EXPEDITED DECISION
NOVEMBER 8, 2023
On October 2, 2023, Murietta Valley United School District, called Murrieta, filed a due process hearing request with the Office of Administrative Hearings, called OAH, naming Student. The due process hearing request included both expedited and non expedited claims.
Administrative Law Judge Deborah Myers-Cregar heard the expedited matter via videoconference on October 24, 25 and 26, 2023. The non-expedited matter is set to begin on December 19, 2023.
Attorney Cynthia Vargas represented Murrieta. Dr. Zhanna Preston, director of special education at Murrieta, and Denise Estevez, assistant director of special education at Murrieta attended all hearing days on Murrieta's behalf. Dr. Steve Gooch, assistant director of special education at Murrieta, attended the hearing on October 25, 2023, on Murrieta's behalf. Parent and Student did not appear for the hearing. OAH sent Parent Orders and Zoom invitation links to each day of the expedited hearing. On the first day of hearing, OAH waited an extra hour to allow Parent to join the hearing. Attorney Vargas called Parent and left a message to join the hearing. However, Parent did not join the hearing.
On October 26, 2023, Murrieta completed its case and made an oral closing argument on the record. On October 26, 2023, the expedited record was closed, and the expedited matter was submitted for Decision.
ISSUES
At the start of the hearing, the ALJ clarified issues based upon the prehearing conference order and Student's current interim alternative education placement. The remaining issues have been rephrased and reorganized for clarity. The ALJ has authority to redefine a party's issues, so long as no substantive changes are made. (J.W. v. Fresno Unified School Dist. (9th Cir. 2010) 626 F.3d 431, 442-443.)
1. Will maintaining Student's placement at his current Murrieta Valley High School special day class be substantially likely to result in injury to Student or others?
2. Is Murrieta's proposed placement in the Learn At Home virtual learning independent study program an appropriate 45-day interim alternative educational setting, up through the pendency of the expedited and non expedited due process hearings?
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 free appropriate public education, referred to as 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).) Here, Murrieta filed the expedited complaint and bore the burden of proof. The factual statements in this Decision constitute the written findings of fact required by the IDEA and state law. (20 U.S.C. § 1415(h)(4); Ed. Code, § 56505, subd. (e)(5).)
Student was 15 years old and in 10th grade during the hearing. Student resided within Murrieta's geographic boundaries at all relevant times. Student entered his current Murrieta Valley High School special day class in ninth grade during the 2022- 2023 school year. Murrieta Valley High School is a large comprehensive public school within Murrieta, serving ninth through 12th grade children.
Student was first eligible for special education services in 2011 under the primary category of intellectual disability and the secondary category of other health impairment. Student academically performs in the second to third grade level. Student developed post-traumatic stress disorder related to a school shooting. On April 10, 2017, Student was exposed to school violence at San Bernardino City Schools Unified School District in his classroom, when his teacher's husband shot and killed her, himself, and a classmate.
ISSUE 1: WILL MAINTAINING STUDENT'S PLACEMENT AT HIS CURRENT MURRIETA VALLEY HIGH SCHOOL SPECIAL DAY CLASS BE SUBSTANTIALLY LIKELY TO RESULT IN INJURY TO STUDENT OR OTHERS?
Murrieta contends Student's behaviors have escalated and now Student poses a danger to himself and others at Murrieta Valley High School. Murrieta argues, despite its increase in services and supports, Student's behavior has resulted in multiple aggressive physical attacks to staff and students, with escalations in repeated harm to others. Murrieta asserts that maintaining Student's placement at Murrieta Valley High School is substantially likely to result in continued injury to Student or others.
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 individualized education program, referred to as 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].)
Title 20 United States Code section 1415(k) and title 34 Code of Federal Regulations, part 300.530, et seq., govern the discipline of special education students. (Ed. Code, § 48915.5.) A student receiving special education services may be suspended or expelled from school as provided by federal law. (20 U.S.C. § 1412(a)(1)(A); Ed. Code, § 48915.5, subd. (a).) If a special education student violates a code of student conduct, school personnel may remove the student from his or her educational placement without providing services for a period not to exceed 10 days per school year, provided typical children are not provided services during disciplinary removal. (20 U.S.C. § 1415(k)(1)(B); 34 C.F.R. § 300.530(b)(1) & (d)(3).) For disciplinary changes in placement greater than 10 consecutive school days (or that are a pattern that amounts to a change in placement), the disciplinary measures applicable to students without disabilities may be applied to special education students if the conduct resulting in discipline is determined not to have been a manifestation of the special education student's disability. (20 U.S.C. § 1415(k)(C); 34 C.F.R. § 300.530(c) & 300.536(a)(1)(2).)
