October 12, 2021
On May 20, 2021, the Office of Administrative Hearings, called OAH, received a due process hearing request from Parents on behalf of Student, naming San Dieguito Union High School District. OAH granted the Parties' joint request to continue the matter on July 2, 2021. Administrative Law Judge Cararea Lucier heard this matter by videoconference on August 17, 18, 19, 24, 25, 26, and 31, 2021.
Parents represented Student and attended all hearing days on Student's behalf. Jennifer Fant represented San Dieguito Union High School District. Tiffany Hazlewood, Director of School and Student Services, attended all hearing days on San Dieguito's behalf.
The matter was continued to September 20, 2021, for written closing briefs. The record was closed, and the matter submitted on September 20, 2021.
1. Did San Dieguito Union High School District fail to meet its child find obligations to Student from May 20, 2019, through June 14, 2019?
2. Did San Dieguito fail to meet its child find obligations to Student from June 15, 2019, through December 5, 2019?
3. Did San Dieguito fail to implement Student's Individualized Education Program, referred to as IEP, accommodation for extended time on assignments from March 5, 2020, through June 12, 2020?
Stipulations to pertinent facts, contentions, resolutions, authenticity, and document admissibility are encouraged. Parents on behalf of Student, referred to as Student, and San Dieguito stipulated to the following:
1. “San Dieguito and Student agree that no teachers of Student were responsible for referring Student (i.e. IDEA Child Find) for an evaluation from May 20, 2019, through December 5, 2019.”
2. “San Dieguito and Student agree that Student's March 5, 2020 IEP accommodation for extended time on assignments was appropriately implemented in Advanced Drama (teacher Marinee Payne), Integrated Math 3 (teacher Kaitlin Hildebrand), Track/Cross Country PE (teacher Charlenne Falcis-Stevens), and AP World History (teacher Lars Trupe) from March 5, 2020, through June 12, 2020.”
3. “Student's concussions did not trigger San Dieguito's child find duties toward him for the time period at issue.”
4. “The Parties agree that Student's exposure to environmental toxins, including mold, mycotoxin, and lead, did not trigger San Dieguito's child find duties during the period in issue.”
This hearing was held under the Individuals with Disabilities Education Act, its regulations, and California statutes and regulations. (20 U.S.C. § 1400 et seq.; 34 C.F.R. § 300.1 (2006) et seq.; Ed. Code, § 56000 et seq.; Cal. Code Regs., tit. 5, § 3000 et seq.) 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 free appropriate public education to the child. (20 U.S.C. § 1415(b)(6) & (f); 34 C.F.R. § 300.511 (2006); 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, 57-58, 62 [126 S.Ct. 528, 163 L.Ed.2d 387]; and see 20 U.S.C. § 1415(i)(2)(C)(iii).) As the filing party, Student has the burden of proof in this matter. The factual statements in this Decision constitute the written findings of fact required by the IDEA and state law. (20 U.S.C. § 1415(h)(4); Ed. Code, § 56505, subd. (e)(5).)
Student was a 17-year-old boy at the time of hearing who resided within San Dieguito's geographic boundaries with Parents at all relevant times. On March 5, 2020, he became eligible for special education and related services under the eligibility category of Other Health Impairment.
ISSUES 1 AND 2: SAN DIEGUITO'S CHILD FIND OBLIGATIONS TO STUDENT FROM MAY 20, 2019, THROUGH DECEMBER 5, 2019
Parents contend that Student's frequent absences, failing grades, and Mother's reports of various illnesses triggered San Dieguito's child find obligations to Student. Parents assert that Mother's email correspondence informed San Dieguito of Student's disabilities and academic challenges, thus triggering San Dieguito's obligation to refer Student for a special education evaluation.
San Dieguito maintains that Student's health absences, while recurrent, did not constitute a chronic health issue that would reasonably cause San Dieguito to suspect a disability under the IDEA. San Dieguito further contends that the existence of a 504 plan or any medical diagnosis was insufficient to trigger its child find obligations. San Dieguito asserts that stress from absences is common for many students and Student's prior isolated occurrences of becoming overwhelmed, stressed, or anxious did not amount to a child find violation for the time period at issue.
