Student v. Lompoc Unified School District

BEFORE THE

OFFICE OF ADMINISTRATIVE HEARINGS

STATE OF CALIFORNIA

CASE NO. 2019060655

PARENT ON BEHALF OF STUDENT,

v.

LOMPOC UNIFIED SCHOOL DISTRICT.

DECISION

NOVEMBER 19, 2019

On June 14, 2019, the Office of Administrative Hearings, called OAH, received a due process hearing request from Student, naming Lompoc Unified School District as respondent. Administrative Law Judge Adrienne L. Krikorian, referred to as the ALJ, heard this matter in Lompoc, California on October 1, 2, 3, and 4, 2019. Attorneys Andréa Marcus and Daniel Robinson represented Student. Mother and Student did not attend the hearing. Attorney Sarah Garcia represented Lompoc Unified. Special Education Director Cynthia Ravalin attended the first three hearing days and Special Education Coordinator Jamie Johnson attended the last day of hearing on behalf of Lompoc Unified.

OAH continued the matter to October 28, 2019, for written closing briefs. The record was closed, and the matter was submitted on October 28, 2019.

ISSUES

1. Did Lompoc Unified deny Student a free appropriate public education from June 14, 2017, until the date the complaint was filed, by failing to find her eligible for special education?

2. Does Student require placement in a residential treatment center at Lompoc Unified’s expense to access her education?

JURISDICTION

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, 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, 56-62 [126 S.Ct. 528, 163 L.Ed.2d 387]; and see 20 U.S.C. § 1415(i)(2)(C)(iii).) 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 16 years old at the time of the due process hearing. She lived within the boundaries of Lompoc Unified with Mother and two sisters during the 2017-2018 school year, and portions of the 2018-2019 school year. Lompoc High School was her school of residence during the 2017-2018 and 2018-2019 school years. When the current complaint was filed and during this hearing, Student was homeless and a runaway, and the victim of sex trafficking and rape. Mother continued to reside within Lompoc Unified boundaries. Student’s whereabouts were unknown. No school district assessed her for eligibility for special education during the two-year statutory period.

Student did not return to live with her family on a regular basis between December 2018 and June 14, 2019. She sometimes attended school in the six months prior to June 14, 2019. She was suspended in February 2019 for using marijuana at school. Student only returned periodically to where the family was staying at a safe house in Lompoc, and she only stayed for a few hours. When Student came to the school site in the spring of 2019, she did not want to be in class.

On August 22, 2019, OAH issued a Decision in a prior case following a due process hearing of consolidated matters between the parties. The ALJ ordered Lompoc Unified to assess Student for special education eligibility, providing Student made herself available for assessments.

ISSUE 1: DID LOMPOC UNIFIED DENY STUDENT A FAPE FROM JUNE 14,

2017, UNTIL THE DATE THE COMPLAINT WAS FILED, BY FAILING TO FIND

HER ELIGIBLE FOR SPECIAL EDUCATION?

Student contended Lompoc Unified denied her a FAPE by failing to find her eligible for special education services and supports during the two-year statutory period. Student argued she was eligible for special education under the eligibility category of emotional disturbance. Student’s argument was based upon on the clinical diagnosis of emotional disturbance in an independent assessment report completed after her current complaint was filed with OAH. She contended Lompoc Unified had enough information to find her eligible as emotionally disturbed based on events which occurred before the filing of her current complaint, specifically, Student’s chronic truancy, refusal to go to class, failing grades, violent fights at school, drug use, and depression related to family events. She contended an individualized education program, referred to as IEP, team meeting was not required to find Student eligible. Instead, Student argued the hearing officer had the power to independently make that determination in the absence of school district assessments and an IEP team determination.

Lompoc Unified contended that Student could not be found eligible for special education until it had the opportunity to assess Student, and an IEP team met to consider all assessments. Lompoc Unified also contended the independent assessment report was procedurally deficient and its conclusions did not support a finding of eligibility.

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 individualized education program, referred to as an IEP, for an eligible student based upon state law and the IDEA. (20 U.S.C. §§ 1401(14), & (26), 1414(d)(1)(A); Ed. Code, §§ 56031,56032, 56345, subd. (a) and 56363 subd. (a); 34 C.F.R. §§ 300.17, 300.34, 300.39 Cal. Code Regs., tit. 5, § 3001, subd. (p).)

