CASE NO. 2022020679

Student v. SAN BERNARDINO CITY UNIFIED SCHOOL DISTRICT

Counsel for Student: Robert Burgermeister

Counsel for School: Meagan Kinsey

Representative for School: Dr. Howanna Lundy

ALJ: Deborah Myers-Cregar

Date of Decision: June 20, 2022

ISSUES:

• Did School deny student a FAPE by failing to assess in the areas of speech and language, cognitive processing, gross motor development, fine motor development, occupational therapy, adaptive skills, autism, spectrum disorder, auditory processing and physical therapy?
• Did School deny student a FAPE by failing to offer sufficient goals reasonably calculated to enable student to receive and educational benefit to address student’s needs in the areas of expressive communication, receptive communication, gross motor skills, fine motor skills, auditory processing, adaptive living skills, social emotional functioning, behavior and academics?
• Did School deny student a FAPE by failing to offer sufficient programs and supports to address student’s needs in the areas of regression and social skills?
• Did School deny student a FAPE by failing to offer a one-to-one aide?
• Did School deny student a FAPE by failing to offer student ABA therapy and ABA clinical meetings?
• Did school deny Student a FAPE by failing to offer parent training regarding student’s speech and language impairment?
• Did school deny Student a FAPE by denying parent an opportunity to meaningfully participate in student’s IEP process by excusing the school nurse and general education teacher from IEP team meeting without parent’s informed consent?

FACTS OF THE CASE:

• Student became eligible for special education under the category of speech and language impairment.
• Parents tried to enroll the student in school as they suspected her disabilities and requested school to assess her for certain disabilities.

CONCLUSION:-

• School DID NOT deny Student a FAPE by failing to assess in the areas of speech and language, cognitive processing, gross motor development, fine motor development, occupational therapy, adaptive skills, autism, spectrum disorder, auditory processing and physical therapy.

Rationale:-

– Parent’s testimony was inconsistent in many ways. Hence, was not persuasive.

– A social worker with the Department of Children and Family Services, telephoned school secretary to let them know that student should be tested for speech and language impairment. School secretary responded to the call in timely manner and left messages for the social worker. However, the social worker did not respond to those messages.

– School was unable to track student on the basis of social worker’s call as correct and complete details were not provided by the social worker. Further, did not have written consent by an educational rights holder to enroll and assess Student.

– School acted reasonably by informing Parent of the additional enrollment documentation that was needed, and by following and contacting Student’s private pre-school to confirm they were aware of the process. The school enrolled the student immediately after receiving all the required documents and informed parents about such enrollment.

– Student’s assessments were conducted in person, with four assessors, all parties wearing personal protective equipment, and a written report was completed in due course of time.

– The assessment results were reviewed in first IEP meeting and Student was found eligible for special education with a speech and language impairment. Proper goals were set at the IEP meeting keeping in view student’s needs.

– School conducted assessments which would have demonstrated auditory processing deficits, as reported by Parent. The assessors persuasively testified that Student had no delay in her responses to assessment questions. School used alternative instruments to evaluate Student for general processing information, and did not use solely a single measure to evaluate Student. Hence, there is no evidence that school failed to assess student in areas of cognitive processing and auditory processing.

– Parents failed to provide that they reported any information to school suggesting Student had fine or gross motor skills deficits. Further, there was no evidence that either Parent or a teacher made a request for an occupation therapy or physical therapy evaluation. Hence, school did not fail to assess student in the areas of gross or fine motor development, or occupational and physical therapy.

– School conducted two assessments to assess student’s adaptive living skills, which were based on Parent’s reporting and obtained detailed information about Student’s unique profile of adaptive functioning by reviewing her performances in other assessment composites. Hence, school did not fail to assess student in the area of adaptive living skills.

– Parent did not establish that School was on notice that Student had characteristics of autism. Student provided no expert testimony or other evidence proving that Student required such an evaluation. The assessors did not observe any speech and language deficits which indicated Student could have autism. Hence, school did not fail to assess student in the area of autism.

• School DID NOT deny Student a FAPE by failing to offer sufficient goals reasonably calculated to enable student to receive and educational benefit to address student’s needs in the areas of expressive communication, receptive communication, gross motor skills, fine motor skills, auditory processing, adaptive living skills, social emotional functioning, behavior and academics.

Rationale:-

–  School did not have a duty to offer Student special education and related services before she was assessed and found eligible.

