Assessor’s Recommendation Need Not Exactly Match IEP Team Decision in Order to Demonstrate Properly Conducted Assessment

HOLDING: On October 29, 2013, the Office of Administrative Hearings issued a decision in a consolidated due process matter holding, among other things, that a school district’s Language and Speech (LAS) assessment was not flawed in that it recommended no speech services, yet the school district offered one hour per week of collaborative speech services at the IEP. (Los Angeles Unified School District v. Parent on behalf of Student, OAH Case No. 2013090194 (October 29, 2013)).

FACTS: At the time of the hearing, Student was a three-year-old boy attending a Preschool Mixed Special Day Program for two and one-half hours per day, four days per week, with home to school transportation and extended school year services. Student suffered from epilepsy, microcephaly, and was eligible for special education under the category of intellectual disability. Beginning at 18 months old, Student began receiving hour-long one-on-one LAS therapy twice per week through a local Regional Center and Intercare Therapy. In July 2013, Intercare reported  that Student’s progress in speech and language was scattered, ranging from minimal to significant. As a result, Intercare recommended that Student continue to receive the same level of therapy.

In February 2013, the Regional Center referred student to the District for an initial evaluation as part of Student’s transition to educational services provided by the District. Student’s parent consented to assessments in the areas of health and development, general ability, academic performance, language function, motor abilities, social-emotional status and self-help. On May 30, 2013, District personnel conducted five assessments including physical therapy, occupational therapy, LAS, psycho-educational, and adaptive physical education.

Notably, on July 25, 2013, Student filed for a due process hearing alleging that Student’s LAS assessment was inappropriate because the assessor was not recommending LAS services and requesting that District fund an independent educational evaluation. Despite the assessors recommendation that LAS were not necessary for the child to receive FAPE, the District offered, and parents agreed, to two 30-minute sessions per week of direct, collaborative LAS services during the school year and ESY.

RATIONALE:  Regarding the sufficiency of District’s LAS assessment due to the subsequent offer of LAS services by the IEP team, OAH rejected Student’s contention that the assessment was necessarily flawed. OAH found that the LAS assessment was conducted by a fully qualified speech and language therapist whose findings were fully corroborated by the results of other assessors. The hearing officer explained that the IEP team’s decision to offer LAS services despite there being no recommendation for services did not render the assessment invalid because there is nothing in IDEA’s procedural requirements that requires that the recommendation of an assessor exactly match the IEP team decision in order to demonstrate that an assessment was properly conducted. OAH held that appropriate assessments need only provide the IEP team with the information it requires to provide the Student with FAPE. The LAS assessment, OAH found, met all IDEA criteria, as did District’s offer of LAS services because the offer was reasonably calculated to provide Student with FAPE. Accordingly, all of Student’s requests for relief were denied, as was his request for an IEE.

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