Adam Wasserman Site

STUDENT v. CONEJO VALLEY UNIFIED SCHOOL DISTRICT

CASE NO. 2016030817

Student v. CONEJO VALLEY UNIFIED SCHOOL DISTRICT

Counsel for Student: Henry Tovmassian and George Crook

Counsel for School: Wesley Parsons and Siobhan Cullen

Representative for School: Michelle Morse and Lisa Miller

ALJ: Christine Arden

Date of Decision: November, 2016

ISSUES:

  • Did school deny student a FAPE by failing to assess him in all areas of disability in a timely manner?
  • Did school deny student a FAPE by failing to find him eligible for special education within specified time?
  • Did School deny student a FAPE by failing to set measurable goals and appropriate level of performance in all areas of need through his IEP?
  • Did School deny student a FAPE by failing to make a formal, specific offer of FAPE for a specified period before conducting an IEP?

FACTS OF THE CASE:

  • Student was adopted by parents when he was seven weeks old and started showing behavioral issues at the age of two.
  • In the third Study Team meeting, the school psychologist testified that Student had a suspected disability, warranting his assessment for special education. Mother obtained a private psychological assessment of Student from a licensed neuropsychologist, and duly informed the school about her decision.
  • The private assessor hired by mother concluded that Student had deficits in executive functioning, poor self-control with his emotions and behaviors and he had problems adequately managing his impulses. The private assessor recommended behavioral and mental health interventions both at school and home.

CONCLUSION:-

  • School DENIED student a FAPE by failing to assess him in all areas of disability in a timely manner.

Rationale:-

– The student behaved aggressively with the peers as well as parents almost on daily basis and was also diagnosed with ADHD. Mother also kept school officials informed about student’s behavioral issues at home. However, despite escalating behavioral issues, school failed to refer him for special education assessment.

– School improperly failed to acknowledge Mother’s request for an IEP for Student as a request to assess him. The team should have informed Mother she had a right to immediately request an assessment of Student and get the assessment process underway.

– A school district’s failure to assess in all areas of suspected disability may constitute a procedural denial of a FAPE. (Ed. Code, § 56320, (f);(Park v. Anaheim Union High School District, et al. (9th Cir. 2006) 464 F.3d 1025, 1031-1033.)

– School’s unreasonable delay in assessing Student also deprived Parents of important information about his disabilities and, therefore, significantly impeded Parent’s opportunity to participate in the decision making process regarding the provision of FAPE to Student.

  • School DENIED student a FAPE by failing to find him eligible for special education within specified time.

Rationale:-

– The school’s child find obligation and duty to assess arise only after it has notice of Student’s suspected disabilities.

– Mother credibly testified that, at the third Study Team meeting, she told the team she wanted an IEP for Student. Her testimony is corroborated by the minutes of the meeting, which acknowledged that:

  • the team discussed assessment for special education eligibility; Mother expressed concern that the process was lengthy;
  • the team stated it needed to get to know Student better before it would refer him for assessment.

– School did not act within the prescribed time period after getting proper notice of student’s suspected disabilities as Student’s inability to build or maintain satisfactory interpersonal relationships with peers over a long period of time already existed when he entered kindergarten.

– School DENIED student a FAPE by failing to set measurable goals and appropriate level of performance in all areas of need through his IEP during a certain period. However, after conducting the first IEP, there was no default on part of school.

Rationale:-

– Student was entitled to an IEP containing measurable goals and appropriate present levels of performance in all areas of need which was first triggered by Mother’s request for an IEP in the third Study Team meeting. However, school failed to do so for four months and 19 days.

– Mother credibly testified that, at the third Study Team meeting, she told the team she wanted an IEP for Student. Her testimony is corroborated by the minutes of the meeting.

– In the first IEP meeting, assessments conducted by private assessors as well as by School were discussed in detail in presence of all the relevant members. Keeping in view the assessment results, four measurable goals were proposed in the areas of social, emotional and nonverbal communication. The IEP team also developed appropriate accommodations, strategies, and a proposed positive behavior intervention plan for Student.

– School gave Mother an assessment plan proposing additional assessments of Student in the areas of social/emotional behavior intensive social emotional services (ISES); occupational therapy/motor skills development, including sensory needs; functional behavior; and special circumstances paraprofessional support, which assesses whether Student needed an aide. The ISES assessment was a reasonable follow-up to School’s psycho educational assessment and private assessments.

– The student’s private assessor was neither credentialed as a school psychologist nor has ever worked in a public-school setting nor had any experience or knowledge on development of IEPs. Hence, her testimony on IEP was given less weight.

-School DENIED student a FAPE by failing to offer him an appropriate placement and services, including appropriate accommodations and modifications, speech and language services, occupational therapy, behavioral interventions, psychotherapy, social skills, and extended school year services by failing to offer him an IEP for four months and 19 days.

Rationale:-

– School’s duty to assess student was first triggered by Mother’s request for an IEP in the third Study Team meeting. However, school failed to do so for four months and 19 days.

– However, there is no default on part of the school after the first IEP meeting wherein IEP team developed appropriate accommodations, strategies, and a proposed positive behavior intervention plan for Student.

– Student did not prove he required a full time 1-to-1 trained aide from a nonpublic agency throughout the entire school day to access his education.

– Student also failed to prove he required speech therapy or occupational therapy or an extended school year program in order to meet his unique needs and to access his education.

– The evidence established Student behaved properly, for the most part, while he was in a structured classroom setting without the support of an aide which is additional proof that school’s offer of FAPE was appropriate.

– School DENIED student a FAPE by failing to make a formal, specific offer of FAPE for a specified period before conducting an IEP.

Rationale:-

– School was required to make a clear specific offer of FAPE after timely assessment for special needs and especially after Mother’s request for an IEP in the third Study Team meeting. However, school failed to do so for four months and 19 days.

– However, after the first IEP meeting, school took all the right measures and made a proper, clear and specific offer of FAPE to student keeping in view all his special needs.

– The formal offer of services made in the IEP was clear and contained the requisite specificity. The offered services are adequately described and the duration of each service is specified with particularity. Student offered no evidence that Parents did not understand the placement, services, accommodations and modifications which School offered in the IEP.

REMEDIES/ORDER:-

– School shall reimburse parents the fee paid to private assessor for his assessment as well as for attending the meeting, within 45 days of the Order.

– School shall provide student with compensatory education at School’s cost. The compensatory educational services shall not be provided to Student during the time he is regularly scheduled to receive instruction in his core curriculum academic classes so that Student will not miss his then current academic instruction in order to receive compensatory education. The compensatory education is decided as under:-

  • 18 hours of individual counseling provided by a credentialed District counselor;
  • 18 hours of speech and language therapy provided by a District speech and language pathologist; and
  • 150 minutes of behavior intervention services

– School shall provide at least two hours of special education training to the special education administrative, teaching and other professional personnel who provide special education services in the area of the obligations under the IDEA to refer pupils for assessment for special education in all areas of suspected disabilities, and in the area of functional behavior assessments. This training shall be provided by an independent provider, not affiliated with the District, specializing in special education training to school districts.

Leave a comment

Your email address will not be published. Required fields are marked *