DECISION
OCTOBER 30, 2023
On June 16, 2023, Parent on behalf of Student filed a complaint with the Office of Administrative Hearings, called OAH, naming Mount Diablo Unified School District, called Diablo. OAH continued the matter on July 12, 2023. Administrative Law Judge Paul H. Kamoroff heard this matter by videoconference on August 30, and 31, and September 6, 7, and 12, 2023.
Attorneys Sheila Bayne, Valerie Weiss, and Constance Zarkowski represented Parent and Student. Parent attended all hearing days on Student's behalf. Attorneys Lenore Silverman and Jennifer Nix represented Diablo. Ivanna Huthman, Diablo's Assistant Director of Dispute Resolution, attended all hearing days on Diablo's behalf.
At the parties' request, OAH continued the matter to October 3, 2023, for written closing briefs. OAH closed and submitted the matter on October 3, 2023.
ISSUES
1. Did Diablo deny Student a free appropriate public education, called FAPE, during the 2021-2022 school year, by failing to assess in:
a. psycho-education;
b. academics;
c. occupational therapy;
d. vocation;
e. communication;
f. adapted physical education;
g. social skills;
h. adaptive living;
i. behavior;
j. assistive technology;
k. transition; and
l. speech therapy?
2. Did Diablo deny Student a FAPE, during the 2021-2022 school year, including during the extended school year, by failing to offer appropriate services in:
a. academics;
b. occupational therapy;
c. vocation;
d. communication;
e. adapted physical education;
f. social skills;
g. adaptive living;
h. behavior;
i. assistive technology;
j. transition; and
k. speech therapy?
3. Did Diablo deny Student a FAPE, during the 2021-2022 school year, including during the extended school year, by failing to implement agreed upon services in the following areas:
a. academics;
b. occupational therapy;
c. vocation;
d. communication;
e. adapted physical education;
f. social skills;
g. adaptive living;
h. behavior;
i. assistive technology;
j. transition; and
k. speech therapy?
4. Did Diablo deny Student a FAPE, during the 2022-2023 school year, by failing to assess in the following areas:
a. psycho-education;
b. academics;
c. occupational therapy;
d. vocation;
e. communication;
f. adapted physical education;
g. social skills;
h. adaptive living;
i. behavior;
j. assistive technology;
k. transition; and
l. speech therapy?
5. Did Diablo deny Student a FAPE, during the 2022-2023 school year, including during the extended school year, by failing to offer appropriate services in:
a. academics;
b. occupational therapy;
c. vocation;
d. communication;
e. adapted physical education;
f. social skills;
g. adaptive living;
h. behavior;
i. assistive technology;
j. transition; and
k. speech therapy?
6. Did Diablo deny Student a FAPE, during the 2022-2023 school year, including during the extended school year, by failing to implement agreed upon services in:
a. academics;
b. occupational therapy;
c. vocation;
d. communication;
e. adapted physical education;
f. social skills;
g. adaptive living;
h. behavior;
i. assistive technology;
j. transition; and
k. speech therapy?
7. Did Diablo deny Student a FAPE, by failing to include present levels of performance in the March 4, 2022, and January 13, 2023, individualized education programs, called IEPs?
8. Did Diablo deny Student a FAPE, by failing to address Parent's concerns regarding academic and behavioral regression in the March 4, 2022, and January 13, 2023, IEPs?
9. Did Diablo deny Student a FAPE, by failing to offer appropriate goals for occupational therapy and speech and language in the March 4, 2022, and January 13, 2023, IEPs?
10. Did Diablo deny Student a FAPE, from June 16, 2021, through June 16, 2023, by failing to offer appropriate services for Student's post-secondary transition planning and learning needs?
JURISDICTION
This hearing was held under the Individuals with Disabilities Education Act, its regulations, and California statutes and regulations. (20 U.S.C. § 1400 et. seq.; 34 C.F.R. § 300.1 (2006) et seq.; Ed. Code, § 56000 et seq.; Cal. Code Regs., tit. 5, § 3000 et seq.) The main purposes of the Individuals with Disabilities Education Act, referred to as the IDEA, are to ensure:
• all children with disabilities have available to them a free appropriate public education that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment and independent living, 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 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).) Student, as the petitioning party, had the burden of proof for each issue. 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 12 years old and in sixth grade at the time of hearing. Student resided with Parent within Diablo's geographic boundaries at all relevant times. Student was eligible for special education and related services under the primary category intellectual disability and secondary category other health impairment. Student's disabilities were the result of Down syndrome, a genetic disorder that causes an intellectual disability and developmental delays.
ISSUES 1 AND 4: FAILURE TO ASSESS
Student's first and fourth issues complain Diablo denied her a FAPE during the 2021-2022, and 2022-2023 school years, by failing to assess her in psychoeducation, academics, occupational therapy, vocation, communication, adapted physical education, social skills, adaptive living, behavior, assistive technology, transition, and speech therapy. Student's issues are limited to a claim that Diablo failed to assess in these areas. Student did not contend that the assessments conducted by Diablo were inappropriate. Diablo responds it adequately assessed Student in her required areas of need.
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. (20 U.S.C. §§ 1401(14), 1414(d)(1); and see Ed. Code, §§ 56031,56032, 56341, 56345, subd. (a), and 56363 subd. (a); 34 C.F.R. §§ 300.320, 300.321, and 300.501.)
In general, a child eligible for special education must be provided access to specialized instruction and related services which are individually designed to provide educational benefit through an IEP reasonably calculated to enable a child to make progress appropriate in light of the child's circumstances. (Board of Education of the Hendrick Hudson Central School Dist. v. Rowley (1982) 458 U.S. 176, 201-204; Endrew F. v. Douglas County School Dist. RE-1 (2017) 580 U.S. ____ [137 S.Ct. 988, 1000].)
Prior to making a determination of whether a child qualifies for special education services, a school district must assess the child. (20 U.S.C. § 1414(a), (b); Ed. Code, §§ 56320, 56321.) After the initial assessment, a school district must conduct a reassessment of the special education student not more frequently than once a year, but at least once every three years. (20 U.S.C. § 1414(a)(2)(B); Ed. Code,§ 56381, subd. (a)(2).) By this standard, the assessments at issue in this case constitute reassessments, as Diablo initially assessed Student for special education in January 2014.
After the initial assessment, the IDEA provides for periodic reevaluations to be conducted not more frequently than once a year unless the parents and district agree otherwise, but at least once every three years, called triennial assessment unless the parent and district agree that a reevaluation is not necessary. (20 U.S.C. § 1414(a)(2)(B); 34 C.F.R. § 300.303(b); Ed. Code § 56381, subd. (a)(2).) A triennial assessment examines whether the child remains eligible for special education and helps determine the child's unique needs. (20 U.S.C. § 1414(c)(1)(B); Ed. Code, § 56381, subd. (b)(2).) The triennial assessment consists of a review of existing information and may include additional assessments. (34 C.F.R § 300.305 (a)(2).) A school 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, of the child warrant a reevaluation, or if the student's parents or teacher request a reassessment. (20 U.S.C. § 1414(a)(2)(A)(i); see also Ed. Code, § 56381, subd. (a)(1).) Consequently, three factors exist for reassessment: a triennial review, when the school district determines that factors warrant an assessment, or when a parent or teacher requests an assessment.
