DECISION
July 10, 2023
On March 9, 2023, the Office of Administrative Hearings, called OAH, received a due process hearing request from Hueneme Elementary School District, naming Parent, on behalf of Student as respondent. Grandparent held educational rights for Student for all purposes in these proceedings. Administrative Law Judge Judith L. Pasewark heard this matter by videoconference on June 6, 7, and 8, 2023.
Attorneys Melissa Hatch and Beatrice Hoffman represented Hueneme. Stephanie Barnes, Senior Director of Special Education, attended on behalf of Hueneme. Grandparent appeared with her advocate, Vikki Rice, on the first morning of hearing. Rice was not an attorney and appeared at the hearing to support Grandparent.
Any party to a hearing shall be accorded (1) the right to be accompanied and advised by counsel and by individuals with special knowledge or training with respect to the problems of children with disabilities and (2) the right to present evidence and confront, cross-examine, and compel the attendance of witnesses. (20 U.S.C.A. § 1415 (h).)
The ALJ consented to Grandparent's advocate's presence for support but advised Grandparent that an advocate could not function as her attorney or actively participate in the hearing.
Upon receiving the oral rulings on Student's motions Grandparent declined to participate further in the hearing. Both Grandparent and advocate left the hearing and did not return. Student did not attend the hearing.
Upon completion of testimony, the ALJ continued the matter to June 26, 2023, for submission of Hueneme's written closing brief. OAH closed the record, and the matter was submitted on June 26, 2023.
ISSUE
May Hueneme assess Student, pursuant to its May 2, 2022 assessment plan, consented to by Grandparent, at Hueneme's district office or school site, without conditions imposed by Grandparent?
The ALJ has authority to restate a party's issues, so long as no substantive changes are made. (J.W. v. Fresno Unified School Dist. (9th Cir. 2010) 626 F.3d 431, 442- 443.)
PRELIMINARY MOTIONS
On May 30, 2023, following the final prehearing conference in this matter, Student submitted a document containing four motions or requests, filed with OAH as a single document. The document, filed one week prior to hearing, was not signed by Grandparent, nor did it include a signed declaration stating good cause for the late filing, as required by the prehearing conference order. No legal authority was provided for any of Student's requests. At the hearing, Grandparent, a self-represented litigant, claimed no understanding of OAH rules. Hueneme filed timely opposition to each motion on June 2, 2022. The ALJ waived the procedural defects in Grandparent's motions and ruled on Student's motions in limine prior to the commencement of the hearing as follows:
REQUEST TO ORDER HUENEME TO CONDUCT ASSESSMENTS IN A NEUTRAL SETTING WITH GRANDPARENT PRESENT
Grandparent requested that OAH order Hueneme to conduct Student's assessments in a neutral setting and allow Grandparent to be present during the assessments to comfort Student's anxiety. Hueneme argued Student's request constituted a summary judgment providing Student with affirmative relief.
Student's motion for affirmative relief was denied. Hueneme filed this request for due process hearing to request permission to assess without Grandparent's permission. Student did not file a request for due process.
Although OAH will grant motions to dismiss allegations that are facially outside of OAH jurisdiction such as, civil rights claims, section 504 claims, enforcement of settlement agreements, or incorrect parties, special education law does not provide for a summary judgment procedure. Here, the motion to dismiss was not limited to matters that were factually outside of OAH jurisdiction, but instead sought a ruling on the merits of Hueneme's complaint. OAH has no jurisdiction to grant Student's request for affirmative relief. Further, Student's request sought summary judgement directing a decision which denied Hueneme's claims without hearing to determine findings of facts and conclusions of law.
REQUESTS FOR CONTINUANCE
Student requested a continuance of the due process hearing to obtain legal representation. Grandparent contended it was unconscionable to deny her a continuance as she did not understand the legal process and could not effectively represent Student. Hueneme opposed this request on the grounds that Student requested five continuances on this matter, and OAH already granted three continuances of the hearing date for Grandparent to obtain legal representation.
Student's request for a continuance was denied. Hueneme filed this case on March 9, 2023. OAH granted a seven-week continuance of the hearing on March 21,2023 to allow participation in mediation. On May 12, 2023, OAH granted Student a further two-week continuance to secure counsel based on the representation she had found an interested attorney. On May 22, 2022, OAH denied Grandparent's request for another continuance to secure counsel when no counsel had been sought.
A due process hearing must be conducted, and a decision rendered, within 45 days of receipt of the due process notice unless an extension is granted. (34 C.F.R. § 300.515(a); Ed. Code, §§ 56502, subd. (f), 56505, subd. (f)(3).) Speedy resolution of the due process hearing is mandated by law and continuance of the hearing may be granted only upon a showing of good cause. (Ed. Code, § 56505, subd. (f)(3).) In ruling upon a motion for continuance, OAH is guided by the provisions found within the Administrative Procedure Act and the California Rules of Court that concern motions to continue. (Cal. Code Regs., tit. 1, § 1020; Cal. Rules of Court, rule 3.1332.) Generally, continuances of matters are disfavored. (Cal. Rules of Court, rule 3.1332(c).)
