CASE NO. 2022110687

Student v. TWIN RIVERS UNIFIED SCHOOL DISTRICT

Counsel for Student: Colleen Snyder

Counsel for District: Marcella Gutierrez and John Louis Chiappe

Representative for District: Kathleen Walker

ALJ: Rommel P. Cruz

Date of Decision: April 13, 2023

Significant areas of law: Failure to provide adequate specialized instructions and related services despite having complete information about Student’s needs is denial of FAPE.

ISSUES:

• Did District deny Student a FAPE by failing to make a clear written IEP offer for adequate and appropriate specialized academic instruction and appropriate mental health services?

FACTS OF THE CASE:

• Student was 13 years old and was eligible for special education under the categories of specific learning disability and autism. She also met special education eligibility criteria for a speech and language impairment and other health impairment due to anxiety and attention difficulties.
• The District conducted three IEP team meetings and provided copy of IEP document to parents in the following manner:
• Mother filed a request for due process hearing based on the contention that untimely delivery of the October 26, 2022 IEP documents to Parents significantly impeded Parents’ opportunity to participate in the decision-making process regarding the provision of a FAPE to Student. Further, parents disagreed with the IEP because it was not consistent with the recommendations of an independent psychoeducational evaluation.
• Student further contended that District denied her a FAPE by failing to offer sufficient minutes of pull-out specialized academic instruction, an evidence-based structured literacy program.

CONCLUSION:

• District DENIED Student a FAPE by failing to make a clear written IEP offer for adequate and appropriate specialized academic instruction and appropriate mental health services.

Rationale:

• The information available at the August 15, 2022 IEP team meeting established Student required explicit, structured, evidence-based interventions to address her significant academic deficits. Assessments also established that Student required explicit, structured, evidence-based interventions because of her dyslexia.
• Based on the independent psychoeducational evaluation, it was recommended that Student receive small-group instruction using an evidence-based curriculum that was structured, scientifically based, and used multi-sensory strategies to address Student’s challenges in reading decoding, reading fluency, and math.
• After June 8, 2022 IEP meeting, IEP team had sufficient data that Student made progress with a program directly addressing her diagnosed dyslexia. The District also knew that Student had a high level of anxiety and required counseling services in Spanish to make meaningful progress in addressing her social emotional functioning deficits. However, District chose to ignore this information.
• The above conclusion was also confirmed by the assessments conducted by the credentialed school psychologist wherein Student was diagnosed with mixed dyslexia and it was specifically recommended that Student receives daily 90 minutes of evidence-based specialized academic instruction consist of 60 minutes for reading and writing, and 30 minutes for math. Further, it was confirmed that Student had an elevated level of anxiety. The report also recommended that Student receive counseling services to address her anxiety and service providers to be bilingual because Student preferred to communicate in Spanish.
• District’s decision not to offer Student evidence-based interventions was not objectively reasonable based on the information available at the time of the August 15, 2022 IEP team meeting. Further, the District failed to offer counseling services in Spanish.

REMEDIES/ORDER:

• District shall establish and maintain a compensatory education fund for Student’s use in the amount of $9,885. The compensatory education fund is independent of, and in addition to, any past settlement agreements between the parties.
• Parents shall have until June 1, 2024, to access the fund for speech and language services, academic intervention and supports, private school tuition, social skills development, direct instruction in executive functioning skills, mental health services, English language instruction, and mileage reimbursement for transporting Student to and from these services and Student’s home.
• Services shall be provided by a certified NPS or nonpublic agency, or providers with the requisite license, credential, or certificate in the service delivered, for Parents to access the compensatory education fund.
• Parents may access the compensatory education fund by seeking reimbursement from District or by requesting that District directly pay the provider. Parents shall provide District with invoices for service, with the date, type, and cost of service, and proof of payment in the form of cancelled checks, bank statements, or credit card statements before receiving reimbursement. District shall reimburse Parents within 60 days of receiving proof of payment.
• If Parents elect for District to directly contract with an NPS, nonpublic agency, Parents shall provide District with written notice requesting District contract with the selected provider, and provide District with the provider’s contact information. If the selected provider does not wish to contract with District, Parents may identify an alternative provider.
• Mileage reimbursement shall be at the Internal Revenue Service rate of $0.655 per mile. Mileage reimbursement shall not exceed a total of $500 for transporting Student to and from services and private school, and Student’s home. Parents shall submit proof of attendance to receive mileage reimbursement for each day of Student’s attendance. District shall reimburse Parents within 60 days of receiving proof of attendance.