A school district's failure to assess constitutes a procedural violation of the IDEA. (R.B., ex rel. F.B. v. Napa Valley Unified Sch. Dist. (9th Cir. 2007) 496 F.3d 932, 940.) A procedural violation of the IDEA constitutes a denial of a FAPE only if the violation: (1) impeded the child's right to a FAPE; (2) significantly impeded the parent's opportunity to participate in the decision-making process; or (3) caused a deprivation of educational benefits. (Ed. Code, § 56505(f)(2); W.G. v. Bd. of Trustees of Target Range Sch. Dist. No. 23, (9th Cir. 1992) 960 F.2d 1479, 1484.)
Student was born with Down syndrome and had diagnosed cognitive impairment, developmental delays, and health problems related to that disorder. Student resided with Parent and attended a Diablo public school since preschool. At the time of the hearing, Student was a rising sixth grader at a Diablo comprehensive public middle school. Student attended regular education classes, with various pull-out services, meaning services provided outside of the regular education class, along with a full-time individual aide. Student was kind, happy, and loving. She had many friends, high self-esteem, and was a strong self-advocate. Student did not demonstrate behavior problems at school and was beloved by her teachers and peers. While Student was academically behind her typically developing peers, she made steady educational progress each year. Overall, Student got along well with others and, with supports and services, could access regular education classes.
Following Student's initial assessments in 2014, Diablo conducted Student's triennial assessments in January 2017, and January 2020. In preparation for the January 2023 triennial assessments, Diablo school psychologist Rachel Utler conducted a triennial reevaluation determination in fall 2022. As part of the determination, Utler reviewed Student's comprehensive school file and met with Student's IEP service providers. Based upon this review, Utler determined that Diablo required updated assessments for Student in the areas of academics, motor development, language/speech and communication, and health. Utler did not believe other reassessments were necessary to redetermine Student's eligibility for special education or Student's unique needs. On November 17, 2022, Parent consented in writing to the triennial reevaluation determination, thereby agreeing that other areas of reassessment were not necessary for Student. (Ed. Code § 56381, subd. (a)(2).)
Consistent with the triennial reevaluation determination, Diablo provided Parent an assessment plan in fall 2022. The assessment plan proposed an assessment for academic achievement by a resource program specialist, health by a school nurse, language/speech and communication by a speech and language pathologist, and motor development by an occupational therapist. Parent consented in writing to the assessment plan on November 17, 2022. Parent did not request for Diablo to assess Student in any area not specified in the assessment plan.
Diablo timely conducted Student's triennial reassessments, including the academic, health, motor development, and language/speech and communication assessments. Diablo reviewed the reassessments with Parent during an IEP team meeting on January 13, 2023. The IEP team carefully reviewed each triennial assessment and answered any questions Parent had regarding the assessments and Student's present needs. No one, including Parent, Student's teacher, or any IEP team member, requested additional assessments for Student in any area. Parent consented to the IEP and was satisfied with Student's assessments and educational program at that time.
Diablo's reassessments were conducted by qualified assessors. For example, Diablo selected resource program specialist Madhavi Pasupuleti to conduct the academic testing. Pasupuleti was certified to teach special education, experienced in the areas she assessed, followed testing protocols, and had directly provided Student specialized academic instruction for several years. Pasupaleti was familiar with Student and her unique needs. During the hearing, Pasupuleti credibly testified that Diablo adequately assessed Student's academic needs as part of the triennial reassessments and no further testing was necessary to determine Student's unique needs.
Diablo selected licensed speech and language pathologist Patty Liu to conduct the language/speech and communication assessment. Liu was a speech and language pathologist for over 10 years and directly provided Student speech and language services for several years. She was experienced and qualified to assess Student in the areas she assessed, followed the testing protocols, and was knowledgeable of Student's unique needs. During the hearing, Liu credibly testified that Diablo adequately assessed Student's language, speech and communication needs as part of the triennial reassessments, and no further testing was necessary to determine Student's unique needs.
Diablo selected registered occupational therapist Megan Giacomino to conduct the motor planning assessment, entitled Occupational Therapy Triennial Assessment. Giacomino had over 20 years' experience serving children as an occupational therapist. She had directly provided Student occupational therapy for several years. Giacomino was experienced and qualified to assess Student in the areas she assessed, followed the testing protocols, and was knowledgeable of Student's unique needs. During the hearing, Giacomino credibly testified that Diablo adequately assessed Student's motor needs as part of the triennial reassessments, and that no further testing was necessary to determine Student's unique needs.
Student failed to present any evidence that contradicted the testimony of Pasupuleti, Liu, or Giacomino, which impugned their qualifications, or which questioned the adequacy of their assessments. Therefore, substantial weight was given to their testimony.
Diablo's school psychologist Utler also credibly testified that additional assessments were not necessary to offer Student a FAPE. Utler had a Bachelor of Arts and Master of Science in psychology and was qualified to conduct Student's triennial reevaluation determination. She carefully reviewed Student's records, interviewed school staff, and was knowledgeable of Student's disabilities and unique educational needs. Diablo previously assessed Student's cognitive and processing skills three times, once during preschool and twice during elementary school. Diablo found Student eligible for special education under intellectual disability and other health impairment based upon Down syndrome, a permanent disorder. Student's cognitive, processing, and adaptive scores were consistently low and were not likely to change to a degree necessary for Student to no longer qualify for special education under intellectual disability. Student's secondary eligibility category of other health impairment was also based upon Down syndrome, including related developmental delays and health problems. Present school records showed Student's development had not improved to the level of making Student ineligible for special education under other health impairment. Consequently, Student did not require updated assessments for cognitive, processing, or adaptive living skills, as there was no question that Student was eligible, and would continue to be eligible, for special education and related services as the result of having Down syndrome. Utler persuasively testified that Diablo adequately assessed Student and that additional assessments were unnecessary to formulate a FAPE offer for Student. Student failed to present any evidence that contradicted Utler's testimony or impugned her qualifications, and substantial weight was given to her testimony.
Pasupuleti, Liu, and Giacomino, along with other IEP team members, reviewed the assessments with Parent during the January 13, 2023, IEP team meeting. Diablo provided Parent a copy of each assessment prior to or during the IEP team meeting, and Diablo provided Student's attorneys a copy of the assessments. Consequently, Student's claims that Diablo failed to assess in academics, occupational therapy, speech and language, and communication, are erroneous. Evidence conclusively showed Diablo assessed Student in each of these areas. Diablo timely provided the assessments to Parent and Student's attorneys, and it was unreasonable for Student to knowingly litigate these false claims.