On the first day of hearing, Grandparent asserted she had a legal right to an attorney. Although parties in a due process hearing may choose to be legally represented, it is not mandatory. Student's motion for a continuance was previously denied. Student offered no new facts or good cause to support a last-minute continuance of this hearing.
Student made an additional request for continuance to allow advocate Rice to attend the hearing to provide emotional support for Grandparent. Rice appeared on June 6, 2023, but stated she was leaving on vacation later that day. Student's request was denied for a failure to state good cause for a last-minute continuance to include Rice.
This request was not made three business days prior to the prehearing conference, as required in the scheduling order and orders granting continuance. Student did not offer a reason for Rice's inability to attend, such as a family or health emergency, which would constitute good cause. All parties were aware from May 12, 2023, that the hearing was scheduled to begin on June 6, 2023, including Rice, who had been involved in the filing and service of motions since at least May 2, 2023. On June 1, 2023, Rice filed a “Participant Information Form” which acknowledged that the hearing would begin on June 6, 2023. Student established no good cause for the last-minute request to continue the hearing to accommodate Rice's vacation schedule.
REQUEST FOR IN-PERSON HEARING
Student requested an in-person hearing, if her request for continuance was denied, as Grandparent did not have sufficient computer support to participate in a video-conferenced hearing. Hueneme argued it offered Grandparent the use of a private room with a functional computer and software to allow her to actively participate in the hearing.
Student's request for an in-person hearing was denied. OAH is authorized to conduct due process hearings by videoconference or telephone. (Cal. Code Regs., tit. 5 § 3082, subd. (g).) Additionally, Grandparent had attended previous videoconferences with OAH using her iPhone. Grandparent did not express any concerns regarding videoconferencing, either during or after the May 22, 2022 Prehearing Conference. Nor did she request any additional accommodations to assist her with the technical aspects of the hearing during the prehearing conference or at any time prior to the first day of hearing. Further, Hueneme offered to provide Grandparent access to a computer with Zoom capabilities, and the Case Center Evidence program to view exhibits. Grandparent declined.
STUDENT'S DECISION NOT TO PARTICIPATE IN HEARING
Following the rulings on each of the motions, Grandparent notified the ALJ that she and Rice would not attend the hearing. The ALJ informed Grandparent it was her choice to participate in the due process hearing. The ALJ welcomed Grandparent and Rice to remain for the due process hearing. The ALJ also informed Grandparent that unlike an IEP team meeting, Grandparent's attendance as a respondent at a due process hearing, was not required by law. The due process hearing would proceed with or without Grandparent present.
JURISDICTION
This hearing was held under the Individuals with Disabilities Education Act, also called the 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 Individuals with Disabilities Education Act, referred to as the IDEA, are to ensure:
• all children with disabilities have available to them a free appropriate public education that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment and independent living, and
• the rights of children with disabilities and their parents are protected. (20 U.S.C. § 1400(d)(1); See Ed. Code, § 56000, subd. (a).)
The IDEA affords parents and local educational agencies the procedural protection of an impartial due process hearing with respect to any matter relating to the identification, assessment, or educational placement of the child, or the provision of a free appropriate public education, called a 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.
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).) Hueneme requested this hearing; therefore, Hueneme 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).)
At all times relevant to this Decision, Student was a 13-year-old seventh grade student who resided with Grandparent within the boundaries of Hueneme. Student qualified for special education and related services under the category of other health impairment, and speech and language impairment. Student disenrolled from Hueneme in 2019 and attended both Heritage Christian Academy and Golden Valley Charter School. Student re-enrolled in Hueneme on March 3, 2022.
Based upon Student's educational records, and his prior enrollment in Hueneme, Hueneme was aware that Student had medical diagnoses of autism, attention deficit hyperactivity and post-traumatic stress disorder. Although re-enrolled at Hueneme Elementary, Student received home-hospital instruction through Hueneme.
ISSUE: MAY HUENEME ASSESS STUDENT PURSUANT TO ITS MAY 2, 2022 ASSESSMENT PLAN, CONSENTED TO BY GRANDPARENT, AT HUENEME'S DISTRICT OFFICE OR SCHOOL SITE WITHOUT CONDITIONS IMPOSED BY GRANDPARENT?
Hueneme contended it had a statutory obligation to conduct Student's triennial reassessment to determine Student's eligibility for special education and to develop an appropriate offer of FAPE. Hueneme contended it prepared a legally compliant assessment plan which Grandparent signed and returned on August 22, 2022. Hueneme tried to obtain Grandparents' cooperation in assessing Student without unreasonable conditions imposed by Grandparent and unreasonable delay in making Student available for assessment as requested by Hueneme. Student chose not to participate in the hearing, therefore no evidence or argument was submitted on Student's behalf.
TRIENNIAL ASSESSMENT REQUIREMENT
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 IEP for an eligible student based upon state law and the IDEA, to provide a child FAPE. (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 individualized educational program, or 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. 386, 402 [137 S.Ct. 988, 1000].)
