BEFORE THE OFFICE OF ADMINISTRATIVE HEARINGS STATE OF CALIFORNIA
CASE NO. 2019100810
PARENT ON BEHALF OF STUDENT,
REDONDO BEACH UNIFIED SCHOOL DISTRICT.
MARCH 13, 2020
The Office of Administrative Hearings, called OAH, received a due process hearing request from Student, naming Redondo Beach Unified School District, on October 17, 2019. OAH continued the hearing on December 2, 2019. Administrative Law Judge Christine Arden heard this matter in Redondo Beach on January 22 and 23, 2020.
Student’s grandparent, who held Student’s educational rights, and shall be referred to as Parent, represented Student. Parent attended all hearing days on Student’s behalf. Student did not attend the hearing. Sundee Johnson, Attorney at Law, represented Redondo Beach. Jessica Silberling, Redondo Beach’s Executive Director of Special Education, attended all hearing days on Redondo Beach’s behalf.
The matter was continued at the parties’ request to February 18, 2020, for written closing briefs. The record was closed and the matter was submitted on
February 18, 2020, after both parties submitted their closing briefs to OAH.
1. Did Redondo Beach deny Student a free appropriate public education by failing to place him in the least restrictive environment appropriate for Student in a general education setting during the majority of the school day?
2. Did Redondo Beach deny Student a free appropriate public education by failing to provide Student the use of an iPad, as an augmentative or alternative communication device, as set forth in Student’s individualized education program?
3. Did Redondo Beach deny Student a free appropriate public education by significantly impeding upon Parent’s opportunity to participate in Student’s individualized education program by failing to provide accessible data and consultation between Parent and the non-public agency?
The issues have been renumbered to facilitate analysis.
This hearing was held under the Individuals with Disabilities Education Act, its regulations, and California statutes and regulations. (20 U.S.C. § 1400 et. seq.; 34 C.F.R.
§ 300.1 (2006) et seq.; Ed. Code, § 56000 et seq.; Cal. Code Regs., tit. 5, § 3000 et seq.)
The main purposes of the Individuals with Disabilities Education Act, referred to as the IDEA, are to ensure:
• all children with disabilities have available to them a free appropriate public education that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment and independent living, and
• the rights of children with disabilities and their parents are protected. (20 U.S.C.
§ 1400(d)(1); see Ed. Code, § 56000, subd. (a).)
The IDEA affords parents and local educational agencies the procedural protection of an impartial due process hearing with respect to any matter relating to the identification, assessment, or educational placement of the child, or the provision of a free appropriate public education, referred to as FAPE, to the child. (20 U.S.C.§ 1415(b)(6) & (f); 34 C.F.R. § 300.511; Ed. Code, §§ 56501, 56502, and 56505; Cal. Code Regs., tit. 5, § 3082.) The party requesting the hearing is limited to the issues alleged in the complaint, unless the other party consents, and has the burden of proof by a preponderance of the evidence. (20 U.S.C. § 1415(f)(3)(B); Ed. Code, § 56502, subd. (i); Schaffer v. Weast (2005) 546 U.S. 49, 57-58, 62 [126 S.Ct. 528, 163 L.Ed.2d 387]; and see 20 U.S.C. § 1415(i)(2)(C)(iii).) As the filing party, Student had the burden of proof. The factual statements in this Decision constitute the written findings of fact required by the IDEA and state law. (20 U.S.C. § 1415(h)(4); Ed. Code, § 56505, subd. (e)(5).)
Student was 11 years old and in fifth grade at the time the hearing ended. He lived within Redondo Beach’s geographic boundaries at all relevant times. Student was eligible for special education under the autism category.
ISSUE 1: DID REDONDO BEACH DENY STUDENT A FAPE BY FAILING TO PLACE HIM IN THE LEAST RESTRICTIVE ENVIRONMENT IN A GENERAL EDUCATION SETTING DURING THE MAJORITY OF HIS SCHOOL DAY?