The law also provides that school personnel may remove a student to an interim alternative educational setting for not more than 45 school days, regardless of whether the student's behavior is determined to be a manifestation of the student's disability, under special circumstances. (20 U.S.C. § 1415(k)(1)(G); 34 C.F.R. § 300.530(g).) The IEP team determines the interim alternative educational setting. (20 U.S.C. § 1415(k)(2); 34 C.F.R. § 300.531.)
A school district may request a due process hearing to authorize a change of placement if the district “believes that maintaining the current placement of the child is substantially likely to result in injury to the child or to others.” (20 U.S.C. § 1415(k)(3)(A); 34 C.F.R. § 300.532(a).) An interim alternative educational setting placement request requires an expedited hearing that must be conducted within 20 school days of the date an expedited due process hearing request is filed and a decision must be rendered within 10 school days after the hearing ends. (20 U.S.C. § 1415(k)(4)(B); 34 C.F.R. § 300.532(c)(2).)
Murrieta proved that Student's continued placement at Murrieta Valley High School is substantially likely to result in injury to Student and others. Student's IEPs, manifestation determination documents, and behavior assessments show his history of escalated physical aggression and injury to school staff, other students, and school property. The credible testimony of Murrieta's witnesses who participated as assessors, IEP team members, and/or teachers corroborated Student's behavioral history and agreed Student remaining at Murrieta Valley High School was substantially likely to result in injury to Student and others.
2022-2023 SCHOOL YEAR – NINTH GRADE
Student started ninth grade at Murrieta Valley High School. Student performed well below grade level at the second to third grade levels. Student's October 20, 2022, and December 9, 2022, IEP placed him in the moderate to severe special day class 80 percent of his school day. Student received 300 minutes daily of specialized academic instruction for his core academics. Student participated in general education for physical education and electives. He received 30 sessions of 20-minute group speech and language service, focused on expression and social engagement.
The October 20, 2022, and December 9, 2022, IEP teams noted Student had some mild behaviors for adult attention and to escape the classroom and campus. Student wanted to escape from campus, but staff coached and redirected him back to his school schedule. Parent discussed her concern about Student escaping his classroom and requested a one-to-one aide to help with his behavior and refusal to work. The IEP did not offer a one-to-one aide at that time. Parent agreed to the IEP.
Jason Cantu, Student's special day class teacher for ninth and tenth grades, observed Student had a relatively normal transition from a middle school into a large high school. Student performed well academically and made progress on his goals and his classroom performance. At the beginning of ninth grade, Student still expressed himself verbally.
During late October and early November 2022, Cantu noticed Student stopped talking with staff. Instead of speaking verbally, Student used pencils and paper to communicate. He would not speak unless he was behaviorally escalated. He would not socially engage with others and preferred to be by himself. Student perseverated on a particular behavior repeatedly as part of his obsessive-compulsive disorder.
Beginning January 2023, Student became more verbally and physically aggressive. He slapped two staff members and pulled an aide's hair. He resisted getting off and on the bus. Student's behavior affected the learning environment for himself and others. Cantu noted between October 2022 and April 2023, Student took medication to help with his obsessive-compulsive behaviors.
By March 2023, Cantu reported Student needed to control his classroom and escape the classroom anywhere between twice a month and twice a day, for five minutes to four hours each episode. For example, Student arranged desks in a particular angled format. Student demanded control over his entire classroom environment and over staff behavior. Student demanded teachers, aides, and other students not talk or use technology around him throughout the entire school day. Student hit, kicked, slapped, and spit at classroom staff, teachers, and other students, sometimes leaving bruises. Student repeatedly tried to escape from his classroom and leave campus by climbing over the school fence. Student did not complete any academic task and refuses all classroom instruction. Student would refuse to get on the bus at home, and off the bus at school, for up to four hours.