As to areas not included in Student's triennial evaluations, none of the requisite factors for additional assessments existed for this matter. Diablo timely conducted triennial reassessments, the school district did not determine that the educational or related service needs of Student warranted additional assessments, and neither Student's parent nor teacher requested an assessment. (20 U.S.C. § 1414(a)(2)(A)(i); see also Ed. Code, § 56381, subd. (a)(1).) Consequently, Diablo was not obligated to conduct additional assessments for Student during the 2021-2022 or 2022-2023 school years. Student called eight witnesses during the hearing. Student's witnesses included Pasupuleti, Liu, Giacomino, Utler, Student's individual aide Diane Heidt, Student's fourth grade general education teacher Laura Clack, Student's fifth grade general education teacher Kim Exner, and Parent. In addition, Diablo called Student's sixth grade resource specialist program teacher Taraneh Beigi and Assistant Director of Dispute Resolution Huthman as witnesses. Except for Parent, each witness who testified during the hearing was a Diablo employee. Student relied solely on Diablo's exhibits during the hearing and failed to submit any independent evidence.
Student did not present an independent assessment or expert during the hearing to dispute Diablo's assessments, or any evidence that contradicted the testimony of Diablo's assessors. Student failed to submit any evidence that called into question the validity of the assessments conducted by Diablo, the qualifications of the assessors, or the need for additional assessments.
Each witness supported Student's IEPs and assessments during the time frame in dispute. Parent testified she was satisfied with Student's educational program until the beginning of the 2023-2024 school year, which exceeded the time frame for this matter. Each witness, including Parent, testified that no one had requested an additional assessment for Student, or suggested that an additional area of assessment was warranted, during an IEP team meeting, or in any manner, prior to the complaint.
For the foregoing reasons, Student did not prove by a preponderance of the evidence that Diablo denied her a FAPE during the 2021-2022 and 2022-2023 school years, by failing to assess her in psychoeducation, academics, occupational therapy, vocation, communication, adapted physical education, social skills, adaptive living, behavior, assistive technology, transition, and speech therapy.
ISSUES 2 AND 5: FAILURE TO OFFER APPROPRIATE SERVICES
Student's issues two and five claim that Diablo denied Student a FAPE during the 2021-2022, and 2022-2023 school years, including during the extended school year, by failing to offer appropriate services in academics, occupational therapy, vocation, communication, adaptive physical education, social skills, adaptive living, behavior, assistive technology, transition, and speech therapy. Diablo contends that it offered appropriate services.
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. Related services may include speech and language services when appropriate. (20 U.S.C. § 1401(26); 34 C.F.R. § 300.34; Ed. Code, § 56363, subd. (a) [in California, related services are also called designated instruction and services].)
California Code of Regulations, title 5, section 3043, provides that extended school year services shall be provided for each individual with exceptional needs who requires special education and related services in excess of the regular academic year. These include students who have disabilities which are likely to continue indefinitely or for a prolonged period, and interruption of the student's educational programming may cause regression, when coupled with limited recoupment capacity, rendering it impossible or unlikely that the student will attain the level of self-sufficiency and independence that would otherwise be expected in view of his or her disabling condition. (Id.)
On January 12, 2021, Diablo held an annual IEP team meeting for Student. This IEP was not in dispute for this case but was historical evidence leading up to the 2021- 2022 school year. At the time of the January 2021 IEP, Student was nine years old and attending third grade at a comprehensive Diablo public elementary school. Student was eligible for special education and related services under the primary category intellectual disability and secondary category other health impairment.
The January 2021 IEP team reviewed Student's present levels of performance, her strengths and weaknesses, and Parent's concerns. The IEP team jointly drafted eight goals in the areas of reading, math, grammar, pragmatic language, motor planning/executive functioning skills, and visual motor skills. The IEP offered numerous accommodations, program modifications, supports, and related services. IEP services included:
• Specialized academic instruction 30 minutes daily, for 150 minutes weekly.
• Intensive individual services in the form of a full-time individual aide, 1,465 minutes weekly.
• Speech and language therapy for 30 minutes per session, seven times monthly, totaling 210 minutes per month.
• 30 minutes weekly of occupational therapy, totaling 120 minutes monthly.
• Extended school year, consisting of 30 minutes daily of specialized academic instruction.
Parent consented to the IEP, and no one requested an additional service for Student.
On March 4, 2022, Diablo held an annual IEP team meeting for Student. Student had just turned 11 years old and was attending the same, comprehensive Diablo public elementary school. Student remained eligible for special education and related services under the same categories. Parent attended the IEP team meeting along with Student's general education teacher Clack, resource specialist program teacher Pasupuleti, occupational therapist Giacomino, speech and language pathologist Liu, and the school principal.
The March 2022 IEP team reviewed Student's present levels of performance, her strengths and weaknesses, and Parent's concerns. Student met five of her eight previous goals. She met goals for reading, math, pragmatic language, motor planning/executive functioning, and visual motor skills/handwriting. Student made meaningful progress on the remaining three goals, including goals for reading, math, and grammar. The IEP team carefully reviewed Student's present levels of performance and current baselines. On this basis, the IEP team jointly drafted eight new goals in grammar, expressive and receptive language, reading, math, writing, money math, visual motor-handwriting, and visual motor-keyboarding. To meet those goals, the IEP team offered Student accommodations, modifications, supports, and services.
IEP accommodations included visual schedules to support routines, muti-step instructions, use of manipulatives and charts during math instruction, preferential seating, frequent breaks, sensory tools, an in-class job such as a door greeter or paper collector, a positive system, and audio books. The March 2022 IEP also provided Student instructional modifications, consultation between the general education teacher and service providers, facilitation of peer support, and a daily classroom buddy to help Student model social skills and language.
IEP services were similar to those offered in the January 2021 IEP, and included:
• Specialized academic instruction for 30 minutes daily, 150 minutes weekly,
• Intensive individual services, a daily full-time individual aide for 1,465 minutes weekly.
• Speech and language 30 minutes per session, seven times monthly, totaling 210 minutes monthly.
• Occupational therapy for 30 minutes weekly, totaling 120 minutes monthly.
• Extended school year, consisting of 30 minutes daily of specialized academic instruction, totaling 150 minutes weekly.
Parent consented to the IEP, and no one requested any additional services.
As described in Issues 1 and 4, Diablo conducted Student's triennial assessments during the 2022-2023 school year. Diablo adequately assessed Student and timely reviewed the assessments during an IEP team meeting on January 13, 2023.
At the time of the January 13, 2023, IEP team meeting, Student was 11 years, 10 months old, and attending fifth grade at the same elementary school. Student remained eligible for special education and related services under the primary category intellectual disability, and secondary category other health impairment. Parent attended the IEP team meeting along with Student's sister, school psychologist Utler, general education teacher Exner, resource specialist program teacher Pasupuleti, occupational therapist Giacomino, speech and language pathologist Liu, and the school principal.
The January 13, 2023, IEP team carefully reviewed Student's triennial assessments, present levels of performance, her strengths and weaknesses, and Parent's concerns. Student met five of her eight previous goals, including meeting both occupational therapy goals, a speech and language goal, a reading goal, and a math goal. Student made meaningful progress on the remaining three goals, including for expressive and receptive language, math, and writing.
