Manteca Unified School District v. Student

BEFORE THE

OFFICE OF ADMINISTRATIVE HEARINGS

STATE OF CALIFORNIA

CASE NO. 2023080401

MANTECA UNIFIED SCHOOL DISTRICT,

v.

PARENT ON BEHALF OF STUDENT.

DECISION

FEBRUARY 28, 2024

On August 10, 2023, the Office of Administrative Hearings, called OAH, received a due process hearing request from Manteca Unified School District, naming Parent on behalf of Student. Administrative Law Judge Ted Mann heard this matter by videoconference through Zoom in Los Angeles on December 5, 2023, January 30 and 31, 2024 and February 1 and 8, 2024 for a total of 4 days of hearing. The first day of hearing was consumed with administrative tasks and no evidence was taken. Attorney Rebecca Diddams represented Manteca Unified School District. Jody Burriss, Manteca’s Senior Director of Special Education, attended each day of the hearing on Manteca’s behalf. Student’s mother and father, called Parents collectively, attended every day of the hearing.

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At the parties’ request, the matter was continued to February 26, 2024, for written closing briefs. The record was closed, and the matter was submitted on February 26, 2024.

MANTECA’S ISSUES

A free appropriate public education is called a FAPE and an individualized education program is called an IEP.

Manteca’s issue for hearing is as follows:

ISSUE

1.

Is Manteca legally entitled to exit Student from special education services without parental consent based upon its determination at the May 19, 2023 IEP team meeting that Student was no longer a child with a disability who needs special education and related services?

As a remedy for its issue, Manteca seeks an order that it may implement the May 19, 2023 IEP and exit the Student from special education, absent parental consent.

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.

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§ 300.1 (2006) et seq.; Ed. Code, § 56000 et seq.; Cal. Code Regs., tit. 5, § 3000 et seq.) The main purposes of the Individuals with Disabilities Education Act, referred to as the IDEA, are to ensure:

all children with disabilities have available to them a free appropriate public education that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment and independent living, and the rights of children with disabilities and their parents are protected. (20 U.S.C. § 1400(d)(1); See Ed. Code, § 56000, subd. (a).)

The IDEA affords parents and local educational agencies the procedural protection of an impartial due process hearing with respect to any matter relating to the identification, assessment, or educational placement of the child, or the provision of a free appropriate public education, referred to as FAPE, to the child. (20 U.S.C. § 1415(b)(6) & (f); 34 C.F.R. § 300.511; Ed. Code, §§ 56501, 56502, and 56505; Cal. Code Regs., tit. 5, § 3082.) The party requesting the hearing is limited to the issues alleged in the complaint, unless the other party consents, and has the burden of proof by a preponderance of the evidence. (20 U.S.C. § 1415(f)(3)(B); Ed. Code, § 56502, subd. (i);

Schaffer v. Weast (2005) 546 U.S. 49, 57-58, 62 [126 S.Ct. 528, 163 L.Ed.2d 387]; and see 20 U.S.C. § 1415(i)(2)(C)(iii).) The parties bear their respective burdens of proof on their issues. 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).)

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Student was 14 years old and in eighth grade at Yosemite Community Day School at the time of hearing. Student resided within Manteca’s geographic boundaries at all relevant times. Under stay put, Student remained eligible for special education at the time of the hearing as Parents did not consent to Student’s May 19, 2023 IEP.

LEGAL FRAMEWORK

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), 1414(d)(1); and see Ed. Code, §§ 56031, 56032, 56341, 56345, subd. (a), and 56363, subd. (a); 34 C.F.R. §§ 300.320, 300.321, and 300.501.)

In general, a child eligible for special education must be provided access to specialized instruction and related services which are individually designed to provide educational benefit through an IEP reasonably calculated to enable the child to make progress appropriate in light of the child’s circumstances. (Board of Education of the

Hendrick Hudson Central School Dist. v. Rowley (1982) 458 U.S. 176, 201-204; Endrew F. v. Douglas County School Dist. RE-1 (2017) 580 U.S. 386, 401.) A school district must assess the child in all areas of suspected disability before determining whether a child qualifies for special education services. (20 U.S.C. § 1414(b)(3)(B); 34 C.F.R. § 300.301(a); Ed. Code, § 56320, subd. (f).) The school district must follow statutory guidelines that dictate both the content of the assessments and the qualifications of the assessors. The IDEA uses the term evaluation, while the

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California Education Code uses the term assessment. The two terms have the same meaning and are used interchangeably in this Decision. (34 C.F.R. § 300.300; Ed. Code, § 56302.5.)

