AMENDED EXPEDITED DECISION
January 10, 2023
The Amended Decision corrects the party name twice on page 18 under sections Issue 2 and Remedies. Despite the typographical error, the surrounding findings were clear such that all parties were on notice that Student prevailed as to issue two.
On September 21, 2022, Escondido Union School District, called Escondido, filed a due process hearing request with the Office of Administrative Hearings, called OAH, naming Student. The due process hearing request included both expedited and non-expedited claims. OAH set the expedited and non-expedited hearings for October 18, 2022. The statutory hearing and decision timeline requirements governing expedited and non-expedited issues are different. Thus, this Decision addresses the expedited issues only. Administrative Law Judge Cynthia Fritz heard this matter via videoconference on October 18, 2022.
Attorneys Deborah Cesario and Shannyn Shafer represented Escondido. Director of Special Education Meggan Lokken attended the hearing on Escondido's behalf. Parents and Student did not appear for the hearing.
On October 18, 2022, the expedited record was closed, and the matter was submitted. The administrative law judge granted Escondido's request to submit a closing brief during the submittal time. Escondido timely submitted a closing brief on October 21, 2022.
1. Whether maintaining Student's placement at his current Escondido middle school is substantially likely to result in injury to Student or others?
2. Whether Escondido's proposed placement in a residential treatment center is an appropriate 45-day interim alternative education setting?
The name of Student' current middle school is unnamed in the Decision to protect Student's anonymity.
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 (2006) et seq.; Ed. Code, § 56000 et seq.; Cal. Code Regs., tit. 5, § 3000 et seq.) The main purposes of the IDEA are to ensure:
• all children with disabilities have available to them a free appropriate public education that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living, and
• the rights of children with disabilities and their parents are protected.
• (20 U.S.C. § 1400(d)(1); See Ed. Code, § 56000, subd. (a).)
The party requesting the hearing is limited to the issues alleged in the complaint, unless the other party consents, and bears 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.Ed2d 387]; and see 20 U.S.C. § 1415(i)(2)(C)(iii.) Here, Escondido filed the complaint and bore 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 13 years old and in eighth grade at the time of hearing. Student resided within Escondido's school boundaries at all relevant times. Student became eligible for special education in 2014 and is currently eligible under the primary category of autism and the secondary category of intellectual disability. Student was diagnosed with autism spectrum disorder and attention deficit hyperactivity disorder in 2014.
Student demonstrates below average cognitive ability, and has needs in academics, attention, focus, verbal and nonverbal communication, pragmatic skills, impulsive behavior, emotional regulation, and perseverating on topics.
Recently, Student's needs have increased significantly in mental health and adaptive behavior including engaging in obsessive-type behavior; defiant behavior; self-injurious behavior; suicidal thoughts and actions; sexually explicit comments gesturing, and touching; elopement, and a significant decline in personal hygiene and care. On September 6, 2022, and September 23, 2022, Escondido found Student met the criteria for special education eligibility under the categories of autism, emotional disturbance, and other health impairment and offered Student residential placement and related services. However, Parents did not consent to this IEP offer.
ISSUE 1: WHETHER MAINTAINING STUDENT'S PLACEMENT AT HIS CURRENT ESCONDIDO MIDDLE SCHOOL IS SUBSTANTIALLY LIKELY TO RESULT IN INJURY TO STUDENT AND OTHERS?
Escondido contends, since March 2022, Student's behaviors have escalated and now Student poses a danger to himself and others at his current Escondido middle school. Escondido argues, despite its increase in services and supports, Student's behavior has resulted in multiple attempts to commit suicide while on campus, sexual assaults on staff and students, multiple attempted sexual assaults, and repeated threats of harm to himself and others. Escondido asserts that maintaining Student's placement at his current Escondido middle school is substantially likely to result in continued injury to Student or others.
