CASE NO. 2022080176

STUDENT v. STOCKTON UNIFIED SCHOOL DISTRICT

Counsel for Student: Robert Burgermeister and Lynda Williams

Counsel for School: Kate Im

Representative for School: Todd Reynolds, Vincent Hernandez

ALJ: Jennifer Kelly

Date of Decision: November 22, 2022

Significant areas of law: Conducting IEP team meeting in absence of parent, failure to develop appropriate goals in IEP team meeting.

ISSUES:

• Did school deny student a FAPE by assigning student to distance learning during year 2020-2021, failing to provide in-person services and by failing to provide necessary accommodations during distance learning?
• Did school deny student a FAPE during year 2020-2021 by failing to assess him to ensure he could receive a FAPE during distance learning?
• Did school deny student a FAPE by convening the IEP team meeting without parents or by predetermining his offer of placement and services?
• Did school deny student a FAPE by failing to develop adequate goals in IEP to address his all areas of need?
• Did School deny student a FAPE by failing to offer sufficient individual services in form of a one-to-one aide?
• Did School deny student a FAPE by failing to offer sufficient speech and language services?
• Did School deny student a FAPE in IEPs by failing to offer extended school year services?
• Did School deny student a FAPE in IEPs by failing to offer parents training to address student’s needs arising from Autism?
• Did School deny student a FAPE in IEPs by failing to offer at home and clinic-based applied behavior analysis therapy?
• Did School deny student a FAPE in IEP by determining student’s offer of placement and services?
• Did School deny student a FAPE in IEPs by failing to offer a sufficient program and supports necessary for student to receive an educational benefit?
• Did School deny student a FAPE in IEPs by failing to collect accurate and complete data on student’s goal progress, particularly during distance learning?

FACTS OF THE CASE:

• Student was sixteen years old and was eligible for special education special education under the category of autism.
• Due to COVID outbreak, schools were closed for a specified period wherein they were not required to provide educational services to general education students as well as students with disabilities. After few months, government issued guidance for schools to continue educating students to the extent feasible through distance learning and/or independent study.

CONCLUSION:-

• School DID NOT deny student a FAPE by assigning student to distance learning during year 2020-2021 failing to provide in-person services and by failing to provide necessary accommodations during distance learning.
• School DID NOT deny student a FAPE during year 2020-2021 by failing to assess him to ensure he could receive a FAPE during distance learning.

Rationale:-

– School complied with regulations issued by the relevant authorities during COVID outbreak and offered and delivered instruction to all its students through a combination of online distance learning and in-person learning.

– All the teachers were credentialed during the period of distance learning as well who supervised his learning with instruction, interaction, and check-ins online every day.

– School also provided all the necessary equipment to students including Chromebook laptops, hotspots etc. to students needing such facilities to complete assigned schoolwork.

– School was permitted to deliver special education and related services in Student’s IEP in a distance learning environment with accommodations necessary as per his IEP.

• School DID NOT deny student a FAPE during year 2020-2021 by failing to assess him to ensure he could receive a FAPE during distance learning.

Rationale:-

– None of the federal and state guidance concerning delivering special education and services during the COVID-19 pandemic indicated an assessment was required before providing a student’s special education and related services through a distance learning modality. Further, SB 98 explicitly authorized distance learning and did not condition it on assessments of each student receiving special education and related services.

• School DENIED student a FAPE by convening the IEP team meeting without parents or by predetermining his offer of placement and services.

Rationale:-

– School convened the meeting in parent’s absence without trying to contact either Parent to confirm whether they planned to attend and without making efforts to reschedule the meeting, or encouraging either Parent to attend by telephone or videoconference. School completely relied on their conversation with mother.

– Mother’s post-IEP team meeting consent for the IEP team to meet without her did not absolve School of its obligation to comply with the IDEA’s procedural requirements of seeking to arrange a mutually agreed upon time and place to hold the IEP with Parents and to document its efforts.

– Obtaining Mother’s input after the meeting was held and Student’s educational program developed did not satisfy School’s obligation to consider Parents’ concerns for enhancing Student’s education and obtaining information on Student’s needs. School’s failure to comply with the procedural requirements infringed on Parents’ ability to participate in the IEP formulation process.

– School did not provide Parents a copy of the “Emergency Circumstances Consideration IEP Form” at any time. The first time Parents were made aware of the existence of the emergency circumstances form was at the due process hearing.

• School DENIED student a FAPE by failing to develop adequate goals in IEP to address his all areas of need.

Rationale:-

– School lacked sufficient information to determine Student’s educational needs as his assessments were outdated and Parents had not consented to Student’s triennial assessments the prior year when he was in middle school.