– At the time of the IEP, Student was able to use words and sentences and was understandable. She could ask for help, initiate conversations, greet others, and use her name. She did not exhibit difficulty using spoken language. Hence, she did not demonstrate that she required an additional expressive communication goal, other than her articulation/phonology goal.

– Student was able to follow verbal and non-verbal instructions. She did not exhibit difficulty understanding spoken language and did not establish she required a goal and had an identified, important area of unique need in her receptive communication. Hence, she did not demonstrate that she required a receptive communication goal.

– Student did not exhibit deficits in her gross motor skills. During the preschool years, many students try many kinds of grips, and continue to develop skills such as the tripod grip, and Student was still very young. Her teacher did not report any concerns about Student’s motor development.

– Student’s profile revealed her conceptual skills score fell in the low average range, her social skills score fell in the average range, and her practical skills score fell in the below average range. Student’s practical skills were divided into community use, home living, health and safety, and self-care.

– School did not use only one measure to evaluate Student in her adaptive living skills. Beside the subtests of the two assessments, the evaluation, also the remaining subtests of the assessments, Parent’s and teacher’s interviews, and her observations of Student were used.

– During the assessment process, Student greeted the assessors and established rapport with them. Her parents and teachers did not report any concerns with Student’s social-emotional functioning.

– Student provided no teacher report, credentialed assessor testimony, or expert testimony that demonstrated she required a gross motor skills goal, an auditory processing goal, an adaptive living skills goal, a social-emotional functioning goal, a behavioral goal, of an academic goal.

• School DID NOT deny Student a FAPE by failing to offer sufficient programs and supports to address student’s needs in the areas of regression and social skills.

Rationale:-

– Student’s IEP goals were set based on her needs and there was no evidence an IEP was necessary to address regression. Student presented no baseline data and evidence of a lack of progress at hearing which required School to convene an IEP team meeting to address regression concerns.

– Student’s assessments did not demonstrate that she had social skills deficits. Parent also did not report any concerns about Student’s social skills in interview conducted by school staff. Her teacher reported that Student got along well with her peers.

• School DID NOT deny Student a FAPE by failing to offer a one-to-one aide.

Rationale:-

– During assessment process, Student was able to independently navigate her preschool program without a one-to-one aide. Her teacher did not describe difficulties requiring Student to have a one-to-one aide in the preschool setting.

– Student was well behaved, appropriately social, and able to focus and participate in the assessment process. She did not act out, leave her seat, or leave the room. Student did not require teachers to redirect her to stay on task.

• School DID NOT deny Student a FAPE by failing to offer student ABA therapy and ABA clinical meetings.

Rationale:-

– Neither parents nor teacher reported that Student had problem behaviors. She did not get into trouble at school, and was always good at home. She did not throw tantrums or act out.

– Student was compliant, motivated, and actively participated in the assessment process. She was friendly and maintained eye contact. Student was calm and answered the assessment questions appropriately.

– The below average score in home living and self-care did not demonstrate a need and justify a goal or in-home ABA therapy services for those tasks, as they were developmentally appropriate for a preschool student.

• School DID NOT deny Student a FAPE by failing to offer parent training regarding student’s speech and language impairment.

Rationale:-

– Student had a mild articulation impairment which could affect her ability to be understood by her teacher, staff members and her peers. She used verbal communication and typical gestures and did not use American Sign Language to communicate.

– Other than above, she did not have deficits in her vocabulary, receptive or expressive communication skills.

– Vide assessment reports, school properly guided parents how they could facilitate speech and language at home, by singing songs and reading books to provide opportunities to produce a variety of sounds, and to model how to produce a sound correctly.

• School DID NOT deny Student a FAPE by denying parent an opportunity to meaningfully participate in student’s IEP process by excusing the school nurse and general education teacher from IEP team meeting without parent’s informed consent.

Rationale:-

– The evidence established that based on Parent’s agreement in writing, School excused both the nurse and the general education teacher from attending the meeting.

– The excused nurse provided a health assessment as part of the IEP, interviewed Parent, and included information that Parent provided to her.

– The excused general education teacher’s interview with the special education teacher and the psychologist was included in the assessment and discussed at the IEP team meeting.

– Parent meaningfully participated in the development of Student’s IEP because she was informed about Student’s problems, attended the IEP team meeting, heard the assessors explain their reports, had the opportunity to express disagreement regarding the IEP team’s conclusions, and had the opportunity to request revisions in Student’s IEP. She consented to the IEP and did not request changes to it, until the subject due process request was filed

REMEDIES/ORDER:-

• All relief sought by Student is denied.