The IEP team met on February 22, 2023, to address Student's recently escalated behavior returning from winter break. The IEP team added a positive behavioral intervention plan with behavior goals to replace the undesired behavior. To address him leaving the classroom and campus, staff would block the exit, not allow him to go outside, and prompt Student to switch to the desired behavior. To address his repetitive behaviors, staff would allow him to complete the behavior in a separate room. To address his controlling behavior, staff would encourage Student to use his manners and accept the denial of control. To address his physical and verbal aggression, staff would call campus security, the school psychologist, mental health therapists, and allow him to use a safe area. Staff would redirect him, encourage him to use coping strategies, and remind him he cannot control the staff and their job duties. Parent signed an assessment plan to examine his social adaptive behavioral and emotional areas, and his need for a one-to-one aide.
• On January 12, 2022, Student ran out from his classroom three times.
• On March 24, 2022, Student was aggressive toward another Student and ran out of class.
• On May 12, 2022, Student was agitated at another Student taking his paper.
• On November 14, 2022, Student snuck off the bus and off campus.
• On February 2, 2023, Student was dropped off at school by his parents and he hopped over the fence to the school parking lot.
• On February 9, 2023, Student jumped the fence and ran past two busy streets to the baseball field.
• On February 22, 2023, Student jumped over the school fence and ran to a nearby fast-food restaurant.
• On February 28, 2023, Student ran off the bus and tried to run on to the street.
On March 2, 2023, Amanda Olley, Murrieta's school psychologist, conducted and prepared a functional behavior assessment. Olley reviewed Student's records, assessment results, and notes from parent and teacher interviews. Olley observed Student three times over 10 days for 30-minute classroom sessions. She observed him on February 16, 28, and March 3, 2023. Student was off task between 15 to 24 times during those 30-minutes sessions.
Olley noted Student's frequency, duration, and intensity of behaviors increased. Student wanted attention, control, and escape. Cantu described how Student refused all requests the staff made, all day for six hours. Student's behavior affected his academic progress and work completion.
Olley reviewed Student's health history and learned Student developed post traumatic stress disorder related to a school shooting. On April 10, 2017, Student was exposed to school violence at San Bernardino City Schools Unified School District in his classroom, when his teacher's husband shot and killed her, himself, and a classmate. Student was at an undisclosed location on campus and was not shot or physically injured. There was no further evidence whether he was present in the classroom during or after the event and how he was directly and indirectly exposed to the gun violence and its aftermath.
Olley attended the April 27, 2023, IEP team meeting and reviewed the functional behavior assessment and the related services instructional aide assessment. The functional behavior assessment did not change the behavior goals but added behavior support. Staff would front load Student with expectations of his behavior and use a timer to transition him into the classroom. Staff would front load changes in his schedule and environment. A daily schedule would outline his school tasks, transitions, and built-in breaks. Staff would use behavior momentum and introduce tasks he mastered previously before moving on to new and more difficult skills. Staff would provide access to preferred activities when Student followed instructions and was compliant. Staff would provide choices for activities and locations where Student could transition. Student would have different options for communicating such as a notebook. Staff would limit Student's obsessive-compulsive ritual and need to touch others.
The April 27, 2023, IEP team added 10 hours of behavior intervention support through the end of the 2022-2023 school year. It also added 180 minutes per year of mental health consultation services with a social worker providing support. The IEP team did not offer one-to-one aide support.
However, between April 27 and May 30, 2023, Murrieta added two one-to-one aides to support Student. Despite the added services and supports at school, and the continued medication at home, Student's behaviors continued to escalate. By the May 30, 2023, IEP team meeting, Murrieta determined the two one-to-one aides could not extinguish his behavior. Student was triggered by school staff and also targeted school staff. Cantu and other IEP team members discussed how over the last seven months, Student had engaged in daily aggression like hitting, kicking, biting, scratching, spitting, destroying property like laptops, and escaping from the classroom. Over the last few months, Student had no academic instruction because his behaviors began the moment he came into school and continued the entire school day.
The May 30, 2023, IEP team noted this significant increase in behaviors at school, even with the two one-to-one aides. The IEP team discussed it was no longer safe for school staff or Student to have him stay on campus. The IEP team discussed several options including the Learn At Home virtual learning program with an in person one-to one aide, a non-public school like Oak Grove, or a home hospital instruction program. Parent reported she could not remain at home for those programs but would consider it.
The IEP team and Parent agreed Student would not return to school during the last four minimum days of the school year. They agreed to hold an IEP team meeting the first week of the 2023-2024 school year.