Student contends he did not spend time in general education settings during any part of the school day, even though his individualized education program, referred to as an IEP, stated he would be in general education for nonacademic portions of his school day. Student makes four arguments. First, a general education classroom, rather than a special day class, was the most appropriate, least restrictive environment for Student. Second, Student should receive his academic instruction in a general education class because he frequently worked with his one-to-one aide in the hallway outside of his special day class. Third, a general education classroom would be a more appropriate environment for Student because students in general education classrooms physically moved around less than they did in Student’s special day class. Lastly, he would likely make more progress in a general education class by working with his aide on academic lessons on an alternate curriculum.
Redondo Beach contends Student’s program placed him in general education settings for the maximum amount of time he could handle, considering his cognitive ability and disruptive behaviors. Redondo Beach further contends that, due to Student’s impaired cognitive ability he was not able to access academic subjects on the general education curriculum, and he required an alternate curriculum. Redondo Beach also contends Student’s extremely disruptive behaviors significantly interfered with his ability to access his education, even in his small structured special day class on an alternate curriculum.
A FAPE means special education and related services that are available to an eligible child that meets state educational standards at no charge to the parent or guardian. (20 U.S.C. § 1401(9); 34 C.F.R. § 300.17.) Parents and school personnel develop an IEP for an eligible student based upon state law and the IDEA. (20 U.S.C. §§ 1401(14), 1414(d)(1); and see Ed. Code, §§ 56031,56032, 56341, 56345, subd. (a) and 56363 subd. (a); 34 C.F.R. §§300.320, 300.321, and 300.501.)
In general, a child eligible for special education must be provided access to specialized instruction and related services which are individually designed to provide educational benefit through an IEP reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances. (Board of Education of the Hendrick Hudson Central School Dist. v. Rowley (1982) 458 U.S. 176, 201-204; Endrew F. v. Douglas County School Dist. RE-1 (2017) 580 U.S. [137 S.Ct. 988, 1000].) School districts are required to provide each special education student a program in the least restrictive environment. To provide the least restrictive environment, school districts must ensure, to the maximum extent appropriate:
• that children with disabilities are educated with non-disabled peers; and
• that special classes or separate schooling occur only if the nature or severity of the disability is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily. (20 U.S.C. § 1412(a)(5)(A); 34 C.F.R. 300.114 (a)(2006); Ed. Code, § 56031.)
In determining the educational placement of a child with a disability a school district must ensure that:
• the placement decision is made by a group of persons, including the parents, and other persons knowledgeable about the child, the meaning of the evaluation data, and the placement options, and takes into account the requirement that children be educated in the least restrictive environment;
• placement is determined annually, is based on the child’s IEP and is as close as possible to the child’s home;
• unless the IEP specifies otherwise, the child attends the school that he or she would if non-disabled;
• in selecting the least restrictive environment, consideration is given to any potential harmful effect on the child or on the quality of services that he or she needs; and
• a child with a disability is not removed from education in age-appropriate regular classrooms solely because of needed modifications in the general education curriculum. (34 C.F.R. § 300.116).
To determine whether a special education student could be satisfactorily educated in a regular education environment, the Ninth Circuit Court of Appeals has balanced the following factors:
• “the educational benefits of placement full-time in a regular class”;
• “the non-academic benefits of such placement”;
• “the effect [the student] had on the teacher and children in the regular class”; and
• “the costs of mainstreaming [the student].” (Sacramento City Unified School Dist.
v. Rachel H. (9th Cir. 1994) 14 F.3d 1398, 1404 [adopting factors identified in Daniel R.R. v. State Board of Ed. (5th Cir. 1989) 874 F.2d 1036, 1048-1050 (Daniel R.R.)].
If a school district determines that a child cannot be educated in a general education environment, then the least restrictive environment analysis requires determining whether the child has been mainstreamed to the maximum extent that is appropriate in light of the continuum of program options. (Daniel R.R., supra, 874 F.2d at p. 1050.) The continuum of program options includes, but is not limited to:
• regular education; resource specialist programs;
• designated instruction and services; special classes;
• nonpublic, nonsectarian schools;
• state special schools;
• specially designed instruction in settings other than classrooms;
• itinerant instruction in settings other than classrooms;
• and instruction using telecommunication instruction in the home or instructions in hospitals or institutions. (Ed. Code, § 56361.)
