DECISION
NOVEMBER 8, 2022
On August 19, 2022, Parents on behalf of Student, filed a Request for Due Process Hearing, called a complaint, with the Office of Administrative Hearings, called OAH, naming Modesto City Schools. Modesto City Schools is called Modesto.
Administrative Law Judge Tara Doss presided over the hearing via videoconference using the Zoom application, on October 4, 5, 6, 11, 12, and 13, 2022. The Administrative Law Judge is called ALJ.
Attorneys Diana Renteria, Robert Burgermeister, Lynda Williams, and Valerie Weiss represented Student on various days of hearing. Parent attended all hearing days on Student's behalf. Student attended two hearing days. Attorney Tilman Heyer represented Modesto. Dr. Christi Allan, Senior Director of Modesto City Special Education Local Plan Area for Secondary Education, attended all hearing days on Modesto's behalf.
At the request of the parties, OAH granted a continuance to October 27, 2022, to file written closing briefs. OAH closed the record and submitted the case for decision on October 27, 2022.
ISSUES
In this Decision, a free appropriate public education is called a FAPE and an individualized education program is called an IEP.
1. Did Modesto deny Student a FAPE during the 2021-2022, and 2022-2023 school years, by failing to offer college preparatory goals to Student?
2. Did Modesto deny Student a FAPE at the September 2, 2021 IEP team meeting, by failing to offer:
a. sufficient specialized academic instruction?
b. an appropriate placement?
3. Did Modesto deny Student a FAPE during the 2021-2022 school year, by failing to offer Student the option to receive a certificate of completion and to attend graduation ceremonies?
4. Did Modesto deny Student a FAPE by changing Student's IEP goal to graduation with a diploma in June 2022, instead of maintaining Student's transitional IEP goal of proceeding to a college placement following completion of high school?
5. Did Modesto deny Student a FAPE during the 2021-2022 school year, by failing to hold an IEP team meeting to discuss Student's graduation after Parent's request?
6. Did Modesto deny Student a FAPE by failing to issue prior written notice that notified Parent or Student that Modesto planned to graduate Student in May 2022?
JURISDICTION
This hearing was held under the Individuals with Disabilities Education Act, called IDEA, its regulations, and California statutes and regulations. (20 U.S.C. § 1400 et. seq.; 34 C.F.R. § 300.1 et seq.; Ed. Code, § 56000, et seq.; Cal. Code Regs., tit. 5, § 3000, et seq.) The main purposes of the IDEA, are to ensure:
• all children with disabilities have available to them a FAPE 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 related to the identification, assessment, or educational placement of the child, or the provision of a FAPE to the child. (20 U.S.C. § 1415(b)(6) and (f); 34 C.F.R. § 300.511; Ed. Code, §§ 56501, 56502, and 56505; Cal. Code Regs., tit. 5, § 3082.) The party requesting the hearing is limited to the issues alleged in the complaint, unless the other party consents, and has the burden of proof by a preponderance of the evidence. (20 U.S.C. § 1415(f)(3)(B); Ed. Code, § 56502, subd. (i); Schaffer v. Weast (2005) 546 U.S. 49, 56-62; and see 20 U.S.C. § 1415(i)(2)(C)(iii).) Here, Student had the burden of proof. The factual statements below constitute the written findings of fact required by the IDEA and California law. (20 U.S.C. § 1415(h)(4); Ed. Code, § 56505, subd. (e)(5).) All references to the Code of Federal Regulations are to the 2006 version, unless otherwise noted.
Student was 18 years old at the start of the hearing and turned 19 years old during the hearing. Student resided with Parents within Modesto's attendance boundaries at all relevant times. Student graduated from high school with a regular diploma in May 2022 and attended Modesto Junior College. Before graduating, Student was eligible for special education under the category of specific learning disability due to visual and auditory processing deficits, which affected Student's performance in reading, math, and written expression.
PRELIMINARY ISSUE: EDUCATIONAL RIGHTS
On September 21, 2022, Modesto filed a Motion to Dismiss Student's complaint on the grounds that Parents did not hold educational rights for Student and therefore, lacked standing to file a complaint on Student's behalf. On September 26, 2022, Student filed an opposition to Modesto's motion, and argued that Student signed a document on September 16, 2022, confirming the transfer of Student's educational rights to Parents. On September 27, 2022, Modesto filed a reply to Student's opposition, and argued the fact that Student assigned educational rights to Parents on September 16, 2022, proved Parents did not have standing to file the due process complaint on August 19, 2022.
On September 30, 2022, OAH issued an order denying Modesto's motion. However, OAH ordered Student to present evidence at the due process hearing to show when Student transferred educational rights to Parents if that date occurred before September 16, 2022.
At hearing, Parent contended Student verbally authorized Parents to make educational decisions on Student's behalf when Student turned 18 years old. Parent further contended that although Student's decision to grant them educational rights was not formalized in writing until September 16, 2022, they held Student's educational rights since Student's turned 18 years old.
Modesto contended there was no proof Parents held Student's educational rights until Student assigned Parents those rights, in writing, on September 16, 2022. Therefore, Modesto argued Parents did not have standing to file a due process complaint on behalf of Student on August 19, 2022.
The United States Supreme Court made clear in Winkelman v. Parma City School District, that the IDEA conveys rights to parents and children, and grants parents independent, enforceable rights. (Winkelman v. Parma City School Dist. (2007) 550 U.S. 516, at pp. 529 and 533.) Further, the Court held parents' rights are not limited to certain procedural and reimbursement-related matters, but encompass the entitlement of a FAPE for the parents' child. (Id. at p. 533.)