A student eligible for special education must be assessed at least every three years, or more frequently if the local educational agency determines that conditions warrant reassessment, or if a reassessment is requested by the student's teacher or parent. (20 U.S.C. § 1414(a)(2)(A); Ed. Code § 56381, subds. (a)(1),(2).) While parents and the district can agree that a triennial assessment is not necessary, such a decision is not the norm and requires a written agreement from both the Parent(s) and the local education agency that the reassessment is not necessary. (Ed. Code § 56381, subd. (a)(2).) 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” are used interchangeably. In this case, Hueneme believed a triennial assessment was necessary.
The district must also conduct a reassessment if it determines that the educational or related service needs of the child, including improved academic achievement and functional performance, warrant a reassessment. (20 U.S.C. t§ 1414(a)(2)(A(i); 34 C.F.R § 300.303(a)(1) (2006); Ed. Code, § 56381, subd. (a)(1),(2).
Student was last assessed on March 26, 2018. Student's triennial assessment was due in 2021, however, Student's prior school district was unable to complete an assessment.
Student had changed substantially since his last assessments in 2018, warranting reassessments in all areas of suspected disability. In 2018, Student was seven years old. Student was 13 years old at the time of hearing. Since 2018, Student experienced significant developmental changes, including puberty, COVID-19 isolation, and virtual schooling.
In July 2022, Grandparent provided Hueneme with a letter from Alfredo Bimbela, a psychiatric-mental health nurse practitioner and clinical psychologist then treating Student, which supported Student's continued home-hospital instruction that detailed some of the current concerns he observed in Student. Bimbela requested that Student receive home-hospital instruction through December 31, 2022. Hueneme relied on this letter in extending Student's home-hospital instruction into the 2022-2023 school year.
Bimbela's letter put Hueneme on notice of Student's behavior and mental health diagnoses as other specified trauma-stressor related disorder; attention deficit hyperactivity disorder, and mild to moderate intellectual disability and ruling out autism spectrum disorder. Student presented with sufficient severity, social impairment, and psychiatric disturbance to warrant home-hospital instruction because he remained challenged by aggressive and impulsive behaviors which made the traditional classroom setting inappropriate at that time. Student remained impulsive, highly reactive, distrustful of others and attempted to control communication with maladaptive strategies.
Bimbela's letter also supported Hueneme's determination that it needed to reassess Student. To transition Student back into the school setting, Bimbela recommended that Hueneme evaluate the necessary accommodations that would be necessary to integrate Student back into the classroom setting.
Hueneme's special education staff identified a range of concerns they believed warranted a full reassessment in addition to the assessment being a required triennial reevaluation. Hueneme's school psychologist, Michael Nese determined Student required a comprehensive cognitive and behavioral assessment, as well as observations. Hueneme needed to assess Student's self-esteem, ability to interact with peers and his ability to regulate his emotions and behaviors.
Gabriela Mendez-Molina, one of Hueneme's education specialists, confirmed that Hueneme needed to reassess Student's academic performance to determine Student's present levels of academic performance and update Student's IEP with appropriate goals and services. School nurse, Angela Hubbs determined a health assessment was a necessary part of Student's triennial reassessment. Hubbs previously performed Student's 2018 health assessment. Hueneme had information that Student presented with multiple medical and mental health diagnoses. Previously, Student had required a health plan. Student was under the care of several doctors and currently received home-hospital instruction. Hueneme needed updated medical information to assist the IEP team in crafting an appropriate IEP. Speech pathologist Jordan Schachter explained the need for updated assessments to develop new goals based on current performance levels. These factors established the need to reassess Student to develop an appropriate education program for him for the 2022-2023 school year.
Hueneme established that it was statutorily obligated to conduct a triennial assessment of Student. Not only was the assessment overdue, but Hueneme had ample information indicating the changes in Student's educational and social emotional needs warranted reassessment.
ASSESSMENT PLAN REQUIREMENTS
A reassessment usually requires parental consent. (20 U.S.C. § 1414(c)(3); Ed. Code, § 56381, subd. (f)(1).) To obtain consent, a school district must develop and propose a reassessment plan which is provided to the parents in writing. (20 U.S.C. § 1414(b)(1); Ed. Code, § 56321,subd. (a).) If the parents do not consent to the plan, the district can conduct the reassessment only by showing at a due process hearing that it needs to reassess the student and is lawfully entitled to do so. (34 C.F.R. §§ 300.300(3)(i), 300.300(4)(c)(ii); Ed. Code, §§ 56381, subd.(f)(3); 56501, subd. (a)(3); 56506, subd. (e).) Accordingly, to proceed with a reassessment over a parent's objection, a school district must demonstrate at a due process hearing (1) that the parent has been provided an appropriate written reassessment plan, and (2) that the student's triennial reassessment is due, conditions warrant reassessment, or that the student's parent or teacher has requested reassessment. (Ed. Code, § 56381, subd. (a).
Hueneme established that conditions warranted reassessment in this case. Hueneme developed a legally compliant, written assessment plan, which it provided to Grandparent on May 2, 2022.