Based on the triennial assessments, Student's present levels of performance, and input from the IEP team members, Diablo drafted seven new goals in reading, math, writing, visual motor-keyboarding, grammar, and expressive language. The IEP offered Student accommodations, modifications, supports and services similar to the March 4, 2022, IEP. IEP services included specialized academic instruction for 30 minutes daily, intensive individual services, an individual aide, for 1,465 minutes weekly, speech and language services for 30 minutes per session, seven times monthly, and occupational therapy for 30 minutes weekly. The IEP offered extended school year, including specialized academic instruction for 30 minutes daily. Parent consented to the IEP. Again, no IEP team member requested any additional services for Student.
On May 16, 2023, Diablo held an IEP team meeting to address Student's transition from fifth grade, elementary school, to sixth grade, middle school. The IEP team amended Student's services to reflect Student's middle school classes. The IEP offered Student specialized academic instruction for 220 minutes weekly, intensive individual services, an individual aide, for 1,465 minutes weekly, speech and language for 210 minutes monthly, occupational therapy for 800 minutes yearly, and extended school year. The IEP also offered numerous accommodations, modifications and supports for the 2023-2024 school year. Like all the IEPs in dispute for this matter, Parent consented to the IEP, and no one requested additional services for Student.
Student called only Parent and school employees as witnesses during the hearing. School witnesses included Student's resource specialist program teacher Pasupuleti. Pasupuleti was familiar with Student, having directly provided her specialized academic instruction, daily, during the two school years in dispute. She also assessed Student. Pasupuleti credibly testified the services offered to Student allowed her to make meaningful educational progress and to access and benefit from her regular education placement. Student met or made meaningful progress towards her academic goals each school year. Pasupuleti persuasively opined that Student did not require additional services to receive a FAPE. Diane Heidt, Student's individual aide, Student's fourth grade regular education teacher Clack, along with Student's fifth grade regular education teacher Exner, all testified Student's IEPs allowed her to access and benefit from her educational program.
Student's occupational therapist, Giacomino, testified the occupational therapy services were appropriate and sufficiently addressed Student's unique motor development needs. Student met each occupational therapy goal. Student's speech and language pathologist, Liu, similarly testified in support of the speech and language services offered in each IEP. Student had made great strides in her ability to communicate well with peers and adults, was easily understood, and was a vocal self-advocate. Student met or made meaningful progress for each speech and language goal. School psychologist Utler, who had carefully reviewed Student's school records and progress, echoed the testimony of the other school witnesses that Student's IEPs were appropriate and permitted her to make meaningful progress while accessing the regular education classroom. Each witness supported the appropriateness of Student's IEPs. Student failed to present an expert in any area, any documentary evidence that contradicted these witnesses, and any independent testimony other than Parent.
Parent was a caring and loving parent to Student. Parent dutifully attended each IEP team meeting and cooperated with Diablo throughout Student's educational career. Parent testified she was satisfied with Student's educational program up to the beginning of the 2023-2024 school year. Parent was pleased with Student's placement in regular education classes, including Student's ability to access regular education and regular physical education classes. Parent described that Student happily participated in four-square and other games with her typical peers during regular physical education. Student had many friends, was social and communicative, and Parent did not want to change Student's placement to a more restrictive special day class. Nor did Parent want Student removed from a regular physical education class to an adapted physical education class, although that was an issue alleged in Student's complaint.
Parent confirmed she had participated during each IEP team meeting, consented to each IEP, and had not requested for Diablo to provide more or different services, or additional assessments, at any time.
There were some problems with Parent's testimony. For example, Parent testified she was satisfied with Student's educational program until the beginning of the 2023- 2024 school year. At that time, Parent became upset because she believed Diablo changed Student's individual aide without notifying her of the personnel change. However, various emails established Diablo informed Parent that Student's individual aide would change to a different service provider because of Student's matriculation to middle school. Student did not raise as a separate issue anything related to the 2023- 2024 school year, nor did she assert a denial of FAPE occurred because Diablo changed Student's individual aide.
Parent also inconsistently testified that Student had behavior problems, yet later testified Student did not have behavior problems. There was no evidence submitted during the hearing which showed Student demonstrated behavior problems. Finally, Parent testified Student should have received increased daily specialized academic instruction, speech and language, and occupational therapy services. Yet, she was unfamiliar with the level of services offered in Student's IEPs, including that Student was already receiving daily specialized academic instruction. Parent's testimony was less persuasive than Diablo's resource specialist program teacher, occupational therapist, speech and language pathologist, school psychologist, aide, and classroom teachers, who credibly testified that the services offered in Student's IEPs were appropriate in light of Student's circumstances.
The burden of proof for each issue laid with Student. Diablo did not have the burden to disprove the issues raised by Student. Yet, Student failed to submit any independent evidence, report, data, expert, or witness, other than Parent, to support Student's issues. During the hearing, Student's attorneys appeared unfamiliar with the issues alleged for this matter and spent voluminous time asking nonprobative, or immaterial, questions. A due process hearing is not the place to conduct discovery to determine if an issue exists. Rather, Student's attorneys should have investigated this matter prior to submitting the complaint. Regardless, Student fell far short of meeting her burden of proving her issues for this matter.
Student's closing brief was also unpersuasive and alleged an assortment of unsupported claims. In particular, Student's assertion that occupational therapist Giacomino supported Student's issues was erroneous. To the contrary, Giacomino testified in support of Student's IEP services and assessments. Giacomino pointed out that Student met each occupational therapy goal and progressed in areas under her purview, including Student's ability to write, keyboard, use manipulatives, and access regular education classes and regular physical education. Giacomino did not recommend additional services or assessments for Student in any area. There was no merit to Student's claim that Giacomino supported any of Student's issues.
Finally, Student abandoned all claims regarding extended school year by failing to address extended school year in any manner during the hearing.
Student failed to show by a preponderance of the evidence that Diablo denied Student a FAPE during the 2021-2022 and 2022-2023 school years, including during the extended school year, by failing to offer appropriate services in academics, occupational therapy, vocation, communication, adapted physical education, social skills, adaptive living, behavior, assistive technology, transition, and speech therapy.
ISSUES 3 AND 6: FAILURE TO IMPLEMENT
Student's third and sixth issues assert that Diablo denied Student a FAPE during the 2021-2022, and 2022-2023, school years, including during the extended school years, by failing to implement agreed upon services for academics, occupational therapy, vocation, communication, adapted physical education, social skills, adaptive living, behavior, assistive technology, transition, and speech therapy. Diablo responds that it implemented all agreed upon services.
A school district violates the IDEA if it materially fails to implement a child's IEP. A material failure occurs when there is more than a minor discrepancy between the services provided to a disabled child and those required by the IEP. (Van Duyn v. Baker School Dist. (9th Cir. 2007) 502 F.3d 811, 815, 822. (Van Duyn)) “[T]he materiality standard does not require that the child suffer demonstrable educational harm in order to prevail." (Ibid.) The Van Duyn court emphasized that IEPs are clearly binding under the IDEA, and the proper course for a school that wishes to make material changes to an IEP is to reconvene the IEP team pursuant to the statute, and not to decide on its own no longer to implement part or all of the IEP. (Ibid.)