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; Endrew F. v. Douglas County School Dist. (2017) 580 U.S. ____ [137 S.Ct. 988, 1000]; E.F. v. Newport Mesa Unified School Dist. (9th Cir. 2018) 726 Fed.Appx. 535.)

THE INDEPENDENT ASSESSMENT UPON WHICH STUDENT RELIED WAS

PROCEDURALLY FLAWED FOR PURPOSES OF FINDING ELIGIBILITY, AND

ITS CONCLUSIONS WERE BASED ON INAPPROPRIATE AND INCOMPLETE

INFORMATION.

Student contended that a privately acquired independent educational evaluation conducted in May 2019 by clinical psychologist Richard Katz was sufficient to establish that she had a disability of emotional disturbance under the enabling regulations of the

IDEA. Student did not meet her burden of persuasion, because the independent evaluation was incomplete at the time the complaint was filed and it lacked important educationally related data.

Under the IDEA and California law, a school district has an affirmative, continuing obligation to identify, locate, and evaluate all children with disabilities residing within its boundaries. (20 U.S.C. § 1412(a)(3); Ed. Code, § 56300 et seq.) A local educational agency shall provide for the identification and assessment of the exceptional needs of an individual, and the planning of an instructional program to meet the assessed needs. (Ed. Code § 56302.) Identification procedures shall include systematic methods of utilizing referrals of pupils from teachers, parents, agencies, appropriate professional persons, and from other members of the public. (Ibid.) Identification procedures shall be coordinated with school site procedures for referral of pupils with needs that cannot be met with modification of the regular instructional program. (Ibid.) Before any action is taken with respect to the initial placement of an individual with exceptional needs in special education instruction, an individual assessment of the pupil’s educational needs shall be conducted, by qualified persons in accordance with testing requirements set forth in Education Code section 56320 subdivisions (a) through (i). (Ed. Code §§ 56320, & 56322).

School districts must conduct assessments in a way that: 1) uses a variety of assessment tools and strategies to gather relevant functional, developmental, and academic information, including information provided by the parent; 2) does not use any single measure or assessment as the sole criterion for determining whether a child is a child with a disability; and 3) uses technically sound instruments that may assess the relative contribution of cognitive and behavioral factors, in addition to physical or developmental factors. No single measure, such as a single intelligence quotient, shall be used to determine eligibility or services. (Ed. Code, § 56320, subds. (c) & (e).) Assessors must be knowledgeable about the student’s suspected disability and must pay attention to the student’s unique educational needs such as the need for specialized services, materials, and equipment. (Ed. Code, § 56320, subd. (g).) The personnel who assess the student shall prepare a written report that shall include several factors. Those factors include the basis for making a determination of the need for special education and related services. The report shall also include relevant behavior noted during observation in an appropriate setting, and the relationship of that behavior to the student’s academic and social functioning. It shall also include educationally relevant health, development and medical findings. (Ed. Code, § 56329, subd. (a)(3).)

Title 5 California Code of Regulations, section 3030(b)(4), effective in 2014, defines emotional disturbance, for purposes of special education eligibility, as a condition exhibiting one or more defined characteristics, over a long period of time and to a marked degree, that adversely affect a child’s educational performance. Those include:

an inability to learn that cannot be explained by intellectual, sensory or health factors;

an inability to build or maintain satisfactory interpersonal relationships with peers and teachers;

inappropriate types of behavior or feelings under normal circumstances;

a general pervasive mood of unhappiness or depression; or a tendency to develop physical symptoms or fears associated with personal or school problems.

The term “emotional disturbance” does not apply to children who are socially maladjusted, unless it is determined they have an emotional disturbance as defined in subdivision (b)(4) of California Code of Regulations, title 5 section 3030. (Cal. Code Regs. Tit. 5, § 3030(b)(4)(F) (2014).) Inappropriate behavior under normal circumstances is behavior that is atypical for the student and for which no observable reasons exist. (Letter to Anonymous, 213 IDELR 24 (OSEP 1989).)

