Parent on Behalf of Student v. Escondido Union School District

Student filed his Due Process Complaint on March 28, 2017. The Office of Administrative Hearings granted Student’s motion to amend the complaint and Student’s Amended Due Process Complaint was deemed filed on April 27, 2017.^[1] Escondido Union School District filed its Due Process Complaint on May 15, 2017. The parties stipulated to consolidating the cases and on June 5, 2017, OAH consolidated the cases, with Student’s case designated as the primary case and the case upon which the decision deadline would be calculated. On June 8, 2017, OAH granted the parties’ joint request for a continuance.

Administrative Law Judge Kara Hatfield heard this matter in Escondido, California, on August 22, 23, and 24, 2017.

Paul Hefley, Attorney at Law, represented Student. Mother attended the hearing on all days. Student did not attend the hearing.

Deborah Cesario, Attorney at Law, represented Escondido Union School District. Kelly Prins, District’s Assistant Superintendent of Student Support Services, attended the hearing on all days.

At the parties’ request, OAH continued the hearing to September 11, 2017, for written closing arguments. Closing arguments were timely filed, the record was closed, and the matter was submitted on September 11, 2017.

ISSUES

STUDENT’S ISSUES

1. Did District deny Student a free appropriate public education for the 2015-2016 school year, following the April 8, 2016 behavior emergency intervention, by failing to convene an individualized education program team meeting within two days^[2] to address Student’s April 8, 2016 behavior emergency intervention?

2. Did District deny Student a FAPE for the 2015-2016 school year at the April 15, 2016 IEP team meeting following the April 13, 2016 behavior emergency intervention, by failing to determine the necessity for an interim behavior intervention plan and/or document the reasons for not developing an interim behavior intervention plan?

3. Did District deny Student a FAPE for the 2016-2017 school year by failing to timely assess Student in all areas of suspected disability, specifically:

a. for educationally related mental health services; and/or

b. for autism following the December 5, 2016 IEP team meeting?

DISTRICT’S ISSUE

At the beginning of the due process hearing, District orally withdrew its only remaining issue, without prejudice.

SUMMARY OF DECISION

Student did not meet his burden of demonstrating that District denied him a FAPE in any of the four ways at issue. As to Student’s first issue, the evidence showed District met the legal requirement to schedule an IEP team meeting within two days after the April 8, 2016 behavior emergency. As to the second issue, District failed to properly document the IEP team’s consideration of an interim behavior intervention plan at the April 15, 2016 IEP team meeting, but that procedural violation did not significantly impede parental participation or deprive Student of educational benefit and therefore did not deny Student a FAPE. Student failed to prove the third issue because District timely assessed Student’s need for educationally related mental health services, and provided Mother with an assessment plan regarding autism within a reasonable period of time. Student takes no remedy.

FACTUAL FINDINGS

1. Student was nine years and 11 months old and in the fourth grade at the time of hearing. He resided with Mother within District’s boundaries at all relevant times. Student was eligible for special education and related services due to emotional disturbance and other health impairment.

2. Student attended a “kinder prep” program at District’s Oak Hill Elementary School during the summer before he started kindergarten. He presented very challenging behaviors of aggression toward peers, temper tantrums, and running out of the classroom. He cut himself with scissors once and sometimes said or threatened that he wanted scissors to cut himself again. Mother believed incidents of wetting himself at school during tantrums were deliberate, because Student was toilet trained at that time. One time he smeared his feces on the wall of the bathroom because he was upset. District referred Student to outside family counseling and therapeutic behavioral services, which provided Student behavior support at home for one year until the service contract expired. Through the counseling and behavioral services agency, Student was diagnosed by Dr. Patel^[3] with attention deficit hyperactivity disorder and intermittent explosive disorder.^[4] In September 2012, when Student was in kindergarten, he started seeing Dr. Connor,^[5] who revised Student’s medical diagnosis to attention deficit hyperactivity disorder – combined type, oppositional defiant disorder, and anxiety disorder, not otherwise specified.

3. Student continued at Oak Hill Elementary for kindergarten. He showed grade-level academic skills, but had significant social-emotional and behavior problems at school, such as aggression toward peers and adults, throwing objects, elopement, crying, destruction of classroom materials, and noncompliant or defiant behavior. He was receiving counseling services, had a behavior support plan, and received classroom-based behavioral intervention. In December 2012, District evaluated Student for special education eligibility and found him eligible as a student with emotional disturbance due to his inability to maintain satisfactory interpersonal relationships and inappropriate types of behaviors or feelings under normal circumstances, as well as with other health impairment, due to his medical diagnoses of attention deficit hyperactivity disorder and anxiety disorder, not otherwise specified. The IEP team determined Student would be appropriately served in the Intensive Behavior Intervention program at Miller Elementary School.

4. The Intensive Behavior Intervention program at Miller Elementary School incorporated the services of Vista Hill, an agency with which District contracted to provide mental health services to its students. At least as far back as 2001, Vista Hill had provided some mental health services at Miller Elementary. But in approximately 2005, while a 1990 law known as the Hughes Bill was in effect, District contacted County Mental Health to become an “intensive outpatient program” through County Mental Health, and that led to the services at Miller Elementary becoming more robust than they were before. After repeal of the Hughes Bill, effective July 1, 2013, District maintained its Intensive Behavior Intervention program with the same level of services as had qualified it as an intensive outpatient program.

5. Vista Hill had an office on the Miller Elementary campus in a classroom adjacent to the two classrooms of the Intensive Behavior Intervention program. Vista Hill provided mental health therapists and rehabilitation therapists, also referred to as behavior therapists, to work with students in the Intensive Behavior Intervention program. They provided onsite group and individual counseling. They were present every day and provided structured, scheduled sessions as well as responded to crisis situations and “meltdowns” on an as-needed basis. Because Vista Hill had an office next to the classrooms, the mental health and behavior therapists were able to react immediately and be involved in resolving students’ problems within 30 seconds. Vista Hill therapists worked with students, teachers, instructional aides, school staff, and students’ primary care physicians or psychiatrists, if they had them. The mental health therapists focused on therapeutic interventions of cognitive behavioral therapy and mindfulness techniques. Rehabilitation/behavior therapists worked with students on replacement behaviors for maladaptive behaviors such as eloping or having meltdowns, and how to handle distractions, loss of focus, and impulsive behaviors. The Vista Hill therapists also escorted students to general education classes in which they participated, or went with them to those classes. They also went on field trips with the classes.