However, in California, when an individual with exceptional needs reaches the age of 18, with the exception of an individual who has been determined to be incompetent under state law, the local educational agency must provide any notice of procedural safeguards required by the IDEA to both the individual and the parents of the individual. All other IDEA rights assigned to a parent transfer to the individual with exceptional needs. The local educational agency must notify the individual and the parent of the transfer of rights. (Ed. Code, § 56041.5; see also 20 U.S.C. § 1415(m).)
Winkelman involved pro se parents attempting to prosecute IDEA claims in federal court on their own behalf and on behalf of their minor child. While Winkelman did not address whether parents retain independent rights under the IDEA once a student reaches the age of majority, the Court made clear that parents' rights are enforceable while the child is a minor. Additionally, at least one court has held that parents have standing to pursue reimbursement claims under the IDEA, even after the student has reached the age of majority and IDEA rights have transferred to the student. (Latynski-Rossiter v. District of Columbia (D.D.C. 2013) 928 F.Supp.2d 57, 62; see Stanek v. St. Charles Community Unit School Dist. No. 303 (6th Cir. 2015) 783 F.3d 634, 642-643.)
Parents did not prove Student transferred educational rights to Parents before September 16, 2022. At an August 20, 2019 IEP team meeting, Modesto special education teacher Desiree Abshire told Student and Parents that educational rights would transfer to Student upon Student's 18th birthday. The notice of transfer of rights was written into Student's August 20, 2020, and September 2, 2021 IEPs. Student was not determined incompetent under California law. Thus, when Student turned 18 years old on October 10, 2021, Student had the sole right to make educational decisions.
The evidence did not support Parent's contention that Student assigned educational rights to Parents before September 16, 2022. The September 16, 2022 typewritten document stated: “I, [Student], hereby assign all my [e]ducational [r]ights to my Parents…” Handwritten on the document between the words “hereby” and “assign” was “continue to.” Student and Parents signed the document and dated it September 16, 2022. Parents' attorney drafted the document. At hearing, Parent argued Student verbally transferred educational rights to Parents upon turning 18 years old, and that the written document formalized the transfer. However, Student's testimony did not corroborate Parent's assertion that Student verbally assigned Parents educational rights at any time before September 16, 2022. There was no other evidence that supported Parent's testimony that Student transferred educational rights to Parents before September 16, 2022, or explanation why Parents' attorney did not have Student sign the assignment of educational rights before they filed the complaint with OAH.
Accordingly, while Parents had standing to file a due process complaint against Modesto on August 19, 2022, on their own behalf , they did not have standing until September 16, 2022, to pursue claims on behalf of Student. Consequently, the two-year statute of limitations must be adjusted for Student's claims. With two limited exceptions, a party must file a due process complaint within two years from the date they knew or had reason to know of the facts underlying the basis for the request. (20 U.S.C. § 1415(f)(3)(C); Ed. Code, § 56505, subd. (l).) Therefore, the two-year statutory period for Student's claims is September 16, 2020, through September 16, 2022. However, adjusting the statue of limitations does not impact the resolution of the issues raised in this case.
ISSUE 1: DID MODESTO DENY STUDENT A FAPE DURING THE 2021-2022, AND 2022-2023 SCHOOL YEARS, BY FAILING TO OFFER COLLEGE PREPARATORY GOALS TO STUDENT?
Student contends Modesto failed to offer IEP goals during 2021-2022 school year that academically prepared Student for college. Modesto contends Student's August 20, 2020, and September 2, 2021 IEPs offered Student goals in all areas of need, including postsecondary transition goals that prepared Student for postsecondary education and employment.
A FAPE means special education and related services provided to a child with a disability at public expense, that meet state educational standards and conform with the child's IEP. (20 U.S.C. §§ 1401(9) and1412(a)(1); 34 C.F.R. §§ 300.17 and 300.101(a).) Parents and school personnel develop an IEP for an eligible student based upon state law and the IDEA. (20 U.S.C. §§ 1401(14) and 1414(d)(1); 34 C.F.R. §§ 300.320, 300.321, and 300.501; see Ed. Code, §§ 56031, 56032, 56341, 56345, subd. (a), and 56363, subd. (a).)
Special education is instruction specially designed to meet the unique needs of a child with a disability. (20 U.S.C. § 1401(29); 34 C.F.R. § 300.39; Ed. Code, § 56031.) Related services are transportation and other developmental, corrective, and supportive services that are required to assist the child in benefiting from special education. (20 U.S.C. § 1401(26); 34 C.F.R. § 300.34; Ed. Code, § 56363, subd. (a).) An IEP is a written statement for each child with a disability that is developed, reviewed, and revised based upon state law and the IDEA. (20 U.S.C. §§ 1401(14), 1414(d)(1); 34 C.F.R. § 300.320; Ed. Code, § 56032.
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 Educ. 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. 386 [137 S.Ct. 988, 1000].)
An IEP describes a student's needs, and academic and functional goals related to those needs. It also provides a statement of the special education, related services, and program modifications and accommodations that will be provided for the student to:
• advance in attaining the goals;
• make progress in the general education curriculum; and
• participate in education with disabled and nondisabled peers. (20 U.S.C. §§1401(14), 1414(d)(1)(A); Ed. Code, §§ 56032, 56345, subd. (a).)
In developing an IEP, the IEP team must consider the strengths of a child, the concerns of the parents for enhancing the education of their child, the results of the most recent evaluation, and the academic, development, and functional needs of the child. (20 U.S.C. § 1414(d)(3)(A); 34 C.F.R. § 300.324(a)(1).)