In May 2019, Mother retained Dr. Gary Katz to perform an independent psychological evaluation. Dr. Katz, who testified at hearing, was a clinical psychologist, and a professor of psychology at California State University, Northridge. Dr. Katz’s educational background did not include any formal training or certification as a public school teacher or educational psychologist. He taught assessment administration techniques, which included how to administer some special education evaluations. Dr. Katz documented his findings in a written report dated July 2, 2019. Relying on the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition, referred to as DSM-5, Dr. Katz concluded that, at the time of his assessment, Student fell within several diagnostic categories including post-traumatic stress disorder, attenuated psychosis disorder, cannabis and methamphetamine use disorder, and encounter for mental health services for a victim of non-parental child sexual abuse. Dr. Katz also applied his diagnostic impressions to the several eligibility categories under the IDEA, which led him to the conclusion that Student was eligible as emotionally disturbed. Dr. Katz concluded Student presented with a significant tendency to develop physical symptoms associated with personal problems at the time he assessed her. He reported that Student presented with a general pervasive mood of unhappiness or depression. However, Dr. Katz was not certain at hearing whether Student’s depression began before May 2019. Despite his uncertainty over how long Student suffered from the depression, Dr. Katz concluded in his report Student “clearly” met IDEA eligibility criteria for an emotional disturbance. Based on his review of records, he generally opined that Student’s grades deteriorated as her psychological symptoms worsened. However, he found no evidence that she met any other eligibility criteria.

To reach his conclusions, as part of his assessment Dr. Katz reviewed Student’s cumulative school file, including grade reports and disciplinary records dating back to middle school. He interviewed Mother, who gave him verbal consent to contact school district staff. He spent approximately 10 hours over three days in mid-May 2019 assessing Student in a private office outside of the city of Lompoc. Student cooperated during the assessment.

Dr. Katz learned anecdotally that, sometime in the winter of 2018, Student became homeless, a runaway, and, in April 2019, a victim of sex trafficking. He understood that her father died in her presence when she was young. Student admitted to him that she had used a variety of drugs ranging from marijuana to methamphetamines. Based on a recent drug test, she was reportedly free of any recent drug use during his assessments. Based on Dr. Katz’s review of school records, he knew that Student used marijuana at school, engaged in fights with peers, had multiple suspensions for truancies, and had failing grades.

Dr. Katz administered the Wechsler Intelligence Scale for Children to examine Student’s cognitive strengths and weaknesses. He administered the Behavior Assessment System for Children, Third Edition, to Mother and Student, to evaluate

Student’s social emotional wellbeing. He did not receive Mother’s responses until after the complaint in this case was filed, which delayed the completion of his report. Dr. Katz also administered a number of other assessment tools relating to his clinical diagnoses. Significantly, Dr. Katz admitted at hearing that he did not observe Student in the educational environment, which would have enabled him to determine the relationship of observed behavior to Student’s academic and social functioning. He did not credibly explain at hearing why he did not conduct one of his sessions with Student at Lompoc High in May 2019, when Student was available to him. His assessment, and the conclusions drawn from his assessment, were not credible or relevant as to eligibility for special education, in part because he did not observe Student at school and offered no credible explanation for his failure to do so.

Dr. Katz’s assessment was also irrelevant as the only determining factor for eligibility because it did not include any input from school personnel. Dr. Katz did not talk to or submit rating scales to anyone from Lompoc Unified as part of his assessment. Although he had Mother’s permission, Dr. Katz made no effort to contact Lompoc Unified personnel to obtain available information foundational to any valid eligibility conclusions. For example, he did not obtain input from Student’s teachers, or school counselors, to determine whether anyone had information that would inform his independent evaluation and conclusions relating to special education eligibility. Instead, he relied solely on Mother’s report to him that no one from the school district had any “valid” information about Student because Student had not been in school for the few months before Dr. Katz’s assessment.

Dr. Katz’s conclusions in his report and at hearing were also not persuasive as they related to Student’s eligibility for special education because they were not based upon sufficient educationally related data. The need for school based observations and input from school personnel was underscored by Dr. Katz’s own testimony. He admitted at hearing that he could not say with certainty for how long Student suffered from one or all of the clinically diagnosed conditions he determined existed, or whether any of those conditions specifically impacted her access to her education when she was at school.

Numerous Lompoc Unified staff members who testified at hearing had relevant information and opinions about Student’s mood, behavior and functioning at school that would have informed Dr. Katz’s assessment as it related to educationally related eligibility criteria, if he had talked to any one of those individuals. Their testimony also established that Student’s history of fighting, truancy, and poor grades was insufficient to prove special education eligibility for emotional disturbance. For example, in the fall of the 2017-2018 school year, Student was assigned to Administrative Assistant Principal Celeste Pico’s caseload at Lompoc High School. Ms. Pico occasionally shared her caseload responsibilities during the 2017-2018 and 2018-2019 school years with assistant principal Alicia Ropitor Hodal. Both testified at hearing regarding their interactions with Student.

