Student v. Alvord Unified School District

BEFORE THE

OFFICE OF ADMINISTRATIVE HEARINGS

SPECIAL EDUCATION DIVISION

STATE OF CALIFORNIA

In the Consolidated Matter of:

STUDENT,

OAH CASE NO. N 2007070161

Petitioner, v.

ALVORD UNIFIED SCHOOL DISTRICT,

ETIWANDA SCHOOL DISTRICT, AND

ONTARIO-MONTCLAIR SCHOOL DISTRICT,

Respondents,

STUDENT,

OAH CASE NO. N2007120277

Petitioner, v.

ALVORD UNIFIED SCHOOL DISTRICT,

Respondent.

DECISION

Stella L. Owens-Murrell, Administrative Law Judge (ALJ), Office of Administrative Hearings (OAH), Special Education Division, State of California, heard this matter on January 22, 2008, through January 25, 2008, in Riverside, California. Student was represented by Jack H. Anthony, Attorney at Law, of the Law Offices of

Accessibility modified document

Jack H. Anthony. Student was present on the first day of hearing for a brief period, and his parents (Father, or Mother)1 were present each day of the hearing. Alvord Unified School District (District) was represented by Nancy Finch-Heuerman, Attorney at Law, of Parker & Covert LLP. Ellen Hinkle, Director of Special Education was also present each day of the hearing.

Student’s due process hearing request was filed on July 9, 2007, naming District, Etiwanda School District (ESD), and Ontario-Montclair School District (OMSD) as respondents. This matter is identified as OAH Case No. N2007070161. Student filed his first amended due process hearing request in OAH Case No. N2007070161 on August 9, 2007, and Student filed his second amended due process hearing request August 31, 2007.

On January 14, 2008, OAH issued an Order dismissing ESD and OMSD as parties in N2007070161 pursuant to a settlement.2 Student filed a second due process hearing request on December 10, 2007 naming District as respondent. This matter is identified as OAH Case No. N2007120277. On January 8, 2008, OAH received a due process hearing request and a motion to consolidate filed concurrently by District. District’s due process request is identified as OAH Case No. N2008010477. In the due process hearing request District sought to obtain triennial assessments of Student. Student stipulated to the triennial assessments. District

Student’s parents will be referred to collectively as Parents, or separately, where appropriate, as Mother or Father.

Student’s claims against Alvord Unified School District, in OAH Case No.

N20077070161, were not resolved and are the only issues, if any, remaining to be decided in that complaint.

Accessibility modified document withdrew its due process request. An order was issued on January 11, 2008, consolidating OAH Case No. N2007070161 and OAH case No. N2007120277. The order provided that the timelines in OAH Case No. N2007120277 would control the consolidated matters. Sworn testimony and documentary evidence were received at the hearing. At the conclusion of hearing, the record remained open for the parties to file their closing briefs on or before February 19, 2008. The parties timely filed their closing briefs. The record closed and the matter was submitted on February 19, 2008.

ISSUES3

1.

Did the District deny Student a Free Appropriate Public Education (FAPE) in the 2006-2007 school year after Student moved within the boundaries of the District in November 2006 by:

A. Failing to consult with Student’s parents concerning the interim offer of placement and services;

B. Failing to make a timely interim placement offer comparable to the previously approved individualized education program (IEP), dated March 28, 2006, and addendum IEPs, dated April 18, 2006, and November 28, 2006;

C. Failing to timely adopt the previously approved IEP, or to adopt and implement a new IEP within 30 days of Student’s transfer to the District? 2.

Did District deny Student a FAPE in the 2007-2008 school year after Student moved back to the District on November 29, 2007, by:

A. Failing to consult with Student’s parents concerning the interim offer of

The ALJ has revised the issues without changing their substance, for purposes of organizing this Decision. The issues were derived from the Prehearing Conference Order as further clarified by the parties at the due process hearing and in their closing briefs.

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B. Failing to make a timely interim placement offer comparable to the previously approved IEP, dated March 21, 2007;

C. Failing to adopt the previously approved IEP, or to adopt and implement a new IEP within 30 days of District’s interim placement offer made on December 5, 2007?

3.

Did District deny Student a FAPE in the 2007-2008 school year, after

Student moved back to the District on November 29, 2007, by failing to consider the Independent Educational Evaluation (IEE) of Robin Morris Psy.D., dated June 2, 2007, concerning the interim placement offer?

REQUESTED REMEDIES

Student requests an order requiring District to provide an appropriate interim placement offer to Student in consultation with Student’s parents, and requiring District to adopt the previously approved IEP, or to adopt and implement a new IEP within 30 days of District’s interim placement offer. Student further requests compensatory education in the form of educational services for District’s failure to provide Student with an appropriate placement or services after June 20, 2007.

FACTUAL FINDINGS

JURISDICTION

1.

Student, born on [date redacted], is six years and eleven months of age. He currently lives with his Parents within the boundaries of the District. He is eligible for special education as a student with multiple disabilities, including traumatic brain injury (TBI), visual impairment (VI) and orthopedic impairment (OH).

2.

Student resided with his Parents in the Etiwanda Unified School District (ESD)

until Student and his Parents moved to District in November 2006. Student also resided in

Accessibility modified document the Mountain View School District (Mountain View) from August 31, 2007, to November 29, 2007 before moving back to District.

GENERAL BACKGROUND

3.

In May 2004, Student sustained a traumatic brain injury. [Description of injury and medical procedures redacted.]

A developmental assessment, conducted at Loma Linda University Medical Center in August 2004, found Student was significantly delayed in his overall cognitive processing abilities, he exhibited communication and gross and fine motor impairment and behavioral problems. Student was also diagnosed with cerebral palsy (left side weakness) in October 2004. At the time of his injury, Student resided with his parents within the jurisdictional boundaries of ESD.

4.

In November 2004, ESD conducted a multidisciplinary assessment of Student to determine eligibility for special education services. The assessment results established

[Footnote defining medical condition redacted.]

[Footnote defining medical procedure redacted.]

Accessibility modified document that Student displayed global developmental delays caused by the traumatic brain injury. ESD convened an initial IEP on December 15, 2004, in which ESD determined Student was qualified for special education services under the eligibility category of multiple disabilities. The IEP offered placement in a preschool Orthopedic Handicap SDC (moderate to severe) at Moreno Elementary School (Moreno school) in the Ontario-Montclair School District (OMSD). Parents consented to the IEP.

5.

