DECISION
NOVEMBER 22, 2023
On July 28, 2023, the Office of Administrative Hearings, called OAH, received a due process hearing request from Student, naming Long Beach Unified School District. OAH continued the matter for good cause on September 21, 2023. Administrative Law Judge Tiffany Gilmartin heard this matter via Zoom on October 10, 11, 12, and 23, 2023.
Allison Hertog represented Student. Parent attended all hearing days on Student's behalf. Meagan Kinsey represented Long Beach Unified School District. Dr. Rachel Heenan and Diana Zepeda-McNeal attended on Long Beach's behalf.
OAH clarified the issues for hearing at the prehearing conference held on September 1, 2023. On September 7, 2023, Student filed a notice of withdrawal of issues. On the first day of hearing, Student's counsel moved to withdraw her notice of withdrawal in its entirety. After hearing from both parties, the undersigned granted Student's request and reinstated the issues as clarified in the September 1, 2023, Order following Prehearing Conference.
At the parties' request, the matter was continued to November 6, 2023, for written closing briefs. The record was closed, and the matter was submitted on November 6, 2023.
ISSUES
1. Did Long Beach deny Student a free appropriate public education, called FAPE, during the 2021 - 2022 school year by failing to:
a. offer individual education program, called IEP, goals in all areas of need, specifically, reading, language arts and math;
b. offer appropriate IEP goals to meet Student's needs, specifically, behavior and communication;
c. offer appropriate services to meet Student's needs, specifically, mainstreaming, social skills, sensory, behavior, and communication;
d. include the general education teacher as part of the September 28, 2021, IEP team; and
e. implement Student's September 28, 2021, IEP, specifically, one-to-one aide behavioral support?
2. Did Long Beach deny Student a FAPE during the 2022 - 2023 school year by failing to:
a. assess Student in all areas of suspected disability, specifically, specific learning disability, occupational therapy, and assistive technology;
b. offer IEP goals in all areas of need, specifically, reading and visual motor integration;
c. offer appropriate IEP goals to address Student's needs, specifically, math, speech and language, and behavior;
d. offer services to meet Student's needs, specifically, assistive technology, counseling, occupational therapy, and extended school year services;
e. implement Student's September 27, 2022, IEP, specifically behavior services;
f. convene an IEP team meeting following Long Beach's issuance of behavior emergency reports in February and March 2023;
g. respond to Parent's safety concerns and requests for a change of placement from March through May 2023; and
h. convene an IEP team meeting in response to Parent's May 2023 request?
JURISDICTION
This hearing was held under the Individuals with Disabilities Education Act, called IDEA, its regulations, and California statutes and regulations. (20 U.S.C. § 1400 et. seq.; 34 C.F.R. § 300.1 (2006) et seq.; Ed. Code, § 56000 et seq.; Cal. Code Regs., tit. 5, § 3000 et seq.) The main purposes of the IDEA, are to ensure:
• all children with disabilities have available to them a free appropriate public education that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment and independent living, and
• the rights of children with disabilities and their parents are protected. (20 U.S.C. § 1400(d)(1); See Ed. Code, § 56000, subd. (a).)
The 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, 7-58, 62 [126 S.Ct. 528, 163 L.Ed.2d 387]; and see 20 U.S.C. § 1415(i)(2)(C)(iii).) Student filed this matter and carried the burden of proof. The factual statements in this Decision constitute the written findings of fact required by the IDEA and state law. (20 U.S.C. § 1415(h)(4); Ed. Code, § 56505, subd. (e)(5).)
Student was 10 years old and in fourth grade at the time of hearing. Student resided within Long Beach's geographic boundaries at all times. Student was eligible for special education under the category of autism.
ISSUE 1(A) AND (B): DID LONG BEACH DENY STUDENT A FAPE DURING THE 2021-2022 SCHOOL YEAR BY: FAILING TO OFFER IEP GOALS IN ALL AREAS OF NEED, SPECIFICALLY READING, LANGUAGE ARTS, AND MATH; AND FAILING TO OFFER APPROPRIATE IEP GOALS TO MEET STUDENT'S NEEDS, SPECIFICALLY, BEHAVIOR AND COMMUNICATION?
Student alleges Long Beach failed to identify all areas of Student's needs and provide appropriate goals in his September 28, 2021, IEP as finalized on November 9, 2021. Long Beach argues that the September 28, 2021, IEP offered goals in all areas of needs and the goals were appropriate.
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 (2006).) 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 (2007), 300.321 (2007), and 300.501(2006).)
In resolving the question of whether a school district has offered a FAPE, the focus is on the adequacy of the school district's proposed program. (Gregory K. v. Longview School Dist. (9th Cir. 1987) 811 F.2d 1307, 1314.) For a school district's offer of special education services to constitute a FAPE under the IDEA, it must be designed to meet the student's unique needs, comport with the student's IEP, and be reasonably calculated to provide the student with educational benefit appropriate in light of the student's circumstances, in the least restrictive environment. (Ibid.; Endrew F. v. Douglas County School Dist. RE-1 (2017) 580 U.S. ____ [137 S.Ct. 988, 1000)
Long Beach held an annual IEP team meeting on September 28, 2021. Parent notified Long Beach she intended to attend the September 28, 2021, IEP team meeting. Parent was later unavailable necessitating rescheduling the IEP team meeting to November 9, 2021.
At the November 9, 2021, meeting, participants reviewed Student's prior goals and progress. Student's special education teacher, Lisa Cantwell, reviewed his strengths, his behavior plan, and goals. Cantwell explained Student was easily frustrated when not called on immediately and wanted to participate, did not like loud music, and he struggled to communicate. The IEP team reviewed Student's goals and noted his progress.
An IEP describes a student's needs, and academic and functional goals related to those needs. It also provides a statement of the special education, related services, and program modifications and accommodations that will be provided for the student to:
• advance in attaining the goals,
• make progress in the general education curriculum, and
• participate in education with disabled and nondisabled peers. (20 U.S.C. §§ 1401(14), 1414(d)(1)(A); Ed. Code, §§ 56032, 56345, subd. (a).)
The student's needs must be described through a statement of present levels of academic achievement and functional performance, including how the student's disability affects the involvement and progress in the general education curriculum. (20 U.S.C. § 1414(d)(1)(A)(i)(I); 34 C.F.R. § 300.320(a)(1)(2007).) The IEP must show a direct relationship between the present levels of performance, the goals, and the specific educational services to be provided. (Cal. Code Regs., tit. 5, § 3040, subd. (b).)
