Counsel for Student: Lynda Williams and Robert Burgermeister

Counsel for District: Dee Ann Hassanpour and Lucy Nadzharyan

Representative for District: Dee Ann Hassanpour and Lucy Nadzharyan

ALJ: Penelope Pahl

Date of Decision: February 01, 2023

Significant areas of law: Failure to assess student for eligibility under the category of emotional disturbance is not denial of FAPE unless student has a condition exhibiting one or more of the characteristics provided under 34 C.F.R. § 300.8(c)(4); Cal. Code Regs., tit. 5, § 3030, subd. (b)(4) over a long period of time, and to a marked degree, that adversely affects a child’s educational performance.  

ISSUES:

• Did District deny student a FAPE by failing to assess student for eligibility under the category of emotional disturbance?

FACTS OF THE CASE:

• Student was 12 years old and was eligible for special education under the category of other health impairment.

CONCLUSION:

• District DID NOT deny student a FAPE by failing to assess student for eligibility under the category of emotional disturbance.

Rationale:

• According to district’s psychiatric social worker, Student’s behavior improved after he began receiving special education behavior supports. The district’s behavior aide supervisor also confirmed this observation. Parents also acknowledged the improvement in student’s behavior during distance learning.
• Neither the teachers and school psychologist recommended an assessment for emotional disturbance since Student’s initial eligibility assessment nor did parents ever request an emotional disturbance assessment. Further, No expert testified that Student should have been assessed for emotional disturbance.
• There was no evidence that Student had an inability to learn, rather his grades were excellent.
• Student had difficulties with some peers due to his excessive competitiveness; however, these problems were not evidence of an emotional disturbance. Further, Student was seen to have friends and get along with classmates and adults when he was calm. The evidence established that student was able to have good relationships with peers and adults.
• There was no evidence that Student refused to go to school or that getting him to attend was a struggle or that he had unexplained illnesses, such as stomach aches, that resulted in missed school rather his attendance was excellent.
• Father misunderstood that anxiety was “under the emotional disturbance umbrella” and did not understand what emotional disturbance really meant in the special education context. However, Student offered no evidence that anxiety interfered with his ability to access his education or impeded his educational performance.
• No Parent, teacher, or school administrator saw Student as a threat to himself or others. School psychologist who worked with Student received no reports of significant outbursts such as those requiring a class evacuation or an intervention from an adult for safety concerns. Nor did she receive a request for an emotional disturbance assessment from Parents, teachers, or administrators.
• Student failed to establish that District should have assessed him in the area of emotional distress. However, even had Student established a need to assess, Student offered no evidence that lack of assessment deprived Student of access to education or deprived Parents of a meaningful opportunity to participate in the IEP development process.

REMEDIES/ORDER:

• None.