2023-2024 SCHOOL YEAR THROUGH SEPTEMBER 11, 2023–10TH GRADE
August 9, 2023, was the first day of the school year. Student's August 9, 2023, IEP amendment added a non-public agency aide to provide the intensive individual services for two months. The IEP team agreed to meet in two months to review the effectiveness of this one-to-one aide support.
However, the August 31, 2023, IEP team met only three weeks later and discussed Student's recently escalated behaviors. Murrieta offered Oak Grove non-public school because Student did not meet any prior academic or behavior goals because his behavior impeded his access to the curriculum. Student did not complete any work and did not allow anyone in the classroom to work with him. Student tried to elope at least once per school day. Student had 65 instances of physical aggression, averaging seven episodes per day. In addition to hitting and kicking, Student tried to bite staff, and threw metal water bottles at staff and students. Student harmed another student three times. Student appeared to calculate his attacks. He targeted hitting and kicking the same area of the body repeatedly. When Student could not attack staff, he attempted to destroy the classroom. Student's racial slurs, profanity, and verbal aggression to staff also increased.
Between August 9, and September 6, 2023, Student had at least five behavioral incidents, almost one incident for each school day he attended. He was suspended for more days than he attended.
• On August 14, 2023, Student hit, kicked, and spat at several aides. He punched two students.
• On August 15, 2023, Student got off the bus and punched the bus driver. Student punched, kicked, and spat on two staff members, ran from the classroom, and ran into several classrooms looking for another aide he was targeting. Murrieta suspended Student for four days.
• On August 22, 2023, Student punched, kicked, and spat on his non-public agency aide. He was verbally and physically aggressive, swore profanities, and made threats toward staff. Student received a warning.
• On August 23, 2023, Student videotaped himself as he physically assaulted his non-public agency aide. He attempted to attack other staff members. Student threatened staff with racial slurs and profanity. Student videotaped himself as he expressed he wanted his aide to be dead and wanted to punch her in the face multiple times. Murrieta suspended Student for five days.
• On September 6, 2023, Student hit and kicked his bus driver. Student refused to get off the bus. Cantu walked Student off the bus by holding his hands. Student hit and kicked the hallway walls. They walked to a quiet room. Student remained escalated and tried to run into his regular classroom to target two aides. Cantu blocked his way and Student hit and kicked the doorway. Student hit and kicked Cantu's leg and sciatic nerve repeatedly, causing painful electrical sensations as Cantu collapsed and fell down. Student intensified kicking Cantu while he was on the floor. Student had to be restrained by campus security and campus police who removed him from the classroom. Student caused Cantu serious physical injury requiring hospitalization. Murrieta implemented a five-day suspension pending expulsion.
Student's behavior was so severe that Murrieta held a manifestation determination meeting on September 11, 2023. The manifestation determination team found the behavior was a result of Student's disability, and not a result of Murrieta's failure to implement his IEP. Murrieta removed Student from his high school special day class placement. At the September 11, 2023, IEP and manifestation determination meeting, Murrieta offered Student a 45-day placement at Oak Grove non-public school with the same related services he received at Murrieta Valley High School. Parent declined the offer of Oak Grove non-public school. Parent was concerned about how the Oak Grove program would expose Student to other students' behaviors, how Oak Grove staff would handle his escaping behavior, and how Oak Grove staff might restrain Student.
Murrieta established Student is substantially likely to injure staff and students if he were to return to Murrieta Valley High School. Murrieta's witness testimony was corroborated by the IEP documents, behavior incident reports, and functional behavior assessment. Murrieta proved that Student's continued placement at Murrieta Valley High School is substantially likely to result in injury to Student and others.
Olley convincingly opined if Student were returned to school, it would be substantially likely to result in serious injury because of what she observed at school, learned during the functional behavior assessment, and the IEP team meetings. There was no decrease or extinguishment of Student's behaviors. Student's attacks became much more physical, and the impact was more intense. Student was hitting and kicking harder, causing more bruising and injuries to those contacted.
Cantu persuasively opined Student's return to his school would make it 90 to 100 percent likely to result in injury to staff and others. Knowing Student's history and behavior, Cantu believed Student did not want to be at school. Student wanted to be at home. Cantu believed Student's post-traumatic stress disorder and traumatic memories triggered his behavior when he transitioned to and from school. Student sought to manipulate and control Cantu's classroom. Student's behavior escalated when he entered and exited the bus, and in and out of the general education classes. He refused to leave the bus for up to four hours. He hit walls and doorways. At least once, Student fixated on moving all the classroom desks until they lined up in a specific angled formation. Student wanted to control staff behavior in class. He prevented staff from talking, from discussing things he did not understand, and from using all electronic devices such as phones, tablets, computers, and the overhead projector.
