CASE NO. 2018070224

SUMMIT PUBLIC SCHOOLS-DENALI v. Student

Counsel for Student: Valerie Mulhollen

Counsel for School: Megan Moore and Rachael Tillman

Representative for School: Kevin Bock

ALJ: Penelope Pahl

Date of Decision: September, 2018

ISSUES:

• May school assess Student pursuant to its assessment plan, including the diagnostic placement, without parental consent?
• Does school’s IEP offer including its offer of placement, services, and accommodations, provide Student a FAPE in the least restrictive environment?

FACTS OF THE CASE:

• Student is eligible for special education and related services with emotional disturbance as a primary eligibility category as well as secondary categories of other health impairment, due to a diagnosis of attention deficit disorder; and specific learning disability.
• Due to student’s special needs, parents gave notice to school about their unilateral placement of student in an NPS with the expectation of reimbursement of expenses from the School. School’s representative refused to reimburse the said expenses.
• Student’s therapist diagnosed him with drug resistant, cyclical, existential depression that was not tied to a situation or his environment.
• Parents and school representatives agreed to place student in NPS recommended by parents and student’s therapist till stabilization of his condition. The said agreement was based on the expectation that this will ease student’s transition to NPS recommended by school.
• Due to reversal of student’s conditions, parents gave prior notice to school that student needed a residential treatment center. School denied this request but agreed to discuss all these issues in upcoming IEP meeting.
• School requested parents to conduct an educationally related mental health services assessment and health assessment, due to the significant change in Student’s mental health being reported by Parents. However, parents did not consent to the proposed assessments. Hence, school requested a due process hearing.

CONCLUSION:-

• School MAY NOT assess Student pursuant to its assessment plan, including the diagnostic placement, without parental consent.

Rationale:-

– The diagnostic assessment plan proposed by school did not specify the academic subject for Student’s general education. Further, the method of selecting an academic subject for the diagnostic placement was neither included in the assessment plan nor in the prior written notice given to Parents.

– No details as to the type of data to be collected or the criteria to be used to evaluate the placement were included in the assessment plan or in the Prior Written Notice given to parents. The one-to-one program offered during the “diagnostic placement” was not school’s usual educational model.

– Neither the assessment plan nor the Prior Written Notice defined the length of the “diagnostic placement”. School failed to specify a safety plan for Student, who still struggled with suicidal ideation, or plan for any mental health support during the assessment.

– School placed unreasonable conditions on the assessments, specifically requiring Student to abandon his then current school and attend what it termed a “diagnostic placement,” for an unspecified length of time. California law does not have a provision for a “diagnostic placement.” Thus if one is requested as an alternate form of assessment, the placement must meet the standard of an appropriate assessment under state and federal law.

– Without specificity as to the assessment methodology to be employed, and consideration of Student’s unique needs for the duration of the “alternative assessment,” this assessment could not meet the criteria of state or federal law mandating the use of technically sound assessment instruments or instruments used for purposes for which the assessments or measures are valid and reliable. (20 U.S.C. 1414(b)(2) and (3); Ed. Code §.)

• School’s IEP offer including its offer of placement, services, and accommodations, DID NOT provide Student a FAPE in the least restrictive environment.

Rationale:-

– Clarity is a critical component of an offer of FAPE. In Union School Dist. v. Smith ((1994) 15 F.3d 1519, cert. den., 513 U.S. 965 (Union)), the Ninth Circuit held that a district is required by the IDEA to make a clear, written IEP offer that parents can understand.

– The school’s IEP offer was unclear regarding several aspects including but not limited to questions like how Student’s placement was to be implemented; or how long the offered placement would last. Neither the method of providing Career and College awareness instruction, nor how Student was to socially interact with peers were specified.

– Another flaw in the IEP offer was its failure to offer Student instructional time commensurate with other Students at his grade level or justify the limited instructional time offered. This is against the provisions of Section 3053 of title 5 of the California Code of Regulations subdivision (b)(2)(B).

REMEDIES/ORDER:-

• Not discussed.