e. Student began to confuse skills he previously knew when working with Heraver, such as confusing long vowels and short vowels. Heraver recommended to Parents that Student should continue to receive instruction in an Orton-Gillingham, Lindamood-Bell, or another similar structured literacy program four or five days per week for one hour, with no other reading program being employed at the same time to avoid confusing Student. She also recommended Student should stop taking general education spelling tests, as they were not helping him learn skills to decode words, and were frustrating him.
Student continued to struggle with reading in second grade. In Student's progress report from October 2020, Rynski reported Student was not meeting expectations in reading. For the first semester ending December 22, 2020, Student was below semester standards in all areas of reading and writing. He received the lowest grade (limited – not meeting standards) in reading phonics and word recognition, and was only “approaching standard” in reading literature and informational text, writing text types and purposes, and production and distribution of writing. No Fountas and Pinnell testing from Student's first semester was offered in evidence. Rynski administered Fountas and Pinnell tests to Student in October, November and December 2020, and February 2021, but these tests were never provided to Parents or produced in the case by Los Alamitos. Heraver did not test Student until January 13, 2021, when he scored instructional Level G on the Fountas and Pinnell scale. This was a three-level increase in Student's reading score, from Level D in August 2020 to Level G five months later in January 2021. Although this was Student's fastest rate of reading progress from kindergarten through second grade, it still left Student well behind Los Alamitos' goal for students in second grade to progress from Level K to Level M or better. Later testing by Rynski on March 5, 2021 showed some slight regression, with Student testing at high Level F.
Student struggled with his asynchronous learning, which used grade level texts that Student had difficulty reading. Parents hired tutor Katrina Reeser to work with Student two hours a week helping him understand and complete his online work. Reeser worked with Student from September 2020 through March 18, 2021. Reeser did not testify.
SEPTEMBER 2020 MULTIDISCIPLINARY ASSESSMENT
Once in-person instruction resumed in August 2020, Los Alamitos completed its remaining in-person assessments of Student, and finished its multidisciplinary assessment report dated September 29, 2020. The multidisciplinary assessment included testing in the areas of intellectual development and social-emotional behavior, academic achievement, speech and language communication development, and health, administered by school psychologist Acosta, specialized academic instructor Marisa Chavez, speech and language pathologist Gasner, and the district nurse.
The multidisciplinary assessment found Student to be kind and friendly, easily engaging with peers during breaks, and focused, cooperative, motivated, independent, and respectful in class. He performed at grade level in math, but below grade level in reading and written expression. Parent and teacher rating scales indicated no concerns in the areas of behavior, attention, social-emotional, and vocational abilities.
Cognitively, Student had average general abilities, verbal comprehension, attention, executive functioning, and visual-spatial skills, with low average or below average working memory, fluid reasoning, and processing speed. In auditory processing tests, Student presented with attributes of dyslexia, including difficulty with fluent word recognition, poor spelling, and decoding due to deficits in phonological processing and auditory working memory. Another processing deficit was identified in association, concerning long-term retrieval, which the assessment team found to be consistent with Student's difficulties with processing speed. Academic achievement testing revealed overall average academic functioning, but Student performed below average on reading fluency and basic reading, as well as some areas of written expression.
Acosta evaluated Student's eligibility for special education under the category of specific learning disability using all three methods available under California law: the significant discrepancy method, the response to intervention method, and the patterns of strengths and weaknesses method. The severe discrepancy method required that standardized testing show a severe discrepancy between the child's intellectual ability and achievement in oral expression, listening comprehension, written expression, basic reading skills, reading comprehension, mathematical calculation, or mathematical reasoning. (20 U.S.C. § 1414(b)(6)(A); Ed. Code, § 56337, subd. (b); Cal. Code Regs., tit. 5, § 3030, subd. (b)(10)(B).) If standardized tests are considered valid for a student, the method for demonstrating whether a severe discrepancy exists is to convert the student's achievement test score and the intellectual ability test score into common standard scores, using a mean of 100 and standard deviation of 15, calculate the difference between the student's scores, and compare this difference to a standard criterion defined as 1.5 times the standard deviation of the distribution of computed test score differences of all students taking the same achievement and ability tests [the standard deviation being a measure of the average difference between the mean test score compared to the test scores of all the students taking the tests]. A severe discrepancy is indicated if the difference between the student's test scores is more than 1.5 times the standard criterion, adjusted by one standard error of measurement not to exceed four standard score points [to account for the range of the student's statistically likely scores on the standardized tests reflected by the student's actual, single test score]. (Cal. Code Regs., tit. 5, § 3030, subd. (b)(10)(B)(1).) Additionally, the finding of a severe discrepancy based on test scores must be corroborated by other assessment data which may include other tests, scales, instruments, observations and work samples, as appropriate. (Ibid.) Because many standardized tests of intellectual ability and academic achievement are normed by their publishers to a mean of 100 and a standard deviation of 15, the calculation of the severe discrepancy formula has commonly interpreted the required difference between a student's ability and achievement standard test scores to be at least 22.5 points, or 1.5 times 15.