6. Vista Hill also had psychiatrists on staff. Parents could have their students seen by the psychiatrists and obtain medication prescriptions, and school staff could consult with the psychiatrists. The psychiatrists provided monthly follow-up care and coordinated with primary care physicians, if they needed to collaborate. Although school districts were not responsible for providing medical services to students to meet the requirements of providing FAPE, District believed the psychiatrists were a vital part of the Intensive Behavior Intervention program and that with the types and severity of students placed in the program, the psychiatric service was what helped some of them be successful.

7. The Intensive Behavior Intervention program provided students a high level of support and positive behavior interventions were incorporated into the program for all students. There was a token economy, with expectations of behavior and rewards for meeting these expectations. There was a tiered behavior program giving advantages for achieving levels; the higher the tier the more independence students earned within the classroom. Students in higher tiers could, for example, have more breaks, and eat lunch with friends outside. The program provided students with a smaller class size, instructional assistants, and a calming room. Students had access to individual and group counseling and emergency-based counseling if a student needed to talk through something.

8. Student began attending Miller Elementary in the Intensive Behavior Intervention program on December 12, 2012. He attended Miller Elementary in an intensive behavior classroom for kindergarten through third grade. Licensed Marriage and Family Therapist Ranya Garva was a mental health therapist for Student since he came to the Intensive Behavior Intervention program during kindergarten. Ms. Garva had a bachelor’s degree in psychology and a master’s degree in clinical psychology. As a licensed clinician, she was qualified to diagnose mental health disorders and also autism. Ms. Garva assessed Student’s emotional, psychological, and behavioral status when he arrived during kindergarten, and then, annually as part of the program, she conducted a mental status exam and reviewed psychological behaviors, emotional stability, family concerns, school and academic performance, and any medications he was taking at the time. Ms. Garva initially diagnosed Student with attention deficit hyperactivity disorder. Ms. Garva interacted with Student almost daily as his mental health therapist. She provided him classroom support daily, and provided weekly individual or group counseling. Over time, Student displayed more and more traits of a mood disorder, such as an elevated and irritable mood, causing behaviors. During third grade, Ms. Garva diagnosed Student as also having mood disorder, not otherwise specified, until she could further assess what type of mood disorder it was.

9. Ultimately, Ms. Garva diagnosed Student with bipolar I, marked by a baseline state of irritability with episodes of mania followed by depressive moments, also called a depressive time era or a slightly depressive time period. Generally speaking, times of mania include decreased need for sleep, excessive speech, being highly agitated, impulsive, and at times perhaps having auditory or visual hallucinations. Depressive moments of bipolar I are not valleys of real depression, known as depressive episodes, which are characteristic of bipolar II.^[6]

10. Student saw Vista Hill psychiatrists Dr. Connor, who later went to work at Rady Children’s Hospital, and Dr. Larson.^[7] Drs. Connor and Larson prescribed medication to Student. Ms. Garva consulted with Drs. Larson or Connor about Student on a monthly basis. The only diagnoses Ms. Garva and the psychiatrists discussed were attention deficit hyperactivity disorder and mood disorder. Specifically, the psychiatrists never suggested autism or autism spectrum disorder, or any autism indicators. For reasons detailed further below, Ms. Garva never suspected autism as a possible area of disability.

NOVEMBER 2015 TRIENNIAL REASSESSMENT

11. In November 2015, while Student was in third grade, school psychologist Salvatore D’Amico conducted a triennial reassessment. Mr. D’Amico had a bachelor’s degree in psychology and Education Specialist degree (Ed.S) in school psychology. In California, he held a pupil personnel services credential, with a specialization in school psychology. Mr. D’Amico concluded Student’s academic skills were on grade level in reading, writing, and math. While he had made behavioral progress, he continued to qualify as eligible for special education and related services in the categories of emotional disturbance and other health impairment. The triennial reassessment and resulting November 18, 2015 IEP documented many of Student’s abilities and difficulties.

12. Student maintained generally positive relationships with peers and adults. He had engaged in some aggressive behavior, typically on the bus or during recess in reaction to frustration with peer engagements. He sometimes misinterpreted situations and assumed people disliked him. At hearing, Ms. Garva explained that when Student was in an elevated state of mind, or mania, he perceived things to be different than what was really taking place, sometimes illogically, and tending toward paranoia. He sometimes perceived that peers were targeting him or talking about or laughing at him, but his perspective was skewed.

13. Mr. D’Amico documented in the triennial reassessment that Student did not respond well when peers made negative comments and teased him, and he sometimes engaged in aggressive behavior in response. Student typically showed remorse, cried, and/or put his head down after these situations. He apologized for his behavior without being prompted to do so. Student had difficulty taking direction, correction, or criticism from staff on academics, or with behavioral input. He responded to redirection by saying, “You hate me, you’re mad at me,” and he sometimes perceived staff to be “yelling” at him even when staff used a calm voice. However, he asked for a break or requested a trusted adult when he had a problem, either interpersonal or academic. He had improved his ability to control his anger when he was upset in class or with peers. At the time of the triennial reassessment, he was maintaining safe behavior in the special education classroom and in the general education classroom he also attended.

14. The November 18, 2015 IEP described Student’s behavior as impeding the learning of himself or others. He did not have a behavior intervention plan at that time. The IEP team developed two goals for Student: one to address “behavior/social-emotional,” regarding using appropriate coping strategies to decrease personal anxiety associated with school and peer interactions; and one to address “behavior/self-calming,” to self-calm or remove himself from conflict without any negative self-talk when he was frustrated, upset, or angry. The November 2015 IEP offered Student approximately two and a half hours per day of specialized academic instruction for all portions of language arts and core academics due to his social-emotional needs, and 30 minutes per week of group “counseling and guidance.” The offer was for Student to be in a special education setting 40 percent of his school day, and in general education class and non-academic activities 60 percent of his day. Mother consented to the November 2015 IEP.