Ms. Pico worked for 20 years in education, both as a teacher and administrator. Her duties as an administrative assistant principal included oversight of ninth grade discipline and attendance. She served as a member of behavior intervention teams. She provided oversight of the counseling department. She was the direct line of contact for school counselors when they had concerns about students. She was part of the staff team that referred students for special education assessments. She attended IEP meetings, including those for students with the disability of emotional disturbance. Ms. Pico’s testimony was confident and credible. It was given significant weight based upon her training and experience in education and her numerous interactions with Student.

Dr. Katz never spoke to Ms. Pico, who was familiar with Student and frequently interacted with her at school during both school years at issue. She and Student talked almost daily at school. Student was cheerful when she engaged with Ms. Pico. She told Ms. Pico during the 2017-2018 school year and first semester of 2018-2019 school year she felt safe at school, but did not like going to class. Ms. Pico never saw signs of distress or depression from Student. Although Student was guarded, she did not appear to Ms. Pico as pervasively unhappy over a long period of time. Ms. Pico opined at hearing that Student wanted to succeed. When Student was in school, she was sociable and had friends. Ms. Pico also opined at hearing, based upon what she knew about Student and reports from her teachers, that Student was academically capable of performing and had access to resources to help her learn, if she chose to use those resources.

Ms. Pico frequently observed Student on campus outside of the classrooms during classroom time. She occasionally escorted Student to the classroom. Student went willingly, but did not always stay in the classroom. Ms. Pico occasionally observed Student in the classroom during instruction. During those observations, Ms. Pico observed Student perform, absorb information and demonstrate learning. Student began engaging in fights with her peers at Lompoc High during her first semester of ninth grade. She was frequently truant. She was referred to detention several times and signed conduct and “hands off” contracts. The behavior continued into the 2018-2019 school year. Between November 14 and December 13, 2018, Student had four behavior reports, involving failure to dress for gym and excessive tardiness. Student served in-school detention or suspension for these incidents. Student also had suspensions in December 2018, for tardiness and smoking marijuana.

Ms. Pico opined that, based on her knowledge of Student and conversations with her, Student’s truancy and fighting were planned choices she made. Based on reports from Student’s brother, Ms. Pico opined Student’s choices were influenced in part by her environment outside of school, including in the home. Ms. Pico also opined that Student’s physical violence at school was not abnormal because in her experience fighting among teenagers at Lompoc High School was not unusual. Her testimony was consistent with Ms. Hodal’s testimony, and other Lompoc Unified staff members who knew Student.

When Ms. Pico talked to Student about fighting, the conversations were about her behavior regarding getting along with other students, and making good choices. Student explained to Ms. Pico she did not like the way the other students looked at her. Dr. Katz also never spoke to school counselor Kala Huyck. Ms. Huyck was assigned to Student for the 2017-2018 and 2018-2019 school years. She testified at hearing and had knowledge about Student’s educationally based behavior. She was lead counselor at Lompoc High School in the eight years before the hearing. Her job duties included oversight of the counseling department. She worked with students’ academic, personal, social, and career goals. She was familiar with Student based on four or five meetings with her during the 2017-2018 and 2018-2019 school years. Based upon Ms. Huyck’s background and experience as a counselor, and knowledge of and interactions with Student, her testimony was credible and persuasive. Student first came to Ms. Huyck’s attention because her grades were falling and she was not participating in a program that was designed to help her post-high school planning. Student ended the 2017-2018 school year with D’s and F’s. Student repeated the ninth grade in the 2018-2019 school year because she did not earn enough academic credits to advance to tenth grade. She ended the first semester of the 2018-2019 school year with all F’s.

Student informed Ms. Huyck in the spring of the 2018-2019 school year she did not want to be at school and that she did not feel any connection with school. When Student occasionally returned to school in spring 2019, Ms. Huyck counseled Student to obtain outside counseling services from Santa Barbara County Department of Behavior Wellness, and Coast Valley Substance Abuse Treatment Center. Student did not obtain the recommended counseling services.