Both ESD and OMSD are part of the West End Special Education Local

Planning Agency (West End SELPA). District is located in the Riverside County SELPA. The March 28, 2006 Annual IEP 6.

OMSD convened Student’s annual IEP team meeting on March 28, 2006. The

IEP noted Student’s primary eligibility of multiple disabilities, with a low incidence eligibility of orthopedic impairment and visual impairment. The IEP identified Student’s unique educational needs in speech, language, communication, and adapted physical education. The IEP team noted Student’s progress toward the achievement of goals and objectives and his present levels of performance. Student used several modes of communication including communication devices, some vocalizations, eye gaze, and American Sign Language (ASL). Based on Student’s present levels of performance, the team developed academic goals and objectives in math and speech and language. The IEP noted Student needed to: improve in his oral-motor function through participation in strengthening exercises; increase verbal output by imitation of sounds and simple words; and access an augmentative/alternative communication device (ACC) to indicate his wants and needs. Student required a small class in a structured setting with specialized instruction. Student also required assistance for his toileting and feeding needs. Student used of a wheelchair and a Rifton Gait Trainer, and wore a helmet while in school. 7.

The IEP noted Student’s strengths and interests: “[Student] loves listening to books being read to him, and books with accompanying audiocassettes. He loves music

Accessibility modified document and singing activities, and enjoys playing in our classroom block area with his friends, especially when they are playing with cars and trucks.” The IEP described Student’s general education program participation to consist of school day activities including lunch, recess, passing periods, assemblies and field trips. Student’s classroom was located next to the general education classrooms which allowed SDC students easy access for mainstreaming. 8.

The IEP offered: (1) continued placement in the kindergarten to first grade

SDC for moderate to severe OH students, at Moreno school, for 175 minutes per day, five times per week; (2) designated instruction and services (DIS) in the form of language and speech (LAS) for 30 minutes, twice weekly, on a pull-out and collaboration basis; and (3) adapted physical education (APE) for 45 minutes, twice weekly, on a pull-out basis. The IEP also noted Student would receive special education services for 98 percent of the school day. Student was mainstreamed two percent of the day. Parents consented to the IEP. 9.

An addendum IEP was convened at Parents’ request, on April 18, 2006. The

IEP team agreed to provide Student a one-to-one aide, and the IEP team recommended assessments to determine Student’s occupational therapy (OT) and vision therapy (VT) needs.

Student’s Move to the District in the 2006-2007 School Year 10.

On October 27, 2006, Parents contacted Peter Gennaro (Mr. Gennaro),

Special Education Coordinator for District and notified him they were preparing to move into the District. Parents informed him that Student was in kindergarten and in need of special education services. Parents provided District with a copy of Student’s March 28, 2006 annual IEP, and April 18, 2006 addendum IEP. Parents inquired about the availability of placements appropriate to meet Student’s needs. They requested information on schools in the District comparable to Student’s current placement at Moreno school. 11.

Mr. Gennaro reviewed the March 28, 2006 IEP and the April 18, 2006 addendum IEP, and believed that while Student demonstrated emerging academic skills,

Accessibility modified document he had academic deficits and was not performing at the state standard for kindergarten students. According to Mr. Gennaro, based upon the review of the two IEPs provided by Parents, District believed that the most appropriate placement for Student was in the Physically Handicapped/Orthopedic Handicapped program operated operated by the Riverside County Office of Education (RCOE) at La Grenada South (La Grenada OH SDC) because there were no comparable classes within the District.6 12.

On November 14, 2006 Mr. Gennaro notified Parents of a scheduled a tour of the program at La Grenada OH SDC South on November 22, 2006. 13.

Parents met with Mr. Gennaro and Rita Bien (Bien), Principal at La Grenada on November 22, 2006, to observe the SDC program at La Grenada South. They were informed the program was under consideration by District as an interim placement for Student. Parents also met with Bernice Meyer (Ms. Meyer), the teacher of the La Grenada OH SDC under consideration by District. Parents also observed another special day class at La Grenada South attended by moderately disabled students. Parents declined District’s offer to observe any other prospective placements at La Grenada South. 14.

In addition to La Grenada South, District directed Parents to Foothill

Elementary school where they observed a class for the severely handicapped and another class for students with less severe disabilities.

15.

The class at La Grenada OH SDC observed by Parents was a kindergarten through sixth grade class, with 10 students ages 3-12. The students had severe orthopedic disabilities with average to low cognitive ability. The students were not ambulatory and required the use of a wheelchairs for access to the classroom. Parents observed several of

District witnesses testified that SDC programs for moderate to severely disabled students were provided by the Riverside County Office of Education under contract with District.

Accessibility modified document the students lying or sitting on the classroom floor. Parents further observed that several of the students appeared incapable of communicating even with the use of supports in the form of assistive technology (AT) or alternative communication devices (ACC). 16.

The Parents also observed that the students had no outdoor recess activities or apparent access to adaptive playground equipment. The students were segregated from their typically developing peers during the school day.

17.

Parents testified that they met with the La Grenada OH SDC teacher, Ms.

Meyer, alone during their classroom observations. Mother also testified that of the classes she observed, the La Grenada OH SDC program appeared to be the best of classrooms she visited but it was, nevertheless, not comparable to Student’s program at Moreno school. However, Student offered no independent corroborating evidence in support of his contention that District’s proposed interim placement at La Grenada OH SDC for the 20062007 school year was not comparable to the placement provided in the March 28, 2006,

IEP.

18.

At the time of Parents’ visit to La Grenada South, Student was still enrolled at

Moreno school as a kindergarten student. Parents informed Mr. Gennaro, on the day of their tour, of an upcoming IEP scheduled by OMSD to be held on November 28, 2006, at Moreno school. The purpose of the November 28, 2006 IEP was to review the results of Student’s OT and vision evaluations and to determine Student’s eligibility for additional DIS services. The IEP was also convened at Parents’ request. The IEP identified District as Student’s district of residence. District had confirmation that Student was a resident and did not attend the IEP meeting. The IEP offered Student continued placement at Moreno school with specialized academics, and a small group SDC for 170 minutes per day five times per week. The addendum IEP included all of the services provided in the March 28, 2006 IEP, and the April 18, 2006 addendum IEP, which offered a one-to-one aide during the school day, and specialized vision services for 15 minutes, twice per week, on a

Accessibility modified document collaboration basis. Student was also to receive 12 sessions of OT for 30 minutes a week. 19.