Senior Director of Special Education, Stephanie Barnes confirmed that Huenene gave the assessment plan to Grandparent. The assessment plan was in writing and accompanied by Parental safeguards. (20 U.S.C. § 1415(c), (d); Ed. Code, § 56321, subd. (a).)
The assessment plan provided Grandparent written notices that met the statutory requirements of California Education Code section 56321.
The assessment plan notified Grandparent that an IEP team meeting would be convened, following completion of the assessment. The assessment plan notified Grandparent that the IEP meeting would include a discussion of whether Student was an individual with special needs, the assessment results, the educational recommendations, and the reasons for the recommendations made. (Ed. Code § 56329(a)(1).)
The assessment plan was in Grandmother's native language and was in language easily understood by the general public. The assessment plan explained the type of assessment to be conducted. The assessment plan informed Grandparent that no IEP would be changed based on the assessment without her consent. (Ed. Code § 56321, subd. (b); 34 C.F.R. 300.9 (a) and (b).)
The assessment plan explained that Hueneme required the assessments to determine Student's eligibility, present levels of academic achievement, functional needs, and individual education needs. Huenume intended to assess Student in all areas of suspected disability. The assessment plan included a description of proposed assessments and an explanation for why Hueneme proposed to assess Student. The assessment plan notified Grandparent that assessments conducted might include, but were not limited to, observations, rating scales, one-on-one testing, or some other types or combination of assessments.
Hueneme offered a social emotional assessment conducted by a school psychologist to determine how Student felt about himself, interacted with others, and his ability to regulate his emotions and behaviors. School psychologist Nese had extensive experience as a school psychologist and administered more than 50 psychoeducational assessments each year since 2000.
Hueneme offered an academic achievement assessment conducted by a special education teacher to measure Student's reading, spelling, arithmetic, oral and written language skills, and general information. Mendez-Molina, a credentialed special education teacher, was qualified to conduct academic assessments and administer standardized academic testing.
Hueneme offered a heath assessment conducted by a school nurse to gather health information to determine how Student's health affected his school performance. School nurse Hubbs, a registered nurse for over 20 years, possessed a school nurse credential, and previously administered Student's health screening in 2018.
Hueneme offered a language/speech communication development assessment conducted by a speech and language pathologist to measure Student's ability to understand and use language and communicate clearly and appropriately. As a licensed speech and language pathologist, Jordan Schachter conducted speech, language, and communication assessments, developed speech and language goals, and provided speech and language services in the school setting.
Hueneme offered an occupational therapy assessment to measure Student's coordinated body movement in small and large muscle activity and Student's perceptual skills. Shaun Bird, a licensed physical therapist for over 12 years, provided Student's occupational therapy services.
Additionally, to obtain all relevant input from Grandparent, the assessment plan provided a space for Grandparent to request additional evaluations and submit reports to review as part of the assessment process.
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.)
On May 2, 2022, Barnes sent the assessment plan to Grandparent to obtain her consent to assess Student. Grandparent signed and returned the assessment plan on June 23, 2022, but failed to indicate consent to assess. Grandparent provided consent to the assessment plan on August 8, 2022.
The evidence established Hueneme's May 2, 2022 assessment plan met all legal requirements. Hueneme developed the assessment plan to determine whether Student continued to qualify for special education and related services, and what support and services Student needed to obtain educational benefit. The assessment plan sufficiently informed Grandparent of the areas to be assessed and the credentials needed to administer the assessments. Grandparent was entitled to no more, nor did Grandparent have veto power over Hueneme's right to reassess Student.
FAILURE TO COOPERATE WITH ASSESSMENTS
Commencing August 22, 2022, Director Barnes made numerous attempts to obtain Grandparent's collaboration for the assessments. As evidenced by the email chains submitted into evidence, despite extremely difficult interactions with Grandparent's advocate Rice, Barnes maintained professional and respectful communications with both Grandparent and her advocate.
On August 13, 2022, September 12, 2022, and September 19, 2022, Barnes furnished Grandparent with release of information forms for Grandparent's review and consent. The consent forms were necessary for Hueneme's staff to exchange information with advocate Rice, as well as with the private assessors, doctors, and service providers working with Student. Grandparent provided consent to release information to Rice only.
On September 8, 2022, Barnes sent Grandparent an email which offered various dates and times to conduct psychological, occupational therapy, speech, and academic testing. On September 9, 2022, to obtain Grandparent's cooperation, Barnes shared the proposed dates with Rice and requested that Grandparent execute the releases of information previously sent on August 13, 2022.
On September 12, 2022, instead of scheduling the dates as requested, Grandparent sent Barnes a “To Whom It May Concern” letter from Dr. Steven Ruths, M.D. dated September 2, 2022. The letter stated:
Student is under my psychiatric care for treatment of autism and mood disorder NOS. Student suffers from extreme meltdowns, anger, high anxiety and agitation. My office has been informed that Student has to be tested alone at the district office. I am highly recommending that Grandparent attend these visits. If that is not allowed, than a neutral setting, like a public library. Where Student can feel comfortable and not have outbursts and severe side effects at home. Please consider my recommendations to help stabilize my patient. Please contact my office with any questions regarding this.
