DECISION
JUNE 8, 2022
On March 2, 2022, the Office of Administrative Hearings, called OAH, received a due process hearing request from Sycamore Academy of Science and Cultural Arts, Chino Valley, naming Student's guardian, on behalf of Student. Student's Guardian is called Parent in this decision. Sycamore Academy of Science and Cultural Arts, Chino Valley is called Sycamore Academy. OAH continued the matter on March 18, 2022. Administrative Law Judith L. Pasewark heard this matter by videoconference on April 26, 27, 28, and 29, 2022.
Richard Hansberger and Erica Klein, Attorneys at Law, represented Sycamore Academy. Barbara Hale, Executive Director, attended on behalf of Sycamore Academy. Parent represented Student. Student did not attend the hearing, except to present her testimony.
The matter was continued to May 16, 2022, for submission of written closing briefs. The record closed and the matter was submitted on May 17, 2022, as closing brief of Sycamore Academy was filed after 5:00 PM on May 16, 2022. (Cal. Code. Regs., tit. 1, § 3088, subd. (h).)
ISSUES
1. Is Sycamore Academy entitled to conduct a functional behavior assessment of Student without parental consent?
2. Is Sycamore Academy entitled to conduct an educationally related mental health assessment of Student without parental consent?
JURISDICTION
This hearing was held under the Individuals with Disabilities Education Act, its regulations, and California statutes and regulations. (20 U.S.C. § 1400 et. seq.; 34 C.F.R. § 300.1 (2006) et seq.; Ed. Code, § 56000 et seq.; Cal. Code Regs., tit. 5, § 3000 et seq.) 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.
• the rights of children with disabilities and their parents are protected. (20 U.S.C. § 1400(d)(1); See Ed. Code, § 56000, subd. (a).)
The IDEA affords parents and local educational agencies the procedural protection of an impartial due process hearing with respect to any matter relating to the identification, assessment, or educational placement of the child, or the provision of a free appropriate public education, referred to as FAPE, to the child. (20 U.S.C. § 1415(b)(6) & (f); 34 C.F.R. § 300.511; Ed. Code, §§ 56501, 56502, and 56505; Cal. Code Regs., tit. 5, § 3082.)
Individuals with exceptional needs attending charter schools pursuant to Education Code Part 26.8 shall be served in the same manner as individuals with exceptional needs attending public school. (Ed. Code, § 56145.)
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).) Sycamore Academy requested this hearing; therefore, bears the burden of proof. 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 eight years old at the time of hearing. She resided with Parent, and attended Sycamore Academy, the responsible local educational agency in this matter.
ISSUE 1: IS SYCAMORE ACADEMY ENTITLED TO CONDUCT A FUNCTIONAL BEHAVIOR ASSESSMENT WITHOUT PARENTAL CONSENT
Sycamore Academy contends Student's maladaptive classroom behaviors, including elopement and refusal to comply with staff and service provider directives, have increased. This, along with continuing parental concerns, necessitates a functional behavior assessment to obtain relevant information and provide Student FAPE in the least restrictive environment.
Parent contends she never requested a functional behavior assessment. Parent emphasized that the 2020 IEP and prior 504 Plan, contained sufficient accommodations which were designed to alleviate Student's maladaptive behaviors, if implemented as directed by Parent and Student's private therapist.
BACKGROUND FACTS
Student was eligible for special education based upon autism, and had been diagnosed with conduct disorder, autism spectrum disorder, attention deficit hyperactivity disorder, and oppositional defiance disorder. Student exhibited maladaptive behaviors, including meltdowns lasting 45 minutes, beginning at age five. Student privately received applied behavior analysis therapy and psychiatric services for her dysregulation and meltdowns. Student discontinued medications for her meltdowns in September or October 2020, when Student's psychiatrist determined Student performed better without medication. Student also received private clinical therapy services.
Student enrolled in her first-grade year at Sycamore Academy in August 2019, subsequently qualifying for a 504 plan on September 19, 2019. A “Section 504 plan” is an educational program created pursuant to the federal anti-discrimination law commonly known as Section 504 of the Rehabilitation Act of 1973. (29 U.S.C. § 794; see 34 C.F.R. § 104.1 et. seq. (2000).) Sycamore Academy, with parental involvement, determined Student had sleep apnea which affected her mood, motivation and ability to work in class when tired.
The 504-team determined anxiety affected Student's stress level, which manifested in meltdowns, tantrums, and overstimulation from the environment. She could be triggered in response to attempts at de-escalation. Moreover, Student demonstrated difficulties with transitions, social cues, and appropriate interaction with staff and peers.
Student's September 20, 2020, 504 Plan offered a number of accommodations to address maladaptive behaviors. Accommodations included sensory or calming breaks, use of sensory fidget items, drinking water in class, a positive behavior reinforcement token economy system, extended time for assignments, and working in small groups or peer pairs for classroom activities. Sensory items, such as kinetic sand, items to color with, and fidgets were provided to help her refocus, or to use during her breaks. The September 20, 2020, plan also indicated Student received a classroom mentor, an adult working in the classroom who was to help Student transition her in class and from place to place with the goal that she would gradually transition being unaccompanied by the mentor.
The Section 504 Team referred Student for a special education and related services assessment in Fall 2020. Sycamore Academy found Student eligible for special education and related services on November 12, 2020. Parent consented to the November 12, 2020, IEP and its January 14, 2021, amendment in its entirety. The November 12, 2020, IEP offered Student placement in general education, with specialized academic support in the general education classroom, occupational therapy and speech and language therapy services. To support Student in the general education setting and related settings, the IEP provided a significant number of accommodations similar to those contained in the Section 504 Plan.
On September 20, 2021, Sycamore Academy convened Student's 2021 annual IEP team meeting. The parties were unable to complete Student's IEP due to parental concerns and time constraints.
