HOLDING: On October 28, 2013 the Office of Administrative Hearings issued a decision in a due process matter holding, among other things, that a school district may rely on previously conducted initial assessments when determining whether a student is eligible for special education at a later date. (Student v. Oakland Unified School District, OAH Case No. 2013050664 (October 28, 2013)).
FACTS: In 2009, while attending a District charter school, psychoeducational and academic assessments were conducted, neither of which indicated Student was eligible for special education services. In 2011, the District relied on the 2009 assessments in again finding the Student was not eligible for special education services. In 2012, the District conducted a speech and language assessment on the Student, again finding that student was not eligible for special education services. Student argued that the District should have conducted an additional psychoeducational assessment in 2012 and should have found that Student was eligible for special education services because of a specific learning disability (SLD). Student also argued that the District should have suspected Student had an SLD, specifically, an auditory processing disorder, due to Student’s low grades, reports of his teachers, and the fact that his subsequent district (Berkeley Unified) found him eligible for special education because of an SLD.
RATIONALE: The District successfully argued that it correctly determined in 2009 that Student did not have a disorder of any kind and that his subsequent grades and teacher reports did not change that determination or require its reconsideration. The District’s argument was bolstered by witness testimony that children’s cognitive abilities typically stay the same throughout life and processing disorders normally appear when children are young.
While it is possible that a processing disorder not apparent in third grade could appear in fifth grade, the probability is very rare absent some external event such as exposure to lead paint, an auto accident, or head trauma. The District therefore appropriately relied on the results of the 2009 psychoeducational and academic tests in finding Student ineligible for special education in 2011 and after conducting a speech and language assessment in 2012 and again determining that Student was not eligible for special education services.
OAH also rejected Student’s argument that the District failed to assess Student in all areas of disability between February 2012 and August 2012 despite Student’s guardian and teachers requesting reassessment. OAH held that, although the District has continuing child find duties that may require reassessment when new circumstances are present, because witnesses testified credibly that the sort of processing disorder suspected here would show its effects continually throughout Student’s life and would in all likelihood appear in early childhood, it is highly unlikely that a processing disorder that did not appear in third grade would appear on the same kind of assessments in fifth grade. OAH also found persuasive evidence that Student was frequently absent which was addressed through informal remediation to make up for the lost class time. Formal remediation is statutorily a factor that may indicate the presence of an SLD, however Student offered no evidence that the District provided anything more than informal remediation.
OAH lastly rejected Student’s claim that he should have undergone an additional psychoeducational assessment in April 2012 at the time of the speech and language assessment for the same reasons that the court upheld the District’s reliance on the 2009 assessments. OAH also rejected Student’s claim that he was denied FAPE based on the fact that his subsequent district (Berkeley Unified) found the Student eligible for special education because of the presence of an SLD due to an APD. OAH held that Berkeley Unified’s finding of special education eligibility was in error because the psychoeducational assessment upon which the auditory processing disorder designation was based used outdated testing procedures and was conducted by an optometrist who was neither trained nor licensed to determine the presence of an APD.