A child with a disability is a child who has been evaluated and identified with one or more of a number of specific disability classifications, and “by reason thereof” needs to be provided with special education and related services. (20 U.S.C. § 1401(3)(A); 34 C.F.R. § 300.8(a).) A student qualifies as an individual with exceptional needs, and is therefore eligible for special education and related services, if an IEP team determines that the results of a legally compliant assessment demonstrate the child has a disability, and the degree of the child’s impairment requires special education and related services that cannot be provided with modification of the regular school program. (Ed. Code §§ 56026, 56320; Cal. Code Regs., tit. 5, § 3030, subd. (a).)

Once a child is found eligible for special education, unless specific statutory exceptions apply, a local educational agency shall evaluate a child with a disability before determining that the child is no longer a child with a disability. (20 U.S.C. § 1414 (c)(5)(A).) Once the local educational agency properly completes the reassessment, it is required to develop an appropriate IEP or disqualify the student if the reassessment demonstrated that the child was no longer eligible for special education services. (See

V.S. ex rel. A.O. v. Los Gatos-Saratoga Joint Union High School Dist. (9th Cir. 2007) 484 F.3d 1230, 1233.)

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ISSUE 1.: IS MANTECA LEGALLY ENTITLED TO IMPLEMENT THE MAY 19,

2023 IEP, AND EXIT STUDENT FROM SPECIAL EDUCATION WITHOUT

PARENTS’ CONSENT?

Manteca contends that both District assessments and independent assessments all show that Student no longer meets eligibility criteria for special education. Manteca also contends Student’s May 19, 2023 IEP correctly concluded Student no longer qualified as a child with a disability who needs special education and related services under any eligibility category considered. Parents disagree and contend that alleged bullying of Student has caused anxiety and depression affecting Student’s ability to access their education and qualify them for special education such that Student should retain special education eligibility.

STUDENT’S SPECIAL EDUCATION HISTORY

Student was originally found eligible for special education as a Student with autism at the March 14, 2013 IEP. Student began receiving speech and language services in October 2017. At the September 10, 2019 IEP meeting, the IEP team determined that Student remained eligible for special education under speech or language impairment due to her continuing need for support in the area of pragmatics. Student’s September 10, 2019 IEP provided Student with two goals in social skills to address the need in pragmatics. Student received 25 minutes twice per week in a group setting to work on her social skills. Parents agreed with the IEP and consented to the proposed program and services.

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DISTRICT’S SPEECH AND LANGUAGE ASSESSMENT OF STUDENT AND

SEPTEMBER 3, 2020 IEP

In advance of Student’s triennial IEP in September 2020, Manteca proposed conducting a district assessment in speech and language. Parents agreed with the proposed assessment, and the assessment went forward and was completed by Manteca’s Speech Language Pathologist, Melanie Harnden.

Harnden’s speech and language assessment included a review of Student’s school records, observations of Student in several settings, an in-person evaluation of Student’s speech mechanism, speech sound production, speech fluency and voice, and standardized assessments.

Student’s speech mechanism was found to be adequate for speech. Student’s speech sound production, speech fluency and voice were not found to be areas of suspected disability.

Student’s overall score on standardized testing of receptive and expressive language was in the middle of the average range. Standardized test scores for pragmatic language were also in the middle of the average range. In the pragmatic language subtest, Student scored above average with a standardized score of 120 in the 91st percentile. An additional standardized test of Student’s pragmatics, a pragmatics profile, was in the average range.

Student performed well in Harnden’s observations, including participating in a social conversation with a school psychologist that involved eight conversational Accessibility Modified exchanges, and included Student’s demonstration of good manners and appropriate social language. Harnden noted that Student was fully capable of social interactions with peers, but often was not interested in doing so. Harnden found that Student’s pragmatic language skills do not have a negative academic impact and that Student was able to fully participate in the general education classroom and activities. The report concluded that Student did not meet eligibility requirements for special education speech and language services and did not need special education services in speech and language.

The assessment was presented to the parents and discussed at the September 3, 2020 IEP meeting. The District members of the IEP team agreed with the analysis and conclusion of the Harnden speech and language assessment and concluded that Student was no longer eligible for special education under speech and language and should be exited from special education. Parents disagreed and requested an independent educational evaluation of Student in speech and language. Manteca subsequently agreed to fund an independent educational evaluation of Student in speech and language.