Student's operative IEPs for the 2021-2022, and 2022-2023, school years were a January 12, 2021, IEP, from August 2021, through March 2022, a March 4, 2022, IEP, and a January 13, 2023, IEP. In addition, Diablo held an amendment IEP team meeting on May 16, 2023.
The January 12, 2021, March 4, 2022, and January 13, 2023, IEPs, offered Student the same types of services. IEP services included:
• Specialized academic instruction for 30 minutes daily, 150 minutes weekly.
• Intensive individual services, a daily full-time individual aide, for 1,465 minutes weekly.
• Speech and language 30 minutes per session, seven times monthly, totaling 210 minutes monthly.
• Occupational therapy for 30 minutes weekly, totaling 120 minutes monthly.
• Extended school year, consisting of 30 minutes daily specialized academic instruction, totaling 150 minutes weekly.
On May 16, 2023, Student's IEP team convened to discuss her transition from fifth grade, elementary school, to sixth grade, middle school. The IEP team amended Student's services to reflect Student's middle school classes for the following 2023-2024 school year. Diablo offered Student specialized academic instruction for 220 minutes weekly, intensive individual services for 1,465 minutes weekly, speech and language for 210 minutes monthly, occupational therapy for 800 minutes yearly, and extended school year.
Parent consented to each of the IEPs. Diablo was therefore obligated to materially implement the related services offered in the IEPs.
Student's claims that Diablo failed to implement agreed upon services for vocation, adapted physical education, social skills, adaptive living, behavior, assistive technology, and transition, are misplaced, as Student's IEPs during the 2021-2022, and 2022-2023 school years, did not offer related services in those areas. A cursory review of Student's IEPs would have informed Student and her attorneys as to the services agreed upon by Parent and Diablo. Student unreasonably asserted that Diablo failed to implement agreed upon services in areas where no agreed upon services existed.
As to the areas where agreed upon services existed, Student failed to present any evidence to support Student's issues. To the contrary, each witness Student called verified that agreed upon services were consistently implemented. These witnesses included Student's individual aide Heidt, who implemented Student's daily intensive individual services; resource specialist program teacher Pasupuleti, who implemented Student's daily specialized academic instruction in a resource classroom; speech and language pathologist Liu, who implemented Student's weekly speech and language therapy; and occupational therapist Giacomino, who implemented Student's weekly occupational therapy. Student's general education teachers Clack and Exner testified they observed that Student's IEP services were consistently implemented. This testimony was supported by documentary evidence, including service provider logs for occupational therapy and speech and language, which showed Diablo consistently provided speech and language and occupational therapy services to Student. Student failed to present any countervailing evidence to this testimony or documentary evidence.
During the hearing, Student's attorneys were confused by these issues. They did not understand what it meant for a service to be agreed upon or Diablo's duty to implement only related services which were offered in an IEP and agreed to by Parent. Student's closing brief similarly failed to coherently address these issues. Student argued several unsupported facts that bore no direct relationship to an allegation that Diablo failed to implement agreed upon services.
A preponderance of evidence failed to support Student's third and sixth issues, that Diablo denied Student a FAPE during the 2021-2022, and 2022-2023 school years, including during the extended school years, by failing to implement agreed upon services for academics, occupational therapy, vocation, communication, adapted physical education, social skills, adaptive living, behavior, assistive technology, transition, and speech therapy.
ISSUE 7: PRESENT LEVELS OF PERFORMANCE
Student alleges Diablo denied her a FAPE, by failing to include present levels of performance in the March 4, 2022, and January 13, 2023, IEPs. Diablo responds the IEPs sufficiently included Student's present levels of performance.
For each area in which a special education student has an identified need, the IEP team must develop measurable annual goals that are based upon the child's present levels of academic achievement and functional performance, and which the child has a reasonable chance of attaining within a year. (Ed. Code, § 56345; Letter to Butler (Office of Special Education and Rehabilitative Services (OSERS) March 25, 1988).)
On March 4, 2022, Diablo held an annual IEP team meeting for Student. Student's complaint mistakenly described the IEP date as March 3, 2022. Student had just turned 11 years old and was attending fourth grade at a comprehensive Diablo public elementary school. Parent attended the IEP team meeting along with Student's general education teacher Clack, resource specialist program teacher Pasupuleti, occupational therapist Giacomino, speech and language pathologist Liu, and the school principal. Each IEP team member contributed to the identification of Student's strengths, weaknesses, present levels of performance, development of IEP goals, and selection of accommodations, modifications, and related services.
The classroom teacher reported that Student was a joy to have in class, loved spending breaks and recess with friends, and frequently participated in games and sharing activities with others. Student's resource special program teacher Pasupuleti and classroom teacher Clack reported Student's present levels of performance in preacademic, academic, and functional skills. Liu reported present levels of performance for Student's communication development. Giacomino reported Student's present levels of performance for Student gross and fine motor development. The IEP document reflected a health report by the school nurse, that reported Student's present levels in areas of health. The IEP document also described Student's present levels of performance for social emotional, behavioral, vocational, adaptive living, and daily living skills.
The March 2022 IEP team reviewed Student's progress towards eight prior, annual goals, and reported that progress in the IEP documents, further describing Student's present levels of performance. The IEP team jointly drafted eight new goals for Student in grammar, expressive and receptive language, reading, math, writing, money math, visual motor-handwriting, and visual motor-keyboarding. Each goal included a baseline, which represented Student's present levels of performance in that particular area at the time the IEP was formulated. The March 4, 2022, IEP adequately included Student's present levels of performance throughout the IEP document.
Diablo conducted Student's triennial assessments during the 2022-2023 school year. Diablo sufficiently assessed Student and timely reviewed the assessments during an IEP team meeting on January 13, 2023. Each assessment was reported in the January 13, 2023, IEP, and described Student's present levels of performance in academics, speech and language, fine and gross motor development, and health.
Parent attended the January 13, 2023, IEP team meeting, along with Student's sister, school psychologist Utler, general education teacher Exner, resource specialist program teacher Pasupuleti, occupational therapist Giacomino, speech and language pathologist Liu, and the school principal. The IEP team carefully reviewed Student's triennial assessments, present levels of performance, her strengths and weaknesses, and Parent's concerns.
Like the March 2022 IEP document, the January 2023 IEP document explicitly described Student's present levels of performance reported by qualified school staff in the areas of preacademic, academic, functional skills, communication development, gross and fine motor development, and health.
The IEP team reviewed Student's progress towards prior goals, further reporting Student's present levels of performance at the time of the January 2023 IEP team meeting. The IEP team jointly drafted seven new goals in reading, math, writing, visual motor-keyboarding, grammar, and expressive language. Each goal included a baseline that described Student's present levels of performance. Student's January 13, 2023, IEP sufficiently described Student's present levels of performance throughout the IEP document.