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. 2021) 21 F.4th 1125, the court stated 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 p. 1133.) 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).
READING, LANGUAGE ARTS, AND MATH GOALS
Student asserted he required goals in reading, language arts, and math to make sufficient progress in his education. Long Beach last assessed Student on October 2, 2019. Student pointed to iReady diagnostic testing scores of Student's academic performance in math and reading in support of his need for reading, language arts, and math goals. Long Beach conducted the iReady twice during Student's second grade year. Both Student's math and reading skills were tested in October 2021. These results were known to Cantwell when the annual IEP team meeting was reconvened on November 9, 2021.
Student's overall math performance from the October 12, 2021, iReady diagnostic test demonstrated Student needed improvement in numbers and operations, measurement, and data categories of assessment. Student was approaching grade level in algebra and algebraic thinking and geometry.
Student's overall reading performance on the October 19, 2021, iReady diagnostic test demonstrated Student needed improvement in three of the six areas of assessment; specifically, phonological awareness, phonics, comprehension: informational text. He was approaching grade level in vocabulary and comprehension, and literature. Conversely, Student scored the maximum score on high-frequency words.
Ordinarily, a single assessment tool would not be sufficient to demonstrate a need for goals. However, Student returned to in-person learning for the 2021-2022 school year. The September 28, 2021, IEP notes are lacking in specificity of Student's present levels, especially as to his academics. Student's iReady scores and his demonstrated need for support in math and reading put Long Beach on notice Student had areas of need not addressed in his IEP goals. Cantwell did not have any specific recollection of any data to the contrary. Thus, Student established he had a need requiring goals in reading, language arts, and math during the 2021-2022 school year. Student's IEP did not include goals in those established areas of need. Accordingly, Student established Long Beach denied him a FAPE for failing to offer goals in all areas of need during the 2021-2022 school year.
BEHAVIOR AND COMMUNICATION GOALS
Student argues Long Beach did not offer appropriate goals in behavior and communication. Student also raised for the first time in his closing brief that Parent's opportunity to participate in the IEP process was infringed upon. Student argued an inappropriate goal violated Parents right to participate in the IEP process. Student relied on M.C. v. Antelope Valley, (9th Cir. 2017) 852 F. 3d 840. Student for the first time also alleged Long Beach failed to implement Student's goals. Student did not allege a failure implement issue in his complaint. Thus, no findings are made on these two issues not pled in Student's complaint or identified in the Order Following Prehearing Conference.
Whether an IEP offers a student a FAPE is assessed in light of information available at the time the IEP was developed, not in hindsight. (Adams v. State of Oregon (9th Cir. 1999) 195 F.3d 1141, 1149.) An IEP “is a snapshot, not a retrospective;” it must be evaluated in terms of what was objectively reasonable when the IEP was developed. (Ibid. (quoting Fuhrmann v. East Hanover Bd. of Educ. (3rd Cir. 1993) 993 F.2d 1031, 1036.)
Nikole Siemensma McCoy, the clinical supervisor for Autism Spectrum Interventions, the non-public agency contracted by Long Beach to provide Student behavior services submitted her progress report at the September 28, 2021, IEP team meeting, which was continued to November 9, 2021. The report documented Student's behavior and progress towards behavior goals from April and May of 2021. The evidence established that Student progressed in his non-compliant behavior goal. McCoy noted due to Student accessing his education virtually, data for Student's coping skills and tolerate denied access goals were unavailable.
The evidence established that Student had behavior needs requiring appropriate goals. Student had two behavior goals. One for compliance and one for coping skills. Student's baseline compliance goal required him to comply with a request with no more than one verbal prompt on 70 percent of the opportunities. Student's annual goal required him to comply with the request with no more than one verbal prompt at least 80 percent of the time over a two-week sample.
Student's coping skills goal required him to utilize coping strategies such as taking a break or breathing without maladaptive behaviors and no more than one verbal prompt in at least 80 percent of the opportunities over a two-week sample.
The evidence also established Student had communication needs requiring appropriate goals. Student's functional communication goal required Student to independently utilize functional communication skills to get his needs met, such as raise his hand, ask for help, say excuse me in 80 percent of the time over a two-week time sample.
Each goal had a baseline, short-term objectives, was measurable, identified school staff responsible for ensuring Student met the goal, and correlated to an area of identified need for Student.
Student's sequencing goal was tied to his communication and social skills needs. Student's sequencing goal required him to engage in structured activities and with pictures to be able to verbally relay a three-to-four step sequence, with 70 percent accuracy and moderate cues. Student's baseline required him to point out first and last with 80 percent accuracy and minimal cues.
To meet those goals, the IEP offered various accommodations, such as checks for understanding, priming, reinforcement, breaks, and structured choice.
Student did not meet his burden on this issue. Student did not establish that the offered goals in behavior and communication were not appropriate.
ISSUE 1(c): FAILING TO OFFER APPROPRIATE SERVICES TO MEET STUDENT'S NEEDS, SPECIFICALLY MAINSTREAMING, SOCIAL SKILLS, SENSORY, BEHAVIOR, AND COMMUNICATION
Student alleges Long Beach denied him a FAPE by failing to offer appropriate programs and support such as mainstreaming, social skills, sensory, behavior, and communication for the 2021-2022 regular school year, pursuant to the September 28, 2021, IEP.
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 (2006); 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 (2006); Ed. Code, § 56363, subd. (a) [in California, related services are also called designated instruction and services].)
In the case of a child whose behavior impedes his or her learning or that of others, the IEP team must consider, when appropriate, strategies, including positive behavioral interventions, strategies, and supports to address that behavior. (20 U.S.C. § 1414(d)(3)(B)(i); 34 C.F.R. § 300.324(a)(2)(i)(2017); Ed. Code, § 56341.1, subd. (b)(1).) Student's will be educated in a general education classroom setting to the maximum extend appropriate. 34 C.F.R. § 300.324(a)(2017).
Student's IEP offered 230 minutes of specialized academic instruction per day, speech and language services four times monthly for 25 minutes, and 3780 minutes yearly of push-in behavior intervention supervision services and 330 minutes daily of direct push-in behavior services.
Student's IEP also included a behavior intervention plan that was developed by McCoy, and updated on October 9, 2021, that addressed Student's tantrum behaviors.