STUDENT’S COGNITIVE ABILITY AND DYSREGULATED BEHAVIOR PREVENTED HIM FROM ACCESSING THE GENERAL EDUCATION CURRICULUM
Student was primarily eligible for special education under the intellectual disability category until April 2019. Redondo Beach agreed at that time to Parent’s request to change Student’s IEP primary eligibility category to autism, and to remove intellectual disability as a secondary eligibility category. Redondo Beach staff taught Student academic subjects on an individualized alternate curriculum, instead of the general education curriculum.
Student’s needs were not appropriately met in a general education setting for academic classes. Student’s cognitive ability was significantly impaired. He was nonverbal. He communicated mostly by making abbreviated signs mimicking actions or things, touching someone to get their attention, and making noises. He sometimes communicated by using an iPad as an alternative communication device. Under the first factor of Rachel H., supra., at 1901, Student could not successfully obtain educational benefit from a general education setting in an academic class, due to his cognitive ability and disruptive behavior.
Under the second factor of Rachel H., non-academic benefit, Student could not benefit from a general education setting because he needed an extremely structured, small classroom due to his behavioral issues. He did not tolerate even his small structured special day class setting for a long period of time. (Id.)
The third Rachel H. factor was Student’s effect on the teacher and children in a general education class. (Id.) Student ‘s behavior in school was disruptive, negatively impacting his classmates and the teacher. He made loud noises from twice a day to 30 times a day, which distracted his classmates. He frequently eloped from class, was aggressive, noncompliant, and threw tantrums. He often either ran away or dropped to the floor when asked to perform non-preferred activities. Student also frequently engaged in head jerking and self-injurious behavior. He banged his head against hard surfaces such as walls, floors, tables, and backs of chairs, and slapped his face. He had a full time one-to-one aide from a non-public agency. Even so, Student’s dysregulated behaviors interfered with his academic progress.
Student’s negative behaviors escalated during the 2019-2020 school year. Two non-public agency aides accompanied Student throughout the day during the 2019- 2020 school year to ensure his safety. An additional third aide, employed by Redondo Beach, also assisted Student during some portions of the school day, such as when he used the bathroom. Student required frequent breaks from the special day class, and sometimes worked with his aide at a table in the hallway directly outside of his class.
Redondo Beach installed padding on the walls in the hallway directly outside the special day class to decrease the danger to Student when he banged his head against the wall.
Neither party offered evidence as to the cost of mainstreaming Student, the fourth factor under Rachel H. Applying the Rachel H. factors to the evidence in this matter, Student could not successfully be educated in the general education setting for the majority of his school day.
PARENT CONSENTED TO IEPS IN 2015 AND 2019 THAT PROVIDED FOR STUDENT TO BE IN A SPECIAL DAY CLASS FOR ACADEMIC CLASSES AND GENERAL EDUCATION FOR THE REST OF THE DAY
The statute of limitations for due process complaints in California is two years prior to the date of filing the request for due process. (Ed. Code, § 56505, subd. (l); see also 20 U.S.C. § 1415(f)(3)(C).) Student failed to establish which IEPs applied to Student’s program throughout the applicable two-year statutory period prior to the date he filed the complaint. Parent mistakenly relied upon an IEP amendment dated May 11, 2015 offered by the Manhattan Beach Unified School District, Student’s prior school district. Parent admitted Student had two IEPs since he enrolled in Redondo Beach at the beginning of the 2015-2016 school year. Parent consented to IEPs dated October 1, 2015, and May 30, 2018, which both superseded the Manhattan Beach May 11, 2015 IEP amendment. However, any claims relating to the IEP team’s offer of placement in the October 2015 IEP are barred by the two-year statute of limitations. Only claims related to the implementation of that IEP may be raised back to October 17, 2017.
The October 1, 2015 IEP, which was in effect until February 2019, offered Student specialized academic instruction for his academic classes in a special day class for 280 minutes a day, which was 75 percent of the school day, because he benefited from small group instruction. That IEP was implemented after Parent consented to it on January 13, 2016. Student was mainstreamed in general education with neuro-typical peers for the remaining 25 percent of his day during recess, lunch, dancing, field trips, choice time and physical education. Student did not contend that the October 1, 2015 IEP placement offer was not implemented in accordance with its terms.