The IEP also noted Parents’ report of their recent relocation to District in

Riverside County. The IEP further noted that Parents were hoping to arrange a “transfer” from District back to OMSD so that Student could remain at Moreno school. Parents testified that they moved to District sometime between November 1, 2006, and November 22, 2006, but did not indicate when they were finally and completely residing in the District. Ms. Hinkle testified that she was not aware Parents were living in the District until after November 28, 2006, when she was notified by OMSD. Mr. Gennaro’s testimony is consistent with Ellen. Hinkle (Ms. Hinkle), Special Education Director for District. Mr. Gennaro testified that he was not certain when Parents completed their move to District until he received notice from OMSD of Parents residence in the District on December 5, 2006. Based upon notification from OMSD and Parents follow up with Mr. Gennaro it is found Parents were residing in the District as of December 5, 2006. 20.

On December 5, 2006, OMSD notified District of Student’s move to the

District. OMSD provided District with a copy of the November 28, 2006 addendum IEP. District now had copies of Student’s annual review IEP and the April and November Addendum IEPs. The addendum IEPs did not change Student’s program except to provide OT and vision services for Student.

21.

On December 5, 2006, Parents notified Mr. Gennaro that La Grenada South was not an appropriate interim placement for Student because the proposed placement was not comparable to the program Student was attending at Moreno school, and Parents were concerned Student would not progress in development of his emerging academic and communication skills. Parents requested assistance in finding a more appropriate placement in Riverside County. Alternatively, Parents requested District’s assistance to obtain an “interdistrict transfer” that would allow Student to remain at Moreno school. 22.

On December 20, 2006, Mother contacted Ms. Hinkle concerning the status

Accessibility modified document of Parents’ request for an interdistrict transfer. Ms. Hinkle assured Mother she would investigate the feasibility of a transfer and act within Student’s best interest. 23.

The last school day in the District before the winter break was December 21,

2006. On January 8, 2007, in an attempt to accommodate the Parents, District signed an Interdistrict Attendance Permit (permit) and approved Parents’ request for an interdistrict transfer. The permit allowed Student to continue in placement at Moreno school, as long as funded by OMSD. However, OMSD declined to approve the request without funding provided by District, which required an Inter-SELPA Agreement for Providing Placement and Services to Students with Severe Disabilities (inter-SELPA agreement). 24.

District scheduled a conference with Parents for January 17, 2007, to review and discuss the interim placement offer. The conference was not an IEP. Mother requested a new date for the conference. Instead, on January 18, 2007, District held a telephone conference with Mother and made a verbal interim placement offer placing Student at La Grenada South. Mother did not consent to the offer.

25.

District confirmed the interim placement offer in writing on January 24, 2007.

The offer included a 30-day interim placement in the La Grenada OH SDC, as a program comparable to Student’s last approved IEP. District’s offer included all the services provided in the March 28, 2006 IEP, and the April 18, 2006, and November 28, 2006 addendum IEPs. District included a registration packet and requested Parents complete the packet and submit it in order to expedite Student’s registration and enrollment in the District. District’s offer contained a notice to Parents that an IEP meeting to review the placement was scheduled for February 22, 2007, at 10:00 a.m.

26.

Parents did not accept District’s written offer. Parents did not complete and did not submit the registration packet to District. There was conflicting testimony at the hearing regarding Parents’ failure to complete the registration packet. Parents testified that Mr. Gennaro had previously instructed them not to complete a registration packet until

Accessibility modified document they agreed to an interim placement. Ellen Hinkle testified that she included a registration packet in her offer letter with instructions to Parents to complete and return the packet to expedite Student’s registration and enrollment in the District. Even if Mr. Gennaro had instructed Parents to withhold registration, District’s subsequent written offer would have superseded his instructions and should have prompted Parents to complete the registration packet.

27.

Parents notified District that they would not attend the IEP meeting. Ms.

Hinkle testified that as a result of Parents’ failure to comply with District’s request to register and enroll Student, Parents’ disagreement with the proposed interim placement, and Parents’ decision not to attend the IEP meeting, District decided that a meeting would be futile. Thus Ms. Hinkle cancelled the February 22, 2007 IEP meeting. 28.

Ms. Hinkle further testified that District was not required to adopt the last approved and implemented IEP, nor adopt, amend or implement a new IEP until 30 days after Parents enrolled Student in the District and Student was attending an interim placement. As of February 22, 2007, Student had not enrolled in nor was he attending school in the District.

The March 21, 2007 Annual IEP 29.

From the date of Parents’ initial contact with District, through the OMSD annual review IEP of March 21, 2007, Student continued to attend the SDC at Moreno school. At the time of the OMSD annual review IEP, Student was attending Sara Chen’s K-1 (kindergarten to first grade) class and was in the first quarter of the first grade. The IEP team agreed that Student’s current services, provided in the March 28, 2006 IEP and the April and November, 2006 addendum IEPs, continued to be appropriate. The March 21, 2007 IEP also confirmed Moreno school as Student’s school of attendance. The IEP team developed academic goals and objectives and also offered Student services through the 2007 extended school year (ESY). The IEP also listed District as Student’s district of

Accessibility modified document residence. Ms. Hinkle testified that District was notified of the meeting but was not able to have a representative present at the IEP meeting.

30.

Despite Student’s residence within District’s jurisdictional boundaries, OMSD continued to fund Student’s attendance at Moreno school while District and OMSD, through their respective SELPAs, negotiated the terms of an inter-SELPA agreement. June 8, 2007 Addendum IEP and Inter-SELPA Agreement 31.

On June 8, 2007, after several months of negotiations, District and OMSD, signed the inter-SELPA agreement. Under the terms of the inter-SELPA agreement, District agreed to fund Student’s placement at Moreno school for the period from January 25, 2007, to the end of the 2006-2007 school year in June 2007, when the inter-SELPA agreement would expire.

32.

On June 8, 2007, OMSD also convened an IEP meeting at Parents’ request to discuss Student’s status and Parents’ concerns about Student’s behaviors. Ms Hinkle attended this meeting as District’s representative and signed the IEP as a member of the IEP team. The IEP team discussed Parents’ behavioral concerns, and agreed to continue Student’s current goals and objectives in accordance with the March 21, 2007 IEP. Ms. Hinkle notified Parents that the inter-SELPA agreement, under which Student was permitted to attend Moreno school in the spring semester of the 2006-2007 school year, would expire on June 21, 2007, the end of the school year.