Student did not demonstrate any atypical behaviors when she was with Ms. Huyck, other than those associated with drug and alcohol use. Student’s grade deficiencies were the result of her poor attendance at school. Ms. Huyck opined at hearing that she felt Student needed outside counseling because of her drug use, but not for educational reasons.

Manuela Venegas corroborated the testimony of Lompoc Unified’s other witnesses. Ms. Venegas worked as Outreach Consultant for Lompoc Unified for 12 years. Her responsibilities included coordinating services between staff and families. She followed up with general education students with multiple absences or who were absent without permission. She referred general education students to outside counseling and assisted them with applying for outside programs. Ms. Venegas generally knew Student during the two school years at issue because Student would occasionally visit Ms. Venegas’s office with a classmate to eat lunch. She was also familiar with Student’s older brother and mother, and with her family history for several years before Student attended Lompoc High. She knew that

Student’s father died in her presence when Student was young. Ms. Venegas credibly testified at hearing based on her interactions with Student and family members. Student was always rational during her visits to Ms. Venegas’s office. Mother and one of Student’s brothers told Ms. Venegas in December 2018 that Student ran away from home. Student’s brother was concerned that Student was using drugs. Ms. Venegas was concerned that Student’s history of fighting, drug use, and resistance to school work were the result of Student never having dealt with the grief of being present when her father died. In December 2018, Ms. Venegas recommended to Student’s brother that he take Student to community-based grief counseling to deal with her depression regarding her father’s death.

School Resource Officer Anye Mache Agbodike corroborated the testimony of school personnel regarding Student’s fighting and truancy at school. She was employed by the Lompoc Police Department patrol division, which contracted with Lompoc Unified to provide school resource officers. She was assigned to Lompoc High School. She knew Student from seeing her on campus daily and interacting with her after fights at school. She was also informed when Student missed class and was aware that she was disciplined for marijuana possession. Based on her experience as a school resource officer, Officer Agbodike credibly opined, consistent with Ms. Pico and Ms. Huyck, that high school students at Lompoc Unified commonly did not want to go to class, and fights among students on that campus were not unusual.

According to Ms. Agbodike, Student was a “known wanderer” at school, meaning she was often seen on campus outside of the classroom during class time. During one conversation, Student reported to Officer Agbodike that she ran away from home because of conflict at home. During another conversation, she also reported she was still “processing” her father’s passing. When Ms. Agbodike encountered Student out of class, Student reported to Ms. Agbodike that she had difficulty concentrating in class, did not like being at school and did not like being around other students. Student did not sound paranoid to Officer Agbodike when they communicated. Dr. Katz never contacted any of Student’s teachers to follow up on their opinions of Student’s educational performance. In particular, on March 27, 2019, a meeting of the Student Absence Review Board, known as the SARB board, was held because of Student’s extensive absences. Two of Student’s teachers reported to the SARB board that Student usually reported to class late and only performed superficially. One teacher reported that Student was capable of passing if she attended class on time and regularly. At the time of the SAAB board meeting, Student had attended 79 days of school out of 124 school days. She had 26 and 6/10 days of unexcused absences, and 200 tardies for the school year.

School psychologist Dr. Shaf testified at hearing. He completed his doctoral degree in school psychology. He held a bachelor’s degree in pre-professional studies and a master’s degree in school psychology. He obtained his California credential as a school psychologist in 2007. He had served as a school psychologist at Lompoc High School for 12 years at the time of his testimony.

Dr. Shaf’s duties as a school psychologist included assessments of students with disabilities. He participated in IEP meetings and determinations of eligibility. He also counseled students who had an IEP. He consulted with teachers, staff, and parents as needed, to provide feedback for parents. He provided recommendations for universal interventions and accommodations for teachers. Administrators and counselors would come to him if they had concerns about students who could potentially benefit from special education. He first learned about Student in early April 2019, after the SARB meeting.

Dr. Shaf first saw Dr. Katz’s report in July 2019, after the complaint was filed and before the first hearing between the parties. He was critical of Dr. Katz’s reported findings as they related to eligibility for special education because the findings were based upon a limited number of assessment tools. Dr. Shaf was critical that Dr. Katz did not interview or obtain any feedback from any of Student’s teachers or other school staff at any time before hearing. He was critical that Dr. Katz did not observe Student at school to determine how Student’s clinical diagnoses affected her educational environment. Dr. Shaf’s opinions were credible based on his training, knowledge and experience as a school psychologist who was a regular participant in IEP team eligibility determinations.

