California OAH special education order · February 29, 2016
Order Denying Motion to Compel Observation of Student at Private School
OAH Case No. 2015100813, 2015120606 · ALJ Paul H. Kamoroff
OAH denied District's request to compel Parents to allow a second observation of Student at his private school because Student sought a public general education placement, not a publicly funded private school placement.
Summary
District asked OAH to order Parents to let three District staff members each observe Student for one hour at the private school where Parents had placed him. District relied on Education Code section 56329(d), which gives a district the right to observe a parent's proposed nonpublic school placement. OAH found the statute did not apply: Student's complaint asks for a public general education classroom, and the requested related services and past tuition reimbursement do not make the private school a proposed publicly funded placement. OAH also noted that District had already observed Student at the private school during its September 2015 assessments, which covered the period at issue, and District did not explain why a second observation was needed.
Why it matters
A district's right to observe a child at a private school under Education Code section 56329(d) applies only when the parent proposes that private school as the publicly funded placement. Seeking past tuition reimbursement alone does not automatically trigger that right, especially when the district has already observed the child during the period at issue.
Key authority cited
- Ed. Code, § 56329, subd. (d)
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 Consolidated Matters of:
PARENTS ON BEHALF OF STUDENT, OAH Case No. 2015100813 v.
IRVINE UNIFIED SCHOOL DISTRICT,
IRVINE UNIFIED SCHOOL DISTRICT, OAH Case No. 2015120606 v. ORDER DENYING MOTION TO
COMPEL OBSERVATION OF
PARENTS ON BEHALF OF STUDENT. STUDENT AT PRIVATE SCHOOL
On October 23, 2015, Parents on behalf of Student filed a request for due process hearing with the Office of Administrative Hearings, naming Irvine Unified School District.
Student’s complaint alleges that District failed to offer Student a free appropriate public education on various grounds. To remedy this violation, Student’s complaint requests placement in a general education classroom, reimbursement for past tuition at a private school, and related services.
On February 19, 2016, District filed a Motion to Compel Observation by District of Student at Saint John the Baptist, a private school. On February 23, 2016, Student filed an opposition to District’s motion.
DISCUSSION AND APPLICABLE LAW
Student is an eleven year old boy who is presently placed at a private school by his parents. District last observed Student at the private school as part of a triennial assessment it conducted in September 2015. District’s school psychologist and speech and language pathologist observed Student at the private school as part of District’s assessments.
In his complaint, Student alleges that District’s individualized education programs of September 4 and 30, 2015, denied him a free appropriate public education in the least restrictive environment. As a remedy, Student proposes placement at a public school in a general education classroom; reimbursement for past tuition incurred at the private school;
and behavior, speech and language, and occupational therapy services provided by a non- public agency.
In its motion, District asserts that it wishes to observe Student at the private school and that Student’s parents have refused to allow such an observation. District seeks an order compelling Parents to allow an observation by District’s education specialist, program specialist, and school psychologist, for one hour each, of Student at the private school.
District argues that because Student is proposing reimbursement for a private school placement and services provided by a nonpublic agency, that it is entitled to observe Student at the private school.
In support of its motion, District cites Education Code section 56329, subdivision (d), which provides in pertinent part:
If a parent or guardian proposes a publicly financed placement of the pupil in a nonpublic school, the public education agency shall have an opportunity to observe the proposed placement and the pupil in the proposed placement, if the pupil has already been unilaterally placed in the nonpublic school by the parent or guardian.
That statutory provision does not apply to the facts described in this case. The private school is not a placement proposed by Student. Rather, Student’s complaint proposes a general education classroom, not a private school placement. Additionally, the related services Student requests are only ancillary to that placement and do not constitute a publicly funded placement in a nonpublic school.
Moreover, Student’s complaint alleges only claims that arose on or before September
2015. District observed Student during that period of time at the private school. District
failed to explain why a second observation of Student at the private school is necessary for District to prepare for the upcoming due process hearing. Regardless, the statute relied upon by District is not applicable to the facts described in this matter. District is therefore not entitled to an order compelling Student’s parents to permit its observation of Student at the private school.
ORDER
District’s motion for an order compelling Student’s parents to allow it to observe Student at the private school is denied.
DATE: February 29, 2016 /s/
PAUL H. KAMOROFF
Administrative Law Judge Office of Administrative Hearings