The student's needs must be described through a statement of present levels of academic achievement and functional performance, including how the student's disability affects the involvement and progress in the general education curriculum. (20 U.S.C. § 1414(d)(1)(A)(i)(I); 34 C.F.R. § 300.320(a)(1).) The goals must be measurable and designed to meet the student's needs so that the student can be involved in and make progress in the general education curriculum and meet each of the other educational needs. (20 U.S.C. § 1414(d)(1)(A)(i)(II); 34 C.F.R. § 300.320(a)(2)(i).)
The IEP must show a direct relationship between the present levels of performance, the goals, and the specific educational services to be provided. (Cal. Code Regs., tit. 5, § 3040, subd. (b).)
Not later than the first IEP to be in effect when a student is 16 years old, the IEP must include appropriate measurable postsecondary goals and transition services to assist the student in reaching those goals. (Ed. Code, § 56043, subd. (g)(1).) These goals and services are typically developed through an individualized transition plan that is incorporated into a student's IEP.
There are two parts to the legal analysis of a school district's compliance with the IDEA. First, the tribunal must determine whether the district has complied with the procedures set forth in the IDEA. (Rowley, supra, 458 U.S. at pp. 206-207.) Second, the tribunal must decide whether the IEP developed through those procedures was designed to meet the child's unique needs and was reasonably calculated to enable the child to receive educational benefit appropriate in light of the child's circumstances. (Ibid.; Endrew F., supra, 137 S.Ct. at p. 1000.)
Whether an IEP offers a student a FAPE is assessed in light of information available at the time the IEP was developed, not in hindsight. (Adams v. State of Oregon (9th Cir. 1999) 195 F.3d 1141, 1149.) An IEP is a snapshot, not a retrospective; it must be evaluated in terms of what was objectively reasonable when the IEP was developed. (Ibid. (quoting Fuhrmann v. East Hanover Bd. of Educ. (3rd Cir. 1993) 993 F.2d 1031, 1036.)
MODESTO OFFERED STUDENT APPROPRIATE GOALS FOR THE 2021-2022 SCHOOL YEAR
Student did not contend the August 20, 2020, or September 2, 2021 IEP goals were not measurable. Thus, this Decision only analyzes whether the goals Modesto offered during the 2021-2022 school year, were substantively appropriate and designed to meet Student's academic and postsecondary needs.
Student did not prove Modesto denied Student a FAPE by failing to offer college preparatory goals for the 2021-2022 school year. Student's August 20, 2020 IEP was in effect at the start of the 2021-2022 school year, until Modesto held Student's September 2, 2021 IEP team meeting, which Parent consented to on that same date. As of the August 20, 2020 IEP team meeting, Student was in the 11th grade. Prior to the August 20, 2020 IEP team meeting, Modesto conducted a psychoeducational evaluation of Student and issued a report on August 19, 2020. The assessment identified Student's areas of need in reading, writing, and math.
The August 20, 2020 IEP contained six annual academic goals: two reading, two writing, and two math. The reading goals were for Student to read grade level text and understand figurative and connotative meanings in the text, and to identify the main idea through textual evidence. The writing goals were for Student to outline and draft a well-written composition according to 11th grade standards. The math goals were for Student to improve quantitative reasoning through solving two-step equations and multi-step problems. Each goal was directly related to Student's present levels of performance as identified in the August 19, 2020 psychoeducational assessment report, and Student's progress on the previous year's IEP goals. Each of the goals sought to achieve 11th or 12th grade state standards.
Modesto developed an individualized transition plan, which it incorporated into the August 20, 2020 IEP. Abshire interviewed Student regarding Student's desires for after high school. Student also completed an informal career assessment. Student expressed the desire to attend college and become a nurse. The IEP team offered two annual transition goals. To support Student's desire to attend college, Abshire developed a postsecondary goal for Student to research and identify at least two colleges that matched his educational and career interests. To support Student's desire to work after high school, Abshire developed a goal for Student to research at least two jobs or career paths that suited Student's abilities and interests.
Modesto held the September 2, 2021 IEP team meeting as an annual review and to discuss Student's transition after high school. Modesto reviewed Student's progress on the August 20, 2020 IEP goals at this meeting. Student had successfully achieved each goal. The IEP team discussed Student's present levels of performance and developed new IEP goals that built upon the skills Student achieved through the August 20, 2020 IEP goals. The IEP contained four annual academic goals: two reading, one writing, and one math. The reading goals were for Student to synthesize multiple reading sources to create a relevant response and to determine the central theme from a primary source and its relationship to historical context. The writing goal was for Student to improve written composition by using specific vocabulary and precise language. The math goal was for Student to solve complex problems using different math operations.
The September 2, 2021 IEP had an individualized transition plan that contained two postsecondary goals. In addition, the IEP team offered two annual transition goals. To support Student's desire to attend college, Student's special education case manager for the 2021-2022 school year, Brandon Cogdill, developed a goal for Student to complete a college application of Student's choice. To support Student's desire to work after high school, Cogdill developed a goal for Student to research the availability of Student's desired job in the geographical region, including pay and benefits, demand for the job, and opportunities for professional advancement. Student's transition goals focused on Student taking the necessary steps to ensure on-time graduation and researching postsecondary job options.
Cogdill persuasively testified Student made the amount of progress needed on the September 2, 2021 IEP goals to continue developing skills to graduate and be successful in postsecondary education or employment. Cogdill was a resource specialist teacher at Student's high school. Cogdill taught Student for three class periods a week in a resource tutorial course, designed for students in general education classes that required special education support. Cogdill provided specialized academic instruction to Student and worked with Student to achieve IEP goals.