APRIL 8, 2016 BEHAVIOR EMERGENCY

15. On Friday, April 8, 2016, around 10:00 in the morning, Student became argumentative when staff prompted him to go to his general education class. He became more escalated and pushed around tables, chairs, and desks. Staff asked him to enter the refocus room in the classroom, and he complied with the request and was able to be calm for one to two minutes. When he exited the refocus room, he immediately began kicking and hitting, and tried to bite staff. Staff placed Student in a two-person prone restraint for approximately 20 minutes, when Student began to relax. Student was released and walked into the refocus room, where he remained until he was calm enough to rejoin the classroom. Staff completed a Behavior Emergency Report to document the incident.

16. On Monday, April 11, 2016, around 8:00 in the morning, Student’s special education classroom teacher Rebecca Dikes emailed District’s special education scheduling coordinator and requested a Behavior Emergency Report IEP team meeting be scheduled for Student, and stated that Mother was expecting a phone call. The scheduling coordinator replied and asked Ms. Dikes if she was available the next day, Tuesday, April 12, 2016, at 7:30 a.m. Ms. Dikes responded that she was not available because she was going to be in court. By 10:30 in the morning, the scheduling coordinator informed Mother that a Behavior Emergency Report IEP team meeting was scheduled for Friday, April 15, 2016, at 7:30 a.m. Mother confirmed she would attend.

APRIL 13, 2016 BEHAVIOR EMERGENCY

17. On Wednesday, April 13, 2016, around 2:00 in the afternoon, Student left his classroom without permission and went into the counseling room. He appeared angry and reported he was mad at a peer because the peer said he did not have to share an iPod with Student. Student escalated when he realized that he was not going to be able to get on the bus to go home. He screamed at staff and further escalated, shoving his desk and table at staff. He repeatedly tried to punch staff. Staff placed Student in a two-person prone restraint for approximately 35 minutes. After another 10 minutes, Student was able to calm down and Mother picked him up from school. Staff completed a Behavior Emergency Report to document the incident.

18. Because a Behavior Emergency Report IEP team meeting was already scheduled for April 15, 2016, District did not schedule an IEP team meeting specifically or separately for the April 13, 2016 behavior emergency incident.

APRIL 15, 2016 BEHAVIOR EMERGENCY REPORT IEP TEAM MEETING

19. District convened a Behavior Emergency Report IEP team meeting on April 15, 2016. The two behavior emergency incidents were reviewed. District Special Education Program Specialist Tracy Lane wrote the notes of the IEP Amendment(s)/Addendum Page to document the meeting. Ms. Lane had a bachelor’s degree in psychology and a master’s degree in school psychology. She had a multiple subject teaching credential, a pupil personnel services credential in school psychology, and an administrative services credential. She had been a classroom teacher, school psychologist, and special education program specialist. Apart from summarizing the April 8 and 13, 2016 behavior emergencies, the notes only reflect, “Through discussion the IEP team determined that a functional behavior analysis is recommended. An assessment plan was presented to the parent and signed today.” At hearing, Ms. Lane stated three times that she did not remember specifically any discussion about an interim behavior intervention plan at the April 15, 2016 IEP team meeting, but she confirmed that if an interim behavior intervention plan had been developed during the meeting, she would have documented it. She knew that if a student did not have a behavior intervention plan at the time a behavior emergency incident occurred, District had to determine if a functional behavior assessment needed to be done or why not; and if a functional behavior assessment was going to be conducted, if an interim behavior intervention plan needed to be developed or not. Ms. Lane testified regarding what was typically discussed in Behavior Emergency Report IEP team meetings, that it was common practice to discuss an interim behavior intervention plan when there was not already a behavior intervention plan or a completed functional behavior assessment. But she could not recall if at the April 15, 2016 IEP team meeting, the team in fact talked about supplementary aids and services and if any of those needed to be changed during the time the functional behavior assessment of Student was being conducted.

20. Vista Hill mental health therapist Ms. Garva attended the April 15, 2016 IEP team meeting. She testified that the team discussed the two behavior emergency incidents, and also discussed what could be implemented or added to help Student avoid these behaviors in the future; the team decided nothing needed to be added at that time. Ms. Garva testified that the possible need for an interim behavior intervention plan was discussed at the April 15, 2016 IEP team meeting.

21. Ms. Lane and Ms. Garva both testified that Student did not need an interim behavior intervention plan while the functional behavior assessment was being conducted. They believed the classroom and Vista Hill staff used many strategies to address Student’s behaviors and they had not identified which strategies consistently and reliably were effective in addressing Student’s abnormally elevated and irritable mood. They were trying mindfulness and grounded exercises, breathing, stretching, yoga after lunch, basketball breaks for Student to engage in his favorite sport, and escorted walks around the track. They had implemented many resources and were monitoring and managing Student’s behaviors using interventions already in place. But staff did not have confidence that any particular intervention was effective and they were unwilling to write an interim behavior intervention plan that would imply any specific intervention was known to be an appropriate response to Student’s behaviors. They wanted the data from the functional behavior assessment and they wanted time to continue to see how Student reacted to the numerous interventions they were trying, so an effective behavior intervention plan could be developed to address Student’s escalating behaviors.

22. During the April 15, 2016 IEP team meeting, the team discussed what could be implemented or added to help Student avoid dangerous behaviors in the future and the team decided nothing needed to be added at that time while the functional behavior assessment was conducted.^[8] The discussion occurred without a formal announcement that the discussion specifically was addressing the question of whether an interim behavior intervention plan was needed while the functional behavior assessment the team recommended was being conducted. However, the necessary substance of the conversation was had, and the team concluded an interim behavior intervention plan was not needed.

MAY 2016 FUNCTIONAL BEHAVIOR ASSESSMENT, MAY 2016 EMERGENCY BEHAVIOR INCIDENTS, AND JUNE 3, 2016 IEP TEAM MEETING

23. During April and May 2016, school psychologist Mr. D’Amico conducted a functional behavior assessment of Student. While that assessment was in progress, Student had two more behavior emergencies on May 25 and 26, 2017, which resulted in physical intervention by school staff. District held a Behavior Emergency Report IEP team meeting on May 27, 2016, to review the incidents. Mother and school staff shared Student was demonstrating paranoid behavior. Additionally, Student not getting what he wanted was an antecedent to him becoming physically aggressive. The team discussed that a functional behavior assessment was in progress. The meeting notes, written by Program Specialist Ms. Lane, stated, “[Student]’s goals and services were reviewed and determined to continue to be appropriate while the assessment is being completed.”