The IEP team held Student’s annual and triennial IEP meeting on May 30, 2018. That IEP provided Student would spend 1,325 minutes a week, or about 80 percent of his school day, in a special day class or receiving services outside of the regular classroom. Student spent the remaining 20 percent of his school day in general education, which included recess, lunch, art, music, physical education, field trips and assemblies.
The IEP team considered the full continuum of placement options available.
School staff team members agreed Student’s needs were best addressed in a special day class setting, along with mainstreaming with neuro-typical peers during lunch, recess, hands-on-art and other activities. The team determined the special day class was the least restrictive environment appropriate for Student. Student’s special day class in the 2019-2020 school year served moderately to severely disabled children. Parent consented to the May 30, 2018, on February 19, 2019, with exceptions. The parties worked out an agreement on Parent’s exceptions. Redondo Beach implemented the May 30, 2018 IEP shortly after Parent consented to it on February 19, 2019.
At hearing Parent contended Student would make more progress if he received academic instruction in a general education classroom, rather than in a special day class. Parent conceded at hearing that Student’s disabilities prevented him from accessing academic subjects on the general education curriculum and he required an alternate curriculum. Parent preferred that Student receive his academic instruction on an alternative curriculum from his aide, while the rest of the class received instruction on the general education curriculum.
Student presented no evidence proving that Student did not participate in general education consistent with his May 2018 IEP. Parent offered no explanation for her opinion at hearing that less movement by other students in the classroom would be a better learning environment for Student. Student failed to offer evidence establishing that students in general education classes moved around less than the students did in Student’s special day class. Student also failed to offer evidence that Student would benefit from a classroom in which the students moved around less.
Parent suspected Student had not actually participated in general education to the extent required in his IEP. She had no first-hand knowledge to support her suspicion. Parent did not observe Student in his special day class during instruction. She visited Student’s class only for parties, concerts, and special events. There was no evidence Parent had ever observed a general education class. Therefore, Parent had no support for her opinion that Student could better access his education in a general education setting during the majority of the school day.
Jessica Olshan, Redondo Beach’s special education coordinator over behavior and mental health, knew Student. She provided behavioral consultation services to him from September, 2017, through February, 2019. She conferred with the non-public agencies that provided behavioral services to Student. Olshan credibly opined Student needed to be in a small class and he could not access the general education academic curriculum due to his significantly below average cognitive ability and disruptive behaviors. She further opined Student’s present program provided him with the maximum amount of inclusion in general education that he could handle. She further noted Student was presently not able to access all of his academic lessons on the alternative curriculum due to his extremely disruptive behaviors.
Olshan had a bachelor of arts degree in collaborative special education, and a master of arts degree with specialties in autism and transition. She was a board certified behavior analyst, and held a level 2 education specialist clear credential. Olshan had extensive professional experience in special education. She started working at Redondo Beach in 2017 as a special education program specialist. Since 2018 Olshan held the position of special education coordinator over behavior and mental health. Before working at Redondo Beach, Olshan was employed at Newport Mesa Unified School District for 6 years as a transition specialist, special education teacher, and autism specialist. Before that she was a lead teacher at a nonpublic school. Olshan was also a moderate-to-severe special day class teacher at Huntington Beach Union High School District for 3 years. Additionally, she taught a special day class at Sea Star School for Brain Injury.
Olshan testified confidently, knowledgably and honestly. She was focused and had a relaxed demeanor while testifying. She responded to questions without hesitation and offered reasonable support and convincing justifications for her opinions. She was an extremely credible and persuasive witness.
Parent did not have professional education, credentials, training or experience as a special educator. For the last 14 years she worked as an administrative supervisor for a nonpublic agency that provided behavioral services. In that position she handled personnel matters and processed new cases accepted by the agency. She did not provide professional behavioral services.
