Monthly Archives:' December 2013

GIRARD & EDWARDS Prevails on All Issues in Recent Special Education Due Process Hearing

On November 18, 2013, the Office of Administrative Hearings issued a lengthy decision in a special education due process proceeding involving an 11 year old student who claimed that the difficulty he had staying on task and completing his school work was because he was hearing impaired, and not due to ADHD, as suspected by some District personnel. (Parent on behalf of Student v. Placer Hills Union School District, OAH Case No.: 2013060210 (November 18, 2013)). In addition to alleging that the District failed to assess him in all areas of suspected disability and identify all areas of need, Student alleged that due to various substantive and procedural acts and omissions, the District failed to provide him with necessary supports and services.
The District, led by Heather Edwards of Girard & Edwards, argued that it assessed Student in all areas of suspected disability and these assessments met all legal requirements. The District asserted that although Student’s eligibility category was changed in the February 2012 IEP, this did not result in him being denied a FAPE. Further, when Student began struggling with completing assignments in the 2012-2013 school year, the District made various offers to have him assessed by several entities including the Northern California Diagnostic Center, but Parents revoked their consent for these assessments. The District contended that it followed all procedural requirements during the IEP development process, implemented the one IEP Parents consented to, and provided Student with the services, accommodations and modifications he needed for a FAPE. The District prevailed on every one of the twelve (12) issues. The following summarizes several of the notable issues in this matter.
Prior Written Notice
Student alleged that the District, by leaving a voicemail on Parent’s home phone notifying them that the District would not be providing Student with a one-to-one aide, committed a procedural violation by failing to provide Student’s parents with prior written notice denying the parent’s request for a one-to-one aide.
OAH held that, while federal law requires a school district to provide prior written notice to the parents of a pupil whenever the district proposes to initiate or change the provision of FAPE to students, Student presented no evidence that District’s communicating its denial of Parent’s request over the phone impeded Parent’s right of participation in the IEP development process or denied Student a FAPE. OAH found the voicemail denial of Parent’s request was reasonable given that Parents did not renew their request for a one-to-one aide at subsequent IEPs and because the IEP process was still ongoing.
One-to-One Aide
With regard to Student’s assertion that the District committed a substantive denial of FAPE by denying Parent’s request for a one-to-one aide, OAH held that Student sufficiently benefitted from modified assignments, as well as being allowed to dictate written assignments and answers that required a written response. OAH held that it was readily apparent from testimony of several witnesses that Student would have been very self-conscious if he had a dedicated, one-to-one aide to prompt him to get back on task continuously in class, especially since he did not require one. Such an aide would have encouraged dependence on aide support.
Meaningful Participation/Predetermination
Student further asserted that his Parents were denied meaningful participation in the IEP development process as is required under federal law and that the IEP team predetermined its offer of FAPE prior to the IEP meeting in question. OAH disagreed however and held that Parents were not denied meaningful participation at IEP meetings nor were Student’s IEP’s predetermined.
The evidence established District IEP team members did communicate with each other both before and after the IEP team meetings, but Student failed to establish that this resulted in any predetermination. Further, the evidence established that Parents, whether personally or through their advocate, were active participants at IEP team meetings, and their comments and suggestions were listened to, considered, and in many cases adopted as part of the IEP.

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.