On November 2, 2021, Sycamore Academy offered Parent an assessment plan for functional behavior and educationally related mental health to address Parent's concerns regarding Student's behaviors and safety at school. The IEP team reconvened on December 7, 2022, and again on January 20, 2022, however the IEP team was unable to complete its offer of FAPE. Parent refused to cooperate with assessments believing Sycamore Academy failed to appropriately answer her questions or treat her with respect. The collaboration between Parent and the IEP team, which began as strained at the September 20, 2021, IEP team meeting, transformed into a toxic and openly hostile relationship by February 2022. Parent has refused consent for the assessments and Student's 2021 annual IEP remains incomplete.
RIGHT TO ASSESS
A free appropriate public education, referred to as a FAPE, means special education and related services that are available to an eligible child that meets state educational standards at no charge to the parent or guardian. (20 U.S.C. § 1401(9); 34 C.F.R. § 300.17.) Parents and school personnel develop an individualized education program, referred to as an IEP, for an eligible student based upon state law and the IDEA. (20 U.S.C. §§ 1401(14), 1414(d)(1); and see Ed. Code, §§ 56031, 56032, 56341, 56345, subd. (a) and 56363 subd. (a); 34 C.F.R. §§ 300.320, 300.321, and 300.501.)
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].)
An assessment of the student's educational needs must be conducted before any action is taken to place a student with exceptional needs in a special education program. (20 U.S.C. § 1414(a)(1)(A); Ed. Code, § 56320.) An assessment may be initiated by request of a parent, a State educational agency, other State agency, or local educational agency. (20 U.S.C. § 1414(a)(1)(B); Ed. Code, §§ 56302, 56029, subd. (a), 56506, subd. (b).) The IDEA uses the term “evaluation,” while the California Education Code uses the term “assessment.” (20 U.S.C. § 1414; Ed. Code, § 56302.5). As used in this decision, the terms “assessment” and “evaluation” mean the same thing and are used interchangeably.
It is well settled that parents who want their child to receive special education and related services must allow reassessment by the school district, with assessors of the school district's choice. (Johnson v. Duneland School Corp., (7th Cir. 1996) 92 F. 3d 554, 558.) A parent must allow the school itself to reevaluate the student and cannot force the school to rely solely on an independent evaluation. (Gregory K. v. Longview School Dist. (9th Cir. 1987) 811 F. 2d 1307, 1315.)
A reassessment may not be conducted, unless the written consent of the parent is obtained prior to the reassessment, except pursuant to subdivision (e) of Section 56506. (Ed. Code, § 56381, subd (f)(1).) Consent is required for a functional behavior assessment conducted to determine the special education needs of a child, because the functional behavior assessment constitutes an evaluation or reevaluation within the meaning of the IDEA.
If an assessment for the development or revision of the IEP is to be conducted, the parent or guardian of the pupil shall be given, in writing, a proposed assessment plan within 15 days of the referral for assessment. (Ed. Code, § 56321, subd. (a).)
At hearing, the local education authority must establish that the proposed assessments are necessary and that it is lawfully entitled to conduct them. (34 C.F.R. § 300.300 (c)(1)(ii); Ed. Code, §§ 56381, subd. (f)(3), 56501, subd. (a)(3) and 56506, subd. (e).)
APPROPRIATENESS OF REQUEST TO ASSESS
When, in the school district's judgment, the child is not receiving FAPE, Education Code, section 56346, subdivision (f), requires the school district to “act with reasonable promptness to correct that problem by adjudicating the differences with the parent.” (I.R. v. L.A. Unified Sch. Dist. (9th Cir. 2015) 805 F.3d 1164, 1170.)
Decisions regarding areas to be assessed are driven by the suspected needs of the child. If a child's behaviors or physical status is of concern, evaluations addressing these areas must be conducted. (71 Fed. Reg. 46,643 (2006).)
A school district's failure to conduct appropriate assessments or to assess in all areas of suspected disability may constitute a procedural denial of a free appropriate public education. (Park v. Anaheim Union High School Dist. (9th Cir. (2007) 464 F3d. 1025, 1031-1033.)
A reassessment of the pupil in accordance with Section 1414(a)(b)and (c) of Title 20 of the United States Code, shall be conducted if the local educational agency determines that the educational or related services, including improved academic achievement and functional performance of the pupil warrant reassessment, or if the pupil's parent or teachers request a reassessment. (Ed. Code, § 56381 (subd.(a)(1).)
Referral for assessment means any written request for assessment to identify an individual with exceptional needs made by (a) a parent or guardian of the individual or (b) a teacher or other service provider of the individual. (Ed. Code, § 56029.)
As part of a reassessment, the IEP team, and other qualified professionals, as appropriate, shall consider whether any additions or modifications to the special education and related services are needed to enable the pupil to meet the measurable annual goals set out in the IEP, and to participate in the general curriculum. (34 C.F.R. § 300.305 (a)(2)(iii)(iv); Ed. Code, § 56381, subd (b)(2)(D).)
Parent described the 2019-2020 school year as magical. Student attended the second grade in Jesenia Gomez's general education classroom. Student strongly bonded to Gomez and Ms. Gaby, the classroom mentor. Student made good progress in academics and exhibited few behaviors. Parent deemed Student's success due to Gomez and Gaby working together seamlessly to implement Student's accommodations.
At hearing Gomez reported that although Student was not aggressive or defiant in the classroom, she would hide underneath her desk occasionally. As of April 2021, Student began avoiding writing assignments towards the end of the day, by attempting to leave the classroom. Additionally, she recalled that Student became aggressive during her occupational therapy session and kicked the therapist.
Gomez did not find Student a behavior problem in the classroom. Student behaved just like the other second graders in her class. Student exhibited dysregulation getting from the car upon arrival at school but was easily redirected by Gaby upon arriving at the classroom. Gomez opined that Student's inconsistent arrival times at school resulted in missing a lot of important material being taught. Student was below grade level in academics and received specialized academic instruction. Timely attendance would improve Student's learning.