Cogdill held a mild to moderate special education teaching credential, had experience as a special education teacher, and had personal knowledge of Student's IEP goals and academic performance. Thus, Cogdill's opinions were credible and given significant weight.
Student's academic, postsecondary, and transition goals were directly related to Student's present levels of performance, the progress Student made on the goals in the August 20, 2020 IEP, and Student's individualized transition plan. Further, the academic goals sought to achieve 12th grade state standards and supported Student's achievement in the 12th grade college preparatory courses he had in government and economics, and expository reading and writing. Thus, Student's goals for the 2021-2022 school year were designed to help Student graduate on-time and successfully transition to postsecondary education and employment.
Student did not introduce any specific evidence showing that Student's IEP goals during the 2021-2022 school year were inappropriate or not designed to meet Student's academic and postsecondary needs and enable progress in the general education setting. In fact, Student's expert, Dr. Theresa Edwards, an experienced licensed educational psychologist, testified that Student's September 2, 2021 IEP goals seemed appropriate and focused on areas where Student demonstrated weakness.
Thus, the goals in the August 20, 2020, and September 2, 2021 IEPs were substantively appropriate and designed to meet Student's needs. Student did not meet its burden of showing Student's 2021-2022 IEP goals denied Student a FAPE.
MODESTO WAS NOT LEGALLY REQUIRED TO OFFER STUDENT GOALS FOR THE 2022-2023 SCHOOL YEAR
Student did not prove Modesto denied Student a FAPE by failing to offer college preparatory goals for the 2022-2023 school year. Student graduated with a regular high school diploma in May 2022. A student who successfully graduates with a regular high school diploma is no longer eligible to receive a FAPE. (34 C.F.R. § 300.102 (a)(3(i); Ed. Code, § 56026.1, subd. (a).) For reasons discussed later in this Decision, Modesto appropriately issued a regular high school diploma to Student in May 2022. Upon graduation, Modesto was not required to offer Student a FAPE, including developing goals for the 2022-2023 school year.
Modesto prevailed on Issue 1.
ISSUES 2A AND 2B: DID MODESTO DENY STUDENT A FAPE AT THE SEPTEMBER 2, 2021 IEP TEAM MEETING, BY FAILING TO OFFER SUFFICIENT SPECIALIZED ACADEMIC INSTRUCTION AND AN APPROPRIATE PLACEMENT?
Student contends Modesto failed to offer specialized academic instruction and placement during 2021-2022 school year that academically prepared Student for college. Modesto further contends that Student's August 20, 2020, and September 2, 2021 IEPs offered Student appropriate placement in general education classes and appropriate specialized academic instruction from a special education teacher.
While California law does not specifically define specialized academic instruction, the understanding of that term in California is that it has the same meaning as specially designed instruction described in federal law. (See, e.g., Cal. Legislative Analyst, Overview of Special Education in California (Jan. 3, 2013); Cal. Teachers' Assn., Special Education in California (2012).) Specially designed instruction means adapting, as appropriate to the needs of an eligible child, the content, methodology, or delivery of instruction to address the unique needs of the child that result from the child's disability, and to ensure access of the child to the general curriculum, so that the child can meet the educational standards. (34 C.F.R. § 300.39(b)(3).)
In determining the educational placement of a child with a disability, a school district must ensure that:
• placement decisions are made by a group of persons, including the parents, and other persons knowledgeable about the child, the meaning of the evaluation data, and the placement options;
• placement decisions satisfy least restrictive environment requirements;
• placement is determined annually, is based on the child's IEP, and is as close as possible to the child's home;
• unless the IEP specifies otherwise, the child attends the school that he or she would if nondisabled;
• in selecting the least restrictive environment, consideration is given to any potential harmful effect on the child or on the quality of services that he or she needs; and
• a child is not removed from age-appropriate regular classrooms solely because of needed modifications in the general education curriculum. (34 C.F.R. § 300.116; Ed. Code, § 56342.)
MODESTO OFFERED STUDENT APPROPRIATE SPECIALIZED ACADEMIC INSTRUCTION AND PLACEMENT DURING THE 2021-2022 SCHOOL YEAR
Student did not prove Modesto denied Student a FAPE during the 2021-2022 school year, by failing to offer appropriate specialized academic instruction and placement. The August 20, 2020 IEP offered Student placement in general education with 241 minutes a week of specialized academic instruction. The September 2, 2021 IEP offered the same placement and services as the August 20, 2020 IEP, under which Student successfully achieved IEP goals and passed grade-level courses.
In determining Student's placement and specialized academic instruction, the IEP team relied on information from the August 19, 2020 psychoeducational assessment report, and input from Parent and Student's teachers. The IEP team discussed Student's academic and social needs at both the August 20, 2020, and September 2, 2021 IEP team meetings, and determined general education with specialized academic instruction was the least restrictive environment for Student. In this program, Student spent 86 percent of the time in general education with nondisabled peers.
For the 2021-2022 school year, Student's 12th grade year, Student was enrolled in all general education courses with the exception of Cogdill's resource tutorial course, which replaced Student's elective. Student received specialized academic instruction in Cogdill's classroom. Student worked on assignments from other classes, prepared for tests, and received support on IEP goals. Cogdill persuasively testified that 241 minutes a week was appropriate to support Student's access to the general education curriculum and for Student to achieve the September 2, 2021 IEP goals. Cogdill's testimony was supported by the fact that Student achieved the August 20, 2020 IEP goals with the same placement and amount of specialized academic instruction as offered in the September 2, 2021 IEP.
