While the California Office of Administrative Hearings issues decisions involving school districts and charter schools throughout the state of California, this case involved a local, San Diego County school district, namely Coronado Unified School District. (To read the full decision, click here).
This case is important for three reasons. First, it highlights the importance of parental cooperation in the IEP process. Second, it clarifies the role comprehensive assessments play in determining IEP eligibility and in developing reasonably calculated IEPs. Third, it shows how evidentiary weaknesses at due process hearing can adversely impact one's case.
In this case, the child's parent raised two issues:
1. Did Coronado deny Student a free appropriate public education, called FAPE, by failing to timely locate, identify, or evaluate Student under its child find obligation, from September 3, 2020, to February 16, 2021?
2. Did Coronado deny Student a FAPE by failing to find Student eligible for special education and related services under the eligibility category of specific learning disability during an October 1, 2020 meeting, held under Section 504 of the Rehabilitation Act of 1973?
Ultimately, the Administrative Law Judge ("ALJ") ruled that the parent failed to prove her case by a preponderance of the evidence on either issue. But the facts leading to the ALJ's decision were interesting, nonetheless.
Here are the relevant factual findings regarding Issue 1:
Student began his senior year on August 22, 2020. On September 3, 2020, Parent sent an email to Student's 504 plan coordinator, asking Coronado to assess Student for special education. Parent requested the assessment because she was concerned Coronado was not adequately implementing the accommodations in Student's 504 plan, and believed Coronado would more diligently provide the accommodations if they were included in an IEP. School staff forwarded Parent's request for assessment to Coronado school psychologist. The school psychologist emailed Parent to arrange a conversation with Parent to discuss Parent's areas of concern, so that she could prepare an assessment plan that would include the appropriate assessments to address those areas.
Parent was unable to schedule time to speak with school psychologist within the 15 days in which Coronado was required to provide Parent a proposed assessment plan. The school psychologist therefore prepared a proposed assessment plan based on available information without Parent's input, and emailed Parent the plan and a copy of IDEA procedural safeguards on September 17, 2020. The proposed assessment plan was in Parent's native language, English, and used language easily understood by the general public. It proposed to assess Student in the areas of academic achievement, health, and intellectual development, and stated no IEP would result from the assessment without Parent's consent.
After sending the proposed assessment plan, the school psychologist made reasonable efforts to obtain Parent's consent to conduct the assessments. The school psychologist and Parent discussed the proposed assessment plan on September 25, 2020. The school psychologist explained the assessment process and the 60-day timeline for completing and reviewing the assessments and determining Student's special education eligibility and needs. Parent said she was reluctant to have Student pulled from his classes for assessments, and did not want to wait 60 days for the assessment results and an IEP team meeting to determine Student's eligibility for special education. Parent said she was obtaining a private assessment of Student that she wanted to have before consenting to Coronado's proposed assessment plan. Parent did not object to the assessments proposed by Coronado, or otherwise suggest that the assessment plan was not appropriate.
On September 29, 2020, Parent sent the school psychologist an email requesting a comprehensive reading assessment to determine Student's present levels of performance. The school psychologist contacted Parent, sent her an electronic copy of Coronado's proposed assessment plan with an option to generate an electronic signature using DocuSign software, and asked Parent to return a signed copy consenting to the proposed assessments. Parent said she did not want to move forward with a comprehensive assessment of Student in all areas, but wanted Coronado to assess only Student's reading. To accommodate Parent, Coronado assessed Student's reading using tests included in Read 180 software, used by Coronado to assess general education students for possible reading interventions. On October 1, 2020, Student's 504 plan team met and reviewed the Read 180 reading assessment results. Neither party offered the test results as evidence at hearing. Student's 504 plan team agreed to administer additional reading assessments – the Woodcock-Johnson Test of Achievement, and the Gray Oral Reading Test.
In early October 2020, the school psychologist emailed Parent to ask if Parent now wanted to proceed with Coronado's proposed assessment plan. Parent replied that she was having trouble using DocuSign to electronically sign the assessment plan, and the school psychologist emailed Parent a new DocuSign link. Parent replied that she was pursuing outside testing, and would let the school psychologist know if Parent decided to proceed with the proposed Coronado assessments.
On October 12, 2020, Coronado provided Parent the results of Student's district-administered Woodcock-Johnson and Gray Oral reading tests, which were not offered as evidence at hearing. On October 22, 2020, Garibay and Parent discussed the test results. The school psychologist again asked Parent for consent to the September 17, 2020 assessment plan, and Parent again declined.
On November 17 and 30, 2020, Student's 504 plan team convened at Parent's request by videoconference to review the reading tests conducted by Coronado, and private reading test results Parent obtained from neuropsychologist Spencer Wetter. Parent testified that she intended to consent to Coronado's proposed assessment plan at one of these meetings, but was prevented from doing so because Coronado muted her videoconference microphone. Coronado denied that any of its personnel muted Parent, but even if this did happen at one meeting, it did not prevent Parent from providing written consent to the assessment before or after that meeting, either electronically by email or DocuSign, or by returning a signed hard copy of the plan to Coronado in person or by regular mail.
Coronado never withdrew the September 17, 2020 proposed assessment plan. Parent never consented to the assessment plan, nor did Student after his 18th birthday.