A review of a progress report of Student's speech and language goals dated June 4, 2021, exemplified Student's behavior without Gomez or Gaby present. Student exhibited difficulty attending to non-preferred activities outside of the classroom, requiring constant reminders. Student's attention remained limited to less than five minutes. Sensory support of fidget toys was often distracting, as Student focused more on the fidget than on the activity. At times Student ran away from the area to avoid participating in non-preferred activities, however, this behavior lessened as of June 2021.
Parent acknowledged the 2020-2021 third grade school year was far more difficult for Student. Student experienced a series of traumas and unexpected transitions, including a sexual assault, the loss of her home due to a fire, the COVID-19 pandemic, and a transition to a new school site.
Stephanie Jones, Student's educational specialist during the 2020-2021 school year, prepared an IEP progress report in March 2021. Jones reported that Student frequently experienced difficulties following directions. She exhibited difficulties when she arrived at school and was late daily due to her commute and sleep apnea. At school Student exhibited behaviors of dropping to the floor, yelling, kicking, and swinging her arms in a tantrum when upset about not getting desired items or attention. When working one-to-one with a mentor or teacher, Student tried her best, but became upset when she provided a wrong answer. Other things going on in Student's environment easily distracted her from her classwork.
Although Jones did not testify at hearing, her progress report was confirmed by similar observations reported in the December 9, 2020, occupational therapy assessment conducted by E-Therapy. The assessment report included Jones' observations which referenced a mentor who assisted Student throughout the day and provided reinforcements and support as needed in class. Student was permitted to eat when she arrived at school and received breaks throughout the day. Nevertheless, Student required prompting and assistance to complete classwork as she was easily distracted. Student displayed difficulty transitioning to non-preferred tasks but performed best when given choices. Student refused to do tasks that she felt were too difficult. Student talked loudly and could be disruptive to other students and herself when she escalated. Student occasionally tantrumed when upset, became frustrated, or denied access to desired items or activities. Additionally, Student's attendance and tardiness resulted in loss of significant instructional time.
Student obtained good grades for the first trimester. In the second trimester, however, Student declined significantly. Student did not bond with the classroom mentors as she had with Gaby.
Jessica James, Student's third grade general education teacher, recounted behavior difficulties thus far in the 2021-2022 school year. Student eloped at least once a day; she exhibited work refusal on non-preferred activities by getting under her desk or by eloping. James estimated the mentor spent 99 percent of her time with Student.
Marisa Lopez, Student's education specialist and case manager for the 2021-2022 school year observed Student and interacted with Student daily. Parent questioned Lopez's special education and teaching qualifications. The 2021-2022 school year was Lopez's first year as an education specialist. Lopez held a master's degree in teaching, and was employed on an interim special education, mild/moderate credential, supervised by a master teacher. She possessed an autism certification and was a registered behavior technician. Lopez met all legal standards to qualify as an educational specialist, her skills were evident, and her testimony credible, confirmed by other witnesses.
Lopez held weekly telephone conferences with Dr. Evelin Setaghian, Student's private therapist, to discuss Student's behavior during the week. Lopez and Setaghian collaborated regarding behavior strategies and considered ideas to make Student more successful in the general education classroom. Positive reinforcement behavior strategies were implemented. Lopez provided Student with sensory toys such as therapy putty and snapper toys. Lopez provided toys to James and other staff to use when she was not present.
Lopez reported Student eloped from the classroom frequently, often two-to-three times a week. Student left the classroom without permission, sometimes up to 30 minutes at a time. Student could be disruptive and often refused to comply with staff requests. She ran from staff and ignored their directives. While Parent believed Student's outbursts were due to a lack of food and water, Lopez noted that Student's non-compliance included refusal to eat or drink as scheduled. Student stated Parent told her she was no longer allowed to work with Lopez and told other providers she did not need to listen to them. This attitude of defiance was directly related to the toxic relationship between Parent and Sycamore Academy administrators and staff.
Lopez provided the most graphic observations of Student's maladaptive behaviors. Lopez recounted a series of incidents which occurred on November 2, 2021, and included defiance, elopement, and refusal to follow adult directives. During each of these events Student stated that Parent told Student that the mentor was not allowed to help her; that the mentor could not look at or talk to her; and she was going to tell Parent if the mentor was near her. Student stated that she did not need to listen to people who were mean to Parent. During lunchtime, Student threw her tray and ran out to a room she had been forbidden to enter. Later, upon entering the library, Student pulled books off the shelf and onto the floor. When directed to pick up the books, Student refused and subsequently crawled under the table, and began screaming, calling both the mentor and Lopez stupid idiots. The library incident continued for about 10 minutes. As Student continued to be verbally nasty, she was taken to an empty classroom to avoid disrupting other students where she could be more easily contained. Student drew on the classroom wall and pulled off bulletin board borders. She ignored directives, mimicked the mentor, screamed loudly, and called staff names. She ran from Lopez and the mentor to the restroom where she locked herself in a bathroom stall for five minutes before running downstairs and getting under the stairwell. She then ran out the front gate unaccompanied when Parent arrived to pick her up. Parent again expressed concern that the maladaptive behavior was based on staff's failure to properly feed Student.
Several witnesses commented on Student's dysregulation upon arrival at school earlier that day. On November 17, 2021, upon Student's late arrival at school, Parent and Student engaged in a skirmish regarding Student's possession of a sensory toy called slime, which Parent did not want her to have. Student screamed, hit the school gate, and spit through the gate at Parent. Student tried to hit a mentor who arrived on the scene. Parent reused to leave and allow the staff to take over. Lopez attempted to de-escalate Student, and Student hit her twice. Student tried to climb the fence, and Parent relented, giving Student the slime. Student sat down, threw her shoes off and began playing with the slime. Student began to decompress when Parent was again asked to leave. Parent, however returned to inform Lopez that Student's outburst was due to hunger as Student refused to eat at home. When Parent demanded Lopez feed Student immediately, Student yelled an obscenity at Parent. Student began kicking and throwing slime at the fence toward Parent. Parent started to leave but returned a second time to give Lopez an art piece Student wanted to show her teacher. Student again called Parent a derogatory name. Parent began walking away but returned a third time. Student began crying and repeated the obscenity. It took Lopez an additional 15 minutes to calm Student. Another skirmish between Parent and Student occurred the next day when Student again arrived late for school. Difficulties getting Student onto the Sycamore Academy campus in the morning were common.