Title 20 United States Code section 1415(k) and title 34 Code of Federal Regulations, part 300.530, et seq., govern the discipline of special education students. (Ed. Code, § 48915.5.) A student receiving special education services may be suspended or expelled from school as provided by federal law. (20 U.S.C. §1412(a)(1)(A); Ed. Code, § 48915.5, subd. (a).) If a special education student violates a code of student conduct, school personnel may remove the student from his or her educational placement without providing services for a period not to exceed 10 days per school year, provided typical children are not provided services during disciplinary removal. (20 U.S.C. § 1415(k)(1)(B); 34 C.F.R. § 300.530(b)(1) & (d)(3) (2006.) For disciplinary charges in placement greater than 10 consecutive school days (or that are a pattern that amounts to a change in placement), the disciplinary measures applicable to students without disabilities may be applied to special education student if the conduct resulting in discipline is determined not to have been a manifestation of the special education student's disability. (20 U.S.C. § 1415(k)(C); 34 C.F.R. § 300.530(c) (2006) & 300.536(a)(1)(2) (2006).)
The law also provides that school personnel may remove a student to an interim alternative educational setting for not more than 45 school days, regardless of whether the student's behavior is determined to be a manifestation of the student's disability, under special circumstances . (20 U.S.C. § 1415(k)(1)(G); 34 C.F.R.§ 300.530(g) (2006).) The individualized education program, called IEP, team, determines the interim alternative educational setting. (20 U.S.C. § 1415(k)(2); 34 C.F.R.§ 300.531 (2006).)
A school district may request a due process hearing to authorize a change of placement if the district “believes that maintaining the current placement of the child is substantially likely to result in injury to the child or to others.” (20 U.S.C. § 1415(k)(3)(A); 34 C.F.R. § 300.532(a) (2006).) An interim alternative educational setting placement request requires an expedited hearing that must be conducted within 20 school days of the date an expedited due process hearing request is filed and a decision must be rendered within 10 school days after the hearing ends. (20 U.S.C. § 1415(k)(4)(B); 34 C.F.R. 300.532(c)(2) (2006).)
Escondido proved that Student's continued placement at his current Escondido middle school is substantially likely to result in injury to Student and others. Student's current Escondido middle school is a comprehensive public school within Escondido, serving sixth, seventh, and eighth grade children. Student entered his current Escondido middle school in sixth grade during the 2020-2021 school year amid the COVID-19 pandemic. For Student's seventh grade year, the 2021-2022 school year, Student participated in person learning at school.
2021-2022 SCHOOL YEAR – SEVENTH GRADE
At the beginning of seventh grade, Student received 1095 minutes weekly specialized academic instruction for his core academics classes in the structured communication social behavior classroom, 219 weekly specialized academic instruction in a general education elective class, 900 yearly speech and language services, and 219 weekly adaptive physical education services. Escondido also drafted a behavior intervention plan for Student to assist with his behavioral needs.
The structured communication social behavior classroom is a separate special education classroom and program that primarily provides specialized academic instruction to autistic students. During the 2021-2022 school year, this class had a total of nine students who were in sixth, seventh, and eighth grade, and four Escondido staff, including a special education teacher and paraeducators.
Beginning in March 2022, Escondido staff raised concerns with Student's social-emotional decline and functioning. Student began verbalizing thoughts of self-harm, wanting to die, and making sexually explicit statements. Escondido staff observed Student pairing potentially harmful behavior with sexually inappropriate and graphic statements. Student also began sticking objects such as sticks and scissors into himself while threatening to harm himself and banging his head on cabinets
In response, the school psychologist Meghan Carlon, attempted to conduct a risk assessment but Student refused to participate. Escondido drafted a safety protocol plan and behavior tracking plan. On March 29, 2022, Escondido held an IEP team meeting, and offered in home wraparound services to Parents. Wraparound services are community-based intervention services that emphasize the strengths of the child and family and includes the delivery of coordinated, highly individualized unconditional services to address their needs. (Welf. & Inst. Code, § 18251, subd. (d).) Parents, who live in two different locations, declined the wraparound services.
Escondido updated Student's behavior intervention plan, added designated instruction counseling services 20 minutes weekly, and reviewed the safety plan and behavior tracking system. Escondido increased Student's supervision and one of the paraeducators, Letticia Zamudio, was assigned primarily to Student. Escondido also removed sharp objects from Student's classrooms, cabinets were locked, and teachers and paraeducators were instructed not keep pens or pencils in their pockets while with Student.