Parent and Olshan expressed contradictory opinions regarding whether Student would benefit from, and could handle more inclusion in, general education than his present program provided. Olshan’s opinion that Student’s present program offered him the least restrictive appropriate environment was more persuasive than Parent’s contrary opinion on this issue. Olshan’s opinion was more credible because of Olshan’s extensive education, training, credentials and professional experience in special education. In contrast, Parent lacked the background as a special educator to justify and support her opinion that a general education setting for the majority of the day was the least restrictive appropriate environment for Student. Although Parent worked for a nonpublic agency as an administrator, she did not demonstrate at hearing that she was qualified to offer expert opinions on this issue. Also, Parent’s testimony was not credible because much of it was based on unsupported assumptions.
Student required instruction in academic subjects on an individualized alternate curriculum. He could not access academic subjects on the general education curriculum, even if it was modified. Also, due to his dysregulated behaviors Student required the small class size and restrictive environment provided in a special day class. Redondo Beach made provisions for Student’s safety in the special day class. Student did not address how these safety concerns would be handled if Student was in general education settings for the majority of his school day. Consequently, Student failed to meet his burden to prove that a general education setting for the majority of the school day was the appropriate, least restrictive environment for Student.
ISSUE 2: DID REDONDO BEACH DENY STUDENT A FAPE BY FAILING TO PROVIDE HIM THE USE OF AN IPAD, AS AN AUGMENTATIVE OR ALTERNATIVE COMMUNICATION DEVICE, AS STATED IN HIS IEPS DATED OCTOBER 1, 2015 AND MAY 30, 2018?
Student contends Redondo Beach denied him a FAPE by failing to provide him use of an iPad as an alternative or augmentative communication device during the school day as required in his IEP. Student argued that, because he did not know how to use the iPad to communicate at home, he was likely not using the iPad at school.
Student further contends that school personnel were using pictures, rather than the iPad, to communicate with Student, and as a result Student had not learned to use the iPad as an alternative communication device. Student further contends the iPad issued to Student might have been broken.
Redondo Beach contends Student used the iPad loaded with appropriate software and issued to him as an alternative communication device throughout his school day, consistent with IEPs dated October 1, 2015 and May 30, 2018. Redondo Beach further contends the iPad issued to Student worked properly, and Parent never complained to school personnel that the iPad was not working properly at home, or that Student did not know how to use it. Redondo Beach contends, despite using the iPad at school consistent with his IEP, Student had not learned to use it independently as an alternative communication device because he was significantly cognitively impaired and his behaviors interfered with his progress.
To provide a FAPE, a school district must deliver special education and related services “in conformity with” a student’s IEP. (20 U.S.C. § 1401(9).) In Van Duyn v. Baker School Dist. 5J (9th Cir. 2007) 481 F.3d 770, the Ninth Circuit held that failure to deliver related services promised in an IEP is a denial of FAPE only if the failure is “material”; meaning that “the services a school provides to a disabled child fall significantly short of the services required by the child’s IEP.” (Id. at p. 780.)
The October 1, 2015 IEP, which was the operative IEP until February 2019, offered Student “access to iPad for communication.” This was noted on the page listing accommodations, modifications, supports and supplementary aids and services. The May 30, 2018 IEP noted in the section entitled “Supplementary Aids and Services and Other Supports for School Personnel, Or for Student, Or on Behalf of the Student” that Student would use assistive technology “across all environments” and “special equipment or teaching materials AAC device” continuously across all settings. Neither the October 1, 2015 IEP, nor the May 30, 2018 IEP, specified that an iPad was Student’s only alternative communication device. Olshan’s testimony established that the iPad was Student’s regularly used alternative communication device. Parent’s handwritten comments on the May 30, 2018 IEP also referred to the iPad as Student’s alternative communication device.
Student took the iPad home each night and brought it back to school the next school day. Student did not often use the iPad at home to communicate. Parent was unsure if Student’s inability to use the iPad was due to his lack of knowledge about how to use it, or if the iPad was not working properly. Parent suspected Student was not using the iPad at school because he did not use it often at home as a means to communicate.