Student's academic performance during the 2021-2022 school year, although not available to the September 2, 2021 IEP team, further supports a finding that Modesto's placement and specialized academic instruction offers were appropriate. Student ended 12th grade with all As and Bs, and had an above average cumulative high school grade point average of 3.36. Student was in the top 30 percent of the graduating class. At hearing, five of Student's former 11th and 12th grade teachers characterized Student as a model student. They described Student as diligent, hardworking, responsible, and an all-around great student.
At hearing, Parent did not express any specific concerns with Student's placement in general education. Instead, Parent expressed a genuine concern about Student's learning challenges and Student's readiness for college. Specifically, Parent expressed concern that Student could not complete simple reading, writing, or math tasks without assistance from technology or another adult. Parent acknowledged Student performed well with accommodations, but opined Modesto should have offered additional tutoring services to close the gap on Student's academic deficits.
Other than Parent's opinion, Student did not offer any specific evidence that showed Modesto offered inappropriate specialized academic instruction and placement during the 2021-2022 school year. Student's expert, Dr. Edwards, did not offer an opinion on whether Student's placement and services were appropriate. Parent's opinion alone, is insufficient for Student to meet its burden on this issue. The opinion of Parent, who was not a credentialed teacher or educator, was contrary to the documentary evidence and witness testimony that showed Student's placement and specialized academic instruction enabled Student to not only make progress, but excel in the general education environment.
As discussed in Issue 1, Student's IEP goals in the August 20, 2020, and September 2, 2021 IEPs, were directly related the Student's present levels of performance. Similarly, Student's specialized academic instruction and placement Modesto offered at these IEP team meetings, were directly related to Student's present levels of performance and IEP goals, and designed to meet Student's academic and postsecondary needs.
Accordingly, Modesto prevailed on Issues 2a and 2b.
ISSUE 3: DID MODESTO DENY STUDENT A FAPE DURING THE 2021-2022 SCHOOL YEAR, BY FAILING TO OFFER STUDENT THE OPTION TO RECEIVE A CERTIFICATE OF COMPLETION AND TO ATTEND GRADUATION CEREMONIES?
ISSUE 4: DID MODESTO DENY STUDENT A FAPE BY CHANGING STUDENT'S IEP GOAL TO GRADUATION WITH A DIPLOMA IN JUNE 2022, INSTEAD OF MAINTAINING STUDENT'S TRANSITIONAL IEP GOAL OF PROCEEDING TO A COLLEGE PLACEMENT FOLLOWING COMPLETION OF HIGH SCHOOL?
Student contends Modesto predetermined Student's placement at the September 2, 2021 IEP team meeting, and refused to consider placing Student on a certificate of completion track. Further, Student contends Modesto should not have issued Student a regular high school diploma in May 2022, because Student did not achieve the 2021-2022 IEP goals and was not academically prepared for postsecondary education. Instead, Student argues Modesto should have allowed Student to attend a fifth year of high school during the 2022-2023 school year, and to receive a certificate of completion.
Modesto denies predetermining Student's placement at the September 2, 2021 IEP. Further, Modesto contends it appropriately issued Student a regular high school diploma in May 2022, because Student exceeded graduation requirements, made progress on IEP goals, and was academically ready for postsecondary education.
Parent participation in the IEP process is one of the cornerstones of the IDEA. Parents must have the opportunity to participate in meetings with respect to the identification, evaluation, and educational placement of their child, and the provision of a FAPE to their child. (20 U.S.C. § 1415(b)(1); Ed. Code, § 56341.5, subd. (a).) A parent has meaningfully participated in the development of an IEP when they are informed of the child's problems, attend the IEP meeting, express disagreement regarding the IEP team's conclusions, and request revisions in the IEP. (N.L. v. Knox County Schools (6th Cir. 2003) 315 F.3d 688, 693; Fuhrmann v. East Hanover Bd. of Educ. (3rd Cir. 1993) 993 F.2d 1031, 1036 [a parent who has an opportunity to discuss a proposed IEP and whose concerns are considered by the IEP team has participated in the IEP process in a meaningful way].)
A school district's predetermination of an IEP seriously infringes on parental participation in the IEP process, which constitutes a procedural denial of FAPE. (See W.G., et al. v. Bd. of Trustees of Target Range School Dist., etc. (9th Cir. 1992) 960 F.2d 1479, 1483-1485, superseded by statute on other grounds by IDEA Amendments of 1997 (citations omitted).) Predetermination occurs when the school district makes its determination before the IEP team meeting and enters the meeting with a take it or leave it position. (See Ms. S. ex rel G. v. Vashon Island School Dist. (9th Cir. 2003) 337 F.3d 1115, 1131, superseded by statute on other grounds (citation omitted) [A school district violates IDEA procedures if it independently develops an IEP, without meaningful parental participation, then simply presents the IEP to the parent for ratification.].)
Developing an IEP that does not fully conform to a parent's wishes does not mean the school district engaged in predetermination. (Gregory K. v. Longview School Dist. (9th Cir. 1987) 811 F.2d 1307, 1314.)
A student who requires special education and related services to receive a FAPE remains eligible for those services up to the age of 22, under certain circumstances, unless the student has completed the prescribed course of study, met proficiency standards, or graduated with a regular high school diploma. (Ed. Code, § 56026, subd. (c)(4).) A regular high school diploma means a diploma conferred on a student who has met all local and state high school graduation requirements. (Ed. Code, § 56026.1, subd. (b).) A regular high school diploma does not include an alternative degree that is not fully aligned with the state academic standards, such as a certificate or a general educational development credential, called GED. (Ed. Code, § 56026.1, subd. (c).)