Despite the added services and supports, Student's behaviors escalated to attempted self-injurious behavior. On May 11, 2022, Student became agitated over wanting a snack, and eloped from school while waiting to be picked up by Parents. Student ran into traffic twice on a heavily traveled parkway. Zamudio ran into the traffic, endangering herself, trying to block traffic from hitting Student. Zamudio and Principal Jason Wrenski eventually calmed Student down and placed him in a standing restraint, meaning both staff on each side of Student holding his arms, and escorted him back to the campus. Student began hitting and kicking and escaped through the school gates. Zamudio and Wrenski then restrained Student on the ground until police arrived. Police transported Student to Rady Children's Hospital under a 5150 hold, which is a temporary, involuntary mental health commitment of an individual who presents a danger to themselves or others due to signs of mental illness. (Welf. & Inst. Code, § 5150.) Testing at the hospital showed Student's depression severity risk screening was severe and a social work consult order was placed. The hospital released Student the following day. Student's behavior on May 11, 2022, endangered himself and Escondido staff at his current Escondido middle school placement.
On May 13, 2022, Escondido convened an IEP team meeting to discuss the incident and review the May 11, 2022 behavior emergency report. The IEP team proposed additional services and supports including mental health services through a nonpublic school and bus transportation to and from school. Escondido also offered assessments in functional behavior, mental health, special circumstances instructional assistance, and cognition. Parents did not consent to the IEP offer but agreed to the assessments on June 1, 2022.
On May 16, 2022, Student eloped again from school to an access road offcampus. He then attempted to jump a chain link to a nearby parking lot. Student was placed in a standing restraint by Zamudio and Wrzeski and brought to the office. En route, Student kicked and scratched Wrzeski and threatened to bring weapons to school the next day and kill students and himself. This incident put Student at significant risk for injury and caused injury to Escondido staff.
On May 18, 2022, an incident spanning almost two hours endangered Student and Escondido staff. At 1:30 pm, after threatening a student in the classroom and writing profanity on the white board, Student eloped from the classroom and ran around the campus with Zamubio attempting to give him options, calm him down, and redirect him. Zamubio called for backup and Escondido's Special Education Coordinator Patrick Newton arrived. Student ran up the outside stairs on campus to a second floor building with an outside ledge. Student attempted to climb the cement block ledge to jump approximately 14 feet to the ground. Zamubio and Newton persuaded him to come down and eventually to go back to class. The class was quickly evacuated when Student began punching and kicking Newton, then tried to climb onto the counter to “break his neck” and “kill himself”, and swung a hot pot plate at Newton. After Student calmed down by Zamubio and Newton, he was released to Parents at 3:35 p.m.
On May 19, 2022, another incident occurred that placed Student at severe risk for injury and caused injury to Escondido staff. Student ran out of class to the same second floor location as the day before, climbed onto the cement block ledge and with his arms outstretched stating he was going to kill himself. Zamudio pulled him down and believed he would have jumped had she not been able to catch up to him. Newton also arrived at the location and Student grabbed his shirt stating “I'm going to kick your ass” then kicked Newton in the shin. A few moments later, he tried to climb the ledge again stating he was going kill himself. Newton and Zamudio pulled him down and Student started slapping, kicking, pushing, and tried to climb the ledge again. Zamubio and Newton placed Student in a standing restraint and Student attempted to bite Newton. Student then calmed down when the police department arrived. After telling the police he wanted to kill himself, Student was transported to Rady Children's hospital on a 5150 hold. Student was discharged with a home safety plan and a referral for mental health services.
On May 25, 2022, Escondido convened an IEP team meeting to discuss Student's significant escalation in dangerous self-injurious behavior. Escondido offered Student a nonpublic school placement and requested Parent sign releases of information for non--public schools, and the San Diego County Office of Education to assist Escondido in identifying an appropriate placement. Parent did not consent to the IEP, and Student remained at home throughout the end of the school year. Parent signed the releases in June 2022.
2022-2023 SCHOOL YEAR – EIGHTH GRADE
Student's eighth grade year began on August 9, 2022. Student remained in the structured communication social behavior classroom with a total of nine students and five Escondido staff including a special education teacher and paraeducators. Student's behaviors escalated within the first few weeks of school including exposing himself, committing multiple sexual assaults, and engaging in self-harm attempts, causing injury to others, and placing himself at serious risk of injury.