24. Later that day, May 27, 2017, Student went to a behavioral clinic due to the significant explosive and aggressive behaviors at school. At the intake for the clinic, Student was hearing voices telling him to be angry. He damaged the waiting room by upturning chairs and pulling things off the walls. Doctors discussed symptoms related to possible schizophrenia, but Student did not have a medical diagnosis of schizophrenia.

25. Mr. D’Amico had observed Student on May 24, 2016, as part of the functional behavior assessment. Student’s behavior during that observation was markedly different from other reports regarding Student’s volatile and aggressive behavior. Student was in his general education inclusion classroom. He was seated at a chair and desk near the middle of the classroom. There were no instructional assistants or adults within close proximity. The teacher was at the front of the class, leading a math assignment in which students were required to count along, complete work on their whiteboards, and complete sprint worksheets. Student was on task for the duration of the observation. He participated verbally with the classroom when appropriate. When given his sprint worksheet, he followed directions and was able to complete about 70 percent of his work before two minutes lapsed. Near the end of the observation, Student laughed and talked with his peers. Mr. D’Amico did not observe any maladaptive behaviors, physical aggression, or behaviors that impacted his educational performance during that time.

26. Mr. D’Amico also had observed Student on May 31, 2016, during his time in special education at 10:20 a.m. Student was out of his designated area and in the counseling classroom; he was expected to be in his special education classroom. He stood by the cabinet and banged the door open and closed. Teachers and staff attempted to verbally redirect Student multiple times, but he continued to walk around the room. He engaged with materials around the room, such as a bean bag and banging closet doors, and he remained off task. Staff verbally prompted Student to walk with them and he then walked away, engaging with bean bags in the room. Eventually, Student followed staff into the front office to take his medication. Student sat in the nurse chair and began yelling and engaging with objects around the room. He shouted, “This isn’t my pill, help me, everyone is mad at me.” Student argued with staff and yelled while seated in the nurse office. When prompted to walk back to class, Student dropped to the floor and began yelling, “I don't want to do it.” Staff put Student into a two adult escort to class. Student was walked into the classroom with his escort and Student began yelling, “You guys don’t talk to me.” The teacher asked if he needed to be placed into the refocus room, and he was walked inside. Student entered the refocus room at 11:00 a.m. While inside, Student screamed, “I can’t control it.” He continued to cry, scream, and hit and kick the walls while inside. Mother arrived into the classroom and went inside of the refocus room with Student, and gave him an anti-anxiety pill. Student continued to yell, scream, and hit the walls until he calmed down at 11:30 a.m. He exited the room calm and was able to be engaged in conversation.

27. District held an IEP team meeting on June 3, 2016, to review the results of the functional behavior assessment and develop a behavior intervention plan for Student because his behavior was harmful to both staff and peers and disrupted the learning environment. The functional behavior assessment determined that the function of Student’s aggressive behavior was primarily to escape task demands, unpreferred tasks, and classroom demands. He typically engaged in the behavior in response to redirection to an academic task or due to corrective feedback, including prompts to complete work, prompts to complete work accurately, and verbal prompts to sit in class; when he was directed to comply with classroom expectations or was redirected away from a preferred task, such as being verbally redirected to end a game, to stop using an iPad, or when directed away from recess; or when given a consequence, such as a behavior ticket or removal from recess.

28. The June 3, 2016 behavior intervention plan did not lead to any change in Student’s goals, but added strategies for dealing with Student when he was exhibiting maladaptive behaviors. How staff spoke to him could “really set him off.” The behavior intervention plan included changes in communications with Mother, to obtain information from her when Student came to school regarding whether Student was in an agitated mood, because that was a predictor for increased behaviors during the school day. Ms. Garva believed the functional behavior assessment had not revealed any new predictors of Student’s aggressive behavior, and that the list included in the behavior intervention plan was quite similar to what the team already knew, because setting events^[9] and the antecedents had accumulated over a period of time. At hearing, Ms. Garva believed the behavior intervention plan looked quite similar to what the school team had been doing before the functional behavior assessment was conducted and the behavior intervention plan was developed. She said it was hard to locate what was new or different in the behavior intervention plan.

JULY 2016 EMERGENCY BEHAVIOR INCIDENT AND IEP TEAM MEETING

29. During the extended school year, Student had a behavior emergency incident on July 18, 2016, which resulted in Student being taken by police to the hospital. District held a Behavior Emergency Report IEP team meeting on July 22, 2016, which was the last day of the extended school year, to review the incident. At that time, Student was in a psychiatric hospital program at Rady Children’s Hospital. The meeting notes, written by Program Specialist Ms. Lane, stated, “[Student]’s behavior intervention plan was reviewed and beside the addition of biting and spitting behavior[,] the IEP team determined that [Student]’s behavior intervention plan continues to be appropriate to address his behavioral needs at this time.”

30. Mother inquired about the possibility that Student needed a higher level of care. The team discussed the need for an educationally related mental health services assessment. Because it was the last day of the extended school year, District stated it would develop and present Mother with an assessment plan after the start of the regular 2016-2017 school year. Mr. D’Amico was not working that summer and District wanted him, as the person who had conducted Student’s most recent triennial reassessment in November 2015 and the May 2016 functional behavior assessment to consider whether any additional assessments were required to be included on the assessment plan, along with the educationally related mental health services assessment.

31. Ms. Lane emailed Mr. D’Amico on August 3, 2016, while Mr. D’Amico was still on summer break. She instructed him to send home an assessment plan for an educationally related mental health services assessment of Student upon the return to school.

OCTOBER 2016 ASSESSMENT PLAN

32. The first day of class for the 2016-2017 school year was August 24, 2016. Student returned to the Intensive Behavior Intervention program at Miller Elementary, in the fourth grade. He got off to a good start and staff did not see the types of aggressive behaviors he had exhibited at the end of the prior school year and during the extended school year.