33.

On June 21, 2007, OMSD notified Parents that the IEP offer of educational services at Moreno school for ESY 2007 was withdrawn and Student could not attend ESY because of the expiration of the inter-SELPA agreement. OMSD no longer made ESY available to Student.

34.

On June 26, 2006, District offered Student District’s summer school program operated by RCOE located at La Grenada South until July 19, 2007. Parents rejected District’s offer of ESY in the District. Parents elected not to place Student in ESY and

Accessibility modified document

Student went without educational services from June through July 2007.

STUDENT’S TRANSFER TO DISTRICT IN THE 2007-2008 SCHOOL YEAR

35.

On August 31, 2007, in an effort to re-enroll Student at Moreno school,

Parents notified OMSD that Student and Mother had moved from District’s jurisdictional boundaries to live with a relative in [city of residence redacted] within the boundaries of OMSD.7 However, the residence address to which Mother had relocated was in the Mountain View School District (Mountain View). Mountain View is also part of the West End SELPA and permitted Student to re-enroll at Moreno school.

36.

Student attended Moreno school as a first grade Student in the fall semester of the 2007-2008 school year up to November 26, 2007. Based upon the March 21, 2007 IEP Student was placed in a SDC class which contained a mix of first to third grade students ranging in age from five to seven years of age. The class had seven to nine students with two adult aides, in addition to Student’s one-to-one aide, and the SDC teacher. Judy Ward (Ms. Ward), Student’s SDC teacher, testified that the cognitive abilities of the students in the class ranged from normal or average to one student who was mentally retarded. Student fell in the low range, but Student also tested at a first grade reading level. Student had receptive and expressive abilities and made steady progress in the class. According to Ms. Ward, Student communicated with her, his one-to-one aide,

Father continued to maintain the family’s primary residence in Riverside County within District’s boundaries.

Accessibility modified document and the other students through the use of ASL, gestures and a Dynavox.8 Student participated in a peer-to-peer tutoring program and the “Reading for Success” program, with the use of his Dynavox and the support of his one-to-one aide. These programs included interaction with general education students through reverse mainstreaming. According to Ms. Ward, the SDC students had numerous opportunities to interact with typically developing peers during lunch, assemblies, field trips, art projects and special holiday activities. Ms. Ward believed Student was successful in the type of classroom environment described in her SDC, as a result, he continued to make steady progress in several areas, including the development of his math, speech and communication skills. Ms. Ward’s testimony was corroborated by Erin McGhee (Ms. McGhee), Student’s one-toone aide, and Nancy Miller (Ms. Miller), his APE teacher. In addition, Ms. McGhee and Ms. Miller both previously provided services to Student when he attended Ms. Chen’s class, in the spring semester of the 2006-2007 school year. Their descriptions of Student’s interaction with typically developing peers in both the 2006-2007 school year and the fall semester of the 2007-2008 school year were similar. They credibly testified that Student derived meaningful benefit from interaction with typically developing peers and that Student continued to show progress in Ms. Ward’s OH SDC class. 37.

On or about November 26, 2007, Mountain View determined that Student’s

[city of residence redacted] address was not his primary place of residence and disenrolled Student from Moreno school.

38.

On November 29, 2007, Student moved back to Parents’ primary residence in

Ms. Ward described the Dynavox as an alternative communication device in the form of a box the size of a piece of paper. Words are place or loaded onto the box. A student demonstrates his reading or word comprehension by pressing the word in the box called for in the exercise. The device had the capacity to mimic vowel sounds as well.

Accessibility modified document the District and provided a copy of the March 21, 2007 IEP to District. Parents met with District at an interim IEP meeting on December 5, 2007. Parents provided District proof of residence, and a completed registration packet. District offered Student an interim placement at the SDC program operated by the Riverside County Office of Education (RCOE) at La Grenada South, in Bernice Meyer’s OH SDC class. District advised Parents that the offered interim placement was substantially the same SDC program previously offered to Student on January 18 and January 24, 2007.

39.

The interim offer incorporated Student’s March 21, 2007 IEP, and offered

Student the following 30-day program and services: (1) Placement in the La Grenada OH SDC program, taught by Ms. Meyers, for five hours per day five times per week for 300 minutes per day, in a small group setting starting December 7, 2007; (2) LAS twice per week for 30 minutes in a collaborative model; (3) APE 36 times in the school year for 45 minutes each session in a small group setting; (4) OT 20 times per year for 30 minutes a session, provided by Gallagher Pediatrics in a collaborative model; (5) Vision services twice per week for 30 minutes, in a collaborative model; and (6) A one-to-one aide five times per week for the entire school day. The interim offer also noted under the column “Other Program Information” that Student was to be included in the regular education environment two percent of the school day.

40.

Ms. Hinkle testified that the interim offer, including the interim placement, was comparable because it was substantially the same as the program and services provided to Student in the March 21, 2007 IEP. Ms. Hinkle further testified that she had not observed Student’s placement at Moreno school.

41.

Ms. Bien testified that the District’s interim offer was appropriate and comparable because it provided for the same services Student received in the OMSD. She also testified that Student’s cognitive level and his abilities were similar to the students in the La Grenada OH SDC. She testified that the La Grenada OH SDC was for students in

Accessibility modified document grades k-6. The students ranged in age from 4 and one-half - 12 years old. However, according to Ms. Bien there were presently no opportunities for mainstreaming and the students in the proposed placement were not able to interact with the general education students at La Grenada North. Ms. Bien had not observed Student’s placement at Moreno school.

42.

Similarly, Ms. Goeman, school psychologist employed by RCOE, testified that the offered placement may not currently have all of the ACC devices called for in Student’s last approved and implemented IEP. For example, Ms. Goeman testified that RCOE would need to order the Dynavox, but it was her understanding that Parents would provide the equipment in the interim. Ms. Goeman also indicated that it might take more than a month to take delivery of a Dynavox. According to Ms. Goeman, the SDC teacher in the proposed interim placement could be trained in the use of any ACC and/or AT devices required under Student’s IEP. Ms. Goeman further testified that she was familiar with the cognitive levels and abilities of the students in the offered placement. She testified that the students in the proposed interim placement had limited opportunity to interact with the general education students at La Grenada North because barriers put in place due to ongoing construction at the school site. She stated that in order to allow mainstreaming, the La Grenada South students had to be assisted by aides who would be required to walk or wheel the students past the construction project down a street to reach La Grenada North. The students were segregated from their typically developing peers during the school day. Ms. Gorman also testified that she believed the offered interim placement was appropriate but she could not say with certainty whether it was comparable to Student’s last approved and implemented IEP. Ms. Gorman had not observed Student’s placement at Moreno school.