If the standardized tests do not reveal a severe discrepancy based on the difference between a student's ability and achievement standard test scores, the IEP team may still find that a severe discrepancy exists, if the IEP team documents in writing that the severe discrepancy between ability and achievement exists as a result of a disorder in one or more of the basic psychological processes. (Cal. Code Regs., tit. 5, § 3030, subd. (b)(10)(B)3.) The report must include a statement of the area, the degree, and the basis and method used in determining the discrepancy. (Ibid.) The report must contain information considered by the team which must include, but not be limited to, data obtained from standardized assessment instruments, information provided by the parent, information provided by the student's present teacher, evidence of the pupil's performance in the regular and/or special education classroom obtained from observations, work samples, and group test scores, consideration of the pupil's age, particularly for young children, and any additional relevant information. (Ibid.) A severe discrepancy cannot be primarily the result of limited school experience or poor school attendance. (Id. at subd. (b)(10)(B)4.)
Acosta concluded Student's test results did not show a statistically significant discrepancy between his standardized cognitive and academic assessments, and did not satisfy the criteria of the significant discrepancy model for determining specific learning disability. Acosta did not undertake an alternative analysis of whether Student demonstrated a severe discrepancy between his ability and achievement as a result of a disorder in one or more of the basic psychological processes.
Acosta appeared to find Student qualified for eligibility under both the pattern of strengths and weaknesses method and the response to intervention method. Each of these first required a determination that the student, after being provided learning experiences and instruction appropriate for the student's age or State-approved grade-level standards, did not achieve adequately for the student's age, or to meet grade-level standards, in one or more of the areas of oral expression, listening comprehension, written expression, basic reading skills, reading fluency skills, reading comprehension, mathematics calculation, or mathematics problem solving. (34 C.F.R. § 300.309(a)(1); Cal. Code Regs., tit. 5, § 3030, subd. (b)(10)(C)1.) If so, the student may be determined to have a specific learning disability under the response to intervention method if the student failed to make sufficient progress to meet age level or State-approved grade-level standards in one or more of the areas identified above, when provided scientific, research-based intervention. Alternatively, the student may be determined to have a specific learning disability under the pattern of strengths and weaknesses method if the student exhibits a pattern of strengths and weaknesses in performance, achievement, or both, relative to age level, State-approved grade-level standards, or intellectual development, that the student's IEP team determines is relevant to the identification of a specific learning disability, using appropriate assessments complying with the IDEA's implementing regulations found at 34 C.F.R. sections 300.304 and 300.305. (34 C.F.R. § 300.309(a)(2)(i) and (ii); Cal. Code Regs., tit. 5, § 3030, subd. (b)(10)(C)2.(i) and (ii).)
Acosta's determination of eligibility stated: “While a statistically significant discrepancy does not exist between [Student's] standardized cognitive and academic assessment, there is significant scatter among standardized assessment scores. Despite intervention, [Student] continues to demonstrate discrepancies in the area of basic reading skills, and written expression due to deficits in phonological processing and association.” Based on the assessment results, Acosta found Student had the specific learning disability of dyslexia, with academic deficits pervasive across all academic settings.
The failure of the February 25, 2020 assessment plan to consider data and information on Student's response to intervention was not remedied in the multidisciplinary assessment itself. Acosta's application of the response to intervention method for determining Student had a specific learning disability was based solely on her understanding Student received reading intervention through Hopkinson's Reading Lab, and had not made adequate progress in the area of basic reading skills, and written expression. Acosta did not interview any of Student's Reading Lab instructors, or review any of the data collected on by the Reading Lab. In fact, Student's session summary reports and any other data on Student that was maintained at the Hopkinson Reading Lab was apparently lost when the Reading Lab changed rooms during the COVID-19 pandemic. Los Alamitos searched for Student's Reading Lab data, but was unable to produce any of it to Parents when they requested Student's educational records after filing this case.
SEPTEMBER 29, 2020 IEP
Student's IEP team met by videoconference on September 29, 2020 to review Student's multidisciplinary assessment. Parents attended with Student's attorney and reading specialist Heraver, and District Director of Special Education Grace Delk attended with Hopkinson Principal Evelyn Garcia, teacher Rynski, and assessors Acosta, Chavez, and Gasner. No Reading Lab instructors or other personnel from Reading Lab participated in Student's IEP team meeting, and no data from the Reading Lab was discussed at the IEP or provided to Parents.
The IEP team reviewed the multidisciplinary assessment results and agreed Student was eligible for special education under the categories of specific learning disability of dyslexia, and speech or language impairment. The team discussed goals for Student, and developed three proposed speech and language goals, and four goals to address Student's reading deficits in phonemic awareness, word recognition comprehension, and writing deficit in written expression. The IEP team agreed to revise Student's proposed goals based on the IEP team's discussion and agreed that Student's present levels of performance baselines for his reading and writing goals needed to be updated to include more information.
Heraver told Student's IEP team it was important to use a daily, consistent, structured reading intervention program with Student. She recommended Student receive one hour per day of such instruction and warned that Student should not participate in more than one reading intervention program, because instruction using more than one program, taught by different providers, would confuse Student. The Los Alamitos members of the IEP team did not agree with Heraver's recommendation, and proposed Student receive English language arts instruction in the general education classroom, and 150 minutes per week of pull-out specialized academic instruction before or after school in a small group of up to three students, either as 30 minutes every day, or, if it would better accommodate Parents' schedule, 45 minutes two days per week, and 30 minutes two days per week. Parents sought a detailed description of the reading program Student would receive in his specialized academic instruction, but the Los Alamitos team members were not able to provide a detailed description at the IEP team meeting.