CHILD FIND LAWS
A school district is responsible for identifying, locating, and evaluating children living within its geographical boundaries who may need special education and related services. (Ed. Code § 56301; 34 C.F.R. § 300.111(a)(1) (2006).) This obligation is referred to as “child find.” (34 C.F.R. § 300.111(a)(1) (2006).) While parents may initiate a request for a special education evaluation, school districts also have an ongoing, affirmative, obligation under the IDEA to identify students and refer them for special education evaluation.
A school district's child find obligation toward a specific child is triggered when there is knowledge of, or reason to suspect, a disability, and reason to suspect that special education services may be needed to address that disability. (Dept. of Education, State of Hawaii v. Cari Rae S. (D. Hawaii 2001) 158 F.Supp. 2d 1190, 1194).) The threshold for suspecting that a child has a disability is relatively low. (Id. at p. 1195.) A school district's appropriate inquiry is whether the child should be referred for an evaluation, not whether the child actually qualifies for services. (Ibid.)
A disability is "suspected," and a child must be assessed, when the district is on notice that the child has displayed symptoms of that disability or that the child may have a particular disorder. (Timothy O. v. Paso Robles Unified School Dist. (9th Cir. 2016) 822 F.3d 1105, 1120-21.) That notice may come in the form of concerns expressed by parents about a child's symptoms, opinions expressed by informed professionals, or other less formal indicators, such as the child's behavior. (N.B. v. Hellgate Elementary School Dist. (9th Cir. 2008) 541 F.3d 1202, 1209.)
A “child with a disability” under the IDEA is defined as a child with one of 13 specific disabilities, and who, based upon the qualifying disability, needs special education and related services. (34 C.F.R. § 300.8 (2017).) The 13 qualifying disabilities under the IDEA are: an intellectual disability, a hearing impairment, including deafness, a speech or language impairment, a visual impairment, including blindness, a serious emotional disturbance, an orthopedic impairment, autism, traumatic brain injury, an other health impairment, a specific learning disability, deaf-blindness, or multiple disabilities. (34 C.F.R. § 300.8 (2017); Cal. Code Regs., tit. 5, § 3030.)
Emotional disturbance means a condition exhibiting one or more of the following characteristics over a long period of time and to a marked degree that adversely affects a child's educational performance:
A. An inability to learn that cannot be explained by intellectual, sensory, or health factors.
B. An inability to build or maintain satisfactory interpersonal relationships with peers and teachers.
C. Inappropriate types of behavior or feelings under normal circumstances.
D. A general pervasive mood of unhappiness or depression.
E. A tendency to develop physical symptoms or fears associated with personal or school problems.
Emotional disturbance includes schizophrenia. The term does not apply to children who are socially maladjusted, unless it is determined that they have an emotional disturbance. (34 C.F.R. § 300.8(c)(4); Cal. Code Regs., tit. 5, § 3030, subd. (b)(4).) However, a medical or psychological diagnosis pursuant to the Diagnostic and Statistical Manual of Mental Disorders does not automatically qualify a student as a child with a disability under the IDEA. (Letter to Coe, 32 IDELR 204, Sept. 14, 1999.)
Other health impairment means having limited strength, vitality, or alertness, including a heightened alertness to environmental stimuli, that results in limited alertness with respect to the educational environment, that -(i) Is due to chronic or acute health problems such as asthma, attention deficit disorder or attention deficit hyperactivity disorder, diabetes, epilepsy, a heart condition, hemophilia, lead poisoning, leukemia, nephritis, rheumatic fever, sickle cell anemia, and Tourette syndrome; and (ii) Adversely affects a child's educational performance. (34 C.F.R. § 300.8 (c)(9); Cal. Code Regs., tit. 5, § 3030, subd. (b)(9).)