The only operational problem with the iPad at school was that it was not charged when Student brought it into school each morning. School personnel charged the iPad each morning so Student could use it during the day. Student offered no credible evidence that the iPad was broken. The charger was not sent home at night, but Parent charged it with her own equipment. Parent was not sure if she ever told anyone at the school that the charger was not sent home with the iPad. There was no evidence that Redondo Beach personnel were aware that the charger was not coming home with the iPad until Parent testified at hearing.
Student had access to and used the iPad throughout each school day. Olshan saw Student using the iPad at school and it worked properly. Staff members working with Student also reported to Olshan that Student regularly had access to and used the iPad at school. Student offered no evidence that school staff did not implement the IEP regarding use of this or any other assistive technology.
Parent had no first-hand knowledge that Student was not using the iPad at school. Parent could not identify any school personnel who informed her that Student was not using an iPad at school. Parent merely assumed Student was not using the iPad at school because he could not use it independently at home to communicate. Student also failed to offer any evidence in support of the contention that school personnel were using pictures to communicate with Student at school, rather than the iPad.
Student did not learn to use the iPad independently at school even though Student had access to and used the device at school every day. He could use it only with hand-over-hand assistance from an adult. Olshan testified credibly that Student was making progress in learning to use the iPad and the Proloquo 2 software on it, but his progress was slow due to his cognitive disability and disruptive behaviors.
The IEP team raised its concern about Student’s slow progress on the iPad to Parent at multiple IEP team meetings. Redondo Beach IEP team members recommended teaching Student other means of communication, because he could not master using the iPad to communicate. The team suggested introducing Student to abbreviated signing as an alternate means to communicate. Parent rejected this suggestion. Parent did not agree that Student’s cognitive disability and behaviors prevented him from mastering the iPad as an alternative means of communication, despite the team’s recommendation for a change.
Student failed to meet his burden of proof on issue 2 because he offered no evidence that Student did not have access to or was not using the iPad at school. Student also failed to prove that the iPad was broken or did not work properly. Consequently, Student failed to establish that Redondo Beach denied Student a FAPE by failing to provide Student access to and use of the iPad during the school day consistent with his IEPs.
ISSUE 3: DID REDONDO BEACH DENY STUDENT A FAPE BY FAILING TO PROVIDE ACCESSIBLE DATA AND CONSULTATION BETWEEN PARENT AND THE CURRENT NON-PUBLIC AGENCY, THEREBY DENYING PARENT THE RIGHT TO PARTICIPATE IN STUDENT’S IEP?
Student contends that for a few weeks in March, 2019, the nonpublic agency providing behavioral services to Student, failed to provide a 30-minute weekly consultation service with Parent. Student also contends that when Student’s nonpublic agency was changed to a new agency in mid-September, 2019, for a short time Parent stopped receiving collected behavior data charts in a format Parent could easily and conveniently access. Student further contends that the collected behavior data provided to Parent was inadequate because it only provided data on Student’s goal targeted behaviors. Parent contends the collected data should have addressed Student’s antecedent behavior, the targeted behavior, and the consequence of his behavior, referred to as ABC data.
Redondo Beach contends that the few weeks between February 19, 2019, when Parent consented to the May 30, 2018 IEP with exceptions, and the start of the weekly behavior consultation between Parent and the nonpublic agency, did not constitute a material deviation from the requisites of the IEP. Redondo Beach contends Student was not deprived of educational benefit or parental participation in the IEP process during that short delay in starting the consultation service. Redondo Beach contends it provided Parent with appropriate behavior data about Student every week. Redondo Beach further contends that the collected behavior data indicating how often Student’s targeted behavior occurred in the past week was appropriate, and that it was not required to collect and provide Parent with ABC behavior data. Redondo Beach further contends that as soon as Parent complained about not being able to access the format of the behavior data emailed to her from the nonpublic agency supervisor, Redondo Beach promptly responded by making the behavior data available to Parent in a format she could access.