Los Alamitos sent Parents a copy of the IEP on October 2, 2020. On October 12, 2020, Student's attorney wrote Los Alamitos stating Parents' objections to the September 29, 2020 IEP. Parents objected the IEP was confusing in its description of the duration and frequency of Student's specialized academic instruction. Counsel also stated Los Alamitos had not satisfactorily explained the nature of Student's proposed specialized academic instruction, and the training, background, and experience of its providers.
Los Alamitos ultimately sent Parents a final version of its proposed IEP for Student on November 24, 2020, with a letter explaining the training and experience of Rynski and Chavez, who would be providing interventions in the general education classroom and in the pull-out specialized academic instruction, respectively. The letter also explained that the Tier 1 general education intervention and the Tier 3 special education intervention would both use Fountas and Pinnell and Lindamood-Bell reading strategies to help Student develop his reading and writing skills. In a subsequent March 17, 2021 letter, Los Alamitos explained the proposed specialized academic instruction would use the same methodologies as the Reading Lab.
The November 24, 2020 IEP clarified Student would receive interventions in the general education classroom, through 30 minutes daily of pull-out specialized academic instruction in a small group, and in Reading Lab, although that would not be part of Student's IEP.
Student's attorney responded on December 11, 2020, indicating that Parent's concerns remained, particularly with respect to Los Alamitos' proposal to provide Student three programs of reading intervention taught by different individuals. He stated Parents would continue to look for programs and services for Student and seek reimbursement.
As a result of the deficiencies in Student's assessment plan and the assessment itself, Student's IEP team was unable to comply with the procedural requirements of the IDEA and Education Code when it developed Student's September 20, 2020 IEP. First, in interpreting evaluation data for the purpose of determining if a child is a child with a disability, and the educational needs of the child, an IEP team must draw upon information from a variety of sources, including aptitude and achievement tests, parent input, and teacher recommendations, and “[e]nsure that information obtained from all of these sources is documented and carefully considered.” (34 C.F.R. § 300.306(c)(1).) If the Hopkinson Reading Lab followed Los Alamitos' Structured Literacy protocols, it should have kept information including session summary reports for over 130 hours of Tier 2 reading intervention provided to Student. This information and data, which was collected and maintained to allow diagnostic progress monitoring of each student's response to intervention to develop future interventions for Student, was not used at all in developing Student's September 29, 2020 IEP.
Although the multidisciplinary assessment relied on Student's response to intervention in determining Student's eligibility, no data or information from the Reading Lab was documented or considered by Student's IEP team or provided to Parents. Data and information from the Reading Lab addressing the reasons why Student still continued to make inadequate progress after 130 hours of Reading Lab intervention was also necessary for the IEP team to make informed decisions about Student's educational needs and to develop an educational program that would be more effective.
To ensure that Student's underachievement was not due to lack of appropriate instruction in reading, the IEP team was also required to consider data demonstrating Student was provided appropriate instruction in regular education settings, delivered by qualified personnel; and data-based documentation of repeated assessments of achievement at reasonable intervals, reflecting formal assessment of student progress during instruction, which was provided to the child's parents. (34 C.F.R. § 300.309(b).) This did not occur.
Also, because Student was suspected of having a specific learning disability, the IEP team's determination of his eligibility was required to contain specific documentation not required for determinations of other eligibility categories. (34 C.F.R. §§ 300.306(a)(2) and 300.311.) Among other things, because Student participated in a process that assessed his response to scientific, research-based intervention, Student's IEP team was required to include a statement of the instructional strategies that had been used and the data collected. (34 C.F.R. § 300.311(a)(7)(i).) The statement was also required to describe Los Alamitos' documentation that Parents were notified about certain state policies, strategies to increase the child's learning rate, and the parent's right to request an evaluation. (34 C.F.R. § 300.311(a)(7)(ii).) Los Alamitos did not include the required documentation, and Parents and the IEP team did not have the information they needed to make a procedurally valid eligibility determination.
Finally, the IDEA requires informed parental consent before conducting an initial evaluation and before providing special education services to a child. (20 U.S.C. § 1414(a)(1)(D)(i).) The school district must also establish procedural safeguards that provide “[a]n opportunity for the parents of a child with a disability to examine all records relating to such child.” (20 U.S.C. § 1415(b)(1)(A).) Examination of records by parents is critical to the development of an IEP. (Amanda J. v. Clark County School Dist. 267 F.3d 877, 882 (9th Cir.2001).) In Amanda J., the court determined the student was denied a FAPE because the parents were not provided all her school records, some of which indicated that she might have autism. (Id. at 890.) “An IEP which addresses the unique needs of the child cannot be developed if those people who are most familiar with the child's needs are not involved or fully informed.” (Id. at 892.)