All the qualifying disabilities listed in 34 C.F.R. part 300.8 are permanent disabilities. A child must exhibit symptoms of one of the 13 qualifying disabilities under the IDEA to trigger child find. (See Dept. of Education, State of Hawaii v. Cari Rae S. (D. Hawaii 2001) 158 F.Supp. 2d 1190; 34 C.F.R. § 300.8 (2017).)
COMPARISON OF DISABILITY UNDER SECTION 504
Conversely, Section 504 of the Rehabilitation Act of 1973 may include eligibility for students with temporary disabilities if the condition results in a substantial limitation of one or more major life activities for an extended period of time. (28 C.F.R. § 35.108; See Ventura Unified School District, 17 IDELR 854, Office for Civil Rights, Western Division, San Francisco, (California), 09-90-1007, (March 11, 1991): “Section 504 applies to temporary disabilities (although not transient illnesses), as well as disabilities that are permanent, if the condition otherwise fits the definition of a handicap under the regulations.”)
Section 504's definition of a disability does not apply to the IDEA. OAH does not have jurisdiction over issues relating to a school district's obligations under Section 504. (20 U.S.C. § 1415(b)(6); Ed. Code, § 56501, subd. (a); Wyner v. Manhattan Beach Unified Sch. Dist. (9th Cir. 2000) 223 F.3d 1026, 1028-1029.) This Decision is limited to the three issues raised in Student's complaint under the IDEA.
The actions of a school district with respect to whether it had knowledge of, or reason to suspect, a disability, must be evaluated in light of information that the district knew, or had reason to know, at the relevant time. It is not based upon hindsight. (See Adams v. State of Oregon (9th Cir. 1999) 195 F.3d 1141, 1149 (citing Fuhrmann v. East Hanover Bd. of Educ. (3rd Cir. 1993) 993 F.2d 1031, 1041).)
STUDENT DID NOT PROVE THAT SAN DIEGUITO FAILED TO MEET ITS CHILD FIND DUTY FROM MAY 19, 2019, THROUGH JUNE 14, 2019
STUDENT'S HISTORY OF AILMENTS
Student was born in London, England, where he resided with Parents and older sister. Mother reported that Student was a sickly child, who was ill much more than other students. However, the cause of his illnesses was not clear to the family. The family moved to Rancho Santa Fe, California in 2015, before Student's seventh-grade year. In seventh and eighth grade, Student continued to have frequent illnesses and resulting absences; however, his condition eluded diagnosis.
Student entered San Dieguito in ninth grade during the 2018-2019 school year. At the beginning of his ninth-grade year, Parents obtained a private assessment of Student by Dr. Deanne Johnson. Dr. Johnson's findings were consistent with the weight of the evidence in this due process hearing. Student is intellectually gifted and a brilliant mathematician. He is personable, athletic, and has many friends, but is not always diligent about turning in assignments. Dr. Johnson recommended that Student be referred for accommodations under a Section 504 plan but did not endorse a special education evaluation under the IDEA.
On September 4, 2018, Mother sent Dr. Johnson's report to Chanelle Lary, Student's high school counselor. Additionally, Mother reported to Lary that Student was recently diagnosed with migraines. Lary reviewed the assessment report and forwarded it to Anna Weirather, the school nurse.
On October 10, 2018, San Dieguito convened Student's initial 504 team meeting. Lary and Assistant Principal Rebecca Gallow attended the meeting. Student's 504 team accepted Mother's report of migraine headaches as the basis to find Student eligible for a 504 plan.
Student's 504 team did not recommend a special education referral. A student shall be referred for special educational instruction and services only after the resources of the regular education program have been considered and, where appropriate, utilized. (Ed. Code § 56303.) Considering regular education resources under Education Code section 56303 does not require a school district to exhaust all general education interventions before referring a child for an evaluation under the IDEA, if there is a basis for suspecting the child has a disability and needs special education. (See Memorandum to State Directors of Special Educ., 67 IDELR 272 (OSEP April 29, 2016).)
