CASE NO. 2023010234 2022120477

Student v. MT. DIABLO UNIFIED SCHOOL DISTRICT

Counsel for Student: Mother

Counsel for District: Deborah Ettinger and Christine Huntoon

Representative for District: Ivanna Huthman

ALJ: Robert G. Martin

Date of Decision: June 20, 2023

Significant areas of law: Failure to appropriately consider Student’s private evaluations, during IEP, results in denial of FAPE.

ISSUES:

• Did District deny Student a FAPE by failing to consider, revise Student’s IEP and implement the recommendations from Student’s private evaluations?

FACTS OF THE CASE:

• Student was eleven (11) years old and was eligible special education and related services under the categories of autism and speech and language impairment.

CONCLUSION:-

• District DENIED Student a FAPE by failing to consider, revise Student’s IEP and implement the recommendations from Student’s private evaluations.

Rationale:

• If a parent obtains an independent assessment at public expense, or shares with the school district an evaluation obtained at private expense, the results of the evaluation must be considered by the school district, if it meets agency criteria, in any decision made with respect to the provision of a FAPE. (34 C.F.R. § 300.502(c)(1); Ed. Code §§ 56341.1, subd. (b)(1) and 56381, subd. (b).)
• Evidence that district IEP team members have considered a private evaluation include a lengthy discussion of the evaluation at an IEP team meeting (Michael P., supra, at p. 1066), proposals by the IEP team to conduct further assessments in an area of need identified in the evaluation (B.S. v. PlacentiaYorba Linda Unified School District (C.D. Cal., Aug. 1, 2007, No. SACV06847CJCMLGX) 2007 WL 9719115, at *3–4), or alteration of IEP provisions in response to suggestions made by the private assessor. (Ibid.)
• As per Student’s private Feeding Assessment report, Student exhibited high anxiety, distress, and aversion to food. He had extreme sensory sensitivities to food textures, temperature, flavor, and appearance. The assessor noted that Student’s recess time would be important for his mental health, sensory regulation, and peer interactions, and should not be reduced to allow more time for eating.
• As per Student’s clinic-based neuropsychological evaluation, Student was diagnosed with attention deficit and hyperactivity disorder, and autism spectrum disorder. The assessor recommended that Student must be provided a one-on-one aide in a school environment, along with occupational therapy, feeding therapy, adaptive life skills education and support, transportation, adapted physical education, social and emotional therapies, and strategies for managing symptoms arising from his ADHD and autism.
• As per Student’s occupational therapy assessment Student was found to have anxiety, attention challenges, sensory challenges, proprioceptive deficits impacting his writing efficiency and motor planning, and visual motor challenges. The assessor recommended Student’s IEP include 60 minutes per week of direct occupational therapy, one hour per month of consultation services; an occupational therapy designed self-regulation program, adapted paper, and that he be referred for an assistive technology (AT) evaluation.
• District contends that the IEP meeting notes reflect a robust discussion on occupational therapy assessment findings, recommendations, and proposed goals, but that discussion occurred entirely between the private assessor and Parent. None of the private assessors’ input was incorporated in any way into the Amendment IEP.
• The evidence clearly shows that District procedurally violated the IDEA and Education code by not meaningfully considering Student’s private evaluations in developing Student’s Amendment IEP. This deprived Student of educational benefit and denied a FAPE as Student’s IEP offer would have differed if District had considered this information.

REMEDIES/ORDER:

• District must provide Student a block of nine hours of compensatory education by a non-public agency, to be applied at Parent’s discretion to address Student’s needs in any of the areas of English language arts, math, writing, speech and language, occupational therapy, or feeding.
• Within 30 days of the date of this order, District must pay $100.00 to Parent, as reimbursement for the battery operated bento box previously purchased by Parent.
• Parent must provide District the bento box previously purchased by Parent within 10 days of receipt of reimbursement, for inspection and testing by District.
• Within 10 days after the start of the school year, unless Student is not attending school, District must test Student’s ability to open the bento box previously purchased by Parent. If the bento box purchased by Parent is not functional or cannot be opened by Student, District will within 10 additional days select and purchase at district expense a bento box Student can open.
• Beginning at the start of the school year, District must provide Parent a video once per week of Student eating his lunch at school, unless and until Parent directs otherwise in writing, or the IEP team changes or removes the support. In implementing the weekly feeding video support,
• District may conduct a school-based feeding assessment of Student according to its assessment plan, without Parent’s consent, except that it may not conduct interviews, or otherwise communicate with Student’s medical doctors or private providers without Parent’s consent.