INDEPENDENT SPEECH AND LANGUAGE ASSESSMENT OF STUDENT

AND SEPTEMBER 24, 2021 IEP

An independent assessment of Student in speech and language, dated May 18, 2021, was completed by independent assessor Jessica Carrizo, a licensed Speech Language Pathologist. Carrizo’s assessment included a detailed review of Student’s medical and educational history, observations, interviews,

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Carrizo’s report closely tracked the findings of the Harnden speech and language report. The standardized testing showed Student performing largely in the above average range for pragmatic language. Interviews and observations indicated that Student was able to successfully navigate the school environment. Carrizo’s language sample analysis found that Student was within normal ranges for syntax/morphology, semantics, verbal facility and speech, generally. She found that Student’s language was significantly influenced by their first language being Spanish, resulting in Spanish influenced English. Carrizo did not find that this was an impediment to Student’s ability to access their education, and specifically noted that Spanish influenced English was not an indication of a disorder, but simply a reflection of Student’s dual language learning. Carrizo concluded that Student participated in classroom activities and routines, commented and/or asked questions when called upon, and socialized appropriately with peers. She concluded that Student experienced some difficulty with some aspects of expository narrative, but that was counterbalanced by other areas of strength. Overall, Carrizo found that Student’s speech and language did not negatively impact Student’s ability to participate or socialize with peers, communicate with teachers or peers, or complete grade-level assignments. Carrizo concluded that Student did not meet state eligibility criteria for special education services under speech-language impairment and recommended that Student be dismissed from speech and language services.

The assessment was presented at the September 24, 2021 IEP meeting. The District members of the IEP team again agreed with the analysis and conclusion of

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Carrizo’s independent speech and language assessment and concluded that Student was no longer eligible for special education under speech and language and should be exited from special education. Parents disagreed and requested a psychoeducational evaluation of Student, along with a determination of whether Student was eligible for special education under the eligibility categories of educational autism, other health impairment and/or emotional disturbance. In response to Parents’ request, the District gave parents an assessment plan so that the District could assess Student to determine if Student was eligible in the areas of educational autism, other health impairment and/or emotional disturbance.

DISTRICT’S PSYCHOEDUCATIONAL ASSESSMENT OF STUDENT AND

FEBRUARY 15, 2022 IEP

Manteca’s school psychologist, Lindsay Schnaidt, completed a psychoeducational assessment of Student in January 2022. Student was then in the sixth grade and continuing to receive twice weekly speech and language group speech in pragmatic speech. Schnaidt’s report included a very detailed review of Student’s school records, educational history and previous assessments, observations of Student in several settings, an interview and clinical observation of Student, and standardized assessments and rating scales from teachers and Parents.

The report analyzed whether Student met eligibility criteria for autism, other health impairment, emotional disturbance and/or specific learning disability.

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Schnaidt conducted an interview with Student’s math teacher and two classroom observations and a lunch and recess observation of Student. The teacher reported that Student is attentive, responsive, and works hard in the math class. Student does complain about having to go to pragmatics group and can return to the classroom upset about having missed class. Schnaidt observed Student participating successfully in class, engaged with classwork and able to respond to teacher questions, and work well with her small group. At lunch and on the playground, Student interacted well with friends and peers.

Schnaidt’s report assessed Student’s cognitive and academic abilities and found that they were equivalent with both in the average range. The academic assessment was conducted by Manteca’s special education teacher, Jennifer Morris, and the results reported in the psychoeducational report. Student achieved some above average scores in reading and writing.

Schnaidt assessed Student in language processing skills, visual-motor integration, and motor free visual perception, testing that assessed for possible processing problems. Student was in the average range in language processing and motor free perception and slightly below average in visual-motor perception. The assessor had no concerns about Student’s performance in processing.

Schnaidt assessed Student in social-emotional functioning. She conducted an interview with Student who presented as shy, but quickly opened up and became talkative. Schnaidt administered the Behavior Assessment for Children, a multidimensional test that measures numerous aspects of behavior and personality, including positive and negative dimensions. Student’s mother and one teacher completed the questionnaires. The mother’s and the teacher’s results were very

Accessibility Modified different. At school, the teacher did not observe clinical or adaptive problems with Student. At home, the mother had significant concerns with both clinical and adaptive problems. Student did demonstrate some atypicality in both home and school settings. The assessor discounted the mother’s concerns at home as not reflective of the school setting or presenting a barrier to Student accessing their education. An adaptive behavior assessment using the Adaptive Behavior Assessment System, showed similar results with the mother rating Student as very impacted in adaptive behavior and the teacher rating Student as average or above average in adaptive skills. The assessor viewed these results as similar to the behavior assessment, with Parents concerns limited to the home setting.

Schnaidt assessed Student for educational autism using the Autism Spectrum Rating Scale. As with both behavior and adaptability, the mother’s ratings at home and the teacher’s ratings at school were very different. The mother reported very elevated scores overall indicating significant issues with autistic-like behaviors at home. The teacher reported overall average scores indicating that Student does not exhibit autisticlike behaviors at school, and there was no educational impact noted at school. Schnaidt’s report included detailed analyses of Student’s potential eligibility for special education in the areas of speech and language impairment, autism, specific learning disability, other health impairment, and emotional disturbance.

