CASE NO.2017060038

STUDENT v. HERMOSA BEACH CITY SCHOOL DISTRICT

Counsel for Student: Rosa Hirji and Briana Banayan

Counsel for School: Diane Willis

Representative for School: Patricia Escalante, Kim Taylor

ALJ: Christine Arden

Date of Decision: January, 2018

Significant areas of law: Exceptions to Statute of Limitation

ISSUES:

• Are behavioral intervention claims barred by statute of limitation without any exceptions?
• Did District deny student a FAPE with regard to Student’s unique area of need in behavior by use of illegal behavior interventions to address disability related behavior; use of unwarranted emergency behavior interventions; use of interventions that caused Student humiliation and emotional trauma; and/or failing to provide behavior interventions to allow Student access to speech and language services?
• Did District deny student a FAPE by failing to develop goals in an IEP that were reasonably calculated to provide Student with educational benefit?
• Did District deny student a FAPE by failing to implement the behavior support plan decided in an earlier IEP?
• Did District deny student a FAPE by failing to implement his toileting goals?
• Did District deny student a FAPE by failing to place Student in an educational environment that conferred educational benefit

FACTS OF THE CASE:

• Student was 16 years old and was eligible for special education services for autism and speech and language impairment, also had severe behavioral issues and very limited speech.

CONCLUSION:-

• Behavioral intervention claims ARE NOT barred by statute of limitation in certain exceptions.

Rationale:-

– the statute of limitations begins to run when a party is aware of the underlying facts that would support a legal claim, not when a party learns that the action was wrong.

– title 20 United States Code section 1415(f)(3)(D) and Education Code section 56505, subdivision (l), establish exceptions to the statute of limitations in cases in which the parent was prevented from filing a request for due process due to specific misrepresentations by the local educational agency that it had resolved the problem forming the basis of the complaint, or the local educational agency’s withholding of information from the parent that was required to be provided to the parent.

– District/NPS withheld information from Parents about emergency behavior interventions that had been used on Student that District was required to provide to Parents (sub-issue A(6)(b).)

– Mother had specifically inquired if CPI techniques were used on Student and was told that they were not, which was a misrepresentation.

• District DENIED student a FAPE with regard to Student’s unique area of need in behavior by use of illegal behavior interventions to address disability related behavior; use of unwarranted emergency behavior interventions; District DID NOT DENY student a FAPE by use of interventions that caused Student humiliation and emotional trauma and/or failing to provide behavior interventions to allow Student access to speech and language services.

Rationale:-

– An emergency behavior report must be immediately forwarded to, and reviewed by, a designated school administrator.

– The NPS failed to report to Parents and/or District within one school day when CPI transport holds were used on Student in violation of Education Code, section 56521.1(e). Further, the emergency behavior reports about transport holds used on Student during behavior emergencies were not provided to Parents or District when those events occurred. Moreover a number of reports were missing and not accounted for.

– TheStudent’s behaviors were predictable, he was neither violent nor created a danger to himself or others. Hence, less intrusive means could and should have been used to address these behavior emergencies. Student’s Behavior Plan was not materially revised while he was at NPS, even though his maladaptive behaviors continued and even worsened.

– There was no direct evidence that the emergency behavior interventions used at NPS caused Student humiliation and emotional trauma. Further, evidence did not establish that Student was deprived of access to speech and language services due to the lack of appropriate behavior interventions.

• District DID NOT deny student a FAPE by failing to develop goals in an IEP that were reasonably calculated to provide Student with educational benefit.

Rationale:-

– No one at that meeting suggested or requested new goal should be developed for Student in any area. Moreover, no evidence was introduced to suggest that Student needed new goals in that specific IEP. Hence, school was not required to develop new goals at this meeting.

• District DID NOT deny student a FAPE by failing to implement the behavior support plan decided in an earlier IEP.

Rationale:-

– he evidence established that there was no behavior support plan or behavior intervention plan in that specific IEP as the said IEP was held for the purpose of discussing the recently completed Functional Behavior Assessment.

• District DID NOT deny student a FAPE by failing to implement his toileting goals.

Rationale:-

– Parents were aware of the IEP team meetings which had toileting goals and also knew when these goals were not included. Hence, statute of limitations applies on inclusion of toileting goals in his IEPs. Further, parent’s claims are based on incomplete record of his toileting schedule provided by school.

• District DENIED student a FAPE by failing to place Student in an educational environment that conferred educational benefit.

Rationale:-

– The initial placement at the NPS recommended by District was appropriate. However, if District had adequately monitored the Student’s program and progress during his school year, it would have known that NPS had not complied with a number of material requisites set forth in the Education Code regarding Student’s behavioral emergencies and behavioral interventions. By failing to do so, District denied student a FAPE.

REMEDIES/ORDER:-

– Within 45 days of the date of this Order:

• District shall make arrangements with Parents and a certified nonpublic agency to provide for 286.5 hours of specialized academic instruction to be provided to Student.
• District shall make arrangements with a certified nonpublic agency specializing in applied behavioral analysis services to provide for 191 hours of behavioral aide services from a trained behavioral aide and 19.1 hours of behavioral supervision services from a BCBA.
• Student shall use the above awarded compensatory education services within three years from the date of this order.