The behavior services complemented Student's speech and language services in supporting Student's social skills needs. Student's speech and language services provided an opportunity for Student to interact with his peers in a small group setting four times per month for 25 minutes per session.
Student's IEP provided for Student to spend 63 percent of his time outside the general education classroom. Student's participation in the general education classroom was for at least one hour per day in an academic subject such as language or math. Student provided no evidence Student's mainstreaming services were not appropriate.
Student submitted no evidence to support his claim that Student required sensory or communication services to access his education. Furthermore, in Student's closing brief he specifically stated he would not address sensory need and communication services. Student failed to meet his burden to demonstrate Long Beach denied him a FAPE for failing to offer appropriate services to meet Student's needs in mainstreaming, social skills, sensory, behavior, and communication.
ISSUE 1(d): FAILING TO INCLUDE A GENERAL EDUCATION TEACHER AS PART OF THE SEPTEMBER 28, 2021, IEP TEAM
Student claimed that Long Beach failed to have a general education teacher as a member of the September 28, 2021, IEP team. Student acknowledged that general education teachers participated but claimed that was not legally compliant because neither general education teacher had specific knowledge of Student. Long Beach asserted that it did have general education teachers participate, thus satisfying its legal obligation. Student's argument was not persuasive.
An IEP team must include one or both of the student's parents; at least one regular education teacher if the child is, or may be, participating in the regular education environment; at least one special education teacher; a representative of the local educational agency who is qualified to provide, or supervise the provision of, specially designed instruction to meet the unique needs of children with disabilities and is knowledgeable about the general education curriculum; an individual who can interpret the instructional implications of evaluation results, who may be one of the persons described above; and at the discretion of the parent or the agency, other individuals who have knowledge or special expertise regarding the child, including related services personnel as appropriate. (20 U.S.C. § 1414(d)(1)(B); 34 C.F.R. § 300.321(a)(2007); Ed. Code, § 56341.)
At the September 28, 2021, IEP team meeting, Danielle Cheung, a second-grade teacher at Student's school was present via teleconference for the IEP team meeting. When the meeting resumed, on November 9, 2021, Kelly Da Silva, a third-grade teacher attended via teleconference. Both teachers testified at the hearing. Both were knowledgeable about the general education curriculum.
Student's September 28, 2021, IEP offered Student 37 percent of the day in a general education setting. This included academic subjects as appropriate, lunch, recess, passing periods, and school day activities. Both Cheung and Da Silva were knowledgeable about the general education curriculum. Student cited to no law that required them to be knowledgeable about Student as a prerequisite to participate in Student's IEP team meeting.
Student again raised the issue for the first time that Parent's right to participate in the IEP process was infringed upon. Student did not plead this issue, Long Beach was not on notice that allegation was at issue, no evidence was taken on this issue, and will not be addressed in this decision.
Student did not meet his burden in proving Long Beach denied him a FAPE by failing to have a general education teacher as part of the September 28, 2021, IEP team.
ISSUE 1(e): FAILING TO IMPLEMENT STUDENT'S SEPTEMBER 28, 2021, IEP, SPECIFICALLY, ONE-TO-ONE BEHAVIORAL SUPPORT
Student alleges Long Beach failed to implement Student's September 28, 2021, IEP, specifically the one-to-one behavioral support. Long Beach disagrees.
Where a student alleges a FAPE denial based on an IEP implementation failure, the student must prove that the failure was “material,” which means that the services provided to a disabled child fall “significantly short of the services required by the child's IEP.” (Van Duyn v. Baker School Dist. 5J (9th Cir. 2007) 502 F.3d 811, 822.) No statutory requirement of perfect adherence to the IEP exists, nor is there any reason rooted in the statutory text to view minor implementation failures as FAPE denials. (Id. at p. 821.) “A material failure occurs when there is more than a minor discrepancy between the services a school provides to a disabled child and the services required by the child's IEP.” (Id. at p. 815.) The materiality standard does not require that the child suffer demonstrable educational harm to prevail. (Id. at p. 822.) Implementation failures are not procedural errors. (Id. at p. 819.)
Parent consented to Student's September 28, 2021, IEP on November 9, 2021. Student's September 28, 2021, IEP consisted of a special day class placement for 63 percent of the time. Student participated in the general education curriculum during appropriate academic subjects, lunch, recess, passing periods, and school day activities. At the beginning of the 2021-2022 school year, Bryant Elementary held classes at another campus. The interim campus comprised of grades 3 through 5. Long Beach offered Student 230 minutes per day of specialized academic instruction, four monthly 25-minute sessions of pull-out speech and language services, 330 minutes per day of direct behavior intervention services, and 3780 yearly minutes of behavior intervention consultation services.
McCoy, the behavior supervisor, testified and the behavior logs confirmed Student received behavior support services beginning December 14, 2021. The logs demonstrated the aide supported Student from 9 a.m. until 3 p.m., working on his behavior goals, and took data on behaviors. The logs further established Student received consistent behavior support until March 21, 2022. Student received a new behavior aide on April 6, 2022. McCoy met with the new aide, Parent, and Cantwell to review Student's goals, programs, and support for his participation in school assemblies. The logs further established Student received behavioral support until June 15, 2022, when McCoy administratively closed out his case file. Long Beach's last day of instruction for the spring semester was June 15, 2022.
Student alleges Long Beach failed to implement Student's behavior services starting on August 31, 2021, when the 2021-2022 school year started. Student's argument is misplaced. Parent consented to the September 28, 2021, IEP on November 9, 2021. Student specifically alleged Long Beach failed to implement the September 28, 2021, IEP's one-to-one behavior support. Long Beach's obligation began when Parent consented on November 9, 2021.
From November 9, 2021, until December 14, 2021, and again from March 21, 2022, through April 6, 2022, Long Beach did not provide the agreed upon one-to-one aide. Accordingly, Student established the failure to implement the service. When a school district does not perform exactly as called for by the IEP, the district does not violate the IDEA unless it is shown to have materially failed to implement the child's IEP. (Van Duyn v. Baker Sch Dist. 5J (9th Cir. 2007) 502 F.3d 811, 815.) The materiality standard does not require that the child suffer demonstrable educational harm to prevail. (Id.) Implementation failures are not procedural errors. (Id., at p. 819.) The Ninth Circuit held that state contract law does not apply to the IEP interpretation and only material failures to implement constitute IDEA violations. (Ibid.)
