CASE NO. 2022080193

LEMOORE UNION ELEMENTARY SCHOOL DISTRICT v. Student

Counsel for Student: Taymour Ravandi, Amanda Miller and Lauren-Ashley Mendez

Counsel for District: Elizabeth Rho-Ng and Adrienne Nichelini

Representative for District: Elizabeth Rho-Ng and Adrienne Nichelini

ALJ: Elizabeth Rho-Ng and Adrienne Nichelini

Date of Decision: June 21, 2023

Significant areas of law: Procedural IDEA violation that results in denial of FAPE.

ISSUES:

• Did District’s IEPs offer Student a FAPE such that District may implement it without parental consent?

FACTS OF THE CASE:

• Student was 10 years old and was qualified for special education and related services under the primary category of other health impairment and the secondary category of hard of hearing.
• Student’s needs included math, reading, writing, social-emotional, self-advocacy, attention, and hearing assistance and suffered from Goldenhar syndrome, moderate severe conductive hearing loss, attention deficit hyperactivity disorder, social anxiety, asthma, and sleep apnea.
• District offered Student a special education program. Student partially consented to the IEP offer but disputed the placement offer, among other things. Hence, District filed its due process hearing request to implement its IEP offer without parental consent because Parent refused to consent to a necessary portion of the IEP offer i.e. Student’s placement.

CONCLUSION:-

• District’s IEPs offer denied Student a FAPE such that District MAY NOT implement it without parental consent.

Rationale:

• District’s Assistant Superintendent of Special Services and special education teacher, school psychologist and Student’s case manager unilaterally changed Student’s IEP date, all the goals, services, modifications, and support start and end dates without a meeting or notice to Parent or any other District staff. They also unilaterally changed the annual IEP date due to which Student continued to have the same IEP offer for 22 months, and District unilaterally granted itself 10 extra months to hold Student’s annual IEP review.
• The unilateral changes made by District’s staff were not technical edits or slight changes and the changes were not to correct information inaccurately recorded in or omitted from a previous IEP document.
• School districts can change annual review dates and services and goals through the IEP meeting process, but not unilaterally by district staff members without an IEP team meeting, agreement from Parent to forego it, or documentation showings its attempts to allow Parent to participate in the IEP development process.
• By unilaterally changing the goals, services, supports, and modification timelines in Student’s IEP, District created an entirely new IEP offer and a new annual review date because it was beyond the legally required annual IEP review date. This violated IDEA’s clear requirement for school districts to hold annual IEP team meeting review and was a procedural IDEA violation.
• Student was deprived of a new annual IEP meeting with participation and input from the IEP team, including a general education teacher and school nurse, updates on Student’s present levels of performance, progress on goals, consideration of the new assessment data, and outside medical information.
• Student was deprived of a new annual IEP meeting with participation and input from the IEP team, including a general education teacher and school nurse, updates on Student’s present levels of performance, progress on goals, consideration of the new assessment data, and outside medical information.
• Parent received neither any notice nor participated in developing the IEP offer and District’s staff made new annual IEP offer without reviewing the newly completed assessments and home hospital instruction documentation with the IEP team. Although the IEP offer was discussed with Parent the following day, participation after the fact is no substitute for IEP discussions, especially since the changes were already decided on in the new annual IEP offer.
• The prior written notice language and staff’s behavior established that these “amendments” to Student’s IEP were already predetermined before Parent even knew about them.
• The evidence showed that IEP changes were non-negotiable, not based on Student’s individualized needs but instead, for legal positioning, and that Parent had to sign the new annual IEP offer or they would go to due process hearing. District also failed to disclose to Parent that it was changing the IEP offer to Student.
• Predetermination is an automatic violation of a parent’s right of participation under the IDEA. Where predetermination has occurred, “regardless of the discussions that may occur at the meeting, the school district’s actions would violate the IDEA’s procedural requirement that parents have the opportunity ‘to participate in meetings with respect to the identification, evaluation, and educational placement of the child.’” (H.B. v. Las Virgenes, supra, 239 Fed.Appx. at p. 344, quoting 20 U.S.C. § 1415(b)(1).)
• District’s predetermination of the annual IEP offer significantly infringed upon Parent’s right to meaningful participation in the decision making IEP process.

REMEDIES/ORDER:

• District’s claim for relief is denied and it may not implement the IEP without parental consent.