Without Student's response to intervention data and information from the Reading Lab, Parents were unable to give informed consent for the multidisciplinary assessment, or participate meaningfully in the development of an educational program to address Student's dyslexia. Having observed Student's lack of adequate progress in reading despite three years of reading intervention through Los Alamitos' Structured Literacy program in the Tier 1 general education classroom and Tier 2 Reading Lab, Parents were concerned the specialized academic instruction in Tier 3 would be similarly ineffective. Both at the September 20, 2020 IEP team meeting and in correspondence after, Parents sought detailed information about the who would be teaching Student, and what would be taught. Parents were advised the methodology of the proposed specialized academic instruction for Student was the same as the Reading Lab, but, without data or information, they and the IEP team were unable to participate in an informed discussion of whether that methodology that should be changed in light of Student's past lack of progress, or what methodologies might be more effective. Los Alamitos had a procedural duty to provide the IEP team with Student's response to intervention data at the September 20, 2020 IEP team meeting and violated the procedural safeguards of the IDEA by not providing Parents an opportunity to examine all records relating to Student.
Only those procedural violations that result in the loss of educational opportunity, seriously infringe the parents' opportunity to participate in the IEP formulation process or cause a deprivation of educational benefits deny a child a FAPE. (N.B. v. Hellgate Elementary School. Dist. (9th Cir.2008) 541 F.3d 1202, 1207.) In M.M. v. Lafayette School Dist. (9th Cir. 2014) 767 F.3d 842 (M.M. v. Lafayette), the court, on similar facts, concluded the district's failure to provide parents complete response to intervention data regarding their child prevented the parents from meaningfully participating in the IEP process because it denied the parents information that indicated his progress had slowed despite intervention and that suggested his poor response to intervention was due to an incorrect determination of his processing disorder that needed to be addressed through intervention. Parents therefore were unable to properly advocate for changes to instructional strategies in the student's IEP, and the student was denied a FAPE. (Id. at p. 856.)
In this case, Los Alamitos was proposing a continuation of the same instructional methodologies that were ineffective prior to the IEP, without any consideration of the reasons why the methodologies hadn't worked, and Parents lacked the response to intervention data and information necessary to look for possible reasons and advocate for changes to Student's proposed specialized academic instruction and educational program.
Student proved by a preponderance of the evidence that Los Alamitos prevented Parents from meaningfully participating in the IEP process, and denied Student a FAPE, by failing to identify in the assessment plan, and complete an appropriate review of, Student's response to intervention data to determine the type, nature and extent of Student's multidisciplinary assessment, failing to conduct a sufficiently comprehensive assessment, and failing to provide Parents and the IEP team complete response to intervention data and information necessary to determine appropriate reading interventions for Student, denying Parents the opportunity to meaningfully participate in the IEP decision-making process.
SERVICE PROVIDERS HIRED BY PARENTS AFTER LOS ALAMITOS' FINAL IEP OFFER
In January 2020, Parents engaged a new reading program provider to replace Heraver, Pride Reading Program, which provided Student reading instruction from January 4, 2021 through March 2021. On March 12, 2021, Parents gave Los Alamitos notice they would be withdrawing Student from Los Alamitos and placing him at The Prentice School on March 29, 2021. They stated this placement would be at public expense, because Los Alamitos had failed to offer Student a FAPE.
The Prentice School, called Prentice, is a certified non-public school located within Los Alamitos' boundaries. It is accredited for kindergarten through eighth grade, and provides placement, programs, and services for children with IEP eligibilities of specific learning disability and attention deficit hyperactivity disorder. Teachers at Prentice are trained by the Dyslexia Training Institute in an Orton-Gillingham reading intervention program for teaching children with dyslexia to read and write. The program sequentially advances students through seven progressions, from closed syllables to open syllables, vowel-consonant-e, vowel digraphs, vowel dipthongs, r- controlled syllables, and consonant-le syllables. Student attended Prentice for approximately 10 weeks at the end of second grade, in the classroom of teacher Janis Huennekens, and received Orton-Gillingham reading intervention in a small group of five students. Student acclimated quickly to Prentice, and adapted well to the Orton-Gillingham program. By the end of the year, Student had learned all the Orton-Gillingham concepts and rules for closed syllables. Student's expert psychologist, Jeanette Morgan, observed Student at Prentice in May and June 2021. Student was taught in a small class environment that incorporated literacy with frequent review of Orton-Gillingham spelling rules, and high levels of reinforcement. Student was comfortable and felt safe to take risks like reading aloud in front of the class, answering questions about the spelling rules, and attempting to write words before seeking assistance. Dr. Morgan believed Prentice provided Student appropriate structured intervention to enable him to make meaningful progress, based on the intensity of the structured literacy intervention and incorporation of the intervention throughout his school day, and the small class size and adult to student ratio. Dr. Morgan recommended Student continue at Prentice. Los Alamitos personnel Chavez and Grandon separately observed Student at Prentice in June 2021. Chavez did not testify regarding her observations, and Grandon expressed only a few minor criticisms at hearing. Los Alamitos does not dispute that Prentice was an appropriate educational placement for Student. Student attended Prentice from March 29, 2021, through June 18, 2021 and is enrolled for the 2021-2022 school year.
Dr. Morgan also reviewed Student's multidisciplinary assessment, and believed some of his standardized test scores indicated Student might have auditory processing issues. Dr. Morgan recommended Student receive an auditory processing evaluation. Student does not seek reimbursement for payments to Dr. Morgan.