33. On the morning of August 30, 2016, Mr. D’Amico prepared an assessment plan for an educationally related mental health services assessment. He prepared the assessment plan on District’s computer system. He placed a printed copy of it in a folder, and gave the folder to Student’s teacher, who was to put it in Student’s backpack to go home with him for delivery to Mother. Before 9:00 a.m. on August 30, 2017, Mr. D’Amico called Mother and spoke to her about the assessment plan that was going home to her and what the assessment entailed. Mother reported that Student had ups and downs, but was doing better on new medication at that time. Mother wanted to hold off on doing the assessment and give Student some more time and see how he was doing in the new school year. She asked to revisit the need for the assessment later in the year or if he started to have more serious behavioral concerns. Mr. D’Amico told Mother he would check with her again in one month about the need for an educationally related mental health services assessment. Mr. D’Amico instructed Mother to review the assessment plan and check the box declining consent if she did not want to proceed with the assessment at that point. Mother said she would send it back the next day.

34. Student disputes that District ever provided Mother with an assessment plan at the start of the school year, as District represented at the July 22, 2016 IEP team meeting it would do. Mother did not recall receiving an assessment plan on or around August 30, 2016. Mother did not recall the majority of events relevant to the facts of this case. And reviewing documents that contained dates and reflected information about events relevant to this case was almost never successful in refreshing her recollection. Mr. D’Amico made contemporaneous notes on an action log regarding his telephone call with Mother and sending home an assessment plan. Those notes and time-stamped email messages Mr. D’Amico sent to Ms. Lane on the morning of August 30, 2016, established that District sent Mother an assessment plan for an educationally related mental health services assessment on August 30, 2016.

35. In September 2016, Student had four documented incidents of unsatisfactory conduct on the school bus. Three incidents involved fighting and instigating a fight with other students. Student was suspended on September 27, 2016, for classroom conduct, having “caused, attempted to cause, or threatened to cause physical injury to another person.” He knocked everything off his and two other desks; yelled extremely vulgar obscenities; eloped from the classroom; and threw sticks at staff members.

36. On the night Student was suspended, Mother wrote to Ms. Lane requesting an emergency IEP team meeting because Student was again escalating and “when [Student] is like this he is very dangerous.” Mother stated she did not think Miller Elementary was the proper school for Student and she did not believe suspending him was fixing the problem.

37. On September 29, 2016, Ms. Lane told Mr. D’Amico to move forward with the educationally related mental health services assessment. The educationally related mental health services assessment would evaluate if Student needed additional individual or group counseling, or a different placement because of his mental health needs. Also on September 29, 2016, Ms. Lane replied to Mother’s email and informed her a meeting would be scheduled and that a referral had been made to the school psychologist for the educationally related mental health services assessment.

38. On September 30, 2016, District sent Mother two notices of IEP team meetings. One notice was for a meeting on October 7, 2016, designated as a meeting set at parent request regarding a change of placement. The other notice was for a meeting on November 1, 2016, designated as an annual IEP team meeting as well as for change of placement. Mother signed both meeting notices on October 6, 2016, indicating that she would attend the meetings.

39. Mother never returned the August 30, 2016 assessment plan. Mr. D’Amico prepared another assessment plan on October 4, 2016. He used the August 30, 2016 assessment plan in District’s computer system as the starting point, and he edited the date and possibly other information in the description of the other options considered and reasons for rejecting them. District gave the October 4, 2016 assessment plan for an educationally related mental health services assessment and an evaluation of social-emotional functioning to Mother. Mother signed consent on October 7, 2016.

NOVEMBER 1, 2016 IEP TEAM MEETING

40. District convened an IEP team meeting on November 1, 2016, for Student’s annual IEP. Very little information was provided at hearing about this IEP and it was not in evidence. From a later version of it after an amendment, it appears that on November 1, 2016, District offered Student specialized academic instruction for approximately three and a half hours a day in a separate classroom at a public integrated facility, 30 minutes a week of individual counseling, 30 minutes a week of group counseling and guidance, and 60 minutes per year of individual psychological services. Mother consented to the IEP.

EDUCATIONALLY RELATED MENTAL HEALTH SERVICES ASSESSMENT

41. Mr. D’Amico conducted the educationally related mental health services and the social-emotional functioning assessments. His report was dated December 5, 2016. For the assessments, Mr. D’Amico reviewed Student’s special education and cumulative records; interviewed Mother, Student’s special education teacher Ms. Dikes, Student’s school therapist Ms. Garva, and Student’s outside therapist Margaret Dyson, Ph.D; conducted two classroom observations; and distributed and scored standardized measures of assessment in the form of the Behavior Assessment System for Students – Second Edition (BASC-3), which are rating scales that were completed by Mother, Ms. Dikes, and Ms. Garva, and the Conners Comprehensive Behavior Rating Scales, completed by Mother and Ms. Dikes.

42. Mr. D’Amico’s assessment report included information that occurred after the November 2015 triennial reassessment. For example, Student was sent to the behavioral clinic on May 27, 2016, due to physically aggressive and explosive behaviors at school. Twice during third grade, he went to a behavioral clinic due to behavioral incidents that were unable to be controlled within both the home and school environments. His behaviors included destruction of the classroom and home, yelling, screaming verbal threats, and punching and kicking adults and peers. In July 2016, Student was hospitalized due to suicidal ideations, explosive behavioral outburst, and aggressive behavior. Student saw a psychiatrist every two weeks and was diagnosed with unspecified psychosis and Disruptive Mood Dysregulation Disorder, and was being considered for a diagnosis of Bipolar Disorder. In September 2016, he was taking four different medications to stabilize his mood, address his psychotic symptoms, address his attention deficit hyperactivity disorder, address his anger regulation, and address his anxiety and agitation.

43. Mother reported to Mr. D’Amico many details about Student’s behavior, which fluctuated depending on whether he was in an “agitated mood,” which she identified when Student was talking fast, yelling, talking in a louder tone of voice, and repeating himself. When he was in this mood, physically aggressive and explosive behaviors were more likely to occur in response to task demands or when Student was presented with a non-preferred task. For example, if he was in that mood, he refused to use the shower, refused to do tasks in his morning routine, and was more likely to be aggressive in response to interaction with peers and adults or was more likely to be upset by his environment. Mother reported Student’s moods lasted from one to three days, and that she communicated with the school to warn about possible bad days via text message. Also, Mother described Student’s behaviors as shifting quickly; in one moment he could be happy and engaging and then switch to crying, yelling, throwing objects, or being physically aggressive.