43.

Parents did not consent to the interim placement offer on the grounds that the proposed placement was identical to the previous interim placement offer of January

Accessibility modified document

24, 2007, and was, therefore, not comparable to Student’s last approved IEP. Unlike District’s efforts when Student first transferred to the District, in the fall of the 2006-2007 school year, District made no other placement offer, and did not consult with Parents to determine what additional interim placement options might be available to Student. 44.

In response to District’s interim placement offer, Parents withdrew from further discussions with District and did not enroll Student. Student currently resides in the District’s boundaries but is not currently receiving educational services.

IEE OF ROBIN MORRIS, PSY.D, M.F.T.

45.

Parents unilaterally referred Student to Robin Morris (Dr. Morris), a Child

Psychologist, on May 29, 2007, for an independent educational evaluation to determine his current cognitive, social/emotional and self-help functioning.9 Parents also wanted Dr. Morris to make recommendations regarding Student’s placement. Parents had not requested District assessments, and District had not conducted assessments. Parents did not request authorization from District to obtain an independent assessment. 46.

Dr. Morris issued a Psychological Evaluation Report, dated June 2, 2007. Dr.

Morris concluded that Student’s general cognitive abilities were in the very delayed range; Student’s receptive language is in the average to below average range; Student had low expressive language abilities except where he was assisted by ACC devices like the Dynavox, and by his use of ASL, which he used to respond “yes” or “no.” He also

Dr. Morris has a Bachelor of Arts degree from Boston University, a Masters degree in Clinical Psychology from Pepperdine University, and a Doctor of Psychology degree from the California School of Professional Psychology. She has more than 15 years of experience in the field of clinical psychology. Dr. Morris has also interfaced with school psychologists and IEP teams to develop goals and objectives for students, and she has assessed the appropriateness of IEPs and placements for special education students.

Accessibility modified document demonstrated the ability to point and gesture. Dr. Morris concluded that these abilities enabled Student to communicate with his classmates and his teacher. Student was also delayed in the area of social skills and self-help skills. The report concluded with numerous recommendations. Among the recommendations, Dr. Morris indicated Student should continue to participate in an OH class similar to his class at Moreno school, in a small structured setting with the support of a one-to-one aide.

47.

Dr. Morris testified at hearing that her conclusions and recommendations were based upon review of various medical reports, Student’s initial educational assessments, teacher interviews, and class observations, and the OMSD March 21, 2007 IEP. She observed Student’s kindergarten class at Moreno school and the OH SDC at La Grenada South. These observations took place in the spring semester of the 2006-2007 school year. She interviewed Sara Chen, Student’s kindergarten teacher, at Moreno school in the 2006-2007 school year spring semester, she also observed the class. Dr. Morris testified that she observed six children including Student participating in circle time. She observed Student participating in various words and spelling exercises with the assistance of his one-to-one aide, with some physical and verbal prompting. For example, she observed Ms. Chen hold up the letter “N” and made the letter sound. Student actively responded by searching his Dynavox to match the same letter. He raised his hand when the teacher asked a class question. When his teacher asked him to identify letters among a field of three he did so with 90 percent accuracy. He also anticipated the end of some assignments and would hand his teacher the completed paper. Dr. Morris also observed Student’s one-to-one aide encouraged Student’s independence, and e demonstrated an awareness of other children in the classroom. According to Dr. Morris, Student’s teacher reported that the kindergarten class had eight orthopedically impaired children. Ms. Chen described Student as making steady progress. She indicated Student benefited from social interaction with his peers through the use of his Dynavox and ASL. Student was also aided

Accessibility modified document by a vision specialist at certain times of the class day. Dr. Morris interviewed Student’s vision specialist, Peggy McDonald. Ms. McDonald reported to Dr. Morris that Student displayed age appropriate reading comprehension, and could locate and identify words shown to him, with appropriate visual aides.

48.

Dr. Morris testified that she interviewed Ms Meyer, and observed Ms. Meyer’s

OH SDC at La Grenada. Dr. Morris learned from Ms. Meyer that the class was a K-6th grade class composed of approximately 6-9 children. Ms. Meyer had 24 years experience and had two experienced adult aides. Ms. Meyer expressed her concern to Dr. Morris that her class had evolved over the years from an OH higher functioning class to a class comprised of lower functioning students with multiple severe handicapping conditions. Dr. Morris further testified Ms. Meyer described five of the children in her class as ranging in age from 7-12 years of age who all had cognitive abilities at the kindergarten level. 49.

According to Dr. Morris, she shared Student’s OMSD March 21, 2007 IEP with

Ms. Meyer Ms. Meyer reviewed the IEP, and informed her she would not be able to accommodate Student’s IEP. Dr. Morris testified, as noted in her report, that Ms. Meyer expressed her additional concern that there was currently no opportunity to interact with typical peers at La Grenada because of recent construction which physically separated La Grenada North and South. Ms. Meyer reportedly expressed concern to Dr. Morris that her students had little opportunity to interact with typical peers at La Grenada North. Dr. Morris testified that she observed the children sitting on the ground of the classroom with one aide and no constructive activity. She opined the children all appeared to be in the severe range. Dr. Morris opined that based upon her observations, and teacher interviews, that La Grenada South was “not a good fit for Student,” meaning the OH SDC program was not comparable to the Moreno school OH SDC program attended by Student. 50.

Dr. Morris evaluated Student once and was not his service provider. Dr.

Morris presented as a credible and unbiased witness on the issue of whether District’s

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Parents served the IEE on District by letter dated June 21, 2007, at the end of the 2006-2007 school year. In the letter Parents requested reimbursement for Dr. Morris’ June 2, 2007 report. Ellen Hinkle testified that Parents never requested assessments nor did they request an IEE at District expense. 11 Ms. Hinkle testified further that she received Dr. Morris’ report after the end of the 2006-2007 school year. She read the IEE but did not consider it at that time. Ms. Hinkle further testified that District would have considered the IEE in December 2007 had Parents requested an IEP and had District been given the opportunity to conduct assessments.

LEGAL CONCLUSIONS

1.

As the petitioning party, Student has the burden of persuasion on all issues (Schaffer vs. Weast (2005) 546 U.S. 49, 56-62[126 S.Ct. 528, 163 L.Ed.2d 387].)