Parents hired Maria Abramson, an audiologist in Orange County, in early April 2020, to conduct an auditory processing assessment of Student in early April 2020 at Parents' expense. Los Alamitos has its own audiologist who could have conducted such an assessment, but Parents did not ask Los Alamitos to assess Student's auditory processing, or pay for Dr. Abramson, before hiring her. Dr. Abramson found that Student had deficits in binaural integration, auditory figure ground, binaural separation, binaural integration, and temporal ordering and sequencing. Dr. Abramson recommended an ARIA evaluation and treatment, apps to help with practice, microphone hearing aids, and a further evaluation in one year.
ISSUES 3(C), 4(A)(B)(C)(D), AND (F): DID LOS ALAMITOS DENY STUDENT A FAPE BY FAILING TO HAVE QUALIFIED INDIVIDUALS CONDUCT STUDENT'S MULTIDISCIPLINARY ASSESSMENT, AND, IN THE 2020-2021 SCHOOL YEAR, BY FAILING TO IDENTIFY STUDENT AS ELIGIBLE FOR SPECIAL EDUCATION UNDER THE CATEGORY OF SPECIFIC LEARNING DISABILITY, FAILING TO CONSIDER THE REPORT(S), INFORMATION, AND/OR RECOMMENDATIONS OF OUTSIDE PROFESSIONALS, FAILING TO HAVE A DIRECT RELATIONSHIP BETWEEN STUDENT'S PRESENT LEVELS, GOALS, AND SERVICES, FAILING TO DEVELOP APPROPRIATE, OBJECTIVE, MEASURABLE GOALS IN ALL AREAS OF NEED (INCLUDING ACADEMICS), AND FAILING TO OFFER STUDENT APPROPRIATE PLACEMENT, PROGRAMS, SERVICES, ACCOMMODATIONS, MODIFICATIONS, METHODOLOGIES, TECHNIQUES AND SUPPORTS TO ADDRESS STUDENT'S UNIQUE NEEDS?
Having determined Los Alamitos committed procedural violations in developing Student's September 20, 2020 IEP that denied Student a FAPE, this decision does not decide whether the resulting IEP was reasonably calculated to enable Student to receive educational benefits, or whether Los Alamitos otherwise procedurally violated the IDEA. (See Amanda J., supra, 267 F.3d at p. 895.)
ISSUE 5: WILL LOS ALAMITOS' PROCEDURAL AND SUBSTANTIVE VIOLATIONS OF THE IDEA COMMITTED PRIOR TO THE FILING OF THE COMPLAINT, AS IDENTIFIED IN ISSUE 4, RESULT IN A DENIAL OF STUDENT'S RIGHT TO A FAPE FOR THE EXTENDED SCHOOL YEAR 2021, AND THE 2021-2022 SCHOOL YEAR TO THE DATE OF STUDENT'S NEXT IEP DUE TO BE HELD BY SEPTEMBER 28, 2021?
Student's complaint sought a determination that, as of the date of the complaint, Los Alamitos' failure to offer Student a FAPE in Student's September 29, 2020 IEP would result in a denial of Student's right to a FAPE in the 2021 extended school year, and in the 2021-2022 school year until a new IEP is held. Los Alamitos contends it offered Student a FAPE in the September 29, 2020 IEP, as corrected November 24, 2020.
Although equitable remedies may extend into the future beyond the filing of the complaint and hearing, liability must be based on events occurring before the complaint is filed. A claim is not ripe for judicial resolution "if it rests upon 'contingent future events that may not occur as anticipated, or indeed may not occur at all.'" Scott v. Pasadena Unified School Dist. (9th Cir. 2002) 306 F.3d 646, 662 [quoting Texas v. United States, 523 U.S. 296, 300, 118 S.Ct. 1257, 140 L.Ed.2d 406 (1998) (quoting Thomas v. Union Carbide Agric. Prods. Co., 473 U.S. 568, 581, 105 S.Ct. 3325, 87 L.Ed.2d 409 (1985)].)
On May 7, 2021, when Student filed his complaint, Student's contention that Los Alamitos' past acts would deny Student a FAPE in the future was speculative and not ripe for adjudication as a legal issue. At the time of the complaint, it was possible Los Alamitos would offer Student a new IEP that provided Student a FAPE. Or Student might have developed his reading skills to the point that he no longer required special education to address his dyslexia, and on that basis would not have been denied a FAPE. Also, this decision determined in Issue 1 that Student failed to prove he was entitled to extended school year services in 2021. Therefore, Student failed to prove that Los Alamitos' procedural and substantive violations of the idea committed prior to the filing of the complaint, as identified in issue 4, would result in a denial of Student's right to a FAPE for the extended school year 2021, and the 2021-2022 school year to the date of student's next IEP due to be held by September 28, 2021.
CONCLUSIONS AND PREVAILING PARTY
As required by California Education Code section 56507, subdivision (d), the hearing decision must indicate the extent to which each party has prevailed on each issue heard and decided.