Relying heavily on teacher feedback, the 504 team did not suspect Student was showing symptoms of a disability under the IDEA that required special education. The evidence at hearing showed that teachers showered Student with accolades. He was a stellar student and an independent worker who worked well with peers and was respectful to all. Student excelled in athletics. He played rugby and was quickly identified as a freshman star on the track team. Student's Drama teacher praised his natural talent, passion, and dedication, affectionally calling Student “Mr. Theatre.” He was, as his father testified, the kid everyone wanted on their team. Student failed to establish that a special education evaluation was required at that time.
Subsequently, Student missed significant class periods during the 2018-2019 school year. Some of Student's teachers began to express frustration with the number and nature of Student's absences. The most frequent reason cited for Student's absences was Mother's report that Student was “unwell.” Teachers noticed a pattern to his absences, where he missed non-preferred classes while still attending his favorite classes and extra-curricular activities. San Dieguito sent Parents excessive absence letters on October 25, 2018, January 17, 2019, and February 28, 2019. However, due to the pattern of Student's absences, there was no concern or suspicion of a suspected disability. Thus, Student failed to demonstrate the need for a special education evaluation.
On March 7, 2019, Mother reported to Lary that Student was suffering from panic attacks. Student's treating Psychiatrist, Dr. Jeffrey Max, subsequently clarified to San Dieguito that Student was not technically experiencing panic attacks, but rather a build-up of stress. Mother provided San Dieguito with an authorization to speak with Student's therapist, Ed Lowery. Lary contacted Lowery, who discussed his treatment of Student but did not make any recommendations to the school or suggest that Student needed any extra supports or services at school.
On May 7, 2019, Mother emailed Lary and Gallow to report that Student had chest pains, but that X-rays did not show a problem with his heart or lungs. She also reported that a doctor added “fibromyalgia, chronic fatigue, and chronic pain” to Student's “problem list,” but Mother did not think that would explain the fevers, sore throats, eye puffiness, and sinus problems. Mother informed Lary and Gallow that she would be taking Student to an allergist, a cardiologist, and a sleep apnea clinic, for further testing.
From May 8, 2019, through May 17, 2019, Student missed almost all class periods. Mother reported that Student had a sinus infection and fever. Lary requested that Parents provide doctor's notes. Mother provided three doctor's notes, which confirmed that Student had been seen for fever and nasal congestion and was diagnosed with a sinus infection. The doctor's notes requested that Student be excused from school due to his ongoing illness.
The relationship between Parents and Student's high school staff deteriorated in May and June of 2019. Because of Student's excessive absences, San Dieguito requested that Parents provide doctor's notes for all further absences. Student had missed 52% of his Spring Semester 2019. Mother objected explaining that providing daily doctor's notes would be cumbersome and that it would be stressful and costly to bring Student to the pediatrician every time he had a fever.
Lary also requested a meeting with Parents and Student to discuss his school attendance. The parties had markedly different recollections of a June 4, 2019, Student Attendance Review Team, referred to as SART, meeting, which Mother and Student attended. Gallow believed the meeting was positive, and that everyone agreed on an action plan to support Student so that he could recoup classes he failed. Mother believed that Gallow treated her and Student in an appallingly punitive manner. Father, although not present at the meeting, believed that the tone of San Dieguito's response was not conducive to helping support Student. In Parents' view, Student deserved support and empathy rather than corrective actions. Principal Robert Coppo credibly testified that he investigated Parents' allegations of staff misconduct and determined they were unfounded. Coppo testified directly, with respect toward Student and Parents even as he disagreed with their statements about Gallow and the application of San Dieguito's attendance policy in Student's situation. He further testified that nothing in his investigation led him to believe Student required a special education evaluation. Student continued to be absent from school for the remainder of the 2018-2019 school year.
The weight of the evidence established that San Dieguito did not have reason to suspect that Student had a disability under the IDEA that required special education for the 19-day time period within Issue One. At hearing, Student's contentions were uncorroborated or contradicted by a plethora of evidence.
Student had significant absences from May 20, 2019, through June 14, 2019, attending only three entire school days of the 19. Student's absences, along with not completing assignments, caused Student to fail his math and English courses for the Spring semester of the 2018-2019 school year. Math and English were graduation requirements.