Overall, Lompoc Unified staff offered important and credible testimony at hearing that rendered Dr. Katz’s conclusions about Student’s special education eligibility fatally and fundamentally flawed because he never considered any of that information when reaching his conclusions. If an IEP team had met, as discussed below, all of those Lompoc Unified witnesses who testified had knowledge about Student relevant to an IEP team determination of emotional disturbance as an eligibility category under the IDEA. All of them knew about Student’s behavior and demeanor at school, her relationships with other students and school staff, her resistance to attending class, her truancies, her history of fights, and her drug use. Ms. Pico and Ms. Huyck were also familiar with her failing grades, her academic performance in class, her ability to learn, and her mood at school.

Although Dr. Katz claimed that Student met the criteria for emotional disturbance, to the extent his determination of educational eligibility was based upon his clinical diagnosis, it was unconvincing. The DSM-5 criteria are not the same as the IDEA criteria for eligibility. Dr. Shaf credibly opined that Dr. Katz’s diagnostic impressions were based on DSM-5 criteria, which are not criteria considered by an IEP team as decisive for special education eligibility. Student’s past grades and standardized test scores were also not sufficient by themselves to determine eligibility under the IDEA.

Dr. Shaf’s opinions were more credible than Dr. Katz’s, based on Dr. Shaf’s training and experience in special education, and his thoughtful review of Dr. Katz’s report. Many of the foundational elements of a school district special education eligibility evaluation did not exist in Dr. Katz’s report. (See, Ed. Code, § 56320, subds. (c) & (e), supra.) Before drawing any conclusions about eligibility, Dr. Shaf opined that comprehensive educationally related assessments of Student were necessary. He needed data from multiple assessments, including parent, teacher and student rating scales, narrow band rating scales, cognitive assessments, academic achievement scores, observations at school and home in structured and non-structured settings. Dr. Shaf could not conclude Student qualified for eligibility for emotional disturbance unless he, or another Lompoc Unified school psychologist, had interviewed Student as part of an assessment. Dr. Katz did not administer multiple comprehensive educationally related assessment tools. Dr. Katz’s evaluation also did not focus on Student’s unique educational needs other than his recommendation for placement. (Ed. Code, § 56320, subd. (g), supra.)

Finally, Student did not meet her burden of persuasion such that the hearing officer might, under these facts, make an independent finding of whether Student should have been found eligible during the two-year statutory period for special education and related services, as a student with emotional disturbance. Lompoc witnesses described Student, when she attended school during the relevant time period, as a typical teenager who could learn if she wanted to, would come to school but did not like to attend classes, had friends, smoked marijuana, and engaged in occasional on-campus fights. She did not regularly come to school during the last half of the 2018-2019 school year. Dr. Katz’s clinical impressions and concerns described the Student he met in May 2019 very differently from Lompoc Unified witnesses, based largely on recent potentially catastrophic life experiences. The evidence was contradictory, but Lompoc Unified’s witnesses were more persuasive as to the relevant time period given the procedural flaws in Dr. Katz’s assessment report.

AN IEP TEAM WAS REQUIRED TO EVALUATE WHETHER STUDENT WAS

ELIGIBLE FOR SPECIAL EDUCATION

Student contended that Dr. Katz’s report was sufficient, standing alone, to make a determination of eligibility based on his DSM-V diagnoses as applied to the IDEA eligibility category of emotional disturbance. Student’s contention was not supported by the law or facts in this case.

Once a child has been referred for an initial assessment to determine whether the child is an individual with exceptional needs and to determine the educational needs of the child, these determinations shall be made, and an IEP meeting shall occur, within 60 days of receiving parental consent for the assessment. (Ed. Code § 56302.1.) The parents or guardians of a pupil who has been referred for initial assessment, or of a pupil identified as an individual with exceptional needs, shall be afforded an opportunity to participate in meetings with respect to the identification, assessment, and educational placement and the provision of a FAPE. (34 CFR § 300.501; Ed. Code § 56304.) Even though a child has not previously been identified as a child with a disability, an administrative law judge has the authority to determine whether a student is eligible for special education and related services under the IDEA. (Hacienda La Puente Unified

School Dist. v. Honig (9th Cir. 1992) 976 F.2d 487, 492-493.) If a district has failed to properly identify a student as eligible for special education, and therefore failed to develop an appropriate IEP for the student, the district has denied the Student a FAPE. (Department of Educ., State of Hawaii v. Cari Rae S. (D. Hawaii 2001) 158 F.Supp.2d 1190, 1196.)

