CASE NO. 2023010391
Student v. PIEDMONT UNIFIED SCHOOL DISTRICT
Counsel for Student: Kristin Springer and Shira Mowlem
Counsel for District: David Mishook and Lilianna Romero
Representative for Academy: Douglas Harter
ALJ: Theresa Ravandi
Date of Decision: July 11, 2023
Significant areas of law:Failure to complete assessments in a timely manner is a procedural violation that significantly impede parental participation in the IEP process.
- Did District deny Student a FAPE by failing to timely complete speech and language and occupational therapy assessments after parent’s consent?
FACTS OF THE CASE:
- Student was ten and half (10.5) years old and eligible for special education under the category of specific learning disability.
- Student asserts that District was required to complete a speech and language and an occupational therapy assessment within 60 days of Parent’s consent to assess and denied him a FAPE by failing to complete these assessments.
- District argues it was not required to complete these assessments because Student disenrolled from the District. Hence, it had no duty to assess Student once Parents privately placed him at an NPS.
- District DENIED Student a FAPE by failing to timely complete speech and language and occupational therapy assessments after parent’s consent.
- Special education assessments must be completed, and an IEP team meeting held, within 60 days of receiving consent, excluding school vacations in excess of five school days and other specified days. (20 U.S.C. § 1414(a)(1)(C); 34 C.F.R. § 300.301(c); Ed. Code, §§ 56043, subd. (f)(1), 56302.1, subd. (a), & 56344, subd. (a).)
- The IDEA and its implementing regulations do not distinguish between private school students who are privately placed because of a FAPE dispute or those privately placed as a matter of preference. (Ibid.)
- Parent paid a deposit for the NPS to hold a spot for Student and paid in full tuition costs of the NPS prior to Student’s IEP team meeting. Parent’s action showed an intent to follow private assessor’s recommendation to place Student at a specialized school for children with dyslexia. Even so, Parent’s action and intent, and Student’s subsequent disenrollment, did not eliminate District’s duty to assess Student pursuant to a signed assessment plan.
- Enrollment is not a prerequisite to assessing a student’s special education needs. “The Department of Education’s regulations implementing the IDEA specifically contemplate that, upon a parent’s request, a school district must evaluate a child residing in its district for purposes of making a FAPE available to her, even if she is enrolled in a private school in another district.” (Bellflower Unified Sch. Dist. v. Lua, (9th Cir. 2020) 832 F. Appx 493, 495–96). Similarly, disenrollment, in and of itself, does not relieve a district of its obligation to timely complete agreed-upon assessments.
- Following Student’s disenrollment, District continued to engage Parent in FAPE discussions in an effort to finalize Student’s IEP. However, it failed to take any steps to conduct Student’s speech and occupational therapy assessments. This denied Parents a meaningful opportunity to participate in the IEP development process. (Target Range, supra, 960 F.2d 1479, 1484.)
- In failing to timely assess Student’s language and fine motor needs, District deprived the IEP team, including Parents, of important assessment information. (Amanda J., supra, 267 F.3d 877, 894.). Without this information, Student’s IEP team could not determine if Student had educational needs in these areas and, if so, how to best address them. “Procedural violations that interfere with parental participation in the IEP formulation process undermine the very essence of the IDEA.” (Id. at p. 892.)
- District was responsible for timely completing Student’s speech and language and occupational therapy assessments. Student proved District committed a procedural violation by failing to timely complete the agreed-upon assessments. (Park, supra, 464 F.3d 1025, 1032-1033;Timothy O., supra, 822 F.3d 1105, 1118.)
- The Ninth Circuit has held that a procedural error resulting in a loss of an educational opportunity denies a student a FAPE. (Doug. C. v. Hawaii Department of Education (9th Cir. 2013) 720 F.3d 1038, 1047 (Doug C.).) “A procedural error results in the denial of an educational opportunity where, absent the error, there is a ‘strong likelihood’ that alternative educational possibilities for the student ‘would have been better considered.’” (Ibid., quoting concurring opinion of Judge Gould in M.L. v. Federal Way School Dist. (9th Cir. 2005) 394 F.3d 634, 657.)
- District’s failure to assess suspected areas of need as identified in the assessment plan resulted in a loss of educational opportunity under the rationale of Doug C. Without assessment data on the impact of Student’s speech, language, or fine motor skills on his learning, Student’s IEP team could not consider appropriate services or alternative programming to meet such needs. As such, these assessment failures significantly impeded Parents’ informed and meaningful participation at the IEP team meeting. Had District completed these assessments, the IEP team could have discussed the results at the IEP team meeting and determine whether additional or alternative programming was warranted.
- An independent educational evaluation at public expense may be awarded as an equitable remedy, if necessary to grant appropriate relief to a party. (Los Angeles Unified School Dist. v. D.L. (C.D.Cal. 2008) 548 F.Supp.2d 815, 822-23.)