Parent consented to the IEP on November 9, 2021. Long Beach was required to provide Student 330 minutes per day of direct behavior intervention services. The evidence established Long Beach did not provide Student behavior intervention services until December 14, 2021. Long Beach was not in session on November 11, 2021, in observance of Veteran's Day. Long Beach was further not in session from November 22- November 26, 2021, for fall break. Beginning on March 21, 2022, through April 6, 2022, Long Beach again did not provide Student with his direct behavior intervention services. The totality of these breaks means Student was without his behavior services for 32 school days. During this period, Student was not in school for only three of those days. Student was present at school and without an aide for 29 school days. Thus, Student demonstrated Long Beach materially failed to implement his behavior services 29 school days during the period of November 9, 2021, through December 14, 2021, and again from March 21, 2022, through April 6, 2022.
ISSUE 2(A): FAILING TO ASSESS STUDENT IN ALL AREAS OF SUSPECTED DISABILITY, SPECIFICALLY, SPECIFIC LEARNING DISABILITY, OCCUPATIONAL THERAPY, AND ASSISTIVE TECHNOLOGY
Student alleges Long Beach denied him a FAPE during the 2022-2023 school year for failing to assess him in specific learning disability, occupational therapy, and assistive technology. As alleged, Student's issues are limited to these areas. Student's issue did not include a separate claim that the assessments conducted by Long Beach were inappropriate.
Long Beach contends it assessed Student beginning in September 2022. Long Beach argues it did assess Student's academic achievement and intellectual development, two components of determining whether a student has a specific learning disability. Long Beach further argued that Student did not have suspected disabilities that required an occupational therapy or assistive technology assessment.
Long Beach provided Parent an assessment plan for Student's triennial reevaluation on September 1, 2022. It proposed to assess Student in the areas of health, academic achievement, intellectual development, communication, speech and language, social emotional behavior, adaptive behavior, and functional behavior. Parent did not request any additional areas of testing. Parent consented to the assessment plan on September 15, 2022.
Before 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 Student was initially assessed for special education by Long Beach in October 2016.
A school district must 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).)
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.)
THE PSYCHOEDUCATIONAL ASSESSMENT
Student's claim that Long Beach failed to assess him for specific learning disability is unpersuasive. Student's closing brief argued Long Beach failed to find Student met the criteria for special education eligibility under the category of specific learning disability. This is not the issue Student pled, that was clarified at the prehearing conference, and confirmed on the first day of hearing. The issue that will be decided in this decision is if Long Beach failed to assess Student in specific learning disability, not if Long Beach should have found Student eligible under the category of specific learning disability.
The September 15, 2022, assessment plan included an assessment for academic performance, cognitive skills, psychological processing, and social emotional learning. Alphonso Davis, PsyD., an educational psychologist with Long Beach, conducted the assessment. He produced a report dated October 5, 2022, of his findings. Davis testified at the hearing. His testimony was consistent with the evidence and thoughtful. His testimony was persuasive.
A specific learning disability is a disorder in one or more of the basic psychological processes involved in understanding or in using language, spoken or written, which may manifest itself in the imperfect ability to listen, think, speak, read, write, spell, or perform mathematical calculations. (Ed. Code § 56337, subd. (a).) In determining whether a student has a specific learning disability, a school district is not required to take into consideration whether the student has a severe discrepancy between achievement and intellectual ability. (Ed. Code § 56337, subd. (b).) Instead, a school district may use a process that determines if the student responds to scientific, research-based intervention as part of the assessment process. (Ed. Code, § 56337, subd. (c).)
For his assessment, Davis reviewed Student's cumulative records and observed Student in the classroom and on the playground. He interviewed Student and his teacher. He administered a variety of standardized tests to include the Beery-Buktenica Developmental Test of Visual-Motor Integration, Sixth Edition; Test of Auditory Processing Skills, Fourth Edition; in areas of auditory memory and auditory listening comprehension; Naglieri Nonverbal Ability Test; Differential Ability Scales Second Edition, Verbal Ability; Woodcock-Johnson Test of Achievement, Fourth Edition; and the Behavior Assessment for Children, Third Edition. Davis' report reviewed Student's health and medical history, his family environment, gross motor skills, vision and hearing, and behavior.
The Beery-Buktenica Development Test of Visual-Motor Integration requires a child to copy increasingly difficult geometric designs to include vertical lines, horizon lines, and circles. It measures visual motor development, fine motor control and visual perception. Student demonstrated strength in his fine motor skills, and relative motor dexterity strength.
Davis also tested Student's cognitive ability. Student is African American, thus an alternative assessment instrument was required. Larry P. by Lucille P. v. Riles, (9th Cir. 1984) 793 F.2d 969. Davis administered the Naglieri Nonverbal Ability Test to measure Student's nonverbal reasoning ability. The Naglieri measures ability independent of measurement of verbal math and reading skills. The Naglieri is used as a nonverbal measurement of general ability to evaluate individuals from diverse populations. Student's nonverbal reasoning was below average. Student's reasoning, problem solving, visual processing, and conceptualization processing skills were relative strengths.
The Differential Ability Scales, Second Edition, assesses conceptual functioning in verbal, nonverbal reasoning, spatial problem solving, working memory, and processing speed. Student was only administered the verbal ability section. Student scored within the average range in verbal ability.
The Woodcock-Johnson is a norm-referenced standardized test of achievement used to assess basic academic skills. Davis provided rating scales to Student's teacher for the Behavior Assessment Systems for Children Scale. Davis also provided rating scales to Cantwell to send home for Parent to complete. He never received anything back from Parent. Cantwell identified hyperactivity, aggression, anxiety, depression, attention problems, learning problems, behavioral problems, functional communication, and adaptive skills as at-risk areas.
Davis included Student's iReady progress reports from the 2021-2022 and 2022- 2023 school years. Student continued to demonstrate an area of need in math and reading.
The Autism Spectrum Rating Scales was also administered. This scale is used to identify symptoms and behaviors associated with the autism spectrum disorder. Student scored very elevated on behavioral characteristics similar to youths diagnosed with the autism spectrum disorder.
The Education Code provides two ways for a student to be assessed for specific learning disability (Ed. Code § 56337, subds. (b) and (c).). Long Beach established it conducted the assessments necessary to determine if Student had a specific learning disability in accordance with subdivision b of the Evidence Code.