On September 12, 2022, Grandparent provided Hueneme with a “To Whom It May Concern” letter from Teri McHugh, PhD, dated September 8, 2022. The letter stated:
I have been seeing Student for individual and family and therapy since August 16, 2016. Grandparent has let me know that Student is to have testing done at the district office. I believe that Student would be highly anxious and not be able to perform the testing. It is my recommendation that a neutral setting, like a public library may be a better setting that he could feel more comfortable and less anxious and to have Grandparent close by at the location to assist with decreasing and anxiety he may have. Please feel free to contact me if you have any questions or need additional information.
Both letters bear little probative value. Each letter contained several typographical and grammatical errors, unusual in professional letters regarding a patient. Both Dr. Ruths and Dr. McHugh invited the recipient to contact them with any questions. Grandparent, however, would not provide a release of information to allow Hueneme to contact either doctor to discuss Student's mental health needs. Each letter was based solely on information provided by Grandparent and conveyed similarly worded requests, which, coincidentally, parroted Grandparent's testing demands previously made at Golden Valley. More importantly, neither letter established any expertise in an educational testing. Each letter ignored that Student's raw anxiety and non-compliance in the educational setting, without artificial intervention from Grandparent, were areas of need requiring assessment.
On September 12, 2022, Barnes informed advocate Rice that Hueneme received and considered the doctors' recommendations, but Hueneme continued to believe the district office was an appropriately neutral setting for Student's assessment.
On September 13, 2022, Barnes sent Grandparent another request for information form to obtain consent to speak with the doctors regarding their recommendations. Grandparent did not provide consent.
On September 19, 2022, Barnes emailed Grandparent reiterating that Hueneme had an obligation to reassess Student to develop an offer of FAPE that was reflective of Student's current functioning. Barnes provided specific dates and times for Student's assessments in the district office. Grandparent requested the assessments take place at the public library on her available dates of September 20, 22, 23, 27, and 28, 2022.
On September 22, 2022, at 1:14 p.m., Grandparent cancelled Student's occupational therapy assessment scheduled for that day at 1:00 pm. Grandparent emailed the assessor claiming Student was having an anxiety attack due to the perceived stress of coming to the district office for assessment. The assessment was rescheduled for September 29, 2022, at noon.
On September 23, 2022, Grandparent emailed Mendez-Molina, to cancel the academic assessments, previously confirmed for September 28, 2022, at 1:30 pm. Grandparent made a conflicting doctor's appointment for Student on September 28, 2022, at 1:15 pm. Grandparent scheduled a doctor's appointment for the same time as the preexisting assessment date. Schachter's speech and language assessment was rescheduled as well.
On September 28, 2022, advocate Rice initiated a string of emails with Barnes regarding the scheduled assessments. Rice restated Grandparent's objection to assessing Student at the district office and resubmitted the letters from Dr. Ruths and Dr. McHugh. The email confirmed Grandparent would make Student available as scheduled on September 29, 2022; however, Rice warned that Grandparent as well as Rice, would hold Hueneme responsible for any harm to Student or property damage incurred due to the testing at the district office.
Student's psychoeducational and occupational therapy assessments scheduled for September 29, 2022, did not occur. Grandparent terminated the attempt to assess before Student entered the assessment room.
Both Shaun Bird, the occupational therapist, and school psychologist Nese were present on September 29,2022, to administer their assessments. Bird previously experienced difficulties with Grandparent's interfering with Student's occupational therapy services. Given her inability to provide occupational therapy services to Student, Bird maintained detailed notes of her attempts to conduct Student's occupational therapy assessment. Bird presented as an exceptionally reliable witness.
Bird reported that, on September 29, 2022, Grandparent and Student arrived late for the scheduled occupational therapy and psychoeducational assessments. Nese initially went to the district office lobby to greet Student and build rapport with him. After trying for several minutes, Nese returned to the office and requested that Bird speak to Student as they had previously met. Student was standing in the doorway but refused to come into the office. Student repeatedly told Grandparent he wanted to leave. Staff assured Student the building was an office, not a school. However, within only a few minutes of their arrival, Grandparent wanted to leave, as she did not want Student's anxiety to increase. Grandparent and Student walked out to the car. Bird followed to the car and provided Grandparent with the Sensory Profile Caregiver Questionnaire, which was part of the occupational therapy assessment. Nese also provided Grandparent with questionnaires for the psychoeducational assessments.
Nese similarly recalled the day's events. Nese's initial encounter with Student lasted only two-to-three minutes. Grandparent accompanied Student to the office door and informed Student he was there to be assessed. Student immediately protested, stating he wanted to go home. Grandparent claimed Student's behavior was escalating, took Student to back to the car, and did not return to complete the assessments.
On September 30, 2022, Rice sent a lengthy email to Barnes asserting Student was traumatized by his visit to the district office. In the emails, Rice advised Grandparent not to bring Student to a location that would provoke any memories of the perceived trauma Student experienced. She further indicated that Grandparent was willing and able to bring Student for assessment at another location beside the district office where he was traumatized. Student, however, did not suffer a meltdown or trauma at the district office on September 29, 2022, as described by Nese and Bird. Nevertheless, Barnes agreed to change the testing site to EO Green Middle School. Grandmother agreed to this alternate site.