However, Parents' argument that absences were due to anxiety and depression were contradicted by Mother's emails. On May 20, 2019, Mother emailed Lary suggesting that Student was not well because he was likely exposed to mold and lead when the family lived in London. On May 29, 2019, Mother reported to Lary, Gallow, and Weirather, that Student had tested positive for mold toxicity. On June 6, 2019, Mother emailed to inform the school that the cause of his health issues was untreated allergies, and that “we think his health issues are treatable.” The evidence demonstrated that San Dieguito was informed by Parents that his absences during this time period were due to previous exposure to mold and lead, with resulting allergies. Additionally, the Parties stipulated that Student's exposure to environmental toxins, including mold, mycotoxin, and lead did not trigger San Dieguito's child find duties to Student during the relevant time period.
When the school continued to press Parents for doctor's notes excusing Student's absences, Mother asserted for the first time in an email on June 10, 2019, that Student was absent due to the school's treatment of him, which she viewed as punitive. At hearing, Father testified that Student disengaged completely after June 4, 2019, and they could not force him to go to school. Parents observed Student staying in bed, to the extent they had to bring food to him. However, Parents failed to present any supporting evidence at hearing, either documentary or through testimony from treating physicians that Student had symptoms of a mental health disorder during this time period. Thus, the lack of corroborating evidence significantly weakened Parents' testimony regarding this issue.
In contrast, Lary, Weirather, Gallow, and Coppo all testified that they did not suspect Student had a disability under the IDEA at this time because his illnesses were temporary in nature. They believed that Student would receive continued medical care during the summer and would return for tenth grade healthy. San Dieguito's witnesses testified carefully and consistently regarding this issue and were undamaged on cross-examination. Thus, their testimony was given substantial weight here.
As such, Student failed to establish that his absences, and the resulting failing grades in math and English, triggered San Dieguito's child find duties to him. Accordingly, Student failed to meet his burden of proof that that San Dieguito failed to meet its child find obligations to Student from May 20, 2019, through June 14, 2019.
STUDENT DID NOT PROVE THAT SAN DIEGUITO FAILED TO MEET ITS CHILD FIND DUTY FROM JUNE 15, 2019, THROUGH DECEMBER 5, 2019
During the summer of 2019, Parents and San Dieguito continued to discuss 2018-2019 school year issues. In an email dated July 29, 2019, Mother alluded to Student having anxiety and stress throughout the summer due to San Dieguito's alleged punitive treatment of Student during the June 4, 2019 SART meeting. At hearing, Weirather and Coppo characterized Mother's email as inaccurate and unsubstantiated.
The documentary evidence corroborated Weirather and Coppo's opinion, and therefore their testimony was given greater weight. The evidence demonstrated that the email, and subsequent correspondence and meetings over the 2019 summer primarily focused on Parents' concerns about San Dieguito's attendance policies, Student's grades, and the conduct of San Dieguito's staff at Student's high school. Thus, Student failed to show that the information known to San Dieguito at that time would lead it to suspect Student was suffering from a disability under the IDEA that would require special education.
On August 26, 2019, the day before Student started tenth grade, San Dieguito convened a 504 team meeting, which Student and Mother attended accompanied by the family's advocate. Coppo characterized this meeting as welcoming Student back to high school to show him supports on campus. No one at the meeting, including Student's advocate, suggested that Student required a special education evaluation.
On September 24, 2019, San Dieguito convened Student's annual 504 team meeting, which Student, Parents, and the family's advocate attended. Student's attendance had markedly improved compared to the last semester of his ninth-grade year. Student's teachers reported that he was kind, respectful, outgoing, and hardworking. The 504 team updated his list of impairments to include migraines, fibromyalgia, chronic nausea, and recurrent sinus infections. The 504 team did not discuss the possibility of Student being referred for special education, and San Dieguito staff continued to believe they could support him through 504 plan accommodations and general education supports.