“Parental participation in the IEP and educational placement process is central to the IDEA’s goal of protecting disabled students’ rights and providing each disabled student a FAPE.” (Doug C. v. Hawaii Dept. of Educ. (9th Cir. 2013) 720 F.3d 1038, 1040; see Endrew F. v. Douglas Co. School Dist. RE–1 (2017) ––– U.S. ––––, 137 S.Ct. 988, 994, 197 L.Ed.2d 335 [IDEA’s “procedures emphasize collaboration among parents and educators”].) Parents represent the best interests of their child in the IEP development process. They also provide information about their child critical to developing a comprehensive IEP which only they are in a position to know. (Anchorage School Dist. v. M.P. (9th Cir. 2012) 689 F.3d 1047, 1055.) “[I]t would be antithetical to IDEA’s purposes to penalize parents—and consequently children with disabilities—for exercising the very rights afforded to them under the IDEA.” (Id. at p. 1056.)
The IDEA requires that a parent be allowed to participate in the formulation of their child’s lEP, but does not require that parental preferences be implemented, so long as the IEP is reasonably calculated to provide the child with some educational benefit. (K.M. ex rel. Bright v. Tustin Unified School Dist. (9th Cir. 2013) 725 F.3d 1088, 1101), cited in B.H. v. Manhattan Beach Unified School Dist. (2019) 35 Cal.App.5th 563, 588, fn 12 [247 Cal.Rptr.3d 501, 520], reh’g denied (June 6, 2019), review denied (Aug. 14, 2019).
A denial of parental participation in the formulation of an IEP is a procedural violation. A hearing officer cannot find that a procedural violation denied a child a FAPE, unless the school “significantly impeded the parents’ opportunity to participate in the decision-making process regarding the provision of a free appropriate public education to the parents’ child or caused a deprivation of education benefits.” (20 U.S.C. § 1415 (f) (3) (E ) (ii) and (iii))
REDONDO BEACH DID NOT UNREASONABLY DELAY THE START OF WEEKLY CONSULTS WITH THE NON-PUBLIC AGENCY
The May 30, 2018 IEP added a 30-minute weekly consult between Parent and Student’s nonpublic agency supervisor to Student’s program. Parent and the nonpublic agency supervisor discussed Student’s behavior over the prior week during those consultations. Parent did not consent to it until February 19, 2019 even though Redondo Beach offered this service at the IEP meeting on May 30, 2018. Parent’s consent to the IEP in February 2019 was subject to Parent’s lengthy handwritten notes regarding exceptions to her consent. Parent’s exceptions did not relate to the added consultation service or the format of behavior data collected by the nonpublic agency. Redondo Beach reasonably took a short while to digest Parent’s written exceptions, and to notify the nonpublic agency to start with the weekly consultation with Parent. As a result, there was a slight delay in communication between Olshan and the nonpublic agency that the 30-minute weekly consult with Parent should begin.
Parent contended at hearing Redondo Beach failed to provide the weekly behavior consultation between Parent and the nonpublic agency supervisor for only a short period of time in March, 2019. Olshan thought this brief delay may have been only for a few weeks. Parent did not tell anyone at school, after she consented to the May 2018 IEP, that the weekly consultation had not begun.
Student offered no evidence that the slight delay in starting the weekly consultation between Parent and the nonpublic agency supervisor significantly impeded Parent’s opportunity to participate in the decision making process regarding a provision of a FAPE to Student. Nor was there evidence that this short delay in beginning the weekly consultation service caused Student to be deprived of an educational benefit. Consequently, the short delay in starting the weekly 30-minute consultation between the nonpublic agency and Parent was not material and did not deny Student a FAPE.
