Adam Wasserman Site


CASE NO. 2021110193


Counsel for Student: Diana Maltz

Counsel for School: Jayme Duque and Daniel Gonzalez

Representative for School: Joanna White

ALJ: June R. Lehrman

Date of Decision: June 29, 2022

ISSUES: Alexia Velarde

  • Did School deny Student a FAPE in triennial assessments by failing to assess in all areas of suspected disability?
  • Was psychoeducational assessment and speech and language assessment inappropriate thereby denying student a FAPE?


  • Student was eligible for special education services under the category of “multiple disabilities” due to Autism, microcephaly, impulse control disorder, anxiety, and pervasive developmental disorder, all of which adversely affected her educational performance.
  • In triennial assessment, Student was not assessed in all areas of suspected disability, specifically, behaviors and mental health.
  • Student claimed that School’s failure to conduct a functional behavioral assessment and an educationally related mental health assessment has resulted in denial of FAPE.


  • School DID NOT deny Student a FAPE in triennial assessments by failing to assess in all areas of suspected disability.


– Functional behavior analysis is only required when a child is removed from a current placement due to behavioral issues. (Butte School District No. 1 v. C.S. (9th Cir. 2020) 817 Fed.Appx. 321 (Butte),)

– The instruments used by school were “technically sound” and demonstrated the effect that behavioral factors had on the functioning of the student. (20 U.S.C. §1414(b)(2)(C); 34 C.F.R. § 300.304 (b)(3); Ed. Code, § 56320, subds. (e) & (f).)

– Just because assessors did not directly observe Student, directly interview her, or administer any assessment instruments directly to her does not mean that School failed to assess Student in all areas of suspected disability, specifically behaviors or mental health.

– In matters alleging a procedural violation, a due process hearing officer may find that a child did not receive a FAPE only if the procedural violation did any of the following: impeded the right of the child to a FAPE; significantly impeded the opportunity of the parents to participate in the decision-making process regarding the provision of FAPE to the child of the parents; or caused a deprivation of educational benefits. (20 U.S.C. § 1415 (f)(3)(E); Ed. Code, § 56505, subd. (f).)

– The IEP team had adequate information to determine the nature of Student’s behaviors and consider whether changes in services were necessary and IEP goals were set accordingly.

  • Psychoeducational assessment and speech and language assessment WERE INAPPROPRIATE thereby denying student a FAPE.


– The school neither did any investigation of any kind concerning Student’s current cognitive levels, other than to review a prior assessment tool, nor undertook any efforts to update this information or ensure it was current. Hence, school failed to reevaluate Student in accordance with the procedural requirements of the IDEA. (20 U.S.C. 1414 (a)(2)(A); 34 C.F.R. § 300.303.)

– Although Student was, at the time of assessment in question, 18 years old, there were not multiple prior comprehensive assessments that clearly established Student’s cognitive functioning.

– School failed to provide any legal authority that relieved it of the responsibility for conducting a thorough cognition assessment.

– School did not notify Parent of her right to request an assessment, rather school presented Parent with an assessment plan, then produced a legally noncompliant assessment that did not administer such assessments and other evaluation measures as might have been needed to produce the legally required data. (34 CFR § 300.305 (a) and (c).)

– Speech pathologist conducted a “Speech and Language Triennial Review of Records.” The records review was cursory in the extreme. The pathologist was unable at hearing to describe, and the report did not list, the records she had reviewed.

– The pathologist appeared evasive about the difference between a “records review” and a “full evaluation” and about what factors go into the determination of which type of process is appropriate. Further, there is no information stated in the report, and none elucidated via testimony at hearing, explaining why student’s receptive and expressive language skills are not an area of concern.

– the IEP team was without any critical evaluative information concerning Student’s needs in the area of language and speech. That deprivation made it impossible for the IEP team to evaluate the recommendation that Student was no longer eligible for services, or to if she was eligible, to consider and recommend appropriate services necessary to address Student’s needs.

– Mother was substantially impaired in her ability to fully participate in the collaborative IEP process. (Timothy O. v. Paso Robles Unified School District, supra, 822 F.3d 1105, 1120 21.)


  • School shall fund two independent educational evaluations. One shall be in the area of speech and language. The other shall be in the areas of cognitive development and academics. Parent shall choose the assessor(s), who shall conform to school’s assessment criteria. School shall provide Student with agency criteria for conducting the assessments within 10 days of this Decision.
  • Within 10 days of receipt of notification of Parent’s selected assessment provider(s), school shall contact the provider(s) to arrange for direct contract billing.
  • School shall convene an IEP team meeting to address Student’s special education and related service needs. School shall fund the attendance of the independent educational evaluation assessor(s) at an IEP, at a rate of payment consistent with existing District policy.

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