The assessment results were presented to and considered by the IEP team in October 2022. Student did not allege a failure to find him eligible under the category specific learning disability, only that the assessment was not completed. The evidence established otherwise. Moreover, no evidence was presented that Long Beach should have assessed Student for specific learning disability at a later date through the 2022- 2023 school year.
OCCUPATIONAL THERAPY
Student's claim that Long Beach failed to assess him for occupational therapy is unpersuasive. Long Beach presented the assessment plan to Parent on September 1, 2022. The plan did not include an assessment for occupational therapy. Parent consented to the plan and did not request any additional assessments.
Student failed to present any evidence to support his allegation that he required an occupational therapy assessment during the 2022-2023 school year or that this was an area of suspected disability for Student. No evidence was presented to support Long Beach was on notice that occupational therapy was a suspected area of disability that should have been assessed.
Parent testified unpersuasively that she did not know she could ask for additional assessments. Parent's testimony was rambling and confusing. Parent made several statements throughout her testimony that called into question her credibility. For example, Parent alleged she never received a copy of her procedural safeguards. When shown a copy of the September 27, 2022, IEP where she initialed, she received a copy of the procedural safeguards and assessment reports, Parent then alleged she had hundreds of copies of procedural safeguards but had not read them.
Student failed to meet his burden to demonstrate that Long Beach should have assessed in occupational therapy during the 2022-2023 school year.
ASSISTIVE TECHNOLOGY
Student's claim that he was denied a FAPE because Long Beach failed to assess him for assistive technology is also unpersuasive. Assistive technology is any item, piece of equipment, software program, or product system that is used to increase, maintain, or improve the functional capabilities of persons with disabilities. (20 U.S.C. § 1401(1); Ed. Code, § 56020.5.) During the hearing, there was no evidence provided that showed Parent, or anyone, had requested an assistive technology assessment, or that this was an area of suspected disability for Student that required an assessment.
Student failed to present any evidence to support his allegation that he required an assistive technology assessment during the 2022-2023 school year or that this was an area of suspected disability for Student. No evidence was presented to support Long Beach was on notice that assistive technology was a suspected area of disability that should have been assessed.
Long Beach's September 1, 2022, assessment plan did not include an assessment for assistive technology. Parent consented to the plan and did not request additional assessments. As discussed above, Parent claimed she was unaware she could independently request Student be assessed for assistive technology. Yet, Parent admitted she actually received hundreds of documents and had not read them.
Student's closing brief made no argument supporting his claim that Student required an assistive technology assessment. Student further failed to show that assistive technology was a suspected area of disability for Student that required Long Beach to assess in this area. For these reasons, Student failed to prove by a preponderance of the evidence that Long Beach denied him a FAPE by failing to assess for assistive technology.
ISSUE 2(B) AND (C): DID LONG BEACH DENY STUDENT A FAPE DURING THE 2022-2023 SCHOOL YEAR BY: FAILING TO OFFER IEP GOALS IN ALL AREAS OF NEED, SPECIFICALLY READING, VISUAL MOTOR INTEGRATION; AND LANGUAGE ARTS; AND FAILING TO OFFER APPROPRIATE IEP GOALS TO MEET STUDENT'S NEEDS, SPECIFICALLY, MATH, SPEECH, AND BEHAVIOR?
Student asserts Long Beach denied Student a FAPE during the 2022-2023 school year by failing to offer goals in all areas of need, specifically reading and visual motor integration, and the goals that Long Beach did offer in math, speech and language, and behavior were not appropriate. Long Beach asserts it offered goals in all areas of need and the goals it offered were appropriate.
The September 27, 2022, IEP, amended on October 5, 2022, was based upon recent assessments in areas such as academics, speech and language, health, adaptive behavior, and social emotional functioning. The IEP team met on October 5, 2022, to review the assessments, determine present levels of performance, discuss parent and teacher concerns, identify areas of need, formulate goals to address those areas of need, and offer accommodations and services to meet those goals.
Participants included Davis, the school psychologist; Cantwell, Student's special education teacher, McCoy, the clinical supervisor for the non-public agency contracted by Long Beach to implement Student's behavior services, Melissa Wolney, a behavior intervention supervisor from Long Beach, Lisa Kibler-Chie, the speech and language pathologist, Gail Hookailo, a general education teacher, and Pamela Davis, a Long Beach administrator, and Parent.
After reviewing Student's assessments, present levels of performance, and input from Parent, the IEP team developed goals for Student. In behavior, McCoy recommended Student carry over three of his behavior goals from the previous school year in coping skills, non-compliance, and denied access. McCoy also recommended Student have a new goal in peer interaction. Parent's concerns regarding managing Student's behavior were heard. McCoy confirmed Student's one-to-one aide would receive additional training to better support Student.
Student was offered goals in communication, including a functional communication goal, a temporal concept goal to address his need in following two-step complex directions, and a feelings goal.
Student was also offered a math goal to address his addition and subtraction needs and support in writing numbers.
READING, VISUAL MOTOR INTEGRATION, AND LANGUAGE ARTS GOALS
Student was not offered a reading and language arts goal despite his iReady scores from the 2021-2022 and 2022-2023 school years and his Woodcock-Johnson reading scores demonstrating he had a need in reading comprehension and reading decoding. Long Beach should have offered a goal in these areas.
Student provided no evidence that Student had any needs in visual motor integration. Student instead alleged Long Beach infringed upon Parental participation, an allegation not pled.
Student proved Long Beach denied him a FAPE for failing to offer him a reading and language arts goal. Student failed to meet his burden that Student had any needs in visual motor integration.
BEHAVIOR, SPEECH, AND MATH GOALS
Student's September 27, 2022, IEP offered four behavior goals. One goal for compliance, coping skills, tolerate denied access, and peer relations. Student's compliance goal required him to comply with the request with no more than verbal prompt at least 80 percent of the time over a two-week period.
Student's coping skills goal required him to utilize coping strategies such as taking a break or breathing without maladaptive behaviors and no more than one verbal prompt in at least 80 percent of the opportunities over a two-week sample. His baseline as it related to his goal was 42 percent of opportunities.
Student's peer relations goal required him to engage in reciprocal play starting at up to five minutes in December 2022 and increasing to ten minutes by June 2023 with peers requiring no more than two verbal prompts in 80 percent of opportunities over a two-week period.