Lopez considered a functional behavior assessment essential for Student. Student's behaviors at school revealed an obligation to conduct the assessment. Parent's constant inquires and concerns also indicated a need for a functional behavior assessment. For example, Parent requested additional positive reinforcement strategies be initiated. Parent expressed emotional and physical safety concerns at school, reporting that Student exhibited anxiety and felt isolated, unsafe at school, and did not want to go to school. Parent indicated Student could not properly express herself and needed more support with her emotions. Parent requested Student be kept away from peers if difficulties arose. Parent considered lack of food and water the primary antecedent to all of Student's maladaptive behaviors.
On December 14, 2021, Student received a three-day suspension for biting another student. Student gave no reason for the incident but wrote the injured student an apology. Upon arriving at school after the incident, Parent found Student dysregulated and again considered a lack of food and water the reason for Student's behavior.
Parent reported Student was traumatized by the suspension and felt the other students thought less of Student. James indicated Student suffered no repercussions upon her return to school and was not teased or bullied by other students. Parent opined the incident would not have occurred if Sycamore Academy provided appropriate supervision for Student, having the mentor present, and implementing Student's IEP accommodations.
During the hearing, Parent and Hale sniped at each other regarding an informal behavior data record maintained by Sycamore Academy staff but not shared with Parent. Parent however, had possession of the document and entered it into evidence. As evidence, this exhibit did not serve Parent well.
Notes for January 24, 2022, indicated that during lunch, Student hit another child with a lunch pail. She was asked to stop but did it again. Student hissed at people. On January 25, 2022, Student did well in the classroom, but refused to go to speech therapy with a different mentor or classroom aide. Ultimately Student left the classroom accompanied by mentor. 20 minutes later however, Student ran into the classroom by herself, grabbed her book and threw it on the table. The mentor arrived and indicated Student refused to return to class with her and tried to pinch and hit her. On January 27, 2022, Student was rude to another child, and the mentor intervened. Student told the mentor she was being bossy and hit the mentor. During reading activities, Student constantly got out of her seat to talk to another child, requiring redirection to return to her seat five times. Later that day, during math and writing lessons, Student did not want to complete any work. She went under the table twice, constantly asking to use the restroom or have a snack.
On February 3, 2022, Student ran from the classroom to the restroom without letting anyone know. Student spent almost 20 minutes in the restroom. When located in the restroom, Student remained defiant. Student only returned to class after being informed that the principal would be called if she did not return to class.
Parent perseverated that Student's behaviors were directly related to staff failure to consistently provide Student snack and drink breaks. Additionally, Student was a child with a detachment disorder, which was exacerbated by the continuing change in mentors. Parent felt that it was crucial that Student receive a clear and consistent relationship with her one-on-one aide, like the relationship between Student and Gaby.
A crucial disconnect between Parent and Sycamore Academy existed regarding the definition of a mentor versus a dedicated one-to-one aide, which was clarified at hearing at the ALJ's request. Parent, and teachers at times, referred to the mentor as Student's one-to-one aide. Student's IEP, and 504 Plan for that matter, did not provide for dedicated one-to-one aide support. Mentors, as defined by Hale, were classroom para-educators, who provided all students with additional classroom support or supervision as needed. Student's third grade general education classroom has 22 students, and two adults consisting of the teacher and a mentor. During lunchtime, there were at least two-to-three mentors present. As reported by Sycamore teachers and staff, including James, Student required almost full-time support from Gaby and other mentors, thereby creating the appearance of dedicated one-to-one assistance. This clarification illuminated Parent's concern regarding a lack of consistency due to utilization of several mentors in the third grade. It also evidenced Sycamore Academy's need to conduct a functional behavior assessment to assist in determining whether Student required a dedicated one-to-one aide as a related service in lieu of a classroom mentor spending most of the day only with Student.
Parent argued that Sycamore Academy failed to implement the accommodations in Student's existing IEP with fidelity. Parent's conclusions, however, were not based upon personal observations in the classroom, but were limited to the hearsay statements of Student, an eight-year-old child on the autism spectrum, who did not wish to disappoint a parent who was openly candid about her toxic relationship with school administrators. Sycamore Academy witnesses were more credible. Gomez, Lopez, and James were well-informed witnesses who worked with Student in and out of the classroom. Their testimony was well reasoned. They remained patient and respectful during Parent's cross-examination, which did not reveal any significant discrepancies in their testimony. Collectively they were credible witnesses, and their testimony is given substantial weight here.
Ironically, Parent's orating style of testimony supported the need for the functional behavior assessment. Parent opined that inclusion in the general education setting required appropriate supports. While Parent felt these supports were determinable without assessment, she completely disregarded the purpose of the functional behavior assessment which was to assist in determining positive behavior strategies and support services. Parent opined that Sycamore Academy should look beyond the behavior to the reason for the behavior. This was the specific goal of the functional behavior assessment, which could include studying Parent's concern about the need for Sycamore Academy to ensure it fed Student to prevent her outbursts.