The evidence established that Dr. Morris was not a school psychologist, the assessment tools used by Dr. Morris may not have been appropriate, and may have led to some invalid conclusions concerning Student’s disability categories. However, eligibility was not at issue and the report was not offered for purposes of determining Student’s eligibility for special education. Rather, the report was offered for the purpose establishing whether the interim placement offer was comparable to Student’s last approved and implemented IEP, and whether District failed to consider the report.

The scope of the administrative hearing mandated by title 20 of the United States

Code section 1415(b)(2), is limited to the due process request filed to obtain the hearing. Student’s due process request did not request reimbursement as a remedy for Dr. Morris’ report nor was reimbursement requested at hearing.

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ISSUE ONE: DENIAL OF FAPE IN THE 2006-2007 SCHOOL YEAR

2.

Student alleges District violated his procedural and substantive right to a

FAPE. District contends that it provided Student a FAPE. Because it offered Student a 30day interim placement offer of a SDC substantially comparable to Student’s March 28, 2006 IEP, and the November 28, 2006 addendum IEP, which was made after consultation with Parents. District further contends that its duty to adopt a previous IEP or develop, adopt, and implement a new IEP within 30 days of offering an interim placement was not triggered until a student registered in the district and attended the offered interim placement.

3.

Children with disabilities have the right to a FAPE that emphasizes special education and related services designed to meet their unique needs and to prepare them for employment and independent living. (Ed. Code, § 56000.) FAPE consists of special education and related services that are available to the student at no charge to the parent or guardian, meet the state educational standards, include an appropriate school education in the state involved, and conform to the child’s IEP. (20 U.S.C. § 1402(9); Ed. Code, § 56031.) In California, are related services are referred to as designated instruction and services (DIS). (Ed. Code, § 56363, subd. (a).)

4.

There are two parts to the legal analysis in suits brought pursuant to the

IDEA-procedural and substantive. First, the court must determine whether the school system has complied with the procedures set forth in the IDEA. (Bd. Of Ed. Of the Hendrick

Hudson Sch. Dist v. Rowley (Rowley) (1982) 458 U.S. 176, 200 [102 S.Ct. 3034, 73 L. Ed.2d 690].) Second, the court must assess whether the IEP developed through those procedures was designed to meet the child’s unique needs, reasonably calculated to enable the child to receive educational benefit, and comported with the child’s IEP. (Id. pp. 206-207.) Procedural violations constitute a denial of FAPE only if the violations caused a loss of educational opportunity to the student or significantly infringed on the parents’ right to

Accessibility modified document participate in the IEP process. (Rowley, supra, 458 U.S. at pp. 206-207; M.L. v. Federal Way

Sch. Dist. (9th Cir. 2004) 394 F.3d 634, 646; MM v. Sch. Dist. of Greenville County (4th Cir. 2002) 303 F.3d 523, 534; Amanda J. v. Clark County Sch. Dist. (9th Cir. 2001) 267 F.3d 877, 892.)

5.

A child with an IEP who transfers to another school district within the State is entitled to “a free appropriate public education,” including services comparable to those described in the previously held IEP, in consultation with the parents until such time as the local educational agency adopts the previously held IEP or develops, adopts, and implements a new IEP that is consistent with Federal and State law. (20 U.S.C. § 1414(d)(2)(C)(i)(1); 34 C.F.R. § 300.323(e).)

6.

For a student who transfers into a district not operating under the same

SELPA, the local educational agency (LEA) shall provide the interim program in consultation with the parents, for a period not to exceed 30 days, by which time the local educational agency shall adopt the previously approved [IEP] or shall develop, adopt, and implement a new [IEP] that is consistent with federal and state law. (Ed. Code, § 56325(a)(1).) 7.

Each public agency shall take steps to ensure that one or both parents of a child with a disability are present at each IEP meeting or are afforded the opportunity to participate. (34 C.F.R. § 300.345(a).) If neither parent can attend the public agency shall use other methods to ensure parent participation. (34 C.F.R. § 300.345(c).) A meeting may be conducted without a parent in attendance if the public agency is unable to convince the parent that they should attend. The public agency must have a record of attempts to arrange a mutually agreed on time and place. (34 C.F.R. § 300.345(d).)

ISSUE ONE-A: FAILURE TO CONSULT WITH PARENTS

8.

Student contends District did not consult with Student’s parents in the process of making the interim placement offer. Here, District responded to Parents’ notifications to District of their impending move into its jurisdictional boundaries and

Accessibility modified document request for provision of placement options for Student. District provided Parents several choices of classes to observe. District maintained contact with Parents up to the winter break and after to discuss their concerns about the interim offer and District scheduled conferences with Parents. District acted promptly despite the uncertainty of Student’s resident status. The evidence establishes Student began residing in District when Parents completed their move as of December 5, 2006. By that time, District had reviewed Student’s last approved and implemented IEP and provided Parents an opportunity to tour of the proposed placement at the RCOE OH SDC at La Grenada South. District also referred Parents to view a class at another school in the District. Parents also had access to District Special Education Director and staff who maintained telephone contact with Parents in December 2006 up to the winter break and in January 2007. The evidence further established that District consulted with Parents from the time of Parent’s request for assistance from District up until Parents declined to attend the IEP meeting scheduled for February 22, 2007. District went to great lengths to consult with Parents regarding the interim placement offer. Student did not prove that District failed to make an interim offer in consultation with his Parents prior to making the interim placement offer in the 20062007 school year. (Factual Findings 6-27; Legal Conclusions 1, 3-5.)

ISSUE ONE- B: FAILURE TO MAKE A TIMELY AND COMPARABLE INTERIM PLACEMENT

OFFER

9.

Student contends that District denied Student a FAPE when he moved to the

District on or about November 1, 2006, by failing to make a timely 30-day interim placement offer. District’s interim placement offer was first made verbally on January 17, 2007, and the formal interim placement offer was not made until January 24, 2007. The law requires Districts to provide an interim program for a period not to exceed 30 days. The offer was untimely; however, District’s untimely offer alone does not rise to the level of a denial of FAPE in the 2006-2007 school year. The procedural error did not result in loss of

Accessibility modified document educational opportunity to Student because he continued to attend his previous and preferred placement at Moreno school, ultimately at District’s expense.12 Student failed to prove District denied Student a FAPE. (Factual Findings 6-25; Legal Conclusions 1, 3-6.) 10.