Advocate Rice added a new request. Student would not likely respond favorably to the assessors he saw at the district office, therefore Hueneme should consider changing assessors.
Despite Barnes' agreement to an alternate testing site at EO Green Middle School, to which Grandmother agreed, Grandmother continued to hinder Student's assessments.
On October 5, 2022, Schachter, the speech pathologist, emailed Grandparent to confirm Student's availability for testing at EO Green that day at noon. Several minutes later, Rice contacted Barnes to provide instructions for establishing a rapport with Student. Grandparent claimed the speech and language assessment had changed to 1:00 to 3:00 pm. This change in time contradicted the assessor's email only minutes earlier. Shortly after noon on October 5, 2022, Grandparent emailed Barnes indicating Student did not feel safe going to a school location without Grandparent in the room. Grandparent suggested the assessment be conducted via Zoom; however, there was insufficient time left that day for Schachter to rearrange his schedule and materials to conduct a virtual assessment.
Advocate Rice reported Grandparent would sign consent for Dr. McHugh to speak with Hueneme staff; however, no consent was forthcoming. Instead, Grandparent provided another “to whom it may concern” letter from Dr. McHugh dated October 11, 2022, stating as follows:
I have been seeing Student for individual and family psychotherapy since August 16, 2016. It is my recommendation that Student be tested in a neutral setting, such as the public library where Student is able to feel more comfortable and have less anxiety and less outbursts and have better overall performance. He has had traumatic reactions to testing thus far with nightmares and anxiety due to previous traumas at school. I would highly recommend that he is tested in a neutral setting to avoid further trauma and anxiety. Please feel free to contact me if you have any questions or need additional information.
This letter, for the same reasons as the previous letters, provided little probative value. Dr McHugh referenced Student's traumatic testing thus far which contradicted Rice and Grandparent's claims that Student successfully completed testing with two independent assessors earlier in October 2022. Dr. McHugh referenced nightmares and anxiety due to previous traumas at school but failed to explain what trauma occurred; Student received home-hospital instruction. Without the ability for Hueneme staff to discuss with Dr. McHugh the discrepancies and concerns contained in the letter, the letter was essentially useless.
ATTEMPTS TO CONDUCT HEALTH ASSESSMENT
Hueneme established that Grandparent, with the assistance of her advocate Rice, actively thwarted each attempt to complete the health assessment. The evidence established Hubbs attempted to schedule Student's health screening on seven occasions. Grandparent only provided partial responses to the health questionnaire and did not provide consent to contact Student's medical providers.
Grandparent did not provide requisite health information at the March 10, 2022, IEP team meeting as requested by school nurse Hubbs. Instead, advocate Rice advised the IEP team that Rice would be in communication with the IEP team on behalf of Grandparent to relay relevant health information. No information was forthcoming.
On October 3, 2022, Hubbs again reached out to Grandparent obtain Student's updated medical history. Hubb provided Grandparent with the health interview questions regarding Student's diagnoses, medications, allergies, doctors, and hospitalizations. The following day, in a series of emails between Grandparent, Rice and Barnes, Grandmother refused to provide the completed health survey, as violative of Student's right to privacy under the federal Health Insurance Portability and Accountability Act of 1996. Grandparent reported she would only respond to questions normally asked at an IEP team meeting.
Further email threads, October 3, through October 5, 2022, ensued between Grandmother and Rice, to Hubbs and Barnes which created chaos regarding a standard 15-minute vision and hearing screening. Rice raised concerns about sensitive issues being raised directly with Student. Hubbs clarified that Student would not be asked questions about his health history. Hubbs reassured Rice that she only intended to ask Student what letters he saw, and what beeps he heard. The day of the health screening Rice reported Student had a meltdown in the morning, perseverating about the people he met at the district office. Therefore, to obtain Student's cooperation at the health screening, Rice advised, among other things, that only one person at a time interact with Student. No one could be introduced to Student unless Grandparent had first primed Student. If approached, Student would likely refuse to cooperate and elope. Rice specifically directed Hubbs to respect Grandparent when she tells you Student has had enough and removed him from the assessment.
ATTEMPTS TO CONDUCT ACADEMIC ASSESSMENT
The evidence established that Grandparent refused to cooperate with attempts to conduct Student's academic assessment. Mendez-Molina was unable to assess Student as Grandparent cancelled each scheduled testing session.
After Grandparent cancelled the academic assessment on September 28, 2022, by over-scheduling a doctor's appointment, Barnes rescheduled the assessment. When Mendez-Molina arrived for the rescheduled assessment on September 29, 2022, she heard Student outside yelling,” let's go.” Grandparent reported Student was not feeling well. Mendez-Molina wanted to speak with Student, however Student told her to leave him alone. Grandparent and Student left, and the assessment was again cancelled.