On August 10, 2022, Student exposed his genitals and asked another student to “look at my dick.” Zamudio quickly pulled up Student's pants, but Student exposed himself again. Then, Student touched a staff member's genital area and attempted to touch Zamudio's genital area. The teacher evacuated the classroom.
On August 12, 2022, Student grabbed other students and staff and made sexual thrust movements, then blocked an Escondido vendor from getting to her vehicle. As Zamudio and Wrzenski attempted to calm Student down, Student grabbed Wrzenski's shirt, bent his fingers, then hit, scratched, pushed, and pinched him yelling “I want to sit on your lap” and “I want to sit on your penis.”
On August 17, 2022, Escondido convened an IEP team meeting and offered Student additional services and supports and notified Parents that it was continuing to look for a nonpublic school or residential placement for him. Parents did not consent to the IEP offer.
On August 29, 2022, Student ran around the lunch tables yelling “It's rape time” and “I want to touch your dick.” As Wrzenski attempted to calm Student down, Student punched him and attempted to touch his genital area. Later in the classroom, Student pulled a staff member's pants down and another staff member's leggings down and touched a student's genital area over the clothes. While in the school track area, Student pulled a student's pants and underwear down and attempted to touch his genital area. When directed back to the classroom, he attempted to pull another student's pants down stating he would “hurt” and “rape” the student. Student also attempted to touch Zumudio and Carlon's genital areas as they were attempting to calm him down. Student then eloped to the building with the second floor ledge, climbed on the ledge, and attempted to jump but was pulled down. Police transported Student to Rady Children's Hospital and Student was placed on a 5150 hold. Student was suspended for five days.
On August 31, 2022, Wrzenski recommended Student's expulsion due to the multiple sexual assaults while at school. On September 6, 2022, Escondido conducted a manifestation determination meeting and an IEP team meeting. The team determined that Student's sexually assaultive behavior was a manifestation of his disabilities. The IEP team also found Student special education eligible under the categories of emotional disturbance and other health impairment. The team offered Student a residential treatment facility based on the recent assessment data and escalated behaviors and agreed that Student required more intensive mental health services with a higher degree of supervision than a public or nonpublic school. The IEP team meeting was continued to September 23, 2022, to complete the IEP offer.
On September 23, 2022, Escondido offered a residential treatment facility with other services and supports. Escondido did not specify a specific facility just that the level of placement should be a residential treatment facility. Parents wanted Student placed at a nonpublic school. Escondido explained that it no longer believed a nonpublic school could support Student's needs. Further, Escondido had not heard back from some nonpublic schools, and he was rejected from another one. Parents did not consent to the IEP offer.
Escondido submitted numerous behavior emergency reports and other documentation in support of its contention that Student's continued placement at his current Escondido middle school was a significant risk of injury to Student and others. Three witnesses, Zamudio, Carlon, and Newton, persuasively explained through their personal knowledge, experience, and observations of Student, the need to remove him from his current educational placement. Each witness was familiar with Student and had personal knowledge of Student and his conduct.
Zamudio, a paraeducator in Student's classroom for the 2021-2022 school year, became his assigned paraeducator in spring 2022, worked with him daily, and personally observed Student's self-injurious behavior, harm to others, threats to staff and students, suicidal threats and attempts, and his sexually explicit gestures and touching of staff and students. Zamudio was present at all of Student's 2022 behavior incidents described above. Zamudio opined that Student's continued placement at his current Escondido middle school would be a safety risk for Student and other students, and she feared for other students and her safety. Zamudio's accounts of Student's behavioral incidents was thorough and consistent with the documentary evidence. Her beliefs regarding Student and other's safety was credible given the congruent documentary and witness testimony. Thus, her opinions were deemed credible and persuasive.