Student's tolerate denied access goal required him to tolerate denied access from preferred activities without maladaptive behaviors in 80 percent of opportunities over a two-week period. Student's functional communication goal required Student to independently utilize functional communication skills to get his needs met, such as raise his hand, ask for help, say excuse me in 80 percent of the time over a two-week time sample. His baseline related to 42 percent of opportunities.
Student had two speech and language goals tied to his need in following complex instructions and matching facial expressions with verbal messages. Student's directions and temporal concepts goal required him to follow two-step complex directions correctly at least 70 percent of the time with moderate cues. Student's feelings goal required him to label basic emotions and feelings with communication partners at least 80 percent of the time across three sessions.
Student's math goal was tied to his need to add and subtract with numbers up to 100. Student's goal called for Student to correctly solve the problems with 80 percent accuracy over two-to-three problem sets.
Each goal had a baseline, short-term objectives, was measurable, identified school staff responsible for ensuring Student met the goal, and correlated to an area of identified need for Student.
Student failed to meet his burden that Long Beach failed to offer appropriate IEP goals in the areas of behavior, speech, and math for the 2022-2023 school year. Student provided no evidence to support his claims that his goals in the September 27, 2022, IEP were not appropriate.
ISSUE 2(D) DID LONG BEACH DENY STUDENT A FAPE DURING THE 2022- 2023 SCHOOL YEAR BY: FAILING TO OFFER APPROPRIATE SERVICES TO MEET STUDENT'S NEEDS, SPECIFICALLY ASSISTIVE TECHNOLOGY, COUNSELING, OCCUPATIONAL THERAPY, AND EXTENDED SCHOOL YEAR SERVICES?
Student alleges Long Beach denied him a FAPE during the 2022-2023 school year by failing to offer appropriate services in assistive technology, counseling, occupational therapy, and extended school year services. As established above, Student has failed to demonstrate he had any assistive technology and occupational therapy needs that would require Long Beach to offer services in these areas. Thus, Student failed to prove that Long Beach should have offered services in these areas.
COUNSELING SERVICES
Student alleges he required counseling services to receive a FAPE during the 2022-2023 school year. Related services may include counseling and behavior services when appropriate. (20 U.S.C. § 1401(26); 34 C.F.R. § 300.34 (2006); Ed. Code, § 56363, subd. (a).)
School psychologist Davis recommended Student receive educationally related mental health services during the September 27, 2022, IEP team meeting. Davis made this recommendation based on his findings of the psychoeducational assessment he conducted on Student. The mental health services would address Student's aggression and social skills limitations. Despite the recommendation of the IEP team, Parent declined the referral for counseling services. Student failed to meet his burden to demonstrate that Student needed counseling at the September 27, 2022, IEP meeting.
On February 1, 2023, Student made a statement of self-harm. School counselor Elise Davis, again, recommended counseling for Student. Davis specifically noted concerning changes in Student's behavior. Moreover, Student's statement of self-harm put Long Beach on notice that Student had mental health related needs in February 2023. From that point forward, Long Beach was on notice Student had mental health needs and counseling would allow him to access his education. Long Beach could no longer pass the responsibility off on Parent's declination of the service. Long Beach had an obligation to provide Student counseling services once it was demonstrated he had a need. Student's statement of suicidal ideation, the continued recommendation of counseling services, triggered an obligation on Long Beach's part to offer counseling services as part of its FAPE obligation.
Student further alleges Long Beach remained obligated to offer counseling services for Student or file for due process. Student's argument that Long Beach should have filed for due process is not an issue in this matter and will not be decided in this decision.
Long Beach contends it offered Student counseling services. This argument is unpersuasive. Numerous witnesses testified to the proposition that counseling services were recommended for Student at the September 27, 2022, IEP team meeting. This is not in dispute. However, the IEP document Long Beach provided Parent for review and consent did not include any mention of counseling services, the type of counseling services Student would receive, the duration, or format (24 CFR § 300.20 (a) 2018.). Long Beach cannot claim Parent declined a service that was not properly offered.
Student met his burden that Long Beach denied Student a FAPE during the 2022 – 2023 school year from February 1, 2023, until June 16, 2023.
EXTENDED SCHOOL YEAR SERVICES
Student further alleges Student required extended school year services to receive a FAPE. A local educational agency must provide extended school year services when a child's IEP team determines that the services are necessary for the provision of a FAPE to the child. (34 C.F.R. § 300.106(a)(2) (2006).) Extended school year services are special education and related services that are provided to a child with a disability beyond the normal school year of the public agency, in accordance with the child's IEP, at no cost to the parent of the child, and that meet the standards of the state educational agency. (34 C.F.R. § 300.106(b). (2006)).
The California Code of Regulations states that extended school year services must be provided, in accordance with 34 Code of Federal Regulations part 300.106:
• for each individual with exceptional needs who has disabilities which are likely to continue indefinitely or for a prolonged period;
• and interruption of the child's educational programming may cause regression;
• when coupled with limited recoupment capacity; and
• rendering it impossible or unlikely that the child will attain the level of self sufficiency and independence that would otherwise be expected in view of his or her disabling condition.
(Cal. Code Regs, tit. 5, § 3043; see also 34 C.F.R. § 300.106 (2006); Ed Code, § 56345, subd. (b)(3).)
The September 27, 2022, IEP did not offer Student extended school year services. Student did not meet his burden to demonstrate Student was likely to suffer from regression or the progress made during the school year was in jeopardy of being lost and thus required extended school year services to access his education. Student presented no evidence that he had previously suffered regression without recoupment of learned skills. Thus, Student failed to demonstrate that Long Beach should have offered extended school year services to Student.
ISSUE 2(E): FAILING TO IMPLEMENT STUDENT'S SEPTEMBER 27, 2022, IEP, SPECIFICALLY, BEHAVIOR SERVICES
Student alleges Long Beach failed to materially implement Student's September 27, 2022, IEP for behavior services. The evidence demonstrates Long Beach implemented Student's behavior services consistently through March 9, 2023, when Student stopped attending school. Staff logs, observation reports, and session summaries all support McCoy's testimony that Student's behavior services were implemented.
Parent requested a new behavior non-public agency in February 2023. On March 3, 2023, Student's finger was injured during a behavioral emergency where Student tried to bite, scratch, and throw items at others. Around March 9, 2023, Autism Spectrum Interventions refused to continue providing services to Student. Parent ceased sending Student to school on March 13, 2023. Thereafter, attendance records demonstrate and Clarissa Tolentino, Bryant Elementary School's principal, testified to Student did not return to school for the remainder of the school year.
