California OAH special education order · August 23, 2013
Order Granting in Part and Denying in Part Motion to Compel Observation
OAH Case No. 2013060358 · ALJ June R. Lehrman
OAH let Student's private behavioral assessor observe Student at school, but limited the visits to the same three 30-minute sessions District's assessor used, because the law guarantees only an 'equivalent opportunity.'
Summary
Student asked OAH to order District to let Student's privately funded independent behavioral assessor observe Student at school on at least two days for two to three hours each day. District opposed, pointing to a teachers' union contract that caps classroom observations at 30 minutes and noting that its own assessor observed Student in three 30-minute sessions over two days. OAH granted the motion only in part. Education Code section 56329 gives independent assessors an 'equivalent opportunity' to observe, so OAH matched the time and settings District's assessor used: 30 minutes each in discrete trial instruction, special day class, and general education, over two days.
Why it matters
A parent's independent assessor may be held to the same observation time and settings the district's assessor used, even if the private assessor says more time is needed. Parents should find out early how long and where the district's assessor observed, and push for a fuller district observation if they want more time for their own expert.
Key authority cited
- Ed. Code § 56329, subd. (c)
- Ed. Code § 56329, subd. (b)
Topics
Full text of the order
Published text of the OAH order. Page headers and numbers from the original PDF have been dropped.
BEFORE THE
OFFICE OF ADMINISTRATIVE HEARINGS
STATE OF CALIFORNIA
In the Matter of:
PARENT ON BEHALF OF STUDENT, OAH CASE NO. 2013060358
v. ORDER GRANTING IN PART AND
DENYING IN PART MOTION TO
TORRANCE UNIFIED SCHOOL COMPEL OBSERVATION
DISTRICT.
On August 13. 2013, Student filed a Motion to Compel Observation, requesting an order permitting Student’s privately-funded independent behavioral assessor to observe Student in his District educational placement, on at least two different days for two-to-three hours each day. The Motion was supported by a declaration from Student’s independent assessor stating that this amount of time was, in her judgment, necessary to obtain an accurate representation of Student’s behaviors across multiple settings. On August 16, 2013, District filed an opposition, arguing that: (1) District was limited by its Collective Bargaining Agreement (CBA) with the Torrance Teachers Association, which permitted District to authorize a representative of a student to observe the student in the classroom with a limit of 30 minutes for each observation; and (2) District’s assessor had conducted a behavioral assessment of Student based upon three 30-minute observations over the course of two separate days. Specifically, District’s assessor had observed Student on the first day for 30 minutes during a discrete trial instruction session and 30 minutes in a special day class, and during the second day for 30 minutes in general education. On August 19, 2103, Student filed a Reply, arguing that it was unfair and illogical to permit District to restrict Student’s independent assessor to the limitations imposed either by the CBA, or by the amount of time District’s assessor had chosen for her observations of Student.
APPLICABLE LAW
Education Code, section 56329, subdivision (c) provides that if the parent or guardian obtains an independent educational assessment at private expense, the results of the assessment shall be considered by the public education agency with respect to the provision of free appropriate public education to the child, and may be presented as evidence at a due process hearing. It further provides that if a public education agency observed the student in conducting its own assessment, or if its assessment procedures make it permissible to have in-class observation of a student, an “equivalent opportunity” shall apply to an independent educational assessment. 1
DISCUSSION
The law specifically allows Student to conduct an observation by an independent assessor, but it also places limits on that right. Thus, the statute specifically restricts Student’s observational rights to an “equivalent opportunity” to that afforded to District’s assessor. Here, District’s assessor observed Student in 30-minute increments. That limitation is in accordance with the CBA’s restrictions on independent observations.
Student argues that its assessor’s discretion should not be limited by District policies, nor by what District’s assessor chose to do. However, Student’s arguments are not supported by the statute, which specifically incorporates those limitations into the right to observe.
Thus, Student’s Motion to Compel Observation is granted, but it is limited to an “equivalent opportunity” to that afforded to District’s assessor, as specified below.
ORDER
1. Student’s independent assessor shall be permitted to observe Student in his District
educational settings, as follows: for 30 minutes during a discrete trial instruction session, 30 minutes in a special day class, and 30 minutes in general education, over the course of two separate days.
Dated: August 23, 2013 /s/
JUNE R. LEHRMAN
Administrative Law Judge Office of Administrative Hearings Education Code, section 56329, subdivision (b) imposes the same conditions on independent assessments that are obtained at public expense.