Grandparent confirmed Student's academic testing for October 12, 2022, at EO Green. Grandparent again requested to remain in the room during testing. Mendez-Molina did not agree to allow Grandparent to remain. Student arrived on October 12, 2022, and agreed to come inside the office with Grandparent remaining outside. Grandparent then informed Student he could not be assessed without her in the room. Student immediately refused to go into the testing room with Mendez-Molina. Student's demeanor accelerated to loud verbal protest and refusal to test, Grandparent then left with Student. Grandparent later claimed Student's behavior constituted a “meltdown;” however, that was not consistent with Mendez-Molina's credible observation.
On October 26, 2022, Mendez-Molina emailed Grandparent to obtain permission to observe Student on October 28, 2022, during his online session with his home-hospital teacher. Mendez-Molina indicated her camera would be off and she would remain silent during the session.
Advocate Rice responded to Mendez-Molina on behalf of Grandparent. Student had a doctor's appointment on October 28, 2022, again coincidentally during the time requested for observation. Rice questioned the need to observe Student. If Mendez-Molina was the specialized academic instruction teacher, she should do the academic testing, not observation, apparently unaware that observation is part of the assessment process. Rice reported Student was now eloping from his home-hospital instruction because of the assessments. Student was suspicious of his teacher, Garza, and was logging off his instruction sessions early. Although Rice professed Student's distrust and non-compliance with Garza, she nevertheless suggested to Mendez-Molina that Garza administer the academic assessment or provide an educated opinion of Student's present levels in lieu of Mendez-Molina's observations.
Grandparent failed to make Student available for in-person testing by cancelling scheduled assessment dates and preventing virtual observations.
ATTEMPTS TO CONDUCT SPEECH AND LANGUAGE ASSESSMENT
The evidence established that Grandparent failed to cooperate with Student's speech and language assessment. Schachter made several attempts to assess and observe Student and was thwarted each time.
Schachter attempted to assess Student on October 12, 2022. Schachter recalled Student's test refusal that day similarly to Mendez-Molina. Schachter acknowledged Student became upset. Student raised his voice to both Schachter and Grandparent in angry verbal protest. It was not a meltdown, however. Student was not crying, did not tantrum and did not elope. Instead, Student verbally insulted Schachter, stood his ground, and demanded to leave. Grandparent made no attempt to calm Student or obtain his cooperation. Instead, Grandparent cancelled the assessment. Grandparent did not schedule any further dates for Student to return and complete the assessment.
To gain Student's trust, Schachter scheduled a meeting at the public library to develop rapport with Student. Student did not show up.
Schachter offered to observe Student remotely and offered several other options to accommodate Grandparent. Schachter scheduled a virtual observation for Student set for November 2 2022. Grandparent cancelled the observation, reporting Student's refusal to cooperate. Grandparent through Rice, responded with a barrage of questions and instructions on how the observation should occur. Grandparent found fault with an observation of Student during his virtual academic session. Rice opined this would not work as Student would be aware he was being recorded. Grandparent was concerned about the information Schachter needed to complete his assessment. Rice admonished Schachter to be more transparent about the assessment process, the tools he needed, and information he sought and its purpose. If Schachter needed information about Student's performance in the classroom, he could simply ask Garza. Grandparent and Rice suggested there was no need for Schachter, as the assessor, to observe Student himself.
To accommodate Grandparent further, Schachter suggested that Garza make a recording of Student. By hearing a recording of a class session, Schachter could at least report on how Student was currently doing. Grandparent refused but agreed to provide a language sample by recording a conversation herself between Student and Grandparent. Although Grandparent twice reconfirmed she was making a recording, Grandparent never provided Schachter with a voice recording of Student.
ATTEMPTS TO CONDUCT OCCUPATIONAL THERAPY ASSESSMENT
The evidence established that Grandparent failed to cooperate in obtaining Student's occupational therapy assessment.
On September 22, 2022, Grandparent cancelled Student's occupational therapy assessment scheduled for that day at 1:00 pm., by emailing the assessor at 1:14 pm., claiming Student was having an anxiety attack due to the perceived stress of coming to the district office for assessment. The assessment was rescheduled for September 29, 2022, at noon. As recounted earlier, Grandparent removed Student from the September 29, 2022, testing site, before the scheduled assessments could occur. Bird, however, provided Grandparent with the occupational therapy questionnaire, and requested Grandparent complete it and return it to Bird.
On October 6, 2022, Grandparent emailed Bird indicating she would return the completed questionnaire the next day. She did not do so. On October 27, 2022, Grandparent emailed Bird indicating she would return the questionnaire on October 28, 2022. She did not do so. When Grandparent returned the questionnaire on November 4, 2022, the questionnaire was incomplete.
Bird also attempted to observe Student on two occasions. At 9:30 am. on October 25, 2022, Bird logged on to Student's virtual academic session with Garza. When Student logged on, he noticed the screen was different. Garza told Student who Bird was and why she was present. Student muted his microphone and called Grandparent who immediately came to the computer. Grandparent inquired the reason for Bird's presence and reported that Student needed to be primed due to his disability. Grandparent and Student logged off for approximately seven minutes. Prior to logging off, Student's demeanor was calm; however, once Grandparent and Student returned to the screen, demeanor was more agitated, and he did not want to be observed. Garza told Grandparent that Bird was available to observe the next day's session at 9:30 am.