Issue 1(a): Los Alamitos denied Student a FAPE from May 7, 2019 to the end of the 2018-2019 school year by failing to conduct an assessment of Student. Student did not prove he was denied a FAPE in the 2019 extended school year. Student prevailed on Issue 1, subsection a, except for the contention that Student was denied a FAPE during the 2019 extended school year.
Issue 1(b): Los Alamitos denied Student a FAPE from May 7, 2019 to the end of the 2018-2019 school year by failing to hold any individualized educational program team meeting for Student or develop any IEP. Student did not prove he was denied a FAPE in the 2019 extended school year. Student prevailed on Issue 1, subsection b, except for the contention that Student was denied a FAPE during the 2019 extended school year.
Issue 1(c): Los Alamitos denied Student a FAPE from May 7, 2019 to the end of the 2018-2019 school year, by failing to make any offer of FAPE to Student. Student did not prove he was denied a FAPE in the 2019 extended school year. Student prevailed on Issue 1, subsection c, except for the contention that Student was denied a FAPE during the 2019 extended school year.
Issue 2(a): Did Los Alamitos deny Student a FAPE in the 2019-2020 school year and 2020 extended school year, by failing to complete an appropriate review of Student's prior records, data, and observations to determine the type, nature and extent of its initial assessment of Student? Issue 2, subsection a, was not decided.
Issue 2(b): Did Los Alamitos deny Student a FAPE in the 2019-2020 school year and 2020 extended school year, by failing to have Student's assessment plans identify recent assessments and information Parents wished considered? Issue 2, subsection b, was not decided.
Issue 2(c): Did Los Alamitos deny Student a FAPE in the 2019-2020 school year and 2020 extended school year, by failing to have qualified individuals conduct Student's assessments? Issue 2, subsection c, was not decided.
Issue 2(d): Did Los Alamitos deny Student a FAPE in the 2019-2020 school year and 2020 extended school year, by failing to conduct a sufficiently comprehensive initial assessment of Student prior to Students' initial December 2019 IEP team meeting, to assess Student in all areas of suspected disability? Issue 2, subsection d, was not decided.
Issue 2(e): Did Los Alamitos deny Student a FAPE in the 2019-2020 school year and 2020 extended school year, by failing to identify Student as eligible for special education under the category of specific learning disability? Issue 2, subsection e, was not decided.
Issue 2(f): Did Los Alamitos deny Student a FAPE in the 2019-2020 school year and 2020 extended school year, by failing to consider information, and/or recommendations of outside professionals? Issue 2, subsection f, was not decided.
Issue 2(g): Did Los Alamitos deny Student a FAPE in the 2019-2020 school year and 2020 extended school year, by failing to have a direct relationship between Student's present levels, goals, and services? Issue 2, subsection g, was not decided.
Issue 2(h): Did Los Alamitos deny Student a FAPE in the 2019-2020 school year and 2020 extended school year, by failing to develop appropriate, objective, measurable goals in all areas of need (including academics)? Issue 2, subsection h, was not decided.
Issue 2(i): Did Los Alamitos deny Student a FAPE in the 2019-2020 school year and 2020 extended school year, by denying Parents an opportunity to meaningfully participate in the decision-making process for Student's individualized education program, called an IEP, by, among other things, failing to timely and clearly communicate with Parents, failing to respond to communications from Parents, failing to consider Parents' input, and failing to communicate with Parents? Issue 2, subsection i, was not decided.
Issue 2(j): Did Los Alamitos deny Student a FAPE in the 2019-2020 school year and 2020 extended school year, by failing to offer Student appropriate placement, programs, services, accommodations, modifications, methodologies, techniques and supports to address Student's unique needs? Issue 2, subsection j, was not decided.
Issue 3(a): Los Alamitos denied Student a FAPE by failing to conduct an appropriate multidisciplinary assessment of Student, by failing to complete an appropriate review of Student's prior records, data, and observations to determine the type, nature and extent of the multidisciplinary assessment. Student prevailed on Issue 3, subsection a.
Issue 3(b): Los Alamitos denied Student a FAPE by failing to conduct an appropriate multidisciplinary assessment of Student, by failing to have the assessment plan identify recent assessments and information Parents wished considered. Student prevailed on Issue 3, subsection b.
Issue 3(c): Did Los Alamitos deny Student a FAPE by failing to conduct an appropriate multidisciplinary assessment of Student, by failing to have qualified individuals conduct Student's multidisciplinary assessment? Issue 3, subsection c, was not decided.
Issue 3(d): Los Alamitos denied Student a FAPE by failing to conduct an appropriate multidisciplinary assessment of Student, by failing to conduct a sufficiently comprehensive multidisciplinary assessment to assess Student in all areas of suspected disability. Student prevailed on Issue 3, subsection d.
Issue 4(a): Did Los Alamitos deny Student a FAPE, in the 2020-2021 school year by failing to identify Student as eligible for special education under the category of specific learning disability? Issue 4, subsection a, was not decided.
Issue 4(b): Los Alamitos denied Student a FAPE, in the 2020-2021 school year by failing to consider the report(s), information, and/or recommendations of outside professionals. Issue 4, subsection b, was not decided.
Issue 4(c): Did Los Alamitos deny Student a FAPE, in the 2020-2021 school year by failing to have a direct relationship between Student's present levels, goals, and services? Issue 4, subsection c, was not decided.