Student failed to present any evidence to support this issue. Student provided no evidence to show the IEPs failed to include Student's present levels of performance, or that the present levels or performance included in the IEPs were inadequate. A cursory review of the IEPs would have revealed that Student's present levels of performance were comprehensively described in each IEP document. Similarly, Student's closing brief failed to directly address this claim. Student unreasonably required OAH to hear, and Diablo to defend against, a claim that had no merit and which Student failed to prosecute.
Student failed to prove by a preponderance of the evidence that Diablo denied her a FAPE, by failing to include present levels of performance in the March 4, 2022, and January 13, 2023, IEPs.
ISSUE 8: PARENT'S CONCERNS REGARDING ACADEMIC AND BEHAVIORAL REGRESSION
Student complains Diablo denied her a FAPE, by failing to address Parent's concerns regarding academic and behavioral regression in the March 4, 2022, and January 13, 2023, IEPs. Diablo contends Parent did not state concerns regarding regression at the IEP team meetings, or anytime during the time frame in dispute.
A school district is required to conduct not just an IEP team meeting, but a meaningful IEP team meeting. (W.G. v. Board of Trustees of Target Range School Dist. No. 23 Missoula, Mont. (9th Cir. 1992) 960 F.2d 1479, 1485, superseded in part by statute on other grounds.) Participation must be more than mere form; it must be meaningful. (Deal v. Hamilton County Board of Educ. (6th Cir. 2004) 392 F.3d 840, 858 [citations omitted] (Deal).) A school cannot independently develop an IEP, without meaningful participation, and then present the IEP to the parent for ratification. (Target Range, supra, 960 F.2d at p. 1484.) A school district that predetermines the child's program and does not consider parents' requests with an open mind, has denied the parents' right to participate in the IEP process. (Deal, supra, at p. 858.)
For IEP team meetings, predetermination occurs when an educational agency has decided on its offer prior to the meeting and is unwilling to consider other alternatives. (Id. at p. 857-858; H.B. v. Las Virgenes Unified School Dist. (July 3, 2007, No. 05-56486) (9th Cir. 2007) 239 Fed. Appx. 342, 344-345 [nonpub. opn.].) A district may not arrive at an IEP team meeting with a “take it or leave it” offer. (JG v. Douglas County School Dist. (9th Cir. 2008) 552 F.3d 786, 801, fn.10.) Although school district personnel may bring a draft of the IEP to the meeting, the parents are entitled to bring to an IEP team meeting their questions, concerns, and recommendations as part of a full discussion of a child's needs and the services to be provided to meet those needs before the IEP is finalized. (Assistance to States for the Education of Children Disabilities (March 12, 1999) 64 Fed. Reg. 12478-12479.) School officials may permissibly form opinions prior to IEP meetings. However, if the district goes beyond forming opinions and becomes “impermissibly and deeply wedded to a single course of action,” this amounts to predetermination. (P.C. v. Milford Exempted Village Schools (S.D. Ohio, January 17, 2013, No. 1:11-CV-398) 2013 WL 209478, p. 7.)
An IEP need not conform to a parent's wishes to be sufficient or appropriate. (Shaw v. District of Columbia (D.D.C. 2002) 238 F. Supp. 2d 127, 139 [IDEA did not provide for an “education . . . designed according to the parent's desires.”].) A school district is not required to place a student in a program preferred by a parent, even if that program will result in greater educational benefit to the student. (Ibid.) A school district has the right to select the program offered, as long as the program is able to meet the student's needs, and the district is ultimately responsible for ensuring a FAPE is offered. (Letter to Richards (Office of Special Education Programs (OSEP) January 7, 2010).) The Ninth Circuit has held that while the school district must allow for meaningful parental participation, it has no obligation to grant the parent a veto over any individual IEP provision. (Ms. S. v. Vashon Island School Dist. (9th Cir. 2003) 337 F.3d 1115, 1131.)
Parent attended and participated during Student's March 4, 2022, and January 13, 2023, IEP team meetings. She shared her concerns, and the IEP team addressed her concerns. For example, during the March 4, 2022, IEP team meeting, Parent reported that she was concerned about whether Student was playing with friends. This concern is recorded in the IEP document, under a section entitled “Parent input and concerns relevant to educational progress.” The IEP team, including Student's classroom teacher Clack and resource specialist program teacher Pasupuleti, responded to Parent's concern by informing her that Student had friends, participated during classes, and played with friends during recess and breaks. Student enjoyed playing games like hide and seek and sharing activities with her friends. This response to Parent's concerns is also recorded in the IEP document. Parent did not report to the IEP team that she was concerned that Student was regressing in any area, nor was regression a problem reported by any IEP team member.
Parent shared similar concerns regarding Student playing with friends during the January 13, 2023, IEP team meeting. Parent's concerns were again recorded in the IEP document, under a section entitled “Parent input and concerns relevant to educational progress.” The IEP team, including Student's classroom teacher and resource specialist program teacher, responded to Parent's concerns by reporting that Student was a joy to have in class, had friends, and played with friends during recess and breaks. In particular, Student enjoyed playing games like four-square with friends. Parent did not report to the IEP team that she was concerned that Student was regressing in any area, nor was regression a problem reported by any IEP team member.
During the hearing, Parent testified she did not raise concerns regarding regression during Student's IEP team meetings, or at any time prior to the due process hearing. Parent's testimony was corroborated by each school witness who attended an IEP team meeting, including Pasupuleti, Exner, Clack, Liu, and Giacomino. Each witness confirmed that Parent did not raise regression as a concern in any manner prior to Student's complaint, nor did any other IEP team member.
Student failed to present any evidence to support that Diablo failed to address Parent's concerns regarding academic and behavioral regression in the March 4, 2022, and January 13, 2023, IEPs. To the contrary, evidence overwhelmingly showed Parent did not raise regression as a concern in any manner with Diablo during the time frame in dispute. Nor was regression a concern raised by any other IEP team member. Hence there was nothing for Diablo to address. Student also failed to directly address this issue in her closing brief. Given Parent's testimony that regression was not a concern she raised to Diablo, issue eight was frivolous or advanced by Student's attorneys for a wrongful purpose.
Student failed to show by a preponderance of the evidence that Diablo denied her a FAPE, by failing to address Parent's concerns regarding academic and behavioral regression in the March 4, 2022, and January 13, 2023, IEPs.
ISSUE 9: APPROPRIATE GOALS FOR OCCUPATIONAL THERAPY AND SPEECH AND LANGUAGE
Student alleges Diablo denied her a FAPE, by failing to offer appropriate goals for occupational therapy and speech and language in the March 4, 2022, and January 13, 2023, IEPs. Diablo responds that the IEPs offered appropriate goals in those areas.