Student further contends that when District made an interim placement offer, the offered placement at La Grenada South was not comparable to the Moreno school placement offered by OMSD, in the March 28, 2006 IEP, and the November 28, 2006 addendum IEP. Student offered only his Parents’ observations that the interim placement offered by District in the 2006-2007 school year was not comparable to Student’s placement at Moreno school. Student offered no other evidence or independent testimony to corroborate Parents’ observations. Student failed to produce sufficient persuasive evidence that the proposed interim placement for the 2006-2007 school year at La Grenada OH SDC, was not comparable to Student’s last approved and implemented IEP of March 28, 2006, as amended. Student did not meet his burden of proof that District failed to make an interim offer comparable to the last approved and implemented IEP. (Factual Findings 4-25; Legal Conclusions 1, 3-6.)

ISSUE ONE-C: FAILURE TO ADOPT PREVIOUSLY APPROVED IEP, OR IMPLEMENT NEW

IEP

11.

Student contends District did not timely or properly convene an IEP meeting

In his closing brief, Student improperly relies on the holding in Termine by

Termine v. William S. Hart Union High Sch. Dist. 48 IDELR 272 (9th Cir. 2007), an unpublished decision, for the proposition that District’s failure to immediately provide an appropriate interim placement offer to student amounted to a denial of FAPE. The holding in Termine is not helpful to Student for the following reason. The 9th Circuit ordered its ruling depublished under Circuit Rule 36-3, indicating the decision cannot be cited as precedent.

Accessibility modified document within 30 days of the interim placement offer, and District did not adopt the previously approved IEP or develop, adopt or implement a new IEP. District argues that because Student declined to participate in the February 22, 2007 IEP meeting, and failed to register in the District, no IEP meeting could be convened and District was precluded from adopting the approved IEP or developing a new IEP. District’s failure to hold the IEP did not rise to the level of denial of FAPE. There is no evidence that Student suffered a loss of educational opportunity. Student continued to attend Parents’ preferred placement at Moreno school, at District expense, where Student continued to receive DIS and support services for the entire 2006-2007 school year. Moreover, Parents were invited to attend and elected not to attend the IEP meeting scheduled for February 22, 2007. They cannot now argue that were denied meaningful participation in the IEP process. Student did not prove District denied a FAPE in the 2006-2007 school year. (Factual Findings 4-27; Legal Conclusions 1, 3-7.)

ISSUE TWO: DENIAL OF FAPE IN THE 2007-2008 SCHOOL YEAR

12.

Student contends District denied Student a FAPE in the 2007-2008 school year. District contends that it provided Student a FAPE. District offered Student a 30-day interim placement offer that was substantially comparable to Student’s March 21, 2007 IEP, which was made after consultation with Parents. District further contends that its duty to adopt a previous IEP or develop, adopt, and implement a new IEP within 30 days of offering an interim placement was not triggered until Student registered in the district and attended an interim placement.

ISSUE TWO-A: FAILURE TO CONSULT WITH PARENTS

13.

Student asserts that after he transferred back within the jurisdictional boundaries of the District on November 29, 2007, that District did not consult with Parents when making the interim placement offer. Here, Student notified District on November 29,

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2007, of his transfer back to the District. District met with Parents on December 5, 2007, and notified Parents they had determined that the placement in the La Grenada OH SDC was comparable to the March 21, 2007 IEP. District did not provide other placement options and left no room for discussion by Parents to consider other interim placements. There is no evidence District had any further discussions with Parents concerning the proposed interim placement. As discussed below, District’s failure to consult with Parents resulted in a procedural violation and denial of Parents right to participate in the process. (Factual Findings 6-25, 29-39; Legal Conclusion 1-6.)

ISSUE TWO-B: FAILURE TO MAKE A TIMELY AND COMPARABLE INTERIM PLACEMENT

OFFER

14.

Student asserts that after he transferred back within the jurisdictional boundaries of the District on November 29, 2007. There is no evidence that District’s offer was untimely. There is a preponderance of evidence that the offer was not comparable. Ms. Hinkle testified that with few exceptions, District’s interim offer of placement and services were based upon the March 21, 2007 IEP. District increased Student’s time in class from 175 minutes per day, to 300 minutes per day 5 times per week to comply with State standards for first grade students. The rest of Student’s services remained essentially the same. The La Grenada OH SDC was substantially the same. The class was a K-6th grade class with severely disabled Students aged 4 and one-half -12 years old. Based upon the testimony of Ms. Goeman, the La Grenada South OH SDC students had minimal to no opportunities to mainstream with typically developing peers. In contrast, Ms. Miller, Ms. McGhee, and Dr. Morris, testified that the Moreno school OH SDC in the fall semester of the 2007-2008 school year was comprised of students in first through third grade and within the age range of 6-7 years of age. The program offered at Moreno school also offered Student access to typically developing peers and a variety of opportunities to interact with the general education students. Student derived educational benefit from

Accessibility modified document placement in the type of program established at Moreno school. Additionally, the evidence established that Student required the use of ACC devices that were provided to him at Moreno school. In contrast, the proposed interim placement at La Grenada OH SDC did not present comparable opportunities for Student to progress and to meet his goals. In addition to placement, the levels of services offered at the proposed placement were not comparable. Debra Goeman testified that assistive devices provided in the last approved and implemented IEP might not be readily available at La Grenada OH SDC. Student proved the proposed interim placement was not comparable to the previously approved and implemented IEP of March 21, 2007. Student proved District failed to make a comparable interim placement offer in the 2007-2008 school year. (Factual Findings 29-44; Legal Conclusions 1, 3-6; 13.)

ISSUE ONE- C: FAILURE TO CONVENE AN IEP AND TO ADOPT PREVIOUSLY APPROVED

IEP OR DEVELOP A NEW IEP

15.

Student contends District did not timely or properly convene an IEP meeting within 30 days of the interim placement offer, and District did not adopt the previously approved IEP or develop, adopt or implement a new IEP. District argues that because Student declined District’s offer, no IEP meeting could be convened and District was precluded from adopting the approved IEP or developing a new IEP. District’s argument is not supported in law. The IDEA requires District to provide a FAPE to children in need of special education services. Here, Student established his residency and completed his registration in the District. District was required to proceed and convene an IEP, upon notice to Parents, following 30 days from its interim offer to adopt the IEP in effect or to adopt, amend or develop a new IEP. District failed to do so and District’s failure resulted in a substantive denial of FAPE. Student has proven that District failed to timely convene an IEP and to adopt the March 21, 2007 IEP or adopt and develop a new IEP for 2007-2008 school year. (Factual Finding 29-44; Legal Conclusions 1, 3-7.)