Further, the potential need for a full-time designated one-to-one aide for Student, instead of a classroom mentor, needed to be considered. The functional behavior assessment was a means to determine this issue. The mentor as a classroom aide, was originally intended to accompany Student during transitions and gradually fade. Instead, Student's behavior and educational needs required the mentor's attention most of the school day. Although Parent considered the mentor as Student's one-to-one aide, a designated aide was not provided as a related service in Student's IEP or Section 504 Plan. Parent failed to grasp that her request for one consistent aide to implement Student's IEP with fidelity was an issue to be explored in the functional behavior assessment. Instead, Parent chose to react with distrust to the requests of Sycamore Academy.
Sycamore Academy sustained its burden of proof to establish Student presented with maladaptive behaviors which affected her social emotional status, physical safety, and classroom behavior in the general education setting. Student's teachers and educational specialist established the accommodations offered Student were not always effective within the classroom and required the full-time attention of the classroom aide. Student's refusal to participate in occupational therapy services, her refusal to comply with requests to eat or follow directions from staff in general, and her meltdowns and difficulties arriving at school, negatively impacted her access to education and limited her educational progress. Coupled with Parent's continual bombardment of missives directed at staff regarding Student's behavior, safety, and mental health, Sycamore Academy appropriately requested to conduct a functional behavior assessment.
Sycamore Academy's determination that Student required a functional behavior assessment was appropriate, sound, and non-discriminatory, contrary to Parent's contentions.
REQUIREMENTS OF ASSESSMENT PLAN
The IDEA does not define a functional behavior assessment or explain what steps are required to complete one. The requirements are left to state law or local policy. California requires that children exhibiting serious behavioral challenges receive timely and appropriate assessments and positive supports and interventions in accordance with the IDEA. (Ed. Code, § 56520, subd. (b)(1).) This requirement is also supported by the general requirement that the child be assessed in all areas of suspected disability, including social-emotional, behavior and mental health, (34 C.F.R. § 300.304(c)(4).)
A functional behavior assessment is designed to provide the IEP team with information which identifies and isolates the behavior and develops a hypothesis regarding the function of the targeted behavior. Once the target behavior is identified and the hypothesis developed, a positive behavior intervention plan can be prepared to address the target behavior with appropriate strategies and positive interventions.
The IDEA does not define who may conduct a functional behavior assessment. There is no requirement that a board-certified behavior analyst or any other specific individual conduct a functional behavior assessment unless state law requires it. In California, although a board-certified behavior analyst may conduct functional behavior assessments, school districts, special education local plans, and county offices are not required to utilize board certified behavior analysts to conduct functional behavior assessments. (Ed. Code, § 56525.)
The law simply requires that assessments shall be conducted by persons competent to perform the assessment as determined by the local educational agency. (Ed Code, § 56322.) Any psychological assessment of pupils shall be conducted by a credentialed school psychologist who is trained and prepared to assess cultural and ethnic factors appropriate to the pupil being assessed. (Ed. Code, § 56324, subd. (a).)
THE ASSESSMENT PLAN DATED NOVEMBER 2, 2021
The Assessment Plan was first presented to Parent on or about November 2, 2021. In email communications Hale reiterated the functional behavior assessment and educationally related mental health assessment were critical to the IEP process, regardless of whether Parent requested them. Sycamore Academy requested the assessments to address Parent's countless concerns regarding Student's behaviors and safety at school. Sycamore Academy intended to convene an IEP team meeting once the assessments were completed to review the assessment reports and complete its offer of a FAPE. This intent was made clear to Parent.
Parent offered the November 2, 2021, Assessment Plan provided by Sycamore Academy into evidence, which contained her handwritten responses to Hale. Sycamore Academy prepared a standard assessment plan utilized through the El Dorado County Charter Special Education Local Plan Area. The Assessment Plan stated the proposed assessment sought to address social-emotional and behavioral concerns. Other options were considered, however there continued to be concerns with Student's social emotional regulation and behavior. Parent's handwritten comment indicated she was already addressing these concerns.
The Assessment Plan stated the assessments would be conducted by qualified staff and reiterated the statutory requirements for conducting assessments pursuant to Title 20 of the United States Code, Sections 1414(a)(2)(b) and (c), and Education Code, Sections 56320 and 56381, subdivision (e). Parent's written comment sarcastically stated this was hardly a description.
The Assessment Plan stated to that meet Student's individual education needs, Sycamore Academy proposed to assess Student in the areas of functional behavior and educationally related mental health. The Assessment Plan contained standard statutory language: tests and procedures conducted pursuant to these assessments may include, but were not limited to, classroom observations, rating scales, interviews, record review, one-on-one testing, or some other types or combination of tests. The Assessment Plan indicated the assessment would be conducted by a school psychologist or boardcertified behavior analyst. Parent's handwritten note indicated this description of the evaluation procedures was completely unprofessional.
On November 29, 2021, Sycamore Academy sent Parent a prior written notice regarding the proposed assessments and the rationale for the assessments. The prior written notice reiterated that the functional behavior assessment and educationally related mental health assessment were discussed as part of the December 17, 2021, IEP team meeting.
In a handwritten note to Hale dated January 12, 2022, Parent stated she no longer requested mental health services for Student. She reported Student received more than adequate mental health services from her private therapist through Project Sister. Parent went on to indicate Student was responding well to her new setting at the new school site.
Parent maintained Hale was unqualified to assess, and maladaptive behaviors were not an issue if Sycamore Academy met Student's primary needs and implemented the IEP. In the January letter Parent accused Sycamore Academy of differential treatment of both Parent and Student, since September 29, 2021, that caused Student's maladaptive behaviors. Parent considered this treatment to be retaliatory, discriminatory, and cruel.
Parent emphatically wrote she would not allow a functional behavior assessment of Student at that time. In her opinion, Sycamore Academy could not even provide consistent or adequate IEP accommodations. Many of her contentions, however, were not related to Student's IEP. As example, Parent had not been provided the dates or time of when Student received her speech and language and occupational therapy services, and Parent could not get an answer to what happened to Student's crayons which Parent sent with her to school on January 10, 2022.