Cantu described Student's physical attack on him on September 6, 2023. Student hit and kicked the bus driver and kicked and injured Cantu's lower body and sciatic nerve. Cantu felt electric shocks running up and down his back and leg and collapsed to the floor. Cantu could not walk or get up while Student intensified his kicking. The paramedics took Cantu to the emergency room where he was hospitalized. Cantu required several weeks of physical therapy and still experiences pain.
Morgan Singleton, senior program specialist at Murrieta, had direct experience with Student's physical aggression. Singleton helped Student get off the bus and witnessed Student hit his aide on September 4 or 5, 2023. On September 6, 2023, Singleton was in a separate room with Student and his behavior staff after the attack on Cantu. Student finally calmed down after 45 minutes of video dancing exercises. Singleton attended Student's manifestation determination meeting. Singleton also opined Student would be substantially likely to cause serious physical harm if he were returned to campus, based on his personal experience with Student and the reports of the increased intensity and frequency of his physical aggression.
Based upon the totality of the evidence, Murrieta proved that Student's continued placement at Murrieta Valley High School is substantially likely to result in injury to Student and others.
ISSUE 2: IS MURRIETA'S PROPOSED PLACEMENT IN THE LEARN AT HOME VIRTUAL LEARNING INDEPENDENT STUDY PROGRAM AN APPROPRIATE 45-DAY INTERIM ALTERNATIVE EDUCATION SETTING, UP THROUGH THE PENDENCY OF THE EXPEDITED AND NON-EXPEDITED DUE PROCESS HEARINGS?
Murrieta seeks permission to change Student's placement from his current Murrieta high school to an interim alternative educational setting, extending his current temporary placement for not more than 45 school days without parental consent. It maintains that the appropriate interim alternative educational setting for Student is the Learn At Home virtual learning program.
If the administrative law judge deciding the case determines that maintaining the current placement of the child is substantially likely to result in injury to the child or to others, the administrative law judge may order a change in placement of a child with a disability to an appropriate interim alternative educational setting for not more than 45 school days. (20 U.S.C. § 1415(k)(3)(B)(ii)(II); 34 C.F.R. § 300.532(b)(2)(ii).) The interim alternative educational setting must enable the child to continue to participate in the general education curriculum and to progress toward meeting the goals set out in the child's IEP. (20 U.S.C. § 1415(k)(1)(D)(i); 34 C.F.R. § 300.530(d)(1)(i).) The interim alternative educational setting must also enable the child to receive, as appropriate, a functional behavioral assessment, behavioral intervention services, and modifications that are designed to address the behavior violation so that it does not recur. (34 C.F.R. § 300.530(d)(1)(ii).)
Murrieta requests a temporary change of placement to a more restrictive setting, and the least restrictive environment for Student must be considered. If a school district determines that a child cannot be educated in a general education environment, then the least restrictive environment analysis requires determining whether the child has been mainstreamed to the maximum extent that is appropriate in light of the continuum of program options. The Ninth Circuit has balanced the following factors:
• the educational benefits of placement full-time in a regular class;
• the non-academic benefits of such placement;
• the effect the student has on the teacher and children in the regular class; and
• the costs of mainstreaming the student.
(Sacramento City Unified School Dist. v. Rachel H. (9th Cir. 1994) 14 F.3d 1398, 1404 (Rachel H.) [adopting factors identified in Daniel R.R. v. State Board of Education (5th Cir. 1989) 874 F.2d 1036, 1048-1050 (Daniel R.R.)].)
In evaluating the continuum of placement options, the appropriate placement is based on a student's unique areas of need, present levels of performance, appropriate goals, and a determination of the environment and placement in which the student can make progress on his goals. The statutory preference is for general education, a resource specialist room, then a special day class. A virtual learning program is more restrictive than Student's current special day class placement.