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The assessor did not find Student eligible for special education in any of the five areas. In particular, the assessor did not find any evidence that anxiety was affecting Student’s ability to access their education or perform in the school setting. The assessor specifically recommended that Student’s speech and language services be ended as they were no longer in Student’s best interests.

The District’s psychoeducational assessment was presented in two parts at the January 20, 2022 and February 15, 2022 IEP meetings. The District members of the IEP team agreed with the analysis and conclusion of the Schnaidt’s psychoeducational assessment and concluded that Student was no longer eligible for special education under a speech and language eligibility and did not qualify for special education in any of the four additional areas of eligibility that were considered. The IEP team concluded that Student should be exited from special education. Parents disagreed and requested an independent psychoeducational evaluation of Student. Manteca agreed to fund an independent psychoeducational educational evaluation of Student with the accompanying eligibility determinations with the IEP team.

INDEPENDENT PSYCHOEDUCATIONAL ASSESSMENT OF STUDENT

An independent psychoeducational assessment of Student, dated April 24, 2023, was completed by independent assessor Lisa Cheney, a Licensed Educational Psychologist. Cheney’s assessment was aimed at determining Student’s present levels of cognitive, academic, and social-emotional functioning with the goal of evaluating whether Student was eligible for special education under categories of specific learning disability, other health impairment, autism and/or emotional disturbance. Cheney’s assessment included

Accessibility Modified a thorough review of Student’s medical, educational and assessment history, multiple observations, an attempted interview of Student’s mother, a teacher interview, and standardized testing.

Cheney’s report closely tracked the findings of the Schnaidt’s psychoeducational assessment report. Interviews, observations, and standardized testing results were consistent with the results obtained by Schnaidt. Cheney considered the data she obtained in the context of Student’s potential eligibility for special education under four categories. Cheney concluded that Student did not meet the criteria to qualify for special education under specific learning disability, other health impairment, autism, and/or emotional disturbance. Cheney’s reasoning and analyses were thorough and convincing, and her report was given significant weight in determining whether Student was eligible for special education in any category reviewed in the report.

MAY 19, 2023 IEP MEETING

The independent psychoeducational assessment was presented at the May 19, 2023 IEP meeting. All required IEP team members, Parents, a Spanish interpreter, and the independent assessor were in attendance. At Parents’ request, the IEP meeting was held by videoconference on the Teams platform. Parents were concerned about alleged bullying of Student at school and that Student was experiencing fear and anxiety related to the alleged bullying. Parents were not concerned with Student’s academics. Cheney presented her findings and expressed her opinion that Student did not meet eligibility requirements for specific learning disability, other health impairment, autism, and/or emotional disturbance. Parents engaged Cheney and the other team

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The District members of the IEP team agreed with the analysis and conclusions of Cheney’s independent psychoeducational report and concluded that Student was no longer eligible for special education under any of the potential areas of eligibility that were considered. Parents disagreed and requested another IEP team meeting to discuss alleged bullying. Manteca subsequently filed the complaint in this matter seeking to exit Student from special education.

STUDENT DID NOT NEED SPECIAL EDUCATION SERVICES TO ACCESS

THEIR EDUCATION AND SHOULD BE EXITED FROM SPECIAL EDUCATION

Manteca proved by a preponderance of the evidence that Student was no longer eligible for special education under speech and language and was not eligible under specific learning disability, other health impairment, autism, and/or emotional disturbance. The data upon which Manteca relied was current, based upon appropriate recent district assessments and independent assessments by qualified professionals, and the District member of the IEP team considered the data in detail at the May 19, 2023 IEP meeting. At hearing, Student’s assessors, along with teachers and administrators for the 2022-2023 and 2023-2024 school years credibly testified and opined, based upon their knowledge, experience, and assessment results, that Student did not need special education services to access their education and make appropriate progress. Student did not show that the information relied upon from the assessments, observations and performance of Student was inaccurate or improper.

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ORDER

District’s request to exit Student from special education is granted, and District may cease to provide special education programs or services to Student.

CONCLUSIONS AND PREVAILING PARTY

As required by California Education Code section 56507, subdivision (d), the hearing decision must indicate the extent to which each party has prevailed on each issue heard and decided.

MANTECA’S ISSUE:

Manteca is legally entitled to exit Student from special education services without parental consent based upon its determination at the May 19, 2023 IEP team meeting that Student was no longer a child with a disability who needs special education and related services.

Manteca prevailed on this issue.

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.

Ted Mann Administrative Law Judge Office of Administrative Hearings Accessibility Modified