Parent's January 12, 2022, note emphatically concluded that once Sycamore Academy provided systematic, predictable, functional, and consistent services pursuant to Student's IEP, she would discuss Student's maladaptive behavior.
On February 7, 2022, Hale sent Parent another copy of the proposed Assessment Plan, along with a prior written notice which explained the assessment actions proposed, the reason for the assessments, and the basis for Sycamore Academy's decision to seek the assessments, the other options considered, the reasons for rejecting other options and other factors considered. The prior written notice included reference to Parent's December 6, 2021 email which contained 32 safety concerns posed by Parent, including such minutia as who would clean the classroom and restroom areas, how often would they be sanitized daily; would there be sufficient toilet paper and restroom supplies available at all times; where were the trash facilities located; would cleaning agents be secured and placed out of reach of students; where would the new portable classrooms be constructed, and would they have hand sanitizer pumps available for easy access for students and staff?
On April 13, 2022, in another email to Hale, Parent acknowledged Hale had previously provided numerous copies of the November 2, 2021, Assessment Plan but she requested another copy, which she received on April 15, 2022.
On April 20, 2022, Parent finally provided a signed written notice of her nonconsent to the assessments. In Parent's handwritten notes contained on the Assessment Plan document, Parent indicated she had the right to be familiar with the assessment procedures and types of tests to be given to Student. Parent reported she had no discussions with anyone regarding the proposed assessments and was not provided an opportunity to become familiar with the assessment procedures or the tests that may be given to Student. Parent requested to speak with the school psychologist and to examine the testing protocols. Parent complained that no alternate means of assessment were provided, yet no requirement for alternative means of assessment were required or suggested. Parent concluded by indicating Student had recently been assessed by Key Essentials of Behavior Management and already received private applied behavior analysis services. Further, Student already received mental health services from Setaghian through Project Sister.
Rather than permit Sycamore Academy to conduct an educational related functional behavior assessment Parent obtained a private functional behavior assessment and intervention plan from Key Essentials. Parent did not provide the report, dated March 8, 2022, to Sycamore Academy until April 14, 2022. The private assessment was clinical in nature and was conducted to address Student's privately obtained applied behavior analysis therapy. Target behaviors were based upon anecdotal data, parent interviews and brief observation outside of the school setting. The private functional behavior assessment did not qualify as an educationally related assessment and failed to address Student's specific classroom behaviors.
Although Parent disagreed with the Assessment Plan, the Assessment Plan itself met all statutory requirements for an assessment plan. The fact that Parent did not trust Sycamore Academy and chose to obtain private services for Student, did not negate the procedural validity of the proposed Assessment Plan. Further the selection of particular testing or evaluation instruments is left to the discretion of the State and local educational authorities, not the parent. (Letter to Anonymous (OSEP September 17, 1993.)
The informed involvement of parents is central to the IEP process. (Winkleman v. Parma City School Dist. (2007) 550 U.S. 516, 524[ 127 S.Ct. 1994].) However, a parent need not have an in-depth understanding of all of the services a child's IEP might provide or every aspect of a proposed evaluation. Rather, for consent to be “informed” the parent must merely have a general understanding of the activity for which she is providing consent. (Letter to Johnson (OSEP 2010).) The parent of a child with a disability does not have veto power over the IEP process. (Ms. S. ex rel. G. v Vashon Island School Dist. (9th Cir. 2003), 337 F.3d 1115, 1131.) Likewise, just because the IEP team does not adopt the program preferred by the parents does not mean that the parents have not had an adequate opportunity to participate in the IEP process. (B.B. v. Hawaii Dept. of Educ. (D Hawaii 2006) 483 F. Supp. 2d 1042, 1051.) Here, Parent continually participated in the IEP process, having herself raised many of the concerns which indicated a need for further assessment.
Throughout the hearing Parent reiterated her only aspiration was to provide Student with a positive and fulfilling life. Parent provided a myriad of examples of her nurturing Student's homelife and care. Parent was a licensed marriage and family therapist as well as a credentialed teacher with an extensive professional pedigree. The evidence established however, that Parent's requested involvement in Student's educational program far exceeded reasonable parental concerns. Although Parent was an important member of the IEP team, her professional qualifications did not bestow her with special knowledge of the IEP process to make unreasonable or exhaustive requests to micromanage Student's education.
Specifically, Parent's demand for the detailed credentials and list of specific assessments with their protocols was an unreasonable request and went beyond the IDEA's requirement of informed consent. Sycamore Academy requested to assess Student in the areas of educationally related functional behavior and mental health, with the assessors and methodology determined by Sycamore Academy. The purpose of these assessments was to determine whether Student required additional behavior and mental health supports in the educational setting. This broad language sufficiently informed Parent of the areas to be assessed and the credentials required to administer the assessments. Parent was entitled to no more. Sycamore Academy was not required to include additional information delineating the assessors, testing to be utilized or data collection methodologies, nor did Parent have veto rights to Sycamore Academy's choices. Sycamore Academy met its burden of proof to establish that the Assessment Plan complied with all legal requirements which provided Parent with sufficient information to allow informed consent.
Sycamore Academy may conduct a functional behavior assessment of Student without parental consent.
ISSUE 2: IS SYCAMORE ACADEMY ENTITLED TO CONDUCT AN EDUCATIONALLY RELATED MENTAL HEALTH ASSESSMENT WITHOUT PARENTAL CONSENT?
Sycamore Academy contends it proposed to conduct an educationally related mental health assessment due to Student's eloping and refusal to comply with staff and service providers, in addition to parental reports of Student's traumas and various mental health issues.
Parent contends she did not request mental health services, nor does she intend to accept them if offered by Sycamore Academy. Student asserts that she was fully served with her private therapy sessions.
The factual findings and conclusions of law contained in Issue One, are referenced and incorporated herein Issue Two.