44. Mother also reported Student was very concerned with what other people thought of him. He did not like to be seen negatively by his peers and he often did not engage in maladaptive behaviors within the general education environment. Student tried to “hold together” his behavior while in front of peers or in public. Mother described Student as exhibiting paranoia at home, sometimes saying that people were looking at him or laughing at him. He had a tendency to think people were talking about him or that classroom activities changed to “fun” activities when he left. He had woken up in the middle of the night thinking someone was pushing him out of bed, or that someone was going to hurt him. On one occasion he told Mother thoughts in his head wanted him to be angry. Student said that stuffed animal bears in his room were talking to him, and she removed the bears. Sometimes when Student was nervous or anxious, he thought things were crawling on the walls, or that bugs were crawling on his arms. Student tended to think ants were on him, when they were not.

45. Ms. Dikes reported that Student’s academic skills were not an area of concern and that he was capable of completing grade level work. He had general education inclusion for mathematics, but he rarely chose to attend. While in the general education classroom, Student did not present with maladaptive behaviors and he was able to progress with academic content. Student did not like to be seen in a negative fashion and he was more likely to hold his behavior together within a general education setting. Student had many “good” weeks in which he was able to participate in the classroom, complete classroom work, and display minimal maladaptive behaviors. But he also presented with phases of “mania” and an agitated mood. During those times, Student presented with louder speech, rapid speech, frequent verbal interruptions during classroom instruction, and increased sensitivity to teacher directives and peer interactions. Ms. Dikes estimated that Student’s agitated mood, when maladaptive behaviors were most likely to occur, lasted less than one week, and occurred about once a month. The frequency and duration of difficult weeks had improved since September of the 2016-2017 school year.

46. Ms. Garva reported Student had been showing more manic types of behavior in third grade. There were consecutive days in which Student had not slept for most of the night and displayed very high energy levels while at school. He presented with phases in which he was hyperactive, had impulsive or rapid and loud speech, impulsive behaviors, and an irritable mood. When Student did not have an irritable mood, he was able to participate, raise his hand, generally got along with peers, and had significantly less behavioral difficulties. Student was receiving 30 minutes a week of group counseling, focused on Skill Streaming, including social skills and communication skills. He also was receiving 30 minutes of individual counseling per week.

47. Dr. Dyson, a licensed clinical psychologist at Rady Children’s Hospital who provided ongoing therapy to Student, reported to Mr. D’Amico that Student presented with unspecified psychosis and Disruptive Mood Dysregulation Disorder. He had phases of manic mood that included sleep dysregulation, an overly energetic mood, being overly happy, racing thoughts, and impulsive speech with increased volume. Typically after these phases, Student fell into an irritable mood. As Student got older, those cycles were becoming more consistent and easier to track. Dr. Dyson reported Student was able to verbalize social and emotional strategies to deal with challenging behavior and social situations in a clinical setting when not in distress. Notable to later issues, Dr. Dyson did not mention to Mr. D’Amico any suspicion she had that Student might have autism, any concern expressed to her that Student might have autism, or that she was evaluating or had been asked to evaluate Student for possible autism.

DECEMBER 5, 2016 IEP TEAM MEETING

48. District convened an IEP team meeting on December 5, 2016, to review the results of the educationally related mental health services and social-emotional functioning assessments. Parent, Mr. D’Amico, Ms. Dikes, Ms. Lane, a Vista Hill therapist named Vanessa, and Miller Elementary Principal Martin Hranek attended. Also, Student’s outside therapist Dr. Dyson attended the IEP team meeting by telephone. The first part of the meeting concerned another behavior emergency that occurred on November 17, 2016; that incident was discussed. Then, Mr. D’Amico reviewed the educationally related mental health services assessment and his recommendations. The team determined Student required behavior intervention services for 30 minutes weekly. District added this to Student’s IEP, and Mother consented to amending the November 1, 2016 IEP to include 30 minutes a week of behavior intervention services.

49. The IEP team meeting notes, written by Ms. Lane, stated, “The Rady Children’s Therapist has completed an assessment and she will share the report with the parent and the parent will provide the report to the school. Based on the assessment he appears to meet the criteria Autism Spectrum Disorder.” At hearing, Mother had no recollection of what Dr. Dyson said during the IEP team meeting. District witnesses characterized Dr. Dyson’s telephonic input as information that she was in the process of conducting an assessment for autism, that it was not yet completed, that she was considering a diagnosis of autism, or that from her preliminary work in conducting the assessment he might meet diagnostic criteria for Autism Spectrum Disorder.

50. District personnel – who had known and worked with Student from kindergarten through third grade at the time of the meeting and who had conducted detailed and comprehensive evaluations in the areas of psychoeducation, academics, social-emotional functioning, functional behavior, and educationally related mental health needs – had never perceived Student as a child who demonstrated characteristics of autism. Their recollections of Dr. Dyson’s statements appeared to be affected by their disbelief that anyone who knew Student could possibly conclude he had autism and their recollections adapted to accommodate their perspectives. District personnel gave Dr. Dyson the benefit of the doubt that what she said must have been about an assessment in progress, not one that was completed. Their testimony did not seem to be purposely false or misleading, but it also did not align with other evidence in the case. The contemporaneous notes Ms. Lane made of the IEP team meeting were more reliable than people’s memories eight and a half months after the IEP team meeting. On December 5, 2016, Dr. Dyson, a licensed clinical psychologist, informed District she had completed an assessment and based on the assessment, Student appeared to meet criteria for Autism Spectrum Disorder. She would give the report to Mother, who would give it to District.