Despite Autism Spectrum Interventions no longer being willing to perform on its contract, Melisa Wolney, the behavior supervisor for the Bryant campus, investigated other agency options to implement Student's behavior services. She located a new agency able to serve Student and his needs. Wolney testified had Student returned to school Long Beach would have been able to implement his behavior services with a new agency.
Long Beach was unable to implement Student's behavior services from March 13, 2023, through the remainder of the school year due to Student's absences. Student failed to meet his burden Long Beach denied him a FAPE during the 2022 – 2023 school year for failing to implement his behavior services.
ISSUE 2(F) (G) AND (H): DID LONG BEACH DENY STUDENT A FAPE DURING THE 2022-2023 SCHOOL YEAR BY: FAILING TO CONVENE AN IEP TEAM MEETING FOLLOWING LONG BEACH'S ISSUANCE OF BEHAVIOR EMERGENCY REPORTS IN FEBRUARY AND MARCH 2023; FAILING TO RESPOND TO PARENT'S SAFETY CONCERNS AND REQUESTS FOR A CHANGE OF PLACEMENT FROM MARCH THROUGH MAY 2023; AND FAILING TO CONVENE AN IEP TEAM MEETING IN RESPONSE TO PARENT'S MAY 2023 REQUEST?
ISSUE 2(F): FAILING TO CONVENE AN IEP TEAM MEETING FOLLOWING LONG BEACH'S ISSUANCE OF BEHAVIOR EMERGENCY REPORTS IN FEBRUARY AND MARCH 2023
Student alleges Long Beach was obligated to convene an IEP team meeting following the issuance of behavior emergency reports in February and March 2023. Long Beach contends it did convene an IEP team meeting within 11 school days to accommodate Parent's travel schedule.
Student's IEP provided for a behavior intervention plan. When a behavior emergency report is written for a student with an IEP who has a behavior intervention plan, the reports are referred to the IEP team. (Ed. Code 56251.1(h)).
Student's first behavioral emergency report was issued on February 21, 2023, for pinching his aide, biting the nurse, and scratching at other classroom personnel. A second behavioral emergency report was issued on February 23, 2023, for similar behavior. A third behavioral emergency report was issued on February 27, 2023, again, for biting, kicking, and pinching. On March 1, 2023, Long Beach scheduled an IEP team meeting and provided notice to Parent to discuss these incidents and potentially revise Student's IEP. Notice was provided to Parent.
From March 1, 2023, until the March 8, 2023, IEP team meeting, Student had three more behavior emergency reports issued for aggressive behaviors such as biting, pinching, and hitting. Long Beach convened an IEP team meeting on March 8, 2023. Student did not establish that Long Beach had a legal obligation to convene an IEP team meeting following each behavior incident report. Additionally, the evidence established that Long Beach did schedule and convene an IEP team meeting within two weeks of Student's escalating behavior issues. Accordingly, Student did not meet his burden on this contention.
ISSUE 2(G) FAILING TO RESPOND TO PARENT'S SAFETY CONCERNS AND REQUESTS FOR A CHANGE OF PLACEMENT FROM MARCH THROUGH MAY 2023
Student's closing brief was silent to the allegations that Long Beach failed to respond to Parent's safety concern and change of placement request. Moreover, the evidence at hearing did not establish this alleged violation.
Parent contacted numerous Long Beach personnel including Luana Milburn Wesley, the director of the Office of School Support Services. Parent called the Special Education office on March 14, 2023, to request a school site change. Parent then initiated a change of placement for Student through Long Beach's School of Choice program on April 4, 2023. Tonika Goodall, a special education administrator, responded on behalf of Long Beach via Prior Written Notice on April 17, 2023, denying Parent's March 14, 2023, verbal request to change placements and advising Parent she would need to initiate a request through the School of Choice program.
Goodall testified she contacted Parent regarding two open spots at Mann Elementary School. Goodall understood Parent's desire to move Student was related to her concern of his safety. Parent told Goodall she wanted to arrange a site visit of Mann. Parent never followed up with Goodall and on May 3, 2023, Goodall issued a Prior Written Notice denying the transfer of schools. On May 3, 2023, Goodall issued a second Prior Written Notice to Parent regarding Student's disenrollment in school. The evidence established that Long Beach did respond to Parents request for a change of placement due to safety concerns. Accordingly, Student failed to meet his burden on this contention.
ISSUE 2(G): FAILING TO CONVENE AN IEP TEAM MEETING IN RESPONSE TO PARENT'S MAY 2023 REQUEST?
Student provided no evidence that Parent requested an IEP team meeting in May 2023. The evidence also demonstrated that Parent had frequently communicated with Long Beach personnel in writing and orally.
Additionally, Student's closing brief was silent to the allegations that Long Beach failed to convene an IEP team meeting in response to Parent's May 2023 request. Student failed to meet his burden on this issue.
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): Long Beach denied Student a FAPE by failing to offer IEP goals in all areas of need, specifically, reading, language arts, and math. Student prevailed on Issue 1(a).
Issue 1(b): Long Beach did not deny Student a FAPE by failing to offer appropriate IEP goals to meet Student's needs, specifically, behavior and communication. Long Beach prevailed on Issue 1(b).
Issue 1(c): Long Beach did not deny Student a FAPE by failing to offer appropriate services to meet Student's needs, specifically, mainstreaming, social skills, sensory, behavior, and communication. Long Beach prevailed on Issue 1(c).
Issue 1(d): Long Beach did not deny Student a FAPE by failing to include the general education teacher as part of the September 28, 2021, IEP team. Long Beach prevailed on Issue 1(d).
Issue 1(e): Long Beach denied Student a FAPE by failing to implement Student's September 28, 2021, IEP, specifically one-to-one behavior support for 29 school days. Student prevailed on Issue 1(e).
Issue 2(a): Long Beach did not deny Student a FAPE for failing to assess in all areas of suspected disability; specifically, specific learning disability, occupational therapy, and assistive technology. Long Beach prevailed on Issue 2(a).
Issue 2(b): Long Beach denied Student a FAPE by failing to offer goals in all areas of need, specifically, reading and language arts. Student prevailed on Issue 2(b).