The Ninth Circuit Court of Appeals has endorsed the “snapshot” rule, explaining that the actions of the district cannot “be judged exclusively in hindsight” but instead, “an IEP must take into account what was, and what was not, objectively reasonable … at the time the IEP was drafted.” (Adams v. State of Oregon (9th Cir. 1999) 195 F.3d 1141.) “An IEP is a snapshot, not a retrospective.” (Id. at p. 1149, citing Fuhrmann v. East

Hanover Bd. of Education (3rd Cir. 1993) 993 F.2d 1031,1041.)

The IEP team is responsible for making the ultimate finding of eligibility based upon a qualifying disability for purposes of educational placement, services and supports. (20 U.S.C. § 1414(c)(1)(B)(i).) Title 20 United States Code section 1414(c)(1)(B)(3)(i) through (vii) defines the IEP team. Those members include:

parents, not less than one general education teacher if the child is or may be participating in general education, one special education teacher, a representative of the local educational agency, a representative of a local education agency with specific qualifications, an individual who can interpret the instructional implications of evaluation results, other individuals “at the discretion of the parents who have knowledge or special expertise regarding the child” and, in some cases, the child.

Title 34 Code of Federal Regulations subpart 300.306(a)(1) charges a “group of qualified professionals” and the parents of the child with responsibility to determine whether a child has a disability, and the educational needs of the child. When the enabling regulations are read together with title 20 United States Code section 1400 et seq., as the legislature intended, it is clear that the IDEA contemplates that “qualified professionals” are those listed in title 20 United States Code section 1414(c)(1)(B)(3) which make up the IEP team. The persons listed along with the parents are responsible for making an initial determination of eligibility.

If a 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 FAPE to the child. (Ed. Code § 56329 (c); 34 CFR § 300.502(c)(1).)

Student claimed that the determination of whether a child has a disability that qualifies the child for eligibility must be made first by “qualified professionals,” before an IEP team determines the educational needs of a child. Student argues that because

Dr. Katz was qualified and had determined eligibility, an IEP team decision on eligibility was not required. Student’s argument is inconsistent with the clear meaning of the IDEA and is not persuasive or supported by the law. Student cited incorrectly to “29 [sic] Code of Federal Regulations subparts 300-399,” in an attempt to circumvent the requirement that an IEP team must determine eligibility. An IEP team was required to meet to make a determination as to whether Student was eligible. However, Student filed her complaint before any relevant assessments were completed for IEP team consideration.

Here, the SARB board referred Student’s case for probation in late March 2019, and recommended Mother contact and retain outside counseling services for Student and attend school meetings. Lompoc High School agreed to refer Student to a student study team after the SARB meeting. Student’s attorney wrote to Lompoc Unified on the same day as the SARB hearing, requesting independent educational evaluations. Until that time, no one asked Lompoc Unified to assess Student or hold an IEP meeting. Special Education Director Ms. Ravalin testified at hearing. During her 34 years in public education, she worked as a special education director and teacher in other districts. Ms. Ravalin’s duties as Special Education Director included oversight of the special education program and training for special education teams. She coordinated suicide and risk assessments for students. She evaluated the staff she supervised, including school psychologists and special education coordinators. She concurred with the opinions of Ms. Pico, Ms. Hodal, Ms. Huyck and Officer Agbodike regarding the common occurrence of student fighting and drug use on campus. Based upon her education and experience, her knowledge of special education eligibility requirements, and her general knowledge about Student after March 2019, her testimony was credible.

Ms. Ravalin was unfamiliar with Student before the March 2019 SARB meeting. However, when she received Student’s attorney’s March 2019 request for independent assessments, Ms. Ravalin immediately contacted school psychologist Dr. Shaf to initiate the school district assessment process.