The IDEA does not speak to high school graduation requirements, or the circumstances under which a student will receive a regular high school diploma or an alternative degree, like a certificate of completion. Each state determines the standards for awarding high school diplomas. In California, Education Code section 51225.3 prescribes the courses required for a student to obtain a high school diploma. In accordance with state guidelines, local school districts in California develop high school graduation requirements that include courses of study designed to provide the skills and knowledge required for adult life, and to prepare students for admission to state colleges and universities and career technical training. (Ed. Code, § 51224.) If a student meets the graduation requirements of their school district, they are eligible to receive a regular high school diploma.
A school district cannot deny a regular high school diploma to a student who meets the district's graduation requirements simply because that student has a disability. (Letter to Anonymous, U.S. Dept. of Education, Office of Special Education Programs (OSEP) (Nov. 1, 1994).) Further, the IDEA does not require a student to achieve all IEP goals before being eligible to graduate with a regular high school diploma. (Letter to Richards, OSEP (Nov. 23, 1990).) Instead, California law requires school districts to award a diploma to students receiving special education if that student completes the prescribed course of study designated in the student's IEP. (Cal. Code Regs., tit. 5, § 3070.)
The Every Student Succeeds Act allows states to adopt alternate academic achievement standards for students with the most significant cognitive disabilities, provided those standards are aligned with state academic content standards and promote access to the general education curriculum consistent with the IDEA. (Pub.L. No. 114-95 (Dec. 10, 2015) 129 Stat. 1824.) California has adopted alternate academic achievement standards for students with disabilities who cannot achieve state academic content standards or meet the requirements necessary to receive a regular high school diploma. California school districts typically offer a certificate of completion to students who have completed the high school course of study or reached the age of 22, but who have not successfully completed all graduation requirements. These students typically have significant cognitive disabilities
MODESTO DID NOT PREDETERMINE STUDENT'S PLACEMENT OR GRADUATION TRACK AT THE SEPTEMBER 2, 2021 IEP TEAM MEETING
Student did not prove Modesto denied Student a FAPE by predetermining Student's placement or keeping Student on a graduation track at the September 2, 2021 IEP team meeting. Parent meaningfully participated at the September 2, 2021 IEP team meeting. Parent attended the meeting and was given the opportunity to ask questions and express concerns. Parent stated no concerns and had no questions. The IEP team discussed the continuum of placement options, including general education without supports, general education with supplemental aides and services, and general education with specialized academic instruction and related services. The IEP team determined the appropriate educational setting for Student was in general education with specialized academic instruction and related services. Modesto offered specialized academic instruction through the resource specialist program, which had proved successful for Student since the beginning of high school. There was no evidence that Modesto presented this placement to Parent in a take it or leave it way, or that Modesto was not open to discussing other appropriate placement options.
Modesto developed an individualized transition plan for Student that it incorporated into the September 2, 2021 IEP. As discussed in Issue 1, the transition plan included postsecondary goals for Student related to education and employment that were designed to meet Student's postsecondary needs. The transition plan also included a review of Modesto's graduation requirements and whether Student was on track to meet those requirements. Here, it indicated Student's course of study would lead to a diploma with an anticipated graduation date of June 2022. Student's graduation track leading to a diploma did not change at this IEP team meeting. The August 20, 2020 IEP also indicated Student's course of study would lead to a diploma, and several Modesto witnesses credibly testified that Student had been on the diploma track since ninth grade. There was no evidence that Modesto changed or predetermined Student's graduation track at the September 2, 2021 IEP team meeting.
MODESTO APPROPRIATELY ISSUED STUDENT A REGULAR HIGH SCHOOL DIPLOMA IN MAY 2022
Student did not prove Modesto denied Student a FAPE by issuing Student a regular high school diploma in May 2022. Student also did not prove Modesto should have allowed Student to attend a fifth year of high school and receive a certificate of completion. Modesto had established graduation requirements during the 2021-2022 school year. To graduate with a regular high school diploma, students had to earn passing grades in a minimum of 230 units in specific academic courses. Under serious or compelling circumstances, Modesto allowed students to petition for a fifth year in high school if the student had not satisfactorily completed graduation requirements.
Modesto offered a certificate of completion course of study to students who could not meet state standards for a regular high school diploma. Modesto offered these students an alternate curriculum that modified the academic standards taught in general education classes. Students on a certificate of completion track had below average cognitive abilities and were not expected to learn or complete the same curriculum as a general education student. For this reason, certificate of completion track students were not expected to meet graduation requirements.
Student's IEP team never considered placing Student on a certificate of completion track. Since ninth grade, Student was a general education student who satisfactorily completed grade level courses with the support of the resource specialist program and instructional accommodations. Student had average cognitive abilities and did not need modifications to the curriculum. Other than Student's first semester of ninth grade, when Student received mostly Cs, Student received mostly As and Bs in general education courses throughout high school. At hearing, several of Student's 11th and 12th grade teachers described Student as hardworking and a model student. Student's 11th and 12th grade special education teachers, Abshire and Cogdill, both credibly testified that a certificate of completion would be inappropriate for Student because Student could access the general education curriculum and worked hard to earn a regular high school diploma.
At the end of 12th grade, Student earned 265 units, 35 more than required to graduate. Student also earned a 3.36 cumulative grade point average, which placed Student in the top 30 percent of the 2022 graduating class. Further, as discussed in Issue 1, Student made progress on the September 2, 2021 IEP goals, including the postsecondary goals. Thus, a fifth year of high school would not have been appropriate for Student.
At hearing, Student expressed excitement about graduating and no desire to stay in high school for a fifth year. Also, at hearing, Parent agreed that Modesto issuing a diploma was best for Student because Student did not want to stay in high school for another year. At no time during the 2021-2022 school year, did Parent or Student inform Modesto that they did not want Student to graduate in May 2022.