51. At the hearing, Mother admitted that at the December 5, 2016 IEP team meeting, Ms. Lane asked Mother to give her a copy of the report when it became available. She later changed her testimony and stated she did not think anyone asked her for an actual copy of the report “until all of this came about.” She stated Ms. Lane asked her, but they had a lot of meetings, and it was never brought up to provide an actual copy of the report. Dr. Dyson’s report was dated December 5, 2016. Mother did not recall when she received the report from Dr. Dyson, other than “shortly after” the December 5, 2016 IEP team meeting. She received it during one of Student’s therapy appointments. The report contained recommendations, the second of which was, “[Student]’s mother is encouraged to share these results with [Student]’s school and IEP team. Autism Spectrum Disorder should be included on his IEP plan so that appropriate accommodations, modifications, and class placement may be made. We recommend that this report be shared with school personnel for the purposes of appropriate placement and structure.” When asked at the hearing why she did not share the report with District when she had it, Mother stated, “I’m not sure.”

52. At the December 5, 2016 IEP team meeting, Mother did not request that District assess Student for autism. District was on winter break from December 23, 2016, until January 10, 2017. No evidence indicated that Mother ever requested District assess Student for autism at any time before April 2017.

DR. DYSON’S DECEMBER 5, 2016 AUTISM ASSESSMENT

53. Student was hospitalized at Rady Children’s Hospital Child and Adolescent Psychiatry Services in June 2016 due to verbal and physical aggression, property destruction, eloping, and hallucinations. He was hospitalized again in July 2016. He was referred to Dr. Dyson for weekly family therapy and to Eric Tung, D.O., for medication management. Mother testified that during one of Student’s psychiatric hospitalizations, “the lady who worked with the crisis”^[10] thought Student should be assessed for autism, so Mother asked Dr. Dyson to assess him for autism.

54. Dr. Dyson’s December 5, 2016 report did not indicate when her assessment was conducted. At the time of the report, Student was being treated for bipolar disorder, unspecified; unspecified psychosis; conduct disorder, unspecified; and attention deficit hyperactivity disorder, combined type. The medications noted in the report were the same as the medications listed in Mr. D’Amico’s December 5, 2016 educationally related mental health services assessment.

55. Dr. Dyson administered the following assessments: Social Communication Questionnaire, completed by Mother; Social Responsiveness Scale, completed by Mother; Achenbach Child Behavior Checklist for Ages 6-18, completed by Mother; the Sensory Integration Screening Questionnaire, completed by Mother; and the Autism Diagnostic Observation Schedule, Module 3 (ADOS-2).

56. Dr. Dyson’s conclusion was that based on the psychological testing to evaluate autism spectrum disorder and “a careful review of his medical and developmental history, as well as his current behaviors,” Student appeared to meet criteria for a diagnosis of Autism Spectrum Disorder under the American Psychiatric Association’s Diagnostic and Statistical Manual, version 5.

THE PARTIES’ DUE PROCESS COMPLAINTS AND RESPONSES

57. On March 28, 2017, Student filed and served on District his original Request for Due Process Complaint. He alleged he had autism, bipolar disorder, emotional disturbance, anxiety, attention deficit hyperactivity disorder, oppositional defiance disorder, and anxiety disorder, and that the combination of these adversely affected his educational performance. He also alleged that he had regressed in his reading, math, and language usage, and performed below grade level on STAR testing in reading comprehension and math. Among other allegations, Student specifically complained that District did not assess him for educationally related mental health services or a functional behavior assessment as part of Student’s November 2015 triennial reassessment. Student did not specifically complain that District had failed to assess him for autism. Student’s only statement of the issues presented relative to assessments was whether District denied Student a FAPE for the 2016-2017 school year by failing to assess Student in all areas of suspected disability, without specifying in which areas of suspected disability Student contended District failed to conduct assessment. Student requested “independent educational assessments in all suspected areas of disability,” as a remedy, without specifying the areas in which Student sought independent educational evaluations.

58. District’s attorney sent Student’s attorney a response to the original Complaint on April 7, 2017. District contended it had assessed Student in all areas of suspected disability in the triennial reassessment and had subsequently conducted a functional behavior assessment and an educationally related mental health services assessment. District stated autism had not been a suspected area of disability, but acknowledged that at the December 5, 2016 IEP team meeting, District learned a Rady Children’s Hospital assessment indicated Student met criteria for autism spectrum disorder.^[11] District enclosed an assessment plan dated April 4, 2017, seeking authorization to assess Student for autism. The assessment plan indicated the assessment was proposed because “[p]er parent and [Student]’s Rady’s Children Therapist there is a possibility of a medical diagnosis of Autism.” The assessment plan indicated the school staff was awaiting a copy of the report for review as part of the evaluation. District also enclosed a Student/Patient Release of Information form seeking authorization for Rady Children’s Hospital to disclose Student’s health information, psychological/psychometric reports, and educational related records to District. District “renew[ed] its request for a copy of the Rady Children’s assessment report” and stated that upon receipt, it would be considered at an IEP team meeting.

59. Mother had never requested that District assess Student. Student’s Due Process Complaint specifically complained about District’s failure to conduct educationally related mental health services and functional behavior assessments, but did not allege failure to assess for autism and did not request assessment for autism. District proposed to assess Student four months after Dr. Dyson informed District of her diagnosis. This time period included the two and a half weeks District was on winter break from December 23, 2016 until January 10, 2017.

60. On April 20, 2017, Student filed and served a motion to amend his Due Process Complaint. OAH granted the motion and Student’s Amended Due Process Complaint was deemed filed on April 27, 2017. Student alleged he had autism spectrum disorder, bipolar disorder, emotional disturbance, anxiety, attention deficit hyperactivity disorder, oppositional defiance disorder, and anxiety disorder, and that the combination of these adversely affected his educational performance. Among other concerns, Student alleged that at the December 5, 2016 IEP team meeting, Dr. Dyson informed District she had conducted an autism assessment and that Student had autism spectrum disorder. Student complained District failed to assess Student for autism and did not present Mother with an assessment plan until April 7, 2017. Student’s statement of the issues presented relative to assessments was whether District denied Student a FAPE for the 2016-2017 school year by failing to assess Student in all areas of suspected disability, without specifying in which areas of suspected disability Student contended District failed to conduct assessment, and also whether District denied Student a FAPE by failing to timely assess Student in all areas of suspected disability following the December 5, 2016 IEP team meeting. Student requested as a remedy “independent educational assessments in all suspected areas of disability,” without specifying the areas in which Student sought independent educational evaluations.

