CASE NO. 2021100329

Student v. GROSSMONT UNION HIGH SCHOOL DISTRICT

Counsel for Student: Wendy Dumlao and Erica Mortenson

Counsel for School: Sarah Sutherland and Whitney Antrim

Representative for School: Rose Tagnesi

ALJ: Rommel P. Cruz

Date of Decision: June 29, 2022

ISSUES:

• Did School deny Student a FAPE by offering an unclear and inconsistent 30-day interim IEP, that failed to accurately reflect the offer of general education classes in physical education and an elective class?
• Did School deny Student a FAPE by failing to offer Student a comparable IEP, by offering Student general education courses at the subsequent IEP team meetings?
• Did School deny Student a FAPE by failing to offer Student an appropriate placement at IEP team meetings?

FACTS OF THE CASE:

• Student was eligible for special education and related services under the categories of autism and speech or language impairment.
• Student contends School’s offer of four special education classes, not five, and two general education classes, was inconsistent with the written offer of FAPE.
• Parents unilaterally decided to place student in an NPS of their choice and asked for reimbursement of expenses from school as they did not agree with the NPS recommended by school.

CONCLUSION:-

• School DID NOT deny Student a FAPE and offer of IEP was clear and consistent with previous IEP meetings.

Rationale:-

– At the time of transition from one school to another, the Transition IEP decided the goals consistent with student’s needs and his IEP in previous school.

– Parents submitted a request to place student in an NPS of their choice, which was denied by school through written notice.

– The above notice is duly supported by IEP meeting notes which mentions that fifth special education elective class shall be determined at a later date and would be based on Student’s interests and needs. The sixth class would be general education physical education class, with adapted physical education specialist support. The offer of FAPE did not include a second general education class.

– Parents did not express concerns about the general education classes on Student’s class schedule at the IEP meeting scheduled to discuss student’s placement at an NPS unilaterally decided by parents.

– Even if the subsequent assignment of two general education classes or the absence of an identified fifth special education elective class resulted in a procedural violation, any inconsistency or lack of clarity did not result in a denial of a FAPE.

– Neither the assignment of two general education classes, nor the unidentified special education elective class significantly impeded Parents’ opportunity to participate in the decision-making process regarding the provision of a FAPE to Student, deprived Student of educational benefit, or impeded Student’s right to a FAPE. (20 U.S.C. § 1415(f)(3)(E)(ii); Ed. Code, § 56505, subd. (f)(2).); see Target Range, supra, 960 F.2d p.1484.)

• School DID NOT deny Student a FAPE and offered a comparable program related to general education classes at IEP meetings.

Rationale:-

– Student’s contention, and reliance on Parent v. Charter Oak Unified School District, (March 11, 2021) OAH Case Number 2020100198 (Charter Oak), was unpersuasive due to following:-

– In the above case, OAH treated the school district’s contention that it offered that student a comparable program as an affirmative defense to the school district’s failure to conduct an IEP team meeting or have an IEP in place by the start of the school year; IDEA procedural violations which the school district conceded it committed. Accordingly, OAH held that the school district carried the burden of proving its affirmative defense that despite the procedural violation, no substantive FAPE denial occurred because the school district offered the student a comparable program.

– While in current case, school does not concede failing to offer Student a comparable program or any other significant procedural violations, like the school district in Charter Oak. Hence, burden of proof is on student.

– Student’s program at previous school consisted of five special education classes and one general education physical education class. Student’s inability to participate in his physical education class was due to school’s policy to suspend physical education classes for all of its students because of COVID, and not because Student could not access and benefit from physical education in the general education setting.

• School DID NOT deny Student a FAPE and placement offered by school was reasonably calculated to enable Student to meaningfully benefit from his education.

Rationale:-

– Evidence established that School recommended NPS’s moderate/severe special education class was the least restrictive environment.

– Placement sought by Student, and supported by his experts, was a more restrictive NPS. At such NPS, Student would have less opportunities to mainstream or socialize with his nondisabled peers.

– The evidence did not support Student’s contention that size and student population of school’s recommended NPS was too large as to impede him from accessing his education.

– Student’s recent assessments also established that Student had no difficulty maneuvering a large school campus. Further, his occupational therapy assessment found that he could navigate his school environment and find classrooms and office with the supervision of his aide.

– The occupational therapist observed Student to safely navigate the various school surfaces such as concrete and dirt, and stairs if supervised.

– No testimony or evidence was offered to describe the nature of Student’s pacing that necessitated a sensory room larger than any available room at NPS recommended by school.

– Student did not require an RBT, or an aide with equivalent training, to support him as a one-to-one aide. Further, Student did not require a BCBA on-site at school at all times. Further, in school’s recommended NPS, moderate/severe special day class was taught by a teacher who was a BCBA for 10 years, with experience working with children with autism and behavior problems.

REMEDIES/ORDER:-

• All of Student’s requests for relief are denied.