Finally, before graduating from high school in May 2022, Student applied and was admitted to Modesto Junior College. Student enrolled in Modesto Junior College and started taking classes in Summer 2022. At the time of the hearing, Student was enrolled in two courses at Modesto Junior College and had passing grades.
For these reasons, Modesto appropriately issued Student a regular high school diploma in May 2022, and should not have offered Student the option to stay in high school for a fifth year and to receive a certificate of completion.
Student did not meet its burden to prove Modesto denied Student a FAPE by maintaining Student's diploma track during the 2021-2022 school year, and graduating Student with a regular high school diploma in May 2022. Accordingly, Modesto prevailed on Issues 3 and 4.
ISSUE 5: DID MODESTO DENY STUDENT A FAPE DURING THE 2021-2022 SCHOOL YEAR, BY FAILING TO HOLD AN IEP TEAM MEETING TO DISCUSS STUDENT'S GRADUATION AFTER PARENT'S REQUEST?
Student contends Modesto failed to hold an IEP team meeting during the 2021-2022 school year, to discuss Student's graduation. In the complaint, Student contended Parent requested an IEP team meeting after the September 2, 2021 IEP team meeting, to discuss Student's graduation. However, at hearing, Parent contended Student, not Parent, requested an IEP team meeting in Spring 2022, after Student turned 18 years old.
Modesto contends neither Parent nor Student requested an IEP team meeting after the September 2, 2021 IEP team meeting. Further, Modesto contends it was not required to hold another IEP team meeting before Student graduated in May 2022.
An IEP team must review a student's IEP at least once a year to review the student's progress, including whether the annual goals are being achieved, the appropriateness of the placement, and to make any necessary revisions. (Ed. Code, § 56043, subds. (d), and (j).) When a parent requests an IEP team meeting, the meeting must be held within 30 calendar days of the request, not counting school breaks longer than five school days. (Id. at subd. (l).)
When a student with a disability is expected to graduate with a regular high school diploma, the school district should hold an IEP team meeting at an appropriate time before graduation, to ensure the student has met graduation requirements and IEP goals and objectives have been achieved. (Letter to Richards, supra.) While the IEP team is charged with reviewing a student's progress on goals and objectives at the IEP team meeting, the IDEA does not require the student to achieve all goals as a prerequisite to graduation. (Ibid.)
Student did not prove Modesto had an obligation to hold an IEP team meeting for Student during the 2021-2022 school year, after the September 2, 2021 IEP team meeting. Student did not prove that Parent or Student requested an IEP team meeting after the September 2, 2021 IEP team meeting. At hearing, Parent admitted to not making such a request. Also, at hearing, both Parent and Student testified that Student requested an exit IEP team meeting from resource specialist teacher Joseph Swickard. However, the preponderance of the evidence did not support their testimony.
In accordance with Student's IEP accommodations, Student sometimes took tests in Swickard's classroom during the 2021-2022 school year. Swickard did not teach Student in any classes, and did not interact with Student beyond giving him testing space. It was case manager Cogdill's responsibility to schedule IEP team meetings for Student. Cogdill interacted with Student three times each week in the resource classroom, and it was unlikely Student would have made an IEP team meeting request to Swickard. The recall of both Parent and Student was poor on this point, and neither could provide detail on when, where, or the circumstances surrounding the request. Neither Parent nor Student were credible in their testimony concerning the asserted request. There was no written evidence of the request, or any evidence that Parent or Student followed up on the request. Therefore, Student's assertion that Student requested an exit IEP team meeting from Swickard was not persuasive. Student did not meet its burden to prove Modesto failed to hold an exit or other IEP team meeting during the 2021-2022 school year, in response to Parent's or Student's request.
The September 2, 2021 IEP team discussed Student's progress towards meeting graduation requirements, and that Student was still on track to meet those requirements by the end of the 2021-2022 school year. The IEP team also discussed Student's progress on IEP goals. By September 2021, Student achieved all IEP goals from the August 20, 2020 IEP and the IEP team had no reason to believe Student would not continue to make progress on the September 2, 2021 IEP goals. As already discussed, Student was academically high achieving, and the IEP team had no concerns about Student graduating on time or not being prepared for postsecondary education or employment.
Accordingly, Modesto prevailed on Issue 5.
ISSUE 6: DID MODESTO DENY STUDENT A FAPE BY FAILING TO ISSUE PRIOR WRITTEN NOTICE THAT NOTIFIED PARENT OR STUDENT THAT MODESTO PLANNED TO GRADUATE STUDENT IN MAY 2022?
Student contends Modesto denied Parents meaningful participation in Student's IEP process by failing to issue prior written notice to Parent or Student that Modesto planned to graduate Student in May 2022. Modesto contends the September 2, 2021 IEP served as prior written notice that Modesto would issue Student a regular high school diploma in May 2022. Modesto further contends that even if it was required to issue a separate prior written notice, Student did not prove any such error resulted in a denial of FAPE.
A school district must provide a parent with prior written notice in a reasonable time before the school district proposes, or refuses, to initiate or change the identification, evaluation, or educational placement of the child, or the provision of a FAPE to the child. (20 U.S.C. § 1415(b)(3); Ed. Code, § 56500.4.) Failure to do so is a procedural FAPE violation. The notice must be provided so that parents have enough time to fully consider the change and respond to the action before it is implemented. (Letter to Chandler, OSEP (April 26, 2012) 59 IDELR 110.) Prior written notice must include:
• a description of the action proposed or refused by the school district;
• an explanation of why the school district proposes or refuses to take the action;
• a description of each assessment procedure, test, record, or report used as a basis for the proposed or refused action;
• a description of any other factors relevant to the school district's proposal or refusal; .