At hearing, Parents did not provide any medical diagnoses from Student's doctors or call as witnesses any physicians or experts who could speak to Student's condition for the time period at issue. As noted above, the definition of a disability under Section 504 differs from the definition under the IDEA. Parents' testimony regarding their recollection of statements that may have been made at medical appointments is considered hearsay. Hearsay evidence is admissible in special education cases to explain or supplement other direct evidence. However, special education law prohibits the use of hearsay as the sole basis upon which to render a finding of fact. (Cal. Code Regs., tit. 5 § 3082, subd. (b).) As such, Parent reports as to Student's medical or psychiatric conditions are noted, but not dispositive, as to whether Student had any particular conditions or diagnoses that could lead to a disability under the IDEA for the time period at issue.
In October 2019, Student caught a cold and began to miss more school. On or around October 7, 2019, Parents and Student's private therapist became alarmed that Student was suicidal. Student's private therapist, Ed Lowery, called various psychiatric hospitals to find a bed for Student. After some delay while the family assessed the situation, Mother brought Student in for a psychiatric intake, which resulted in a recommendation for Student to receive intensive cognitive behavioral therapy. Lowery felt that Student needed more support than he could provide. Student began receiving psychotherapy and other services from Aspiring Families.
Parents gave highly emotional testimony regarding Student's suicidality in October 2019, and the family's painful experience. However, Parents did not provide any evidence at hearing that they informed San Dieguito of Student's suicidal ideation, Lowery's recommendation that he be evaluated at a psychiatric hospital, or Student's receipt of psychotherapy from Aspiring Families in October 2019. (See Adams v. State of Oregon (9th Cir. 1999) 195 F.3d 1141.) Rather, on October 9, 2019, Mother emailed Coppo to request he change the grades from Student's last semester and explained that Student was suffering from serious and extreme stress, which she attributed to actions of Assistant Principal Gallow. Coppo and Lary did not view this email as warranting an evaluation for special education. Instead, Coppo understood the email to reflect Mother's concern with Student's grades. San Dieguito subsequently changed Student's grade in Health from a C-plus to an A-grade.
One document entered into evidence in this matter suggested that, in October or early November 2019, Student told his history teacher, Lars Trupe, he was having health and social emotional issues and that he may miss school because Parents were considering a residential facility for him. Neither Trupe nor Student testified at the hearing. Further, Parents and San Dieguito stipulated that no teachers of Student were responsible for referring Student for a special education evaluation from May 20, 2019, through December 5, 2019. Additionally, Parents did not provide any evidence that San Dieguito was aware of any such conversations between Student and Trupe during the time period at issue. (See Adams v. State of Oregon (9th Cir. 1999) 195 F.3d 1141.) Thus, Student failed to demonstrate that San Dieguito should have referred Student for special education through early November 2019.
Student suffered a concussion on or around November 15, 2019, that caused him to have many absences. After attending a party late on a Friday evening, Student was purportedly attacked by two former classmates. Mother informed Lary and other district staff of Student's concussion and requested extra accommodations. At hearing, the parties stipulated that Student's concussion did not trigger San Dieguito's child find obligation to Student for the time period at issue. Accordingly, Student's absences caused by the concussion did not trigger San Dieguito's child find duties to Student during the 2019 Fall Semester.
Here, the evidence showed that San Dieguito became aware of Student's mental health issues at or around the time of the December 5, 2019, 504 team meeting. On December 5, 2019, San Dieguito convened another 504 team meeting for Student. Parents and advocate attended this meeting. Teachers reported that Student missed a lot of class. His history teacher explained that although Student was friendly and polite, he had missed 14 out of 29 classes. Student's physical education teacher marked that he appeared anxious “almost always.” Student's advocate requested that Student be evaluated for special education, and the team agreed. Subsequently, San Dieguito began the special education evaluation process and found Student eligible for special education at an initial IEP team meeting on March 5, 2020.
Accordingly, San Dieguito did not err by waiting until December 5, 2019, to refer Student for special education. Between June 15, 2019, and December 5, 2019, Student's condition evolved from one marked by frequent transitory health issues to one showing symptoms of a mental health disorder that required evaluation under the IDEA once it was known to San Dieguito.