For each area in which a special education student has an identified need, the IEP team must develop measurable annual goals that are based upon the child's present levels of academic achievement and functional performance, and which the child has a reasonable chance of attaining within a year. (Ed. Code, § 56345.) The purpose of annual goals is to permit the IEP team to determine whether the pupil is making progress in an area of need. (Ed. Code, § 56345, subd. (a).) The IEP team need not draft IEP goals in a manner that the parents find optimal, as long as the goals are objectively measurable. In Capistrano Unified Sch. Dist. v. S.W., et al. (9th Cir. Dec. 30, 2021, Nos. 20-55961, 20-55987) 2021 WL 6141122 (Capistrano), the court stated that the IDEA required IEP goals to target a student's needs, but the IDEA did not require an IEP to contain every goal from which a student might benefit. (Id. at *5.) Moreover, a school district is not required to develop goals for areas covered by the general curriculum for which the student needs only accommodations and modifications. (Fed. Regs., Appendix A, Part 300 - Assistance to States for the Education of Children with Disabilities (1999), discussing language also contained in the 2004 reauthorization of the IDEA at 20 U.S.C. § 1414(d)(1)(A)(i)(II)).
THE MARCH 4, 2022, IEP GOALS
Diablo held Student's annual IEP team meeting on March 4, 2022. The IEP team included Giacomino, a registered occupational therapist who was familiar with Student, and Liu, a speech and language pathologist who was familiar with Student. The IEP team reviewed Student's present levels of performance, her strengths and weaknesses, and Parent's concerns. Based upon this review, the IEP team drafted eight new goals in grammar, expressive and receptive language, reading, math, writing, money math, visual motor-handwriting, and visual motor-keyboarding.
Two of the goals fell under the purview of occupational therapy and identified the school's occupational therapist as being responsible for helping Student achieve the goals.
Student's first occupational therapy goal was in visual motor skills handwriting. The goal had a baseline observed by the occupational therapist and IEP team. The goal sought for Student to improve her handwriting and classwork. The goal required Student to copy five sentence passages for a final draft on lined paper with 75 percent legibility. The annual goal was measurable and had three short-term objectives. Student timely met all three short-term objectives and the goal by the next annual IEP team meeting of January 13, 2023.
Student's second occupational therapy goal was for visual motor-keyboarding skills and sought Student to improve keyboarding skills for classwork. The goal had a baseline observed by the occupational therapist and IEP team. The goal required Student to type three daily sentences at five words per minute, using both hands on the keyboard. Student timely met all three short-term objectives and the goal by the January 13, 2023, annual IEP team meeting.
The March 4, 2022, IEP offered Student two speech and language goals. Each goal included a baseline reported by school's speech and language pathologist and the IEP team. Each goal identified the school's speech and language pathologist as being responsible for implementing the goal.
The first speech and language goal was for grammar. The goal required Student, when given pictures with minimal cues, to create an original spoken sentence using past progressive tense, with 70 percent accuracy across three sessions, measured by the speech and language pathologist. The goal was measurable, and Student timely met the goal by the next annual IEP team meeting of January 13, 2023.
Student's second speech and language goal was for expressive and receptive language. The goal called for Student, when read a story, to answer three to four who, what, and where questions about the story, with 70 percent accuracy across three sessions, measured by the speech and language pathologist. The goal was measurable, and Student made meaningful progress, reaching 60 percent accuracy, by the January 2023, annual IEP team meeting.
THE JANUARY 13, 2023, IEP GOALS
Diablo conducted Student's triennial assessments during the 2022-2023 school year. Diablo held an IEP team meeting on January 13, 2023, to review those assessments and offer Student a FAPE. Along with Parent, Student's occupational therapist Giacomino, and Student's speech and language pathologist Liu attended the IEP team meeting. The IEP team reviewed Student's triennial assessments, present levels of performance, her strengths and weaknesses, and Parent's concerns. Based upon this information, Diablo drafted seven new goals in reading, math, writing, visual motor keyboarding, grammar, and expressive language. Of those goals, one was for occupational therapy, and two were for speech and language.
Student's occupational therapy goal was for visual motor-keyboarding, and included a baseline reported by Giacomino and the IEP team. The goal sought for Student to improve her typing skills in class by copying and typing five sentence passages, using both hands at 10 words per minute with 90 percent accuracy, in four of five weekly trials, as measured by the occupational therapist and school staff. The goal was measurable, and Student made meaningful progress on the goal by the time of the hearing, which predated Student's next annual IEP team meeting of January 12, 2024.
Student's first speech and language goal was for grammar. It included a baseline reported by the speech and language pathologist and the IEP team. The goal called for Student, when given pictures, to use objective pronouns and comparative superlatives while describing a picture with 70 percent accuracy, measured by the speech and language pathologist.
Student's second speech and language goal was for expressive language. It included a baseline reported by the speech and language pathologist and the IEP team. The goal sought for Student to use appropriate speech sounds. When given a set of five words with pictures, Student would provide antonyms and synonyms, with 60 percent accuracy, across three sessions, measured by the speech and language pathologist.
The speech and language goals were measurable, and Student made meaningful progress on the goal by the time of the hearing, which predated Student's next annual IEP team meeting of January 2024.
During the hearing, registered occupational therapist Giacomino persuasively testified in support of the occupational therapy goals. Licensed speech and language pathologist Liu persuasively testified in support of the speech and language goals. Each therapist was experienced and qualified in the area in which they testified. Giacomino and Liu were directly familiar with Student and her unique needs. Each had directly provided Student services for several years, and each had assessed Student.
Giacomino and Liu believed the goals were appropriately ambitious for Student in light of her needs. Giacomino credibly testified the occupational therapy goals were measurable and appropriate, sufficiently covered areas of unique need, and helped student make meaningful progress in areas of need related to occupational therapy. Liu credibly testified the speech and language goals were measurable and appropriate, sufficiently covered areas of unique need, and helped student make meaningful progress in areas of need related to speech and language. Pasupuleti, Heidt, Clack, and Exner credibly testified the IEP goals and related services permitted Student to access the regular education classroom.
Student failed to submit any evidence that impugned the testimony of Giacomino or Liu, or any school witness. Student also failed to submit any evidence pertaining to the speech and language or occupational therapy goals, other than the 2022 and 2023 IEPs, which were Diablo's exhibits. Essentially, Student did not present any evidence to support this issue. Student failed to present evidence of any sort, including an expert witness, assessment, or data, to support her issues. At hearing, Student merely asked Diablo's personnel questions regarding Student's disabilities and educational program, information that was available in Student's school file, without a probative point to the witness examinations. This strategy failed to illustrate any specific problems with Student's IEPs. There was no question that Student was a child with a disability that impacted her education. However, Student failed to show what was specifically wrong with her educational program.
In her closing brief, Student combined Issues 7, 8, and 9, in a conclusory five sentence argument. In sum, Student concluded Student was not adequately assessed, and regressed as a continuing result of school closures related to the COVID-19 pandemic, which occurred prior to the time frame in dispute. These arguments did not correlate to Student's Issues 7, 8, or 9, and Student made no specific argument in support of these issues.
Student failed to meet her burden or showing by a preponderance of the evidence that Diablo denied her a FAPE, by failing to offer appropriate goals for occupational therapy and speech and language in the March 4, 2022, and January 13, 2023, IEPs.