Newton, a former specialized academic instruction teacher and special education program specialists who now coordinated behavior intervention services for Escondido agreed with Zamudio. Newton worked with Student in a mentor program as a program specialist when Student was in fourth grade. Recently, Newton performed Student observations, assisted with his behavior intervention services, and attended IEP team meetings beginning in spring 2022. He also was present and supported other staff and Student during the May 18 and 19, 2022 incidents and attended Student's May and September 2022 IEP team meetings
Newton personally observed Student express suicidal ideations and act upon them, threaten students and staff, elope, and injure others while at school. Newton opined that Student's behaviors escalated significantly, including his efforts to harm himself and others, and is unpredictable and increasingly unable to redirect. Newton expressed sincere and deep concern that Student would commit suicide and was observably shaken by the thought. He also believed that Student needed to be removed from his current Escondido middle school to minimize the risk to himself and others. Newton's accounts were detailed and knowledgeable and given great weight
Escondido school psychologist Carlon knew Student since sixth grade but became more actively involved with Student in March 2022. Carlon assessed Student in spring through fall of 2022 including making observations, having direct interaction on campus, and testing him. Carlon was also present and had personal knowledge of some of Student's behavior incidents in 2022, including the August 12, 2022 incident. Carlon opined that beginning in March 2022, Student experienced an onset of significant psychological issues, and a decline in adaptive skills such as hygiene and self-care which indicates increased mental health problems. Carlon opined that Escondido could no longer support Student's intense mental health needs, and if Student's continued to attend his current Escondido middle school, it was substantially likely that it would result in injury to Student or others. Carlon was well-informed and displayed familiarity with Student and his history. Thus, Carlon's testimony was given substantial weight here
Each was thorough and detailed in their accounts of Student's behaviors and expressed sincere beliefs of their concerns related to Student's sexually explicit verbalizations, sexual gesturing, exposing himself, suicidal ideations, suicidal actions, and sexualized touching of both staff and students. They each opined that Student's behaviors were escalating and he would continue to be a danger to himself and others if Student remained at his current Escondido middle school. No evidence contradicted their opinions. Accordingly, Escondido proved, at the time of hearing, Student's continued placement at his current Escondido middle school is substantially likely to cause injury to Student and others.
ISSUE 2: WHETHER ESCONDIDO'S PROPOSED PLACEMENT IN A RESIDENTIAL TREATMENT CENTER IS AN APPROPRIATE 45-DAY INTERIM ALTERNATIVE EDUCATION SETTING?
Escondido seeks permission to change Student's placement from his current Escondido middle school to an interim alternative educational setting, for not more than 45 school days without parental consent. It maintains that the appropriate interim alternative educational setting for Student is a residential treatment center.
If the administrative law judge deciding the case determines that maintaining the current placement of the child is substantially likely to result in injury to the child or to others, the administrative law judge may order a change in placement of a child with a disability to an appropriate interim alternative educational setting for not more than 45 school days. (20 U.S.C. § 1415(k)(3)(B)(ii)(II); 34 C.F.R. § 300.532(b)(2)(ii) (2006).) The interim alternative educational setting must enable the child to continue to participate in the general education curriculum and to progress toward meeting the goals set out in the child's IEP. (20 U.S.C. § 1415(k)(1)(D)(i); 34 C.F.R. § 300.530(d)(1)(i) (2006).) The interim alternative educational setting must also enable the child to receive, as appropriate, a functional behavioral assessment, behavioral intervention services, and modifications that are designed to address the behavior violation so that it does not recur. (34 C.F.R. § 300.530(d)(1)(ii) (2006).)
Escondido failed to propose an appropriate interim alternative educational setting for Student. Here, Carlon and Newton proposed a residential treatment center as an appropriate interim alternative educational center but did not name any specific residential treatment facility. Instead, they set forth some specific criteria that a residential treatment facility should provide Student to be an appropriate interim alternative educational setting.
Carlon and Newton opined that the residential treatment facility should provide 24-hour supervision, counseling services, the ability to consistently provide Student his medication, an intensive therapeutic mental health component, a secure or locked facility to avoid elopement, a high level of supervision, and a low student to teacher ratio. Zamudio agreed that Student needed a 24-hour residential facility with increased psychological supports. However, criteria is not a specific setting.
