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.

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