ISSUE 3: IMPLEMENTATION OF STUDENT'S IEP ACCOMMODATION FOR EXTENDED TIME ON ASSIGNMENTS FROM MARCH 5, 2020, THROUGH JUNE 12, 2020
Parents contend that Student should have received an “incomplete” in his 2020 Spring Semester classes. Parents maintain that San Dieguito staff knew Student was unwell from March 5, 2020, through June 12, 2020, and therefore he was entitled to extra time to finish his courses beyond the end of the semester.
San Dieguito contends that Student's IEP accommodation for extra time on assignments was appropriately implemented as to give him unlimited time to complete all assignments through the end of the semester. San Dieguito also argues that Parents are conflating the accommodation permitting extra time on assignments with extra time on an entire course to achieve an impermissible grade change of “incomplete.”
A FAPE means special education and related services that are available to an eligible child that meets state educational standards at no charge to the parent or guardian. (20 U.S.C. § 1401(9); 34 C.F.R. § 300.17 (2006).) Parents and school personnel develop an IEP for an eligible student based upon state law and the IDEA. (20 U.S.C. §§ 1401(14), 1414(d)(1); and see Ed. Code, §§ 56031, 56032, 56341, 56345, subd. (a) and 56363 subd. (a); 34 C.F.R. §300.501 (2006).)
In general, a child eligible for special education must be provided access to specialized instruction and related services which are individually designed to provide educational benefit through an IEP reasonably calculated to enable a child to make progress appropriate in light of the child's circumstances. (Board of Education of the Hendrick Hudson Central School Dist. v. Rowley (1982) 458 U.S. 176, 201-204; Endrew F. v. Douglas County School Dist. RE-1 (2017) 580 U.S. ____ [137 S.Ct. 988, 1000].)
A school district violates the IDEA if it materially fails to implement a child's IEP. (20 U.S.C. § 1401(9).) A material failure occurs when there is more than a minor discrepancy between the services provided to a disabled child and those required by the IEP. (Van Duyn v. Baker School Dist. (9th Cir. 2007) 502 F.3d 811, 815, 822.) However, "[T]he materiality standard does not require that the child suffer demonstrable educational harm in order to prevail." (Ibid.)
THE EVIDENCE SUPPORTED A FINDING THAT STUDENT'S TEACHERS IMPLEMENTED STUDENT'S IEP ACCOMMODATION FOR EXTENDED TIME ON ASSIGNMENTS FROM MARCH 5, 2020, THROUGH JUNE 12, 2020.
Parents failed to meet their burden of proof on this issue. On March 5, 2020, San Dieguito convened an initial IEP team meeting for Student. The only aspect of this IEP at issue in this hearing is whether three of Student's teachers implemented one specific accommodation in Student's IEP. The accommodation at issue states: “Extended time on assignments; will be given same number of days to complete assignments as days missed or as negotiated by student with the teacher (e.g. 3 days missed, 3 days extended time)”. Parents allege that Student's English, computer science, and academic support teachers failed to implement this accommodation from March 5, 2020, through June 12, 2020.
Richard Robinette, Student's Advanced Placement Computer Science Principles teacher, credibly testified as to his implementation of Student's accommodation for extended time on assignments for the time period at issue. Robinette is a credentialed teacher who has taught for over 11 years. He received a copy of Student's IEP and was aware of its contents and his obligation to implement the IEP. Robinette implemented the accommodation by allowing Student to turn in any assignment until the date when he had to turn in final semester grades. He told Mother he would accept any late assignments from Student until 11:59 pm on June 8, 2020. He told Student and Parents that he would accept any work and give credit to all late assignments received before San Dieguito's cut off for teachers to report grades. He never gave Student less time to complete an assignment than provided for in the IEP. In contrast, he gave at least double or triple of the amount of time required by the IEP. Robinette's testimony was specific, consistent, and withstood cross examination. Thus, it was given considerable weight.