Counseling, psychological, and social work services are related services that students with disabilities may require in order to benefit from their educational program. (34 C.F.R. § 300.34 (a).) Counseling services are those services provided by qualified social workers, psychologists, guidance counselors, or other qualified personnel. (34 C.F.R. § 300.34 (c)(2).)
Psychological counseling services include administering psychological and educational tests and other assessment procedures; interpreting assessment results; obtaining, integrating, and interpreting information about child behavior and conditions related to learning; consulting with other staff members in planning school programs to meet the special educational needs of children as indicated by psychological tests, interviews, direct observation, and behavioral evaluations; planning and managing a program of psychological services, including psychological counseling for children and parents; and assisting in developing positive behavioral intervention strategies. (34 C.F.R. § 300.34 (c)(10).)
Psychological services must be provided when a student with disabilities needs the service to receive a FAPE. By making the student's social and emotional development part of the IEP, a school district may commit itself to providing psychological services the student needs to make progress towards those goals. (Sacramento City Unified Sch. Dist. v. R.H. ex rel. (E.D. Cal. Oct. 6, 2016, No. 2:14-cv01549-TLN-DB) 2016 WL 5870774.)
Previously on November 29, 2019, Parent obtained a private assessment which diagnosed Student with attention deficit hyperactivity disorder, combined, severe oppositional defiance disorder, attachment disorder of childhood, and anxiety, not otherwise specified.
Student's maladaptive behaviors, such as meltdowns lasting 45 minutes, began at age five. Student received applied behavior analysis therapy for her dysregulation and meltdowns. Student received psychiatric services for her meltdowns until September or October 2020, when Student's psychiatrist determined Student performed better without medications.
Student reported she was molested by two older boys on campus after school in a restroom on March 13, 2020. The boys, continued to attend Sycamore Academy along with Student. As a victim of violent crime, Student received clinical trauma counseling through Project Sister.
Student suffered additional trauma due to a fire which destroyed her family home and required Parent and Student to relocate for an extended period until the home was repaired. At the end of 2021, Student was the subject of an investigation of inappropriate sexual behavior. Additionally, in January 2022, Student transitioned to a new and unfamiliar school site.
Parent provided Sycamore Academy with her written concerns and suggestions regarding Student's IEP, which she opined would extinguish Student's behaviors and need for school-based counseling. These suggestions included such things as maintaining consistent communication between the special education department and all staff who implemented Student's IEP; consistent follow-through with token-system behavior reward; and utilizing earned rewards such as “brain breaks.” Parent provided sensory items to be used in the classroom and admonished the IEP team that sensory toys should not be viewed as a reward for good behavior. Parent instructed that the aides needed to provide these items to Student to assist when Student experienced frustration, anxiety, overload, or simply needed to separate from an activity for a few minutes and re-group with the assistance of her mentor or special education teacher.
Parent's credibility, however, was limited as she had little, if any, knowledge of what occurred in the classroom, beyond the unsubstantiated hearsay statements of Student. Parent's directives were interpreted as another attempt to control and micromanage Student's special education program.
Parent opined that Student should never be punished for any feelings she may be experiencing. She was a child on the autism spectrum and manifested this diagnosis in multiple ways. Parent lectured that Student's strengths should be recognized, valued, and incorporated into the modalities of her academic instruction daily. Student shined when her strengths were recognized and valued by all with whom she interacted. Parent opined that all children deserve this treatment, and special needs children responded to this kind of individualized instruction and recognition. To Parent, punishing a child with sensory needs would be no different than punishing a child with a medical condition being deprived of medication. Both examples resulted in child's dysregulation. Parent provided no evidence that Student was being punished or demeaned in any way at school. Nor was there any evidence that Sycamore Academy systematically denied Student food and water.
Parent's core examples of punishment focused on her own dysfunctional relationship with Sycamore Academy. Parent felt her professional experience as an educator and therapist should not be ignored, and her support of Sycamore Academy throughout Student's tenure, should not be discounted. Parent opined that her consistent advocacy of Student should not be punished, specifically stating that no parent should be punished by anyone for expressing an opinion of anything, particularly about educational practices or conditions that pose a danger to students on campus.
Parent concluded by stating that singling out a parent and banning that parent from campus was detrimental to both the child and parent and was a form of punishment that should not be acceptable to anyone. It was bullying in its worst form, which was not tolerated among students. Therefore, the school should set the example of an inclusive and accepting environment to all parents and students and not discriminate or retaliate against anyone. In Parent's opinion, making suggestions, asking questions, expressing concerns, and requesting information was not micromanaging. Yet Parent perseverated on her need for daily reports and detailed information from teachers and staff.
Parent made an emotional plea to Hale as Parent felt she was the one-person Student counted on to protect her. Parent requested that Hale think about the impact of her treatment of Parent on Student, and the example it provided her. Parent opined that if Hale ostracized Parent and treated Parent as “less than,” Student would feel the same way. Parent reiterated several times throughout the hearing that when Sycamore Academy demeaned Parent, they also demeaned Student and made Student feel worthless.
The evidence did not establish that teachers and staff at Sycamore Academy demeaned or treated Student poorly. Regardless according to Parent, that emotional mindset was embedded in Student's perspective about school. Parent reported Student no longer wanted to attend school, and Student's morning attendance difficulties increased over time.
Ultimately Parent deduced that Sycamore Academy intentionally developed a toxic relationship with her in response to her parental concerns regarding Student's education and well-being at school. As a result, Parent concluded the demand for an educationally related mental health assessment was intended as an orchestrated attempt to remove Student from Sycamore Academy due to her behaviors and mental health. Parent categorically would not consent to the assessments.