– Neither parents nor his general education teacher attended his IEP team meeting. School, not parents, had the obligation to gather information about Student’s present levels of performance for review at Student’s IEP team meeting.

– The goals developed in the meeting did not contain baseline data. Because the goals were not based on his present level of performance there was no direct relationship between his present levels of performance and the goals.

– The goals determined in the next IEP team meeting were largely equivalent to Student’s prior goals and did not show a direct relationship between Student’s areas of need and the goals. The goals were not measurable, did not indicate who was responsible for implementing those, and did not meet Student’s behavioral and transition needs. Further, School failed to develop goals in all of Student’s known areas of need, including as to math and behavior.

• School DID NOT DENY student a FAPE by failing to offer sufficient individual services in form of a one-to-one aide?

Rationale:-

– Student and parents failed to present any witness testimony or documentary evidence to support their claim that student required a one-to-one aide, in class or at home, as a related service to benefit from special education or that he would have performed better with the support of a one-to-one aide.

• School DENIED student a FAPE by failing to offer sufficient speech and language services.

Rationale:-

– The IEP team knew of Student’s communication deficiencies, particularly in the area of pragmatic language and school was obliged to offer Student an IEP reasonably calculated for him to make progress in light of his circumstances. However, school failed to do so.

• School DID NOT student a FAPE in IEPs by failing to offer extended school year services.

Rationale:-

– Student offered no evidence that the IEP team had information Student would have any particular difficulties with regression or recoupment with respect to his academic or other skills.

• School DID NOT student a FAPE in IEPs by failing to offer parents training to address student’s needs arising from Autism.

Rationale:-

– Student failed to prove Parents made a “request for help” in any IEP team meeting. Further, mother offered no testimony of any problems she experienced at home due to Student’s behaviors.

• School DID NOT DENY student a FAPE in IEPs by failing to offer at home and clinic-based applied behavior analysis therapy.

Rationale:-

– None of Student’s special education or general education teachers believed he required applied behavior analysis at school. Student’s teachers all testified he was easily redirected. Mother convincingly explained Student did not engage in inappropriate behaviors in the home setting.

– Mother’s testimony made clear she thought “home therapy” meant academic tutoring to help Student do his homework.

• School DID NOT DENY student a FAPE in IEP by determining student’s offer of placement and services.

Rationale:-

– Parents have the right to participate in the identification, evaluation, and educational placement of a child with a disability. School violated the IDEA by holding Student’s IEP team meeting without Parents present and afterwards sending the IEP document to Parents for signature. However, Student did not offer any testimony or documentary evidence proving School predetermined Student’s offer of FAPE.

• School DENIED student a FAPE in IEPs by failing to offer a sufficient program and supports necessary for student to receive an educational benefit.

Rationale:-

– The IEP team was aware of Student’s academic, pragmatic language, and behavior struggles and lacked sufficient information to determine whether Student met his prior year’s annual goals. Still the team substantially reduced Student’s specialized academic instruction and speech and language consultation services as compared to his previous IEP.

– The IEP team did not address Student’s issues of which School and the IEP team was aware or should have been aware. No explanation, other than School’s mistaken belief that Parents did not want Student to receive special education and related services, was offered by School for substantially reducing Student’s program.

– Despite Student’s failure to make meaningful progress towards his annual goals and his academic and behavioral struggles, School did not modify its offer of specialized academic instruction or provide behavioral support.

• School DID NOT DENY student a FAPE in IEPs by failing to collect accurate and complete data on student’s goal progress, particularly during distance learning.

Rationale:-

– Student offered no evidence through Parents or any other witness regarding what data School was required to collect, or how it failed to accurately collect such data, with respect to any of his IEP goals.

REMEDIES/ORDER:-

– Student is awarded:-

• 186 hours of compensatory academic instruction and/or speech and language services to be used as per parent’s discretion. If the services are held at a location other than Student’s home, School shall reimburse Parents for transportation for one round-trip travel to the location, not to exceed 50 miles round-trip.
• one hour per week of speech and language services for the same 34-instructional school week period, for a total of 34 hours.
• one hour weekly compensatory speech and language services for a total of 12 hours.
• School shall fund an independent educational evaluation at public expense in the area of speech and language by a licensed speech and language pathologist.
• Parents shall be allowed to access services during summer or other school breaks, or other times convenient to meet Student’s needs outside his regular school schedule.
• School shall convene an IEP team meeting to consider appropriate behavior goals and/or the use of positive behavior interventions and supports, and other strategies, to address those behaviors. The IEP team shall specifically consider Student’s inattention to task, work refusal, use of inappropriate words and actions, and any other maladaptive behaviors known to the IEP team at the time of the IEP team meeting.