ISSUE 10: POST-SECONDARY TRANSITION PLANNING
Student asserts Diablo denied her a FAPE, from June 16, 2021, through June 16, 2023, by failing to offer appropriate services for Student's post-secondary, meaning after high school, transition planning and learning needs. Diablo contends Student was in fourth and fifth grades, respectively, during the 2021-2022, and 2022-2023 school years, and therefore did not require post-secondary transition planning to receive a FAPE.
Beginning at age 16 or younger, the IEP must include a statement of needed transition services for the child. (Ed. Code, § 56043, subd. (h).) The IEP in effect when a student reaches 16 years of age must include appropriate, measurable postsecondary goals based upon age-appropriate transition assessments related to training, education, employment and, where appropriate, independent living skills. (20 U.S.C. § 1414(d)(1)(A)(i)(VIII); Ed. Code, §§ 56043, subd. (g)(1), 56345, subd. (a)(8).) The plan must also contain the transition services needed to assist the pupil in reaching those goals. (34 C.F.R. § 300.320(b); Ed. Code, § 56345, subd. (a)(8)(A).)
Transition services are a coordinated set of activities that are:
o Designed within an outcome-oriented process that is focused on improving the academic and functional achievement of the child to facilitate movement from school to post-school activities, including postsecondary education, vocational education, integrated employment, continuing and adult education, adult services, independent living, or community participation.
o Based on the student's individual needs, taking into consideration the student's strengths, preferences and interests.
o Include instruction, related services community experiences, the development of employment and other post-school adult living objectives, and, if appropriate, acquisition of daily living skills and functional vocation evaluation.
(20 U.S.C. § 1401(34); Ed. Code, § 56345.1, subd. (a).)
Student failed to present any evidence to support this issue. This type of issue is normally reserved for high school students who have reached 16 years of age. Student was 10 and 11 years old, and in elementary school, during the 2021-2022, and 2022- 2023 school years. There was no evidence submitted at hearing to show that anyone, including Parent or other IEP team member, suggested that Student required post secondary transition planning while in elementary school.
During the prehearing conference for this case, Student's attorneys were unfamiliar with Student's complaint and prehearing conference statement. Student's attorneys were particularly confused by this issue and whether it related to Student. Yet, Student's attorneys failed to investigate or withdraw this issue prior to the hearing. During the hearing, Student's attorneys remained unfamiliar with Student's issues and the Prehearing Conference Order, which described each issue. It appears Student's attorneys erroneously conflated post high school transition planning with Student's matriculation between fourth, fifth, and sixth grades. Regardless, Student failed to prosecute or withdraw this issue during the hearing.
In her closing brief, Student stated this issue was “withdrawn.” Code of Civil Procedure, section 581, et seq., addresses motions to withdraw complaints and issues. Section 581, subdivision (c), states that the filing party may dismiss his or her complaint, or any portion of it, with or without prejudice prior to the actual commencement of trial. Section 581, subdivision (e), states that after the actual commencement of a trial, a court will dismiss a complaint, or any portion of it, with prejudice upon a plaintiff's request, unless all parties consent to dismissal without prejudice or unless the court finds good cause for a dismissal without prejudice. Here, Student failed to withdraw this issue prior to or during the hearing. Student also did not request to dismiss this issue in a motion or to have that request granted by the Administrative Law Judge. Stating “withdrawn” below an issue in Student's closing brief is not considered a valid motion to dismiss or withdraw, especially after a five-day hearing. Student's Issue 10 is therefore deemed fully litigated.
Student failed to show by a preponderance of the evidence that Diablo denied her a FAPE, from June 16, 2021, through June 16, 2023, by failing to offer appropriate services for Student's post-secondary transition planning and learning needs.
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(a) through (l): Diablo did not deny Student a FAPE during the 2021-2022 school year, by failing to assess her in (a) psychoeducation, (b) academics, (c) occupational therapy, (d) vocation, (e) communication, (f) adapted physical education, (g) social skills, (h) adaptive living, (i) behavior, (j) assistive technology, (k) transition, and (l) speech therapy. Diablo prevailed on Issue 1(a) through (l).
Issue 2(a) though (k): Diablo did not deny Student a FAPE during the 2021-2022 school year, including during the extended school year, by failing to offer appropriate services in (a) academics, (b) occupational therapy, (c) vocation, (d) communication, (e) adapted physical education, (f) social skills, (g) adaptive living, (h) behavior, (i) assistive technology, (j) transition, and (k) speech therapy. Diablo prevailed on Issue 2(a) though (k).
Issue 3(a) though (k): Diablo did not deny Student a FAPE during the 2021-2022 school year, including during the extended school year, by failing to implement agreed upon services for (a) academics, (b) occupational therapy, (c) vocation, (d) communication, (e) adapted physical education, (f) social skills, (g) adaptive living, (h) behavior, (i) assistive technology, (j) transition, and (k) speech therapy. Diablo prevailed on Issue 3(a) though (k).
Issue 4(a) through (l): Diablo did not deny Student a FAPE during the 2022-2023 school year, by failing to assess her in (a) psychoeducation, (b) academics, (c) occupational therapy, (d) vocation, (e) communication, (f) adapted physical education, (g) social skills, (h) adaptive living, (i) behavior, (j) assistive technology, (k) transition, and (l) speech therapy. Diablo prevailed on Issue 4(a) through (l).
Issue 5(a) through (k): Diablo did not deny Student a FAPE during the 2022-2023 school year, including during the extended school year, by failing to offer appropriate services in (a) academics, (b) occupational therapy, (c) vocation, (d) communication, (e) adapted physical education, (f) social skills, (g) adaptive living, (h) behavior, (i) assistive technology, (j) transition, and (k) speech therapy. Diablo prevailed on Issue 5(a) though (k).
Issue 6(a) though (k): Diablo did not deny Student a FAPE during the 2022-2023 school year, including during the extended school year, by failing to implement agreed upon services for (a) academics, (b) occupational therapy, (c) vocation, (d) communication, (e) adapted physical education, (f) social skills, (g) adaptive living, (h) behavior, (i) assistive technology, (j) transition, and (k) speech therapy. Diablo prevailed on Issue 6(a) though (k).
Issue 7: Diablo did not deny Student a FAPE, by failing to include present levels of performance in the March 4, 2022, and January 13, 2023, IEPs. Diablo prevailed on Issue 7.
Issue 8: Diablo did not deny Student a FAPE, by failing to address Parent's concerns regarding academic and behavioral regression in the March 4, 2022, and January 13, 2023, IEPs. Diablo prevailed on Issue 8.
Issue 9: Diablo did not deny Student a FAPE, by failing to offer appropriate goals for occupational therapy and speech and language in the March 4, 2022, and January 13, 2023, IEPs. Diablo prevailed on Issue 9.
Issue 10: Diablo did not deny Student a FAPE, from June 16, 2021, through June 16, 2023, by failing to offer appropriate services for Student's post-secondary transition planning and learning needs. Diablo prevailed on Issue 10.
ORDER
All of Student's claims 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 56505, subdivision (k), any party may appeal this Decision to a court of competent jurisdiction within 90 days of receipt.
Paul H. Kamoroff
Administrative Law Judge
Office of Administrative Hearings