Sara Boozer, Student's Honors English 10 teacher, testified as to her implementation of Student's accommodation for extended time on assignments for the time period at issue. Boozer is a credentialed teacher who has been in education for over 20 years. She received a copy of Student's IEP and was aware of its contents and her obligation to implement the IEP. Boozer offered Student more time to complete and turn in missed assignments than contemplated in the IEP. She did not attach due dates to missed assignments. She did not limit the accommodation to absences supported by a doctor's note. Regardless of the reason for missing or late work, Boozer offered Student the opportunity to turn in the work with no penalty. At an IEP team meeting on May 8, 2020, Boozer reinforced the message to Mother and family's advocate that she was willing to allow Student to make up all his work for the whole semester. At hearing, Boozer appeared sincere and credible and testified in a detailed and knowledgeable manner. Student presented no persuasive evidence rebutting her testimony, thus, it was given great weight.
Katherine Grubert, Student's academic support teacher, credibly testified as to her implementation of Student's accommodation for extended time on assignments for the time period at issue. Grubert is a credentialed special education teacher who has been teaching for 15 years. At the due process hearing, Grubert testified directly, thoughtfully, and with a clear memory of the events. She was forthright on those occasions when she could not recall details. As such, her testimony was given substantial weight.
Grubert attended the March 5, 2020, IEP team meeting. She also summarized his accommodations, sent a copy to Student's teachers and personally reviewed the IEP with all of Student's teachers.
Grubert implemented the accommodation in her academic support class. She allowed Student to turn in assignments at any time. When she noticed Student becoming stressed about missing assignments in her class, she designated the missing assignments not applicable.
Grubert helped coordinate Student's assignments and observed Robinette and Boozer implement Student's IEP accommodation. Grubert was in frequent contact with Student's teachers and helped make plans for Student to complete assignments to receive credit. She communicated this with Student. For example, on April 13, 2020, Grubert emailed Student, with his teachers copied, to let him know about his missing assignments in Honors English 10 and Advanced Placement Computer Science Principles. She emphasized to Student that he could turn in all late assignments for full credit.
San Dieguito stopped taking attendance in a traditional way once the school shifted to virtual learning on March 13, 2020, due to the public health crisis surrounding the Covid-19 pandemic. However, the extended time accommodation allowed Student to negotiate due dates for missed assignments with teachers. Grubert helped Student communicate with teachers and negotiate missed assignments. Grubert offered Google Hangouts with Student, teachers, and herself to communicate about assignments. The evidence established that all of Student's teachers allowed him to turn in all late assignments, without penalty, between March 5, 2020, and June 12, 2020.
Mother believed that Student's IEP accommodation for extended time on assignments entitled him to “incompletes” in his classes. When testifying on this subject, Mother's demeanor became defensive, tense, and somewhat evasive. She raised her voice and argued with San Dieguito's counsel, all of which diminished her credibility on this topic.
Student's IEP neither provided him with unlimited time to complete assignments, nor did it give him the right to “incompletes” in his courses. Robinette explained that San Dieguito administrators determined when a student could take an “incomplete” in a course, on a case by case basis. Boozer testified that extended time on assignments is not the same as extended time for the course. Here, the evidence overwhelmingly showed that San Dieguito did not fail to implement Student's IEP when it declined to give him “incompletes” for the 2020 Spring Semester.
CONCLUSIONS AND PREVAILING PARTY
Under 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: San Dieguito did not fail to meet its child find obligations to Student from May 20, 2019, through June 14, 2019. San Dieguito prevailed on Issue 1.
Issue 2: San Dieguito did not fail to meet its child find obligations to Student from June 15, 2019, through December 5, 2019. San Dieguito prevailed on Issue 2.
Issue 3: San Dieguito did not fail to implement Student's IEP accommodation for extended time on assignments from March 5, 2020 through June 12, 2020. San Dieguito prevailed on Issue 3.
1. All of Student's requests for relief are denied.
RIGHT TO APPEAL THIS DECISION
This is a final administrative decision, and all parties are bound by it. Under Education Code section 56505, subdivision (k), any party may appeal this Decision to a court of competent jurisdiction within 90 days of receipt.
Administrative Law Judge
Office of Administrative Hearings