• a statement that the parents have protection under the procedural safeguards of IDEA; and
• sources for the parents to contact to obtain assistance. (20 U.S.C. § 1415(c); 34 C.F.R. § 300.503(b); Ed. Code, § 56500.4.
The IEP may serve as the school district's prior written notice if it meets all the legal prior written notice requirements. (OSERS, Analysis of Comments and Changes to 2006 IDEA part B Regulations, 71 Fed. Reg. 46591, 46691 (Aug. 14, 2006).) Graduation with a regular high school diploma constitutes a change in placement requiring prior written notice. (34 C.F.R. § 300.102(a)(3)(iii); Ed. Code, § 56500.5.)
Procedural flaws do not automatically require a finding of a denial of a FAPE. (Target Range, supra, at p. 1484.) A procedural violation only constitutes a denial of FAPE if the violation impeded the child's right to a FAPE, significantly impeded the parent's opportunity to participate in the decision-making process regarding the provision of a FAPE to the child, or caused a deprivation of educational benefits. (20 U.S.C. § 1415(f)(3)(E)(ii); Ed. Code, § 56505, subd. (f)(2).)
Student did not prove Modesto denied Student a FAPE by failing to provide Parent or Student with prior written notice of Modesto's intention to issue Student a regular high school diploma in May 2022.
As discussed in Issue 5, the IEP team reviewed Student's progress towards graduation at the September 2, 2021 IEP team meeting. At the meeting, Student's academic counselor informed Parent that Student was on track to graduate and explained the reasons why. This satisfied the prior written notice requirement of the proposed action and the reasons why the action was proposed. Here, the action proposed was Student graduating at the end of the 2021-2022 school year. As discussed in Issue 1, the IEP team discussed Student's present levels of performance at the September 2, 2021 IEP team meeting.
There were no assessments conducted immediately prior to the IEP team meeting, but the IEP team relied on Student's academic grades and credits as a basis for proposing Student graduate in May 2022. Moreover, the IEP notes indicated Modesto offered Parent a copy of parental rights and procedural safeguards to Parent at the meeting, but Parent declined because Parent had received multiple copies in the past. The parental rights included sources for Parent to contact for assistance. Thus, the September 21, 2021 IEP met the requirements of prior written notice and served as Modesto's prior written notice that it planned to graduate Student in May 2022.
Even if the September 2, 2021 was not sufficient to serve as Modesto's prior written notice, Student did not introduce any specific evidence of how Modesto's failure to provide prior written notice denied Student a FAPE. For reasons discussed in Issues 3 and 4, there was no evidence that Modesto impeded Parent's opportunity to participate in the decision-making process regarding the provision of a FAPE to Student at the September 2, 2021 IEP team meeting. Parent and Student were informed and aware no later than September 2, 2021, that Student was on track to earn a high school diploma and to graduate in May 2022. At no time did Parent or Student raise an objection to the IEP team regarding Student's impending graduation, and the evidence did not establish that Parent or Student requested an IEP team meeting to revisit the matter. Further, Parent and Student testified Student wanted to graduate at the end of the 2021-2022 school year.
There was also no evidence that Modesto impeded Student's right to a FAPE or deprived Student of educational benefit during the 2021-2022 school year. As discussed, Student met the requirements to graduate with a regular high school diploma in May 2022, without the need for a modified curriculum. Student passed all required general education classes with sufficient units to graduate, and graduated in the top 30 percent of the 2022 graduating class.
Accordingly, Modesto prevailed on Issue 6.
CONCLUSIONS AND PREVAILING PARTY
Pursuant to 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. The parties prevailed on the issues as follows:
1. On Issue 1: Modesto did not deny Student a FAPE during the 2021-2022, and 2022-2023 school years, by failing to offer college preparatory goals to Student. Modesto prevailed on Issue 1.
2. On Issue 2:
a. Modesto did not deny Student a FAPE at the September 2, 2021 IEP team meeting, by failing to offer sufficient specialized academic instruction. Modesto prevailed on Issue 2a.
b. Modesto did not deny Student a FAPE at the September 2, 2021 IEP team meeting, by failing to offer an appropriate placement. Modesto prevailed on Issue 2b.
3. On Issue 3: Modesto did not deny Student a FAPE during the 2021-2022 school year, by failing to offer Student the option to receive a certificate of completion and to attend graduation ceremonies. Modesto prevailed on Issue 3.
4. On Issue 4: Modesto did not deny Student a FAPE by changing Student's IEP goal to graduation with a diploma in June 2022, instead of maintaining Student's transitional IEP goal of proceeding to a college placement following completion of high school. Modesto prevailed on Issue 4.
5. On Issue 5: Modesto did not deny Student a FAPE during the 2021-2022 school year, by failing to hold an IEP team meeting to discuss Student's graduation after Parent's request. Modest prevailed on Issue 5.
6. On Issue 6: Modesto did not deny Student a FAPE by failing to issue prior written notice that notified Parent or Student that Modesto planned to graduate Student in May 2022. Modesto prevailed on Issue 6.
ORDER
Modesto prevailed on all issues. Student's requests for relief are denied.
RIGHT TO APPEAL THIS DECISION
This is a final administrative decision, and all parties are bound by it. Pursuant to Education Code section 56506, subdivision (k), any party may appeal this Decision to a court of competent jurisdiction within 90 days of receipt.
Tara Doss
Administrative Law Judge
Office of Administrative Hearings