61. District’s attorney sent Student’s attorney a response to the amended Complaint by email and fax on May 8, 2017. District contended it had assessed Student in all areas of suspected disability in the triennial reassessment and had subsequently conducted a functional behavior assessment and an educationally related mental health services assessment. District again stated autism had not been a suspected area of disability, but acknowledged that at the December 5, 2016 IEP team meeting, District learned a Rady Children’s Hospital assessment indicated Student met criteria for autism spectrum disorder. District stated it had sent an assessment plan on April 7, 2017; but Mother had not consented to the assessment, and instead Student amended his complaint. District indicated that because Mother had not signed the assessment plan, it would file a due process complaint to obtain authorization to assess Student in the area of autism.

62. On May 15, 2017, District filed and served on Student’s attorney a Due Process Complaint seeking, among other things, authorization to assess Student in the area of autism without parental consent pursuant to the assessment plan it had sent Student’s attorney on April 7, 2017.

63. On May 26, 2017, Student filed and served on District’s attorney a response to District’s complaint. Regarding District’s request for authorization to assess Student for autism, Student contended District’s request to assess Student for autism was untimely.

64. On July 5, 2017, seven months after Dr. Dyson told Student’s IEP team that she had assessed Student and found that he was on the autism spectrum, Student’s attorney emailed Dr. Dyson’s autism assessment report to District’s attorney, who forwarded it to District’s Assistant Superintendent of Student Support Services, Kelly Prins. Ms. Prins did not receive the report until she returned from vacation on July 14, 2017.

DISTRICT’S DELAY IN PRESENTING ASSESSMENT PLAN AFTER DECEMBER 5, 2016 IEP TEAM MEETING

65. At hearing, several District witnesses explained multiple reasons why District did not immediately conduct its own assessment for autism. Most important to District was that the well-qualified District personnel who had been educating and supporting Student from kindergarten through fourth grade had never seen behavior or characteristics that indicated Student might have autism or be on the autism spectrum. Through District’s Intensive Behavior Intervention program at Miller Elementary, he was frequently seen by two medical doctors who provided psychiatric assessment/diagnosis and medication prescription and monitoring. He was supported by a licensed marriage and family therapist who assessed and diagnosed him annually, and provided him mental health services daily. He was supported by a rehabilitation/behavior therapist. A school psychologist conducted a triennial reevaluation, a functional behavior assessment, and an educationally related mental health assessment with social-emotional functioning assessment of Student. Student had special education and general education teachers observing him daily. None of these professionals, in the four years they had been working with Student, believed he presented as a student with autism or had any suspicion that he might have had autism.

66. Further, in conducting the educationally related mental health services assessment with social-emotional functioning assessment, Mr. D’Amico interviewed Student’s outside therapist Dr. Dyson. She informed Mr. D’Amico of the diagnoses Rady Children’s Hospital had made, and they did not include autism or an autism spectrum disorder. Mr. D’Amico’s educationally related mental health assessment was conducted at about the same time as Dr. Dyson’s autism assessment was conducted, yet Dr. Dyson did not report that she was considering an autism diagnosis or in the process of conducting an autism assessment. Despite conferring with Student’s outside medical and psychological services provider, District received no suggestion that any other professionals suspected Student had autism.

67. As explained above, District witnesses were under the incorrect impression that as of December 5, 2016, Dr. Dyson had not finished assessing Student for autism. They believed they were waiting for the assessment to be finished and for a final conclusion to be reached. They were waiting for the assessment report that was promised, to review the final results. Although they had been informed Dr. Dyson’s assessment was completed and Student met diagnostic criteria for autism spectrum disorder, they did not immediately seek to begin their own autism assessment because they believed there was the possibility that the final report would state Student did not meet diagnostic criteria for autism spectrum disorder. According to Mr. D’Amico, there was always the possibility that the report would be adequate, no additional information would be needed, and District would not need to assess Student because all required information would have been obtained and reported.^[12] Therefore, District was going to wait for Dr. Dyson’s assessment report before unnecessarily putting Student through another evaluation.

68. Most significantly, District did not immediately present Mother with an assessment plan to assess for autism because District needed to know specifically which autism assessment instruments Dr. Dyson administered. Mr. D’Amico testified that when Dr. Dyson spoke at the December 5, 2016 IEP team meeting, she did not review any of the tests she gave. Ms. Lane testified that there were many standardized instruments available to assess a child for autism and it was important to know which ones Dr. Dyson used. Due to the test-retest effect, publishers of assessment instruments restricted how frequently any particular assessment could be re-administered to a person and still be considered valid and reliable. District was waiting to see Dr. Dyson’s report before presenting Mother with an assessment plan so District would not improperly assess Student by reusing the same instruments. Ms. Lane did acknowledge that if the District IEP team members had ever had any suspicions of autism, District would have moved forward sooner and been more forceful in finding out what tests Dr. Dyson had used so District would not replicate them.

DISTRICT’S CRITICISM OF DR. DYSON’S AUTISM ASSESSMENT

69. District personnel reviewed Dr. Dyson’s assessment report after they received it on July 14, 2017. They were critical of her methods, analysis, and conclusions. Dr. Dyson did not testify and Student presented no other witnesses to explain, interpret, or support Dr. Dyson’s assessment, or in any way rehabilitate it after District’s witnesses’ criticism.

70. Dr. Dyson relied on several rating scales, but Mother was the only person who completed them. Dr. Dyson did not obtain input from Student’s general or special education teachers, or the school-based mental health services providers. District regarded those as key components to an autism assessment. District and Vista Hill personnel would have responded to items on the rating scales Dr. Dyson used much differently than Mother did.

71. Some critical differences between Mother’s responses and how school staff would have rated Student on the scales provided by Dr. Dyson are as follows. Mother reported concerns with Student’s social functioning, including difficulties with reading social cues, eye contact, boundaries and norms, establishing and maintaining friendships, and initiating and maintaining conversations with peers. She indicated Student had always preferred older children and adults, and reported he had a difficult time interacting with peers from an early age, including at day care not joining other students at circle time and preferring