FORMAT OF BEHAVIOR DATA CHARTS AND DATA COLLECTION METHODOLOGY
The Rowley opinion established that as long as a school district provides an appropriate education, methodology is left up to the district’s discretion. (Rowley, supra, 458 U.S. at pp. 207-208.) Subsequent case law has followed this holding in disputes regarding the choice among methodologies for educating children with autism. (See, e.g., Adams v. State of Oregon (9th Cir. 1999) 195 F.3d 1141, 1149 (Adams); Pitchford v. Salem-Keizer Sch. Dist. (D. Or. 2001) 155 F.Supp.2d 1213, 1230-32; T.B. v. Warwick Sch. Comm. (1st Cir. 2004) 361 F.3d 80, 84.) As the First Circuit Court of Appeals noted, the Rowley standard recognizes that courts are ill-equipped to second-guess reasonable choices that school districts have made among appropriate instructional methods. (Ibid.) Beyond the broad questions of a student’s general capabilities and whether an educational plan identifies and addresses the child’s needs, courts should not intrude into disputes regarding the efficacy of different instructional approaches. (Roland M. Concord Sch. Committee (1st Cir. 1990) 910 F.2d 983, 992 (citing Rowley, 458 U.S. at p. 207-208).) Based upon the foregoing, there is no legal support for Student’s argument that behavior data should have been collected using the ABC data collection method, as the law is clear that school districts have authority to select the methodology used to educate students. This legal presumption can only be overcome by a showing that the methodology selected by the school district was inappropriate. Student did not prove that Redondo Beach’s methodology for collecting behavior data was inappropriate.
In fall, of 2019 Redondo Beach agreed to Parent’s request to change the nonpublic agency providing Student with behavioral services. Parent claimed that for a short period of time in fall, 2019 the new nonpublic agency provided Parent with collected behavior data in a format Parent could not open on her computer. Olshan intervened promptly after Parent reported this problem, and converted the collected behavior data to a format Parent could open on her computer and forwarded it to Parent.
Parent requested Redondo Beach print out the charted collected behavior data and provide it to her later in fall 2019. Olshan promptly complied with Parent’s request and provided Parent with printed copies of the collected behavior data prior to the weekly consult between the nonpublic agency and Parent.
The May 30, 2018 IEP did not require Redondo Beach to provide Parent weekly with collected behavior data, although Redondo Beach informally agreed to do so in a letter from Olshan to Parent dated March 18, 2019. That letter did not commit Redondo Beach to provide the collected behavior data to Parent in a specific format. Additionally, because schools have authority to select educational methodologies the nonpublic agency had no obligation to apply the ABC approach to its behavior data collection simply because Parent preferred that method.
Olshan, who is a board certified behavior analyst, credibly testified that the ABC approach was not an appropriate approach for collecting data in this instance. Olshan opined that the ABC approach was not warranted or helpful in this instance. Olshan noted that the ABC approach for collection of behavior data is appropriate when a behaviorist is developing a new behavior intervention plan for a client. That was not the circumstance here. Olshan credibly opined that the manner in which Students’ behavior data was collected was appropriate as it focused on the occurrences of targeted behaviors addressed in Student’s goals and behavior intervention plan. The manner in which the behavior data was collected was reasonably calculated to provide Student with some educational benefit.
Consequently, Student failed to meet his burden of proof that he was denied a FAPE by failing to provide behavior data in a format which Parent could easily access in fall, 2019. Parent’s opportunity to participate in the decision making process regarding Student’s IEP was not significantly impeded and Student was not deprived of educational benefit due to the inaccessible format of behavior charts provided to Parent for a brief period of time.
CONCLUSIONS AND PREVAILING PARTY
As required by California Education Code section 56507, subdivision (d), the hearing decision must indicate the extent to which each party has prevailed on each issue heard and decided.
Issue 1: Student did not prove that Redondo Beach denied Student a FAPE by failing to place him in a general education setting during the majority of his school day, which is the appropriate, least restrictive environment for Student. Redondo Beach prevailed on Issue 1.
Issue 2: Student did not prove that Redondo Beach denied Student a FAPE, by failing to provide him the use of an iPad, as an augmentative or alternative communication device, as set forth in his IEP. Redondo Beach prevailed on Issue 2.
Issue 3: Student did not prove that Redondo Beach denied Student a FAPE by failing to provide accessible data and consultation between Parent and the current non- public agency, thereby denying Parent the right to participate in Student’s IEP. Redondo Beach prevailed on Issue 3.
All of Student’s requests for relief are denied.
RIGHT TO APPEAL THIS DECISION
This is a final administrative decision, and all parties are bound by it. Pursuant to Education Code section 56505, subdivision (k), any party may appeal this Decision to a court of competent jurisdiction within 90 days of receipt.
/s/ Christine Arden
Administrative Law Judge
Office of Administrative Hearings