Issue 4(d): Did Los Alamitos deny Student a FAPE, in the 2020-2021 school year by failing to develop appropriate, objective, measurable goals in all areas of need (including academics)? Issue 4, subsection d, was not decided.
Issue 4(e): Los Alamitos denied Student a FAPE, in the 2020-2021 school year by denying Parents an opportunity to meaningfully participate in the IEP decision-making process by, among other things, failing to timely and clearly communicate with Parents, failing to respond to communications from Parents, failing to consider Parents' input, and failing to communicate with Parents. Student prevailed on Issue 4, subsection e.
Issue 4(f): Did Los Alamitos deny Student a FAPE, in the 2020-2021 school year by failing to offer Student appropriate placement, programs, services, accommodations, modifications, methodologies, techniques and supports to address Student's unique needs? Issue 4, subsection f, was not decided.
Issue 5: Student failed to prove Los Alamitos' procedural and substantive violations of the IDEA committed prior to the filing of the complaint, as identified in Issue 4, would result in a denial of Student's right to a FAPE for the extended school year 2021, and the 2021-2022 school year to the date of Student's next IEP due to be held by September 28, 2021. Los Alamitos prevailed on Issue 5.
REMEDIES
As a remedy with respect to the issues on which Student prevailed, Student requests that Los Alamitos be ordered to reimburse Parents for costs they incurred for reading interventions provided by Jamie Heraver at Orange County Literacy, and by Pride Reading Program, private tutoring by Katrina Reeser to assist Student with asynchronous learning, and audiological testing conducted by audiologist Maria Abramson. Student also seeks reimbursement for amounts paid to the Prentice School from March 29, 2021 to June 18, 2021, and for the costs of mileage to take Student to these providers. Student also requests that Los Alamitos be ordered to fund the cost for Student to attend Prentice for the entire 2021-2022 school year, including mileage. Los Alamitos contends Student is not entitled to any remedy because Los Alamitos did not deny Student a FAPE.
Courts have broad equitable powers to remedy the failure of a school district to provide a FAPE to a disabled child. (20 U.S.C. § 1415(i)(1)(C)(iii); Ed. Code, § 56505, subd. (g); see School Committee of the Town of Burlington, Massachusetts v. Dept. of Education (1985) 471 U.S. 359, 369 [105 S.Ct. 1996, 85 L.Ed.2d 385] (Burlington).) This broad equitable authority extends to an ALJ who hears and decides a special education administrative due process matter. (Forest Grove, supra, 557 U.S. 230, 244, n. 11.)
When a school district fails to provide a FAPE to a student with a disability, the student is entitled to relief that is “appropriate” in light of the purposes of the IDEA. (Burlington, supra, 471 U.S. at p. 369-371.) Parents may be entitled to reimbursement for the costs of placement or services that they have independently obtained for their child when the school district has failed to provide a FAPE. (Id; Student W. v. Puyallup School District (9th Cir. 1994) 31 F. 3d 1489, 1496 (Puyallup).) A school district also may be ordered to provide compensatory education or additional services to a student who has been denied a FAPE. (Ibid.) These are equitable remedies that courts may employ to craft “appropriate relief” for a party. An award of compensatory education need not provide a “day-for-day compensation.” (Id. at 1497.) The conduct of both parties must be reviewed and considered to determine whether equitable relief is appropriate. (Id. at p. 1496.) An award to compensate for past violations must rely on an individualized assessment, just as an IEP focuses on the individual student's needs. (Reid ex rel. Reid v. District of Columbia (D.D.C. Cir. 2005) 401 F.3d 516, 524, (Reid) citing Puyallup 31 F.3d 1489,1497.) The award must be fact-specific and be “reasonably calculated to provide the educational benefits that likely would have accrued from special education services the school district should have supplied in the first place.” (Reid, supra, 401 F.3d at p. 524.)
A parent may be entitled to reimbursement for placing a student in a private placement without the agreement of the local school district if the parents prove at a due process hearing that the district had not made a FAPE available to the student in a timely manner prior to the placement, and the private placement was appropriate. (Ed. Code, §56175; 20 U.S.C. § 1412(a)(10)(C)(ii); 34 C.F.R. § 300.148(c); see also Burlington, supra, 471 U.S. at p. 369-370[reimbursement for unilateral placement may be awarded under the IDEA where the district's proposed placement does not provide a FAPE].) The private school placement need not meet the state standards that apply to public agencies in order to be appropriate. (34 C.F.R. § 300.148(c); Florence County School Dist. Four v. Carter (1993) 510 U.S. 7, 14; 114 S.Ct. 36, 1126 L.Ed.2d 284] (Florence) [despite lacking state-credentialed instructors and not holding IEP team meetings, unilateral placement was found to be reimbursable where the unilateral placement had substantially complied with the IDEA by conducting quarterly evaluations of the student, having a plan that permitted the student to progress from grade to grade and where expert testimony showed that the student had made substantial progress].)
