CASE NO. 2022070678 & 2022060843
STUDENT v. CARMEL UNIFIED SCHOOL DISTRICT
Counsel for Student: Henry Tovmassian and George Crook
Counsel for School: Amanda Johnston
Representative for School: Steven Gonzalez and Cassandra Ziskind
ALJ: Kara Hatfield
Date of Decision: November 30, 2022
Significant areas of law: Failure to consider full continuum of placements, predetermination of placement and comparable offer of IEP.
ISSUES:
– Did School deny student a FAPE by failing to consider the full continuum of placements, and because of that, significantly impeded Parents’ participation in the decision making process. Hence, offered made by school was NOT FAPE?
– Did school deny student a FAPE by failing to assess student in areas of need or by failing to provide him educational benefit?
– Did school deny student a FAPE by failing to identify all his education needs, failing to document appropriate present levels of performance in the areas of need, and failing to develop goals in vision and communication with augmentative and alternative communication?
– Did School deny student a FAPE by predetermining the IEP offer?
– Did school deny student a FAPE by failing to have necessary team members in IEP team meeting?
– Did school deny student a FAPE by failing to make a specific formal offer?
– Did school deny student a FAPE by failing to offer appropriate accommodations?
– Did school deny student a FAPE by failing to offer appropriate placement and services in the least restrictive environment?
– Did School deny student a FAPE by failing to provide him placement and services comparable to his IEP in previous school?
FACTS OF THE CASE:
- Student was five and half years old and was eligible for special education and related services under the eligibility categories of orthopedic impairment, visual impairment, and speech or language impairment.
CONCLUSION :-
– School DENIED student a FAPE by failing to consider the full continuum of placements, and because of that, significantly impeded Parents’ participation in the decision making process..
Rationale:-
– School was required to consider and include Parents in a discussion of whether Student required any time during the school day to have interaction with typical peers to receive educational benefit, and if so, what frequency and duration of inclusion was appropriate, as well as where and how inclusion could be achieved if Student attended the special day class operated by the NPS recommended by School.
– The audio recording of the IEP team meeting established there was no discussion with Parents about this mandatory element of a least restrictive environment analysis.
– School neither tried to reconvene IEP meeting nor waited to reconvene at the start of the new school year and rushed to pursue an order from OAH to implement it, which is a procedural violation of IDEA.
– School DID NOT DENY student a FAPE by failing to assess student in areas of need or by failing to provide him educational benefit.
Rationale:-
– Because Parents did not request assessment in advance of the comprehensive triennial reassessment, School was not required to assess Student under Education Code section 56381, subdivision (a)(1) based on parental request.
– School provided Parents an assessment plan for a comprehensive triennial reassessment and was conducting the comprehensive triennial reassessments during the due process hearing, with parental consent.
– School DID NOT DENY student a FAPE by failing to identify all his education needs, failing to document appropriate present levels of performance, and failing to develop goals in vision and communication with augmentative and alternative communication.
Rationale:-
– Student failed to prove what educational needs Student had that School did not identify and how any alleged procedural violation in failing to identify all of Student’s educational needs significantly impeded Parents’ opportunity to participate in the decision making process, denied Student educational benefit, or otherwise impeded Student’s right to a FAPE.
– School DID NOT DENY student a FAPE by predetermining the IEP offer.
Rationale:-
– School staff was not prohibited from having opinions, as professional educators, about what placement a student might require.
– Parents received a draft of the IEP before the meeting indicating to them School’s placement recommendation was a regional program operated by the County. That recommendation does not amount to predetermination of an IEP offer.
– The recording of IEP team meeting proves that Parents had meaningful participation in the meeting and actively participated.
– School DID NOT DENY student a FAPE by failing to have necessary team members in IEP team meeting.
Rationale:-
– Student’s complaint did not specifically identify who, by category or individual identity, Student contends was required to attend but did not. Further, student’s written closing argument failed to mention this issue at all.
– School DID NOT DENY student a FAPE by failing to make a specific formal offer in IEP team meeting?
Rationale:-
– Student failed to prove any manner in which the IEP document, as made into a final offer by School and provided to Parents failed to state a coherent, formal, written offer as required by Union. (15 F.3d at p. 1526.)
– The IEP offer made by school clearly stated goals proposed, how they will be measured, special education and related services, and supplementary aids and services to be provided, and program modifications or supports for school personnel to be provided. Further, the IEP stated a projected start date for services and modifications, as well as the anticipated frequency, location, and duration of services and modifications.
– School DID NOT DENY student a FAPE by failing to offer appropriate accommodations?
Rationale:-
– Student’s complaint did not specifically identify any accommodations Student contends he required but was not offered in the IEP.
– School DID NOT DENY student a FAPE by failing to offer appropriate placement and services in the least restrictive environment.
Rationale:-
– Student did not prove how much school would pay the County for providing Student with the proposed placement and embedded related services in the special day class at the NPS recommended by School. Student could have produced this necessary information through documentary evidence such as contracts and financial information, or through testimony of appropriate witnesses with relevant information.
– Student failed to produce all evidence necessary for a full, four-factor analysis under Rachel H. of the least restrictive environment for Student, and if Student could not be educated in a general education environment full time, then analysis under Daniel R.R. of whether he was offered mainstreaming to the maximum extent that was appropriate in light of the continuum of program options.
– School DENIED student a FAPE by failing to provide him placement and services comparable to his IEP in previous school.
Rationale:-
– Student proved that School implemented an interim program that on paper was comparable to student’s previous IEP, but in effect, did not afford Student 75 percent of general education time within the 210-minute school day of School’s transitional kindergarten. The offered time, was approximately 30 minutes per day short of the opportunity for general education a comparable program would have afforded Student.
REMEDIES/ORDER:-
– Within 10 days of this Decision, Parents shall inform School what quantities of which educational and related services they want School to provide in compensatory education, totaling 20 hours. Parents shall also inform School whether they request the compensatory education services be delivered during the regular school day, with no right to make up any other classroom time missed due to the delivery of these compensatory education hours, or prefer service after regular school hours but only on days school is regularly in session.
– By the end of the first full week school after the winter break, School shall propose to Parents a schedule for delivery of the compensatory education. In the delivery of compensatory education, if the provider cancels a session, the time will be credited back to Student. If Student cancels a session with a least 48 hours’ notice, the hours shall be credited back to Student. If Student cancels a session with less than 48 hours’ notice, Student will forfeit the hour or hours for the session. School’s proposed schedule shall allow the total 20 hours to be completed within specified time.
– School shall provide at least four hours of special education training to all its employees who are general education teachers and school principals, assistant principals, or other similar administrator titles, who as part of their regular job duties attend IEP team meetings, and also all special education teachers, administrators, related services providers, and school nurses.