Dr. Shaf called Mother on April 3, 2019, to discuss development of an assessment plan. Mother told him she would call him back, but never did. He developed an assessment plan without her input, including multidisciplinary areas for assessment. At the time he first reviewed Student’s records in early April 2019, Dr. Shaf concluded the past emotional challenges Student had faced, including the loss of a family member, in combination with her repeated fighting, truancies and increasingly failing grades resulted in an “opportunity” to assess her to find out the cause of her behavior. On April 5, 2019, Lompoc Unified sent Mother an assessment packet to the home address on record at that time, with a cover letter from Dr. Shaf. The packet included an assessment plan for multidisciplinary special education assessments, a student background survey, health and developmental history, authorization for release of information, and notice of procedural safeguards. Mother did not respond and the package was not returned to Lompoc Unified. Lompoc Unified sent the assessment packet to Mother again on April 26, 2019. That package was returned to Lompoc Unified as undeliverable. Lompoc Unified’s attorney transmitted the assessment packet to Mother’s attorney in mid-May 2019.

Mother did not give Lompoc Unified the required written permission to assess Student until June 20, 2019, after this complaint was filed, which prevented Lompoc Unified from conducting its own assessments. (20 U.S.C. § 1414(a).) Mother also never returned the rating scales that accompanied the assessment plan.

Additionally, after December 2018, Student was a runaway and her whereabouts were frequently unknown. Ms. Ravalin credibly explained at hearing that when a child lives within the school district and has a suspected disability, but is not available to initiate assessments, the school contacts family to initiate assessments. If a child is a homeless runaway, Ms. Ravalin worked with the school’s homeless liaison to try and locate the child for assessments. She did so in Student’s case up to the time of hearing. Dr. Shaf’s responsibility was to provide the IEP team with his impressions and recommendations based upon the results of multidisciplinary assessments. The IEP team would then make the ultimate decision for students on eligibility for special education and related services. Under title 20 United States Code section 1415(b)(6) a parent has the right to challenge an IEP team decision in due process. Here, no IEP team decision existed because no appropriate educationally related multidisciplinary assessments had been conducted for an IEP team to consider.

The “snapshot rule” is applicable in this case. No professional evaluation was available to Lompoc Unified during the relevant time period upon which an IEP team could consider eligibility. Dr. Katz’s report was not ready for an IEP team, or anyone, to review before the complaint was filed. An IEP team had no opportunity to review Dr. Katz’s unfinished report before Student filed this complaint. (Adams, supra, 195 F.3d at p. 1149.) As a result, an IEP team had no available professional evaluation that may have necessitated it to meet and discuss eligibility.

ISSUE 2: DOES STUDENT REQUIRE PLACEMENT IN A RESIDENTIAL

TREATMENT CENTER AT LOMPOC UNIFIED’S EXPENSE TO ACCESS HER

EDUCATION?

Student contended that, based upon Dr. Katz’s conclusion of emotional disturbance eligibility under title 5 California Code of Regulations section 3030(b)(4), she was entitled to publicly funded educational placement in a residential treatment facility. Lompoc Unified contended that Student was not entitled to a residential treatment facility placement at its expense because she was not eligible for special education, and a residential placement for treatment of medical issues or drug use was not educationally related.

An analysis of whether a residential placement is an appropriate remedy must focus on whether the placement was necessary to meet the child's educational needs when the child was eligible for special education. (Clovis Unified School Dist. v.

California Office of Administrative Hearings (9th Cir.1990) 903 F.2d 635, 643.) Student did not meet her burden on Issue Two. Throughout the two-year statutory period, Student was not eligible for special education. Her more recent unfortunate and potentially catastrophic personal circumstances, while disturbing, do not justify disregarding the clearly defined procedural requirements necessary for a finding of eligibility under the IDEA before determining an educational placement. Student is not entitled to any placement under the IDEA, unless or until she is found eligible for special education. Based on the facts of this case, that can happen only after appropriate assessments have been completed by qualified assessors, and an IEP team has met to make a determination of eligibility and, if applicable, develop an IEP to offer placement and related services under the IDEA.

CONCLUSIONS AND PREVAILING PARTY

Pursuant to 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. Lompoc Unified prevailed on the issues heard and decided. Specifically: 1. Student did not prove Lompoc Unified denied Student a free appropriate public education from June 14, 2017, until the date the complaint was filed, by failing to find her eligible for special education.

2. Student did not prove that she required placement in a residential treatment center at Lompoc Unified’s expense to access her education.

ORDER

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/ Adrienne L. Krikorian Administrative Law Judge Office of Administrative Hearings