A parent must give the district at least 10 days' written notice about their concerns, their intention to reject the district's placement and their intention to enroll the student in a private school at public expense, or reimbursement may be denied or reduced. (20 U.S.C. § 1412(a)(10)(C)(iii)(I)(bb); 34 C.F.R. § 300.148(d)(1).) The ALJ has discretion to not reduce the cost of reimbursement if compliance with the notice requirement “would likely result in serious emotional harm to the child.” (20 U.S.C. § 1412(a)(10)(C)(iv)(II)(bb); 34 C.F.R. § 300.148(e)(1).)
Here, Student is entitled to compensatory education for the 349 school days during the period from August 7, 2019 to the filing of the complaint on May 7, 2021 during which Los Alamitos' failure to find, assess, and offer Student an appropriate IEP denied Student a FAPE. In light of Student's inadequate progress despite the reading interventions provided him by Los Alamitos' Structured Literacy program, Parents' hiring of Heraver in 2020, and Pride Reading Program in early 2022 was a reasonable attempt to obtain reading interventions different from those provided by Los Alamitos in hopes they might prove more effective. Student's three-level increase in his Fountas and Pinnell testing, from Level D in July 2020 to Level G in January 2021, was the fastest rate of reading progress ever demonstrated by Student and suggests Heraver's reading interventions in particular were of benefit to Student.
Parents request total reimbursement of $5557.50 paid to Heraver between August 11, 2020 and December 2020, and $4,875.00 for amounts paid to Pride Reading Program from January 4, 2021 to March 28, 2021. In addition, Parents request reimbursement of $1,167.25 for mileage costs for 50 trips to take Student 40.6 miles between home and Heraver at Orange County Literacy. These costs are documented in the record and granted.
Parents seek reimbursement for $2100.00 paid to private tutor Reeser for services from September 2020 to March 18, 2021, to assist Student two hours per week in completing his asynchronous instruction, plus $119.13 in mileage. Parents did not ask Los Alamitos to provide these services to Student before obtaining them privately. Parents' rationale for reimbursing for Reeser as compensatory education was that Student required assistance because he could not read at the second-grade level, because Los Alamitos had not provided him appropriate services. However, although Los Alamitos was responsible for providing Student appropriate reading interventions from October 6, 2019, it was not responsible for a guaranteed outcome that Student would be able to read at a second-grade level in September 2020. These requests for reimbursement are denied.
Student seeks Reimbursement of $775.00 for Dr. Abramson's auditory processing assessment of Student. This request is denied because Los Alamitos has its own audiologist who could have conducted such an assessment, but Parents did not ask Los Alamitos to assess Student's auditory processing, or pay for Dr. Abramson, before hiring her.
Student's requests for reimbursement for $9345.57 paid to Prentice School from March 29, 2021 through June 18, 2021 for tuition, uniform, registration, and required chromebook, plus travel expenses of $1108.80, are documented in the record and are granted. Prentice is a certified nonsectarian nonpublic school focused on students with needs arising from dyslexia, and Los Alamitos has not contended that it is not an appropriate placement for Student.
Student's request that Los Alamitos be ordered to fund Student's placement at Prentice for the entire 2021-2022 school year, plus reimbursement for mileage based on written documentation, is granted. As compensatory education for the 177 school days Student was denied a FAPE between August 7, 2019, and the start of the reading intervention provided to Student by Heraver, Los Alamitos shall reimburse Parents for the cost of Student's attendance at Prentice through the end of the 2021-2022 school year. Reimbursement for Student's placement at Prentice shall be made upon submission of proof of Student's enrollment at Prentice during the relevant time frame, billing by Prentice, and payment by Parents. Reimbursement for mileage shall be made upon submission of Parents' written summary of the number of times they drove Student to Prentice, and the distance per trip, and supporting written documentation from Prentice confirming the number of Student's days of attendance at Prentice.
ORDER
1. Within 60 days of the date of this order, Los Alamitos shall reimburse Parents the amount of $22,054.12 for amounts paid with respect to Heraver, Pride Reading Program, and Prentice, including travel expenses, from August 2020 until June 18, 2021.
2. Los Alamitos shall reimburse Parents for fees and costs associated with Student's placement at Prentice School during the entire 2021-2022 school year, upon proof of Student's enrollment at Prentice, billing by Prentice for Student, and payment by Parents to Prentice, and in an amount not to exceed $36,884.00. Los Alamitos shall reimburse Parents for costs of Prentice within 30 days of their presenting Los Alamitos written proof of Student's enrollment at Prentice, billing by Prentice, and payment by Parents.
3. Los Alamitos shall reimburse Parents an amount not to exceed a total of $3,628.80 for Prentice's 2021-2022 school year for a maximum of 180 round trips of 36 miles between home and Prentice, at $0.56 per mile, within 30 days of Parents' submission of Parents' written summary of the number of times they drove Student to Prentice during the period for which they are seeking reimbursement, the distance per trip, and supporting written documentation from Prentice confirming the number of Student's days of attendance at Prentice.
4.A written agreement between the Parties may alter the terms of this Order.An IEP, consented to by Parents, can constitute such an agreement.
5.All Student's other requests for relief are denied.
RIGHT TO APPEAL THIS DECISION
This is a final administrative decision, and all parties are bound by it. Pursuant to Education Code section 56505, subdivision (k), any party may appeal this Decision to a court of competent jurisdiction within 90 days of receipt.
Robert G. Martin Administrative Law Judge Office of Administrative Hearings