Additionally, Escondido failed to establish a day treatment center is not the least restrictive environment for Student. Escondido explained that it had inquired into a few nonpublic schools around San Diego but had either not heard back from them or Student was not accepted. However, Escondido failed to present any specific evidence from nonpublic schools as to why these treatment facilities could not service and support Student's increased mental health needs.
Further, even if a residential treatment facility is the appropriate interim alternative educational placement, more information is needed to make this determination. In California, a specific educational placement means “that unique combination of facilities, personnel, location, or equipment necessary to provide instructional services to an individual with exceptional needs, as specified in the IEP, in any one or a combination of public, private, home and hospital, or residential settings.” (Cal. Code Regs., tit. 5 § 3042.) Here, it would be important to know if Student were going to live in a dormitory setting, private room, or non-private room; the therapeutic services available; the location and layout of the facility; teacher to student ratio; curriculum and if it meets California curriculum standards, security details, the facilities ability to implement the IEP and allow Student to participate in a general education curriculum and progress toward goals.
However, Escondido failed to present any evidence about any specific placement possibility, including any documentary or testimonial evidence about any residential programs and its ability to implement Student's goals, services, and supports, therapeutic programs, student to teacher ratio, security, supervision, or any of the criteria the IEP team believed was appropriate for Student. Without the ability to examine the specifics of any of the proposed placements, Student failed to show that a non-specific residential treatment of its choosing with particular criteria, would enable Student to continue to participate in a general education curriculum and progress toward his goals. Escondido's request is too broad. As conceded by Escondido, only particular residential treatment facilities will meet Student's needs.
Meggan Lokken, Escondido's Special Education Director, explained that she had been working with Julie Cole at the San Diego County Office of Education to find Student a placement. Recently, Cole found three out-of-state residential treatment facilities that she believed could be a match for Student. However, neither Cole nor any other person who had knowledge of these facilities testified at hearing and explained why they would be appropriate settings for Student. Escondido also failed to present any documentary evidence specific to any of three residential treatment facilities to determine their appropriateness for Student.
Instead, Lokken asserted that because Parents did not want to send Student to a residential treatment facility and sign releases to share information with them, it could not go forward with the process of finding a specific residential treatment facility for Student. Thus, Escondido requests an order to allow it to send Student to any residential treatment center of its choosing, although knowing that some residential treatments centers would be inappropriate for Student. The undersigned is not inclined to order a blanket approval of all residential treatment facilities for Student as an appropriate interim alternative educational setting. Escondido must prove a specific facility is appropriate for Student and it failed to meet its burden. Accordingly, Escondido failed to prove that an unspecified residential treatment center with particular criteria is an appropriate interim alternative educational setting.
The federal law allows educational agencies to send redacted copies of a student's educational records without parental consent after removal of all personally identifiable information provided that the educational agency had made a reasonable determination that a student's identity is not personally identifiable and considering other reasonably available information. (34 C.F.R. § 99.31(b)(1) (2012).) It is unclear if Escondido had taken this step.
CONCLUSIONS AND PREVAILING PARTY
As required by California Education Code section 56507, subdivision (d), the hearing decision must indicate the extent to which each party has prevailed on each issue heard and decided.
Issue 1: Escondido proved that Student's placement at his current Escondido Middle School is substantially likely to cause injury to Student and others. Escondido prevailed on Issue 1.
Issue 2: Escondido failed to prove that its proposed placement in a residential treatment center is an appropriate 45-day interim alternative educational setting. Student prevailed on Issue 2.
While Escondido's issues are set forth as two separate issues, they are dependent upon each other for remedies under the IDEA. (See 20 U.S.C. § 1415(k)(3)(B)(ii)(II); 34 C.F.R. § 300.532(b)(2)(ii) (2006).) The undersigned cannot order removal from Student's current Escondido middle school placement without further ordering an appropriate interim alternative educational setting for Student. Thus, no remedies are ordered, and all relief is denied.
Nothing in this Decision prevents Escondido from filing another due process hearing request for relief.
RIGHT TO APPEAL THIS DECISION
This is a final administrative decision, and all parties are bound by it. Under Education Code section 56505, subdivision (k), any party may appeal this Decision to a court of competent jurisdiction within 90 days of receipt.
Administrative Law Judge
Office of Administrative Hearings