CASE NO. 2023030299

HUENEME ELEMENTARY SCHOOL DISTRICT v. Student

Counsel for Student: Vikki Rice

Counsel for District: Melissa Hatch and Beatrice Hoffman

Representative for Academy: Stephanie Barnes

ALJ: Judith L. Pasewark

Date of Decision: July 10, 2023

Significant areas of law: Assessing Student without conditions imposed by Parent.

ISSUES:

• May District assess Student at District office or school site, without conditions imposed by Grandparent?

FACTS OF THE CASE:

• Student was thirteen (13) years old and eligible for special education and related services under the category of other health impairment, and speech and language impairment.
• Grandparent requested that OAH order District to conduct Student’s assessments in a neutral setting and allow Grandparent to be present during the assessments to comfort Student’s anxiety.
• Student’s motion for affirmative relief was denied. Consequently, District filed this request for due process hearing to request permission to assess without Grandparent’s permission.

CONCLUSION:-

• District MAY assess Student at District office or school site, without conditions imposed by Grandparent.

Rationale:

• Student had changed substantially since his last assessments, warranting reassessments in all areas of suspected disability as during last five years Student experienced significant developmental changes, including puberty, COVID-19 isolation, and virtual schooling.
• Grandparent provided District with a letter from a psychiatric-mental health nurse practitioner and clinical psychologist treating Student. This letter put District on notice of Student’s behavior and mental health diagnoses as other specified trauma-stressor related disorder; attention deficit hyperactivity disorder, and mild to moderate intellectual disability and ruling out autism spectrum disorder. Student presented with sufficient severity, social impairment, and psychiatric disturbance to warrant home-hospital instruction because he remained challenged by aggressive and impulsive behaviors which made the traditional classroom setting inappropriate at that time. Student remained impulsive, highly reactive, distrustful of others and attempted to control communication with maladaptive strategies. This letter also supported District’s determination that it needed to reassess Student.
• District’s special education staff identified a range of concerns they believed warranted a full reassessment in addition to the assessment being a required triennial reevaluation including a comprehensive cognitive and behavioral assessment and assessment of self-esteem, ability to interact with peers and his ability to regulate his emotions and behaviors, academic performance to determine Student’s present levels of academic performance and update Student’s IEP with appropriate goals and services, health assessment, etc.
• District established that it was statutorily obligated to conduct a triennial assessment of Student. Not only was the assessment overdue, but District had ample information indicating the changes in Student’s educational and social emotional needs warranted reassessment. District also established that it developed a legally compliant, written assessment plan, which it provided to Grandparent which met the statutory requirements of California Education Code section 56321. Grandparent was entitled to no more, nor did Grandparent have veto power over District’s right to reassess Student.
• District established that Grandparent, with the assistance of her advocate, actively thwarted each attempt to complete the health assessment. The evidence established that District’s staff attempted to schedule Student’s health screening on seven occasions. Grandparent only provided partial responses to the health questionnaire and did not provide consent to contact Student’s medical providers.
• Grandparent failed to make Student available for in-person testing by cancelling scheduled assessment dates and preventing virtual observations.
• If parents do not consent to the reassessment plan, the district may request permission to assess without parental consent by showing at a due process hearing that it is unable to obtain parental consent to needed evaluations. (20 U.S.C. § 1414(c)(3); 34 C.F.R. § 300.300(c)(1)(ii)(2006); Ed. Code, §§ 56381, subd. (f)(3), 56501, subd. (a)(3).) Further, a parent who wishes that their child receive special education services under the IDEA must allow reassessment if conditions warrant. (Gregory K. v. Longview Sch. Dist., (9th Cir. 1987) 811 F. 2d 1307, 1315.)

REMEDIES/ORDER:

• District may conduct a multidisciplinary assessment of Student pursuant to the assessment plan.
• District may conduct the assessments at its district offices, a school site, or any other location District and the assessors deem appropriate to obtain valid assessment results.
• District shall notify Grandparent within 15 business days of this Decision, and of the dates, times, and places District requires Grandparent to present Student for assessment. District has the authority to reject or approve any changes to the designated assessment dates proposed by Grandparent.
• Grandparent is ordered to cooperate in making Student available for assessments as requested by District to comply with state and federal timeline requirements.
• Grandparent may not dictate any conditions or veto any district locations selected by District for Student’s assessments.
• Grandparent may not be present during Student’s assessments unless deemed appropriate by the assessor.
• District shall communicate with Grandparent directly through email correspondence about scheduling and conducting the assessments and scheduling the IEP team meeting to discuss the assessment results.
• If Grandparent fails to cooperate in making Student available to District to complete the multidisciplinary assessments, in their entirety, on days requested by District, District shall no longer be obligated to provide Student special education and related services.