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ISSUE THREE: JUNE 2, 2007 IEE OF DR. ROBIN MORRIS

16.

Student contends District failed to consider the IEE of Dr. Robin

Morris, Psy. D., dated June 2, 2007, which found the offered placement was not appropriate. District contends Student failed to follow the statutory prerequisites governing evaluations and assessments. District asserts that even if Student complied with the statutory prerequisites District had no obligation to consider Dr. Morris’s report. 17.

If the parent or guardian obtains an independent educational assessment at private expense, the results of the assessment shall be considered by the public agency with respect to the provision of a free appropriate public education and may be presented as evidence at a due process hearing. (Ed. Code, § 56329(c).)

18.

Parents obtained the Morris report to dispute the comparability of District’s offered placement at La Grenada OH SDC in January, 2007. Student attended Moreno school at the time he was evaluated by Dr. Morris. The report was issued on June 2, 2007. Parents did not offer the report at Student’s June 8, 2007 IEP team meeting, convened at Parents’ request. Instead, Student mailed a copy of the report to District, on June 21, 2007, the end of the 2006-2007 school year. The IDEA provides that District shall consider the results of an IEE obtained at private expense. Here, the evidence established that at no time did Student request District consider Dr. Morris’ report for purposes of assessing or evaluating Student, The evidence established that District would have considered the IEE upon Student’s request for an IEP. Student did not offer the IEE at the June 8, 2007 IEP team meeting and the report could not have been considered. No subsequent IEP team meeting was held regarding the provision of FAPE to Student thus the IEE could not be considered. District was willing to consider the IEE at an IEP meeting, after District had obtained its own assessments. Based upon the evidence, District could not consider the IEE of Robin Morris, Psy.D., dated June 2, 2007. (Factual Findings 45-51; Legal Conclusions 1, 34, 17.)

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COMPENSATORY EDUCATION

19.

Student seeks compensatory education for District’s failure to provide

Student with an appropriate placement or services after June 20, 2007. District contends Student is not entitled to compensatory education.

20.

A school district may be ordered to provide compensatory education to a pupil who has been denied a FAPE. (Student W. v. Puyallup Sch. Dist. (9th Cir. 1994) 31 F.3d 1489, 1486.) Compensatory education is an equitable remedy that courts may employ to craft appropriate relief for an aggrieved party. The law does not require that day-for-day compensation be awarded for lost or missed time. Equitable relief requires review of the conduct of both parties to determine whether relief is appropriate. (W.G. v. Bd. Of Trustees of Target Range Sch. Dist. No. 23 (9th Cir. 1992) 960 F.2d 1479, 1484; Miller v. San MateoFoster City Unified School District, (N. D. Cal. 2004) 318 F.Supp.2d 851, 859-860.) Equitable relief is a fact-specific inquiry in which the conduct of both parties must be reviewed to determine whether relief is appropriate.

21.

The evidence established the March 21, 2007 IEP provided for Student’s educational services through the 2007 ESY. On June 26, 2007, District offered Student placement for ESY in the RCOE summer school program at La Grenada OH SDC. The program was approximately three weeks and ended on July 19, 2007. District acted to comply with its obligation to offer ESY and Student declined the offer. Student is not entitled to compensatory education for ESY 2007. Student failed to show by a preponderance of the evidence that District’s interim placement offer in the 2006-2007 school year was not comparable. Student moved out of District’s jurisdiction on August 31, 2007 and did not return to District until November 29, 2007. Student concedes in his closing brief that District had no obligation to provide services to Student during that period. District’s liability for compensatory education, if any, did not arise until on and after December 5, 2007. The evidence established District denied Student a FAPE starting on

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December 5, 2007, and forward to the date of the Order set forth below. However, Parents’ actions in removing Student from any possible educational placement have contributed to Student’s loss of educational opportunity and must be considered in fashioning a fair and equitable remedy. Taking into account the conduct of Parents, Student gets no compensatory services for December 2007. Accordingly, Starting in January 2008, excluding any portion of winter break, Student is entitled to compensatory education for a total of ten weeks, as noted below. Student has proven he is entitled to compensatory education. (Factual Findings 29-44; Legal Conclusions 1, 3-7, 20.) 22.

District shall provide Student with the following services to be provided by an non public agency (NPA) or other specified service provider: (1) LAS twice per week for 30 minutes for 10 weeks, provided by an NPA; (2) APE once per week for 45 minutes each session for 10 weeks, provided by an NPA; (3) OT twice per week for 30 minutes a session, for 10 weeks, provided by Gallagher Pediatrics; (4) Vision therapy services twice per week for 30 minutes, for 10 weeks, provided by an NPA..

ORDER

1.

District shall schedule a conference with Parents to take place within 30 days of the date of this Order. At the conference District is required to consult with Parents to make a timely interim placement offer comparable to Student’s IEP dated March 21, 2007, and comparable to the OH SDC, previously attended by Student, in the fall semester of the 2007-2008 school year at Moreno school.

2.

District is ordered to provide Student compensatory education, to be provided by a NPA or other specified service provider as follows: (1) LAS twice per week, 30 minutes each session, for 10 weeks, provided by an NPA; (2) APE once per week, 45 minutes each session, for 10 weeks, provided by an NPA; (3) OT twice per week, 30 minutes a session, for 10 weeks, provided by Gallagher Pediatrics; (4) Vision therapy services twice per week, 30 minutes each session, for 10 weeks, provided by an NPA.

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3.

All other requests for relief are denied.

PREVAILING PARTY

Education Code section 56507, subdivision (d), requires that this Decision indicate the extent to which each party prevailed on each issue heard and decided in this due process matter. Pursuant to this mandate, it is determined that the Student prevailed on issue numbers 2A, B, and C. District prevailed on all other issues.

RIGHT TO APPEAL THIS DECISION

This is a final administrative decision, and all parties are bound by this Decision. Pursuant to Education Code section 56505, subdivision (k), any party may appeal this Decision to a court of competent jurisdiction, within ninety (90) days of receipt.

DATED: March 19, 2008

____________________________________

STELLA L. OWENS-MURRELL

Administrative Law Judge Office of Administrative Hearings Special Education Division

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