Issue 2(c): Long Beach did not deny Student a FAPE by failing to offer appropriate IEP goals to address Student's needs, specifically, math, speech and language, and behavior. Long Beach prevailed on Issue 2(c).
Issue 2(d): Long Beach did not deny Student a FAPE by failing to offer services to meet Student's needs specifically, assistive technology, occupational therapy, and extended school year services. Student did prove Long Beach denied Student a FAPE by failing to offer counseling services from February 1, 2023, through June 16, 2023. Long Beach prevailed on Issue 2 (d) as to assistive technology, occupational therapy, and extended school year services. Student prevailed on Issue 2(d) as to counseling.
Issue 2(f): Long Beach did not deny Student a FAPE by failing to convene an IEP team meeting following Long Beach's issuance of behavior emergency reports in February and March 2023. Long Beach prevailed on Issue 2(f).
Issue 2(g): Long Beach did not deny Student a FAPE by failing to respond to Parent's safety concerns and requests for a change of placement from March through May 2023. Long Beach prevailed on Issue 2(g).
Issue 2:(h): Long Beach did not deny Student a FAPE by failing to convene an IEP team meeting in response to Parent's May 2023 request. Long Beach prevailed on Issue 2(h).
REMEDIES
Administrative Law Judges have broad latitude to fashion appropriate equitable remedies for the denial of a FAPE. (School Comm. of Burlington v. Dept. of Educ. (1985) 471 U.S. 359, 370 [105 S. Ct. 1996, 85 L. Ed. 2d 385 (Burlington)]; Parents of Student W. v. Puyallup School Dist., No. 3 (9th Cir. 1994) 31 F.3d 1489, 1496 (Puyallap.) In remedying a FAPE denial, the student is entitled to relief that is “appropriate” in light of the purposes of the IDEA, specifically providing Student with a FAPE which emphasizes special education and related services to meet Student's unique needs. (20 U.S.C. § 1415(i)(2)(C)(iii); 34 C.F.R. § 300.516(c)(3) (2006); Burlington, supra, 471 U.S. 359, 374.
School districts may be ordered to provide compensatory education or additional services to a student who has been denied a FAPE. (Puyallup, supra, 31 F.3d at pg. 1496.) The authority to order such relief extends to hearing officers. (Forest Grove School Dist. v. T.A. (2009) 557 U.S. 230, 243-244, fn. 11 [129 S.Ct. 2484].) These are equitable remedies that courts and hearing officers may employ to craft “appropriate relief” for a party. (Puyallup School supra, 31 F.3d at pg. 1496.) An award of compensatory education need not provide “day-for-day compensation.” (Id. at p.1497.) An award to compensate for past violations must rely on an individualized assessment, just as an IEP focuses on the individual student's needs. (Reid v. Dist. of Columbia (D.C. Cir. 2005) 401 F.3d 516, 524.) The award must be fact specific. (Ibid.)
The evidence established Long Beach failed to offer Student a reading and language arts goal for the 2021-2022 and 2022-2023 school year. Student further established Long Beach failed to offer Student goals in math during the 2021-2022 school year. The evidence further established Long Beach failed to implement Student's one-to-one behavior services for 29 school days from November 9, 2021-December 14, 2021, and March 21, 2022, through April 6, 2022. Student also established Long Beach failed to offer him counseling services from February 1, 2023, through June 16, 2023.
Student requested compensatory education, independent educational evaluations in psychoeducation, behavior, speech and language, and assistive technology assessments, and, for Long Beach to fund enrollment at UCLA's Certified Peers Social Skills Group.
Student did not prove that Long Beach failed to assess him in any areas. Accordingly, independent educational evaluations are not an appropriate remedy for any FAPE denials found. Further, Student provided no evidence regarding the type, amount, duration, or need for enrollment in the UCLA Certified Peers Social Skills Group. These requests are denied.
The undersigned carefully considered the particular FAPE denials and different options to redress them. Regarding the lack of appropriate academic goals, Student is awarded 20 hours of individual academic tutoring in the areas of reading, math, and language arts to compensate for Long Beach's failure to offer goals in reading, math, and language arts during the 2021-2022 school year, and the failure to offer a reading and language arts goal during the 2022-2023 school year.
As to the one-to-one aide, Student failed to present evidence on how Student could be compensated for the lack of receiving a one-to-one aide service for 29 school days during the 2021-2022 school year. At the time of hearing, Student was no longer enrolled at Long Beach. Student's aide was intended to provide him behavior support throughout the day and in the general education classroom. These are not services that can be provided outside the school setting such as his academic services. Additional services to remediate this gap cannot be appropriately addressed outside of the school day. To address this unique situation, Long Beach will be ordered to complete a two hour training regarding IEP implementation and the legal obligation to ensure compliance even when contractors are unavailable or change. At a minimum, Long Beach's director of special education, the behavior intervention supervisor assigned to Bryant Elementary, the school site administrators including the principal and any potential designee, must attend.
As to the counseling services, Student is awarded 15 hours of individual counseling services to address Student's anxiety and depressive symptoms, aggressiveness, and expression of self-harm. Any licensed counselor or mental health provider of Parent's choosing may provide the service.
ORDER
1. Long Beach must fund 20 hours of individual academic tutoring from a certified non-public agency of Parent's choice. Long Beach must establish direct payment to any certified non-public agency selected by Parent. The hours will be available until December 31, 2024, and will thereafter be forfeited.
2. No later than March 1, 2024, Long Beach will require all members of Student's IEP team to participate in two hours of training led by a qualified professional or professional group selected by Long Beach, but not employed by Long Beach to address IEP implementation and the legal obligation to ensure compliance even when contractors are unavailable or change.
3. Long Beach must fund 15 hours of individual counseling services to Student. Parent may request Long Beach contract directly for services of the mental health provider of Parent's choosing. In the event a contract cannot be executed within 45 days of selection, Parent may begin services and submit receipts for reimbursement. Long Beach is to pay within 30 days of submission. The hours will be available until December 31, 2024, and will thereafter be forfeited.
4. All other requests for relief are denied.
RIGHT TO APPEAL THIS DECISION
This is a final administrative decision, and all parties are bound by it. Under Education Code section 56505, subdivision (k), any party may appeal this Decision to a court of competent jurisdiction within 90 days of receipt.
Tiffany Gilmartin
Administrative Law Judge
Office of Administrative Hearings