The ALJ's Decision on Issue 1:
Unsurprisingly the ALJ found that Student did not meet his burden of proof of demonstrating by a preponderance of the evidence that Coronado failed to timely locate, identify, or evaluate Student under its child find obligation because "Coronado provided Parent a timely and appropriate proposed assessment plan, made reasonable efforts to obtain Parent's informed consent to the plan, and never withdrew the proposed assessment plan during the relevant time period."
Parents should cooperate with school districts to the greatest extent possible (within reason of course). In this case, the parent may have been well intentioned and genuinely worried about delaying a final decision regarding eligibility for up to 60 days (e.g., the legal timeline for school districts to assess and hold an Initial IEP meeting). Reading between the lines of the ALJ's factual findings, it seems parent wanted to get to an eligibility determination as quickly as possible and believed she could expedite the process by declining or otherwise limiting District's assessments and obtaining third-party assessments (i.e., independent educational evaluations). Nevertheless, her decision to withhold consent to the assessment plan prevented the school district from conducting its initial assessments. This fact weighed heavily in issue 2.
Here are the relevant factual findings regarding Issue 2:
Student contended Coronado denied Student a FAPE, by failing to find Student eligible for special education under the category of specific learning disability based on the reading assessment scores presented at Student's 504 plan meetings on October 1, 2020, November 17, 2020, and November 30, 2020. Coronado contended the reading assessment scores alone did not satisfy the requirements for a comprehensive initial evaluation of Student, and would not provide enough information for an IEP team to determine Student's eligibility and develop an appropriate education program. Coronado also contends it had already agreed to conduct an initial evaluation of Student's eligibility for special education before the 504 plan meetings were held, and any failure to determine Student's eligibility and provide related services was due to Parent not consenting to the September 17, 2020 proposed assessment plan.
On October 1, 2020, and November 17 and 30, 2020, Student's 504 plan team convened at Parent's request by videoconference to review reading assessments conducted by Coronado, and private reading test results Parent obtained from neuropsychologist Spencer Wetter. Parent provided the team a single sheet of paper form containing four tables summarizing Woodcock-Johnson and Gray Oral reading test scores for Student from testing in March 2018, and on October 8, 2020. The summary included no narrative explaining how the testing was conducted or the significance of the scores. Dr. Wetter did not participate in the 504 plan team meetings.
Parent argued at the 504 plan meetings that Coronado should make Student eligible for special education under the category of specific learning disability based on the reading assessments presented to the 504 plan team. Coronado team members contended the test scores indicated that Student did not have a reading disability but was instead reading at grade level, and also that the reading tests alone would not provide sufficient information for an IEP team to determine Student's eligibility and develop an appropriate education program. Three of the four reading assessments were not offered as evidence, and the fourth, the test scores attributed to Dr. Wetter, was not authenticated at hearing but admitted solely as administrative hearsay. Student did not offer any expert opinion explaining the reading assessments.
Student's reading assessments did not constitute the comprehensive initial evaluation of all areas of suspected disability required before a child may be found eligible for special education. For example, a reading assessment did not assess previously identified areas of disability arising from Student's attention deficit hyperactivity disorder and eczema. Student failed to prove the reading assessments were sufficient by themselves for Coronado to find Student eligible for special education and related services and develop an initial IEP for Student.
The ALJ's Decision on Issue 2:
The ALJ decided that because the District had met its child find obligations (See Issue 1), it was not responsible for Student's ineligibility for special education during the relevant time period. Coronado therefore could not, and did not, deny Student a free appropriate public education ("FAPE").
There are three key takeaways. The first key takeaway is to understand the role of initial assessments. Initial assessments for special education must be sufficiently comprehensive such that the results provide the IEP team not only with the needed information to determine eligibility, but also the information the IEP team needs to develop a reasonably calculated IEP. Here, the ALJ found that the reading assessments conducted by Coronado and the private reading test results parent had obtained from the private neuropsychologist were not sufficient to establish eligibility for special education under the category of specific learning disability.
The second key takeaway is provide the IEP team with the most complete information possible, particularly when a third party is involved. In this case, the independent assessor did not attend the 504 meeting to discuss his assessment results and findings. Additionally, parent provided the team a single sheet of paper containing four tables summarizing Woodcock-Johnson and Gray Oral reading test scores for Student from testing in March 2018, and on October 8, 2020. The summary included no narrative explaining how the testing was conducted or the significance of the scores. Now, in all fairness, we do not know if parent had anything other than this single page to provide the team. If that's all she had, then she did all she could. But it's unlikely that there wasn't something more substantive she could have provided to the IEP team.
The third key takeaway is present your best evidence at due process hearing. Parent was not represented by legal counsel at the due process hearing so she had the unenviable task of presenting her own case. Due process hearings are challenging even for attorneys for many reasons, including the lack of discovery. So a parent, who is not well versed in trial work, is at a distinct disadvantage against the seasoned trial attorneys who frequently represent school districts and charter schools throughout the state of California. Nevertheless, it's always important to present your best evidence at due process hearing. In this case, testimony from the independent assessor might have helped bolster parent's case if for no other reason than it would have authenticated the assessment results attributed to him byway of administrative hearsay.