Dr. Evelin, Setaghian, Student's private therapist testified on behalf of Student. Setaghian, a licensed psychologist, had over eight years of counseling experience in clinical and social service settings. Her experience included knowledge of trauma and crisis counseling, substance abuse, pervasive developmental disorders, and dynamics of group therapy. She held a doctorate degree in clinical psychology and applied clinical psychology, as well as a master's degree in counseling psychology and marriage and family therapy. Setaghian worked for Project Sister, and currently provided crisis intervention, individual and group counseling for victims of sexual assault. She also worked for the EmPower Center, providing individual and group counseling services for college students who experienced domestic violence, sexual assault, stalking and intimate partner abuse. Setaghian had previous experience as a developmental therapist providing in-home services using the Floortime model with children and adolescents within the autism spectrum, down syndrome, and pervasive developmental disorders. Setaghian was not experienced as a school psychologist or board-certified behavior analyst.
Setaghian treated Student in a clinical setting for the last two years through Project Sister. Setaghian opined Student's behaviors were to be expected with trauma, and were compounded by Student's autism, and sensory issues. For a time Setaghian collaborated with Lopez regarding Student's behaviors at school and felt Lopez had done all she could do. Setaghian offered to observe Student at school.
Setaghian supported Parent's contention that assessments were unnecessary if Student's IEP was implemented with fidelity. Based upon her work with Student, Setaghian believed Student's behaviors were primarily related to sensory issues linked to Student's autism spectrum disorder. The IEP contained accommodations to control sensory issues if implemented appropriately. Setaghian's school-based opinion however was restricted to information provided by Parent, who obtained her information from Student, as well as from her limited collaboration with Lopez.
Setaghian clarified that for Student's IEP to be successful, the IEP team needed a more definitive plan implemented on a consistent basis. Data collection was important for specific examples of behavior. She did not know what data was collected by Sycamore Academy, but she indicated the IEP team did not have sufficient data to determine why Student's current strategies were not working.
Setaghian refuted Parent's contention that the assessments would be detrimental for Student. She acknowledged that assessors were trained professionals. While assessing Student could be difficult, the proposed assessments would not be specifically traumatic. Student tolerated testing, and assessments could be modified. As example, the functional behavior assessment was primarily indirect observation and data collection. Student recently underwent a clinical functional behavior assessment and experienced no change or detriment. Setaghian's primary concern was that Student's perspective be represented. She would not allow Parent to select the assessment tools or oversee data collection.
Setaghian's testimony regarding Student's mental health was cautionary and restrained. Her grace under pressure during her testimony was exemplary. Setaghian attended Student's IEP team meetings. She was appalled by the lack of civility between Parent and the Sycamore Academy IEP team members. Diplomatically, Setaghian described the lack of healthy communication between Parent and Sycamore Academy staff. It was clear to her that Parent and other IEP team member were not on the same page. Everyone needed to do better with cooperation.
This combative relationship between the adults placed Student in the middle. The negative effects of Student caught in the middle was unfortunately confirmed in Parent's ill-fated attempt to have Student testify on Parent's behalf. At hearing, Student was clearly uncomfortable and looked to Parent for approval of her answers. After only a few questions to establish her competence and veracity, Student became resistant to and clearly did not want to answer substantive questions. Student became distressed and dysregulated. Given Student's obvious emotional discomfort, the ALJ terminated Student's testimony.
Setaghian's testimony was credible but limited in scope, as she was not directly involved in Student's educational program or educational assessments. As an independent observer however, she fittingly identified emotional issues, and the need to consider Student's perspective as a child caught in the middle of significant hostilities going on around her. It was not conducive to a positive educational experience for Student, and Student acted out, as exampled by her statements that she did not need to follow directives from Sycamore Academy staff.
Sycamore Academy sustained its burden to establish that an educationally related mental health assessment was appropriate. Student's behavioral issues cannot be limited to a lack of food and water. Student's mental health diagnoses included conduct disorder and oppositional defiance disorder. Over the last two years, Student faced a series of traumas and hurdles which no child deserved. Regardless of what the parties professed, Student was placed in the middle of a growing disengagement between the parent she loved, and the school she attended All these facets impacted Student's emotional well-being and have resulted in unquestionable maladaptive behaviors which needed to be addressed.
Parent unequivocally stated she will not accept mental health services from Sycamore Academy. The issue involved in this case is not whether Parent can withhold consent from counseling services if offered by Sycamore Academy. Instead, Sycamore Academy was required to seek assessment of all areas of Student's suspected need. Student's existing IEP required additional modification to address Student's increasing behaviors and to further address parental concerns. Sycamore Academy needed the assessments to provide data and additional information for the IEP team to make an appropriate offer of a FAPE. Further, the assessment plan was procedurally appropriate and provided Parent with sufficient information to provide informed consent, had she chosen to do so.
Sycamore Academy may conduct an educationally related mental health assessment without parental consent.
LEGAL CONCLUSION
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: Sycamore Academy is entitled to conduct a functional behavior assessment of Student without parental consent. Sycamore Academy prevailed on Issue 1.
Issue 2: Sycamore Academy is entitled to conduct an educationally related mental health assessment of Student. Sycamore Academy prevailed on Issue 2.
ORDER
1. Sycamore Academy may conduct a functional behavior assessment of Student without parental consent. Sycamore Academy may delay the functional behavior assessment until 30 days after school resumes for the 2022-2023 school year.
2. Sycamore Academy may conduct an educationally related mental health assessment of Student without parental consent.
3. Sycamore Academy shall notify Parent within 15 business days of this decision of the days, times, and places Parent shall present Student for assessment. Parent shall cooperate in making Student available for assessments as requested by Sycamore Academy.
4. Parent shall timely complete and return any documents reasonably requested by Sycamore Academy as a part of the assessment process
5. Both parties are ordered to communicate with each other in a cooperative and dignified matter to successfully complete the assessments ordered herein.
RIGHT TO APPEAL THIS DECISION
This is a final administrative decision, and all parties are bound by it. Pursuant to Education Code section 56505, subdivision (k), any party may appeal this Decision to a court of competent jurisdiction within 90 days of receipt.
JUDITH L. PASEWARK
Administrative Law Judge
Office of Administrative Hearings