The Learn at Home virtual learning program is a more restrictive setting because of its lack of opportunities for in-person peer socialization and group therapy services. However, the evidence established that Student requires Learn At Home virtual learning program as his least restrictive environment at least on a temporary basis. It is the most appropriate placement because it imbeds Student's academic and behavioral program in the least restrictive setting. Student now focuses on his lessons. Student's disruptive behaviors have extinguished. As discussed further below, Student appears to benefit from this academic setting.
On October 9, 2023, Parent and Murrietta staff entered into an interim settlement agreement that between October 10, and 20, 2023, Student would attend Murrieta's Learn At Home virtual learning independent study program. The program had synchronous live, and asynchronous independent, online instruction, with a one-to-one virtual aide, four hours per day. Parent declined having an in-person aide in the home four hours per day. The program included some small group instruction. Student received his speech and language services virtually 20 minutes per week in a small group. Student also received 30 minutes per week of virtual individual counseling, and 30 minutes per week of virtual small group guidance and counseling.
Parent and Murrieta staff agreed to continue the Learn At Home virtual learning program beyond the settlement agreement terms because Student was making academic progress. Student was actively participating in the Learn At Home virtual learning program during the expedited hearing. The frequency, duration, and intensity of Student's behaviors significantly decreased, during instruction and at home.
Student's history of post-traumatic stress disorder caused by his exposure to a school shooting affected Student's need to control the classroom staff, environment, and technology. On campus, Student became triggered by classroom demands beyond his control. Student was not triggered in the Learn At Home virtual learning program. Student's participation during the Learn At Home on-line program has been very positive.
Several credible Murrieta staff credibly testified that Student's behavior improved with the Learn At Home virtual learning program because it reduced his exposure to triggers in the classroom setting.
Dr. Steve Gooch, assistant director of special education at Murrieta, confirmed Student had no significant behaviors. Student is completing work at home when he did not in the classroom. Dr. Gooch opined the Learn At Home virtual learning program is appropriate as an interim alternative educational setting because so far it is working out well for Student.
As recently as October 24, 2023, Parent told Murrieta she wanted to continue with the program. Dr. Zhanna Preston, director of special education for Murrieta, spoke to Parent who agreed that the Learn at Home virtual learning program could be the right environment for Student. Student attends to and completes his work and is not exposed to additional triggers.
Dr. Preston opined Student had a clear aversion to being in the school setting. Dr. Preston noted Student responded well to the technological part of his program. Student is engaged and learning. Student is adept at using computers, tablets, and electronics to sign into the virtual classroom and social media accounts. The Learn At Home virtual learning program provides the small and focused environment Student requires. The Learn At Home virtual learning program exposes Student to his virtual teacher and one-to one aide. There are no additional adults or physical classroom demands.
Olley, Murrieta's school psychologist, also credibly opined she believed the Learn At Home virtual learning program was appropriate short term because all of Student's services were being provided and he had access to his curriculum. Student was engaging with his teacher and his one-to-one aide. Student would be able to make progress on his IEP goals.
Murrieta's Learn At Home virtual learning program has helped extinguish Student's classroom triggers. According to Parent, his Learn At Home on-line teacher, and Murrieta staff, Student continues to actively participate in his on-line program and has turned in all the work his teacher expected of him. Student has made positive academic progress with his active participation.
Murrieta established the Learn At Home virtual learning program is an appropriate interim alternative educational setting because it enables Student to continue to participate in the special education curriculum and to progress toward meeting his IEP goals in the least restrictive environment. Murrieta's Learn At Home virtual learning program is an appropriate interim alternative educational setting because it enables Student to participate in his academic program without the stress of being on a comprehensive campus.
Murrita may change Student's placement to the Learn At Home virtual learning program as an interim alternative educational setting for not more than an additional 45 school days. (20 U.S.C. § 1415(k)(3)(B)(ii)(II); 34 C.F.R. § 300.532(b)(2)(ii).)
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: Maintaining Student's placement at his current Murrieta Valley High School special day class will be substantially likely to result in injury to Student or others. Murrieta prevailed on Issue 1.
Issue 2: Murrieta's proposed placement in the Learn at Home virtual learning independent study program is an appropriate 45-day interim alternative education setting, up through the pendency of the expedited and non-expedited due process hearings. Murrieta prevailed on Issue 2.
REMEDIES
Student's placement is changed to the Learn At Home interim alternative educational setting for not more than an additional 45 school days. 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.
Deborah Myers-Cregar
Administrative Law Judge
Office of Administrative Hearings