On October 26, 2022, Bird logged on to observe Student's virtual academic session as scheduled. Student logged on at 9:33 am., and immediately began successfully working on math problems with Garza. Student appeared very calm facing the camera. At 9:47 am., Student stated he did not want to be there anymore and logged off before Garza could speak to him. Coincidentally, at 9:30 am, Grandparent emailed Bird requesting that Bird not log on until 10:00 am. Bird did not see the email, as she had already logged on to the 9:30 am., session as scheduled.
Bird explained that more than 15 minutes of observation was required. Bird required 30-45 minutes for each observation, and she needed to see Student transition to complete the occupational therapy assessment. Grandparent refused to reschedule the occupational therapy assessment.
Grandparent's professed desire to cooperate with Hueneme to assess Student was illusionary. Grandparent, assisted by advocate Rice, exhibited long-standing uncooperative behaviors and interference with all attempts to reassess Student. Based upon information obtained in records from Golden Valley as contained in the March 10, 2022 IEP, Golden Valley's difficulties in conducting Student's triennial in 2021, mirrored Hueneme's interactions with Grandparent in 2022, and reflected the same conditional demands for assessment.
CONSENT OVERRIDE
If parents do not consent to the reassessment plan, the district may request permission to assess without parental consent by showing at a due process hearing that it is unable to obtain parental consent to needed evaluations. (20 U.S.C. § 1414(c)(3); 34 C.F.R. § 300.300(c)(1)(ii)(2006); Ed. Code, §§ 56381, subd. (f)(3), 56501, subd. (a)(3).) Further, a parent who wishes that their child receive special education services under the IDEA must allow reassessment if conditions warrant. (Gregory K. v. Longview Sch. Dist., (9th Cir. 1987) 811 F. 2d 1307, 1315.)
Grandparent's conduct paralleled the parental conduct recited in Student R.A. v. West Contra Costa Unified School District (“R.A.”), Case No. 14-cv-9-0931-PJH) 2015 WL 2941795 (N.D. Cal., August 17, 2015) [nonpub. Opn.] affirmed (9th Cir. 2017) 696 Fed. 171). In R.A. Student had not been assessed in five years, and the record showed that the parents made it clear they would not produce the student for assessment, unless the school district gave in to their demand that Mother be allowed to fully observe, both see and hear, the administration of the assessments.
The Ninth Circuit affirmed the District Court determination that the parent's conditions to see and hear the assessments were unreasonable. Parent's effectively withdrew their consent to assess, based upon the conditions they imposed. As stated in the District Court opinion, the demand to observe the assessments amounted to an imposition of improper conditions or restrictions on the assessments, which the district had no obligation to accept or accommodate. (R.A., supra, p.14.)
The same is true in this matter. Grandparent signed consenting to the May 2, 2022 assessment plan, but Grandparent's actions evidenced she did not intend to allow Hueneme to assess unless Hueneme met her demand for control of the assessment site and presence in the room with Student's during testing. As such Grandparent's demands were unreasonable, rendering her consent to reassess no consent at all.
Hueneme established that the May 2, 2022 assessment plan, procedurally met the requirements of the IDEA. Hueneme showed that Student's reassessment was necessary to meet Hueneme's state and federally mandated reassessment requirements and was needed to allow Student's IEP team to develop an appropriate educational program for Student. Hueneme is entitled to reassess Student according to the May 2, 2022 assessment plan.
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.
Hueneme proved it is entitled permission to assess Student, pursuant to its May 2, 2022 assessment plan at Hueneme's district office or school site. Hueneme prevailed on the only issue considered during this hearing.
ORDER
1. Hueneme may conduct a multidisciplinary assessment of Student pursuant to the May 2, 2022 assessment plan.
2. Hueneme may conduct the assessments at its district offices, a school site, or any other location Hueneme and the assessors deem appropriate to obtain valid assessment results.
3. Hueneme shall notify Grandparent within 15 business days of this Decision, and of the dates, times, and places Hueneme requires Grandparent to present Student for assessment. Hueneme has the authority to reject or approve any changes to the designated assessment dates proposed by Grandparent.
4. Grandparent is ordered to cooperate in making Student available for assessments as requested by Hueneme to comply with state and federal timeline requirements.
5. Grandparent may not dictate any conditions or veto any district locations selected by Hueneme for Student's assessments.
6. Grandparent may not be present during Student's assessments unless deemed appropriate by the assessor.
7. Hueneme shall communicate with Grandparent directly through email correspondence about scheduling and conducting the assessments and scheduling the IEP team meeting to discuss the assessment results.
8. If Grandparent fails to cooperate in making Student available to Hueneme to complete the multidisciplinary assessments, in their entirety, on days requested by Hueneme at the commencement of the 2023-2024 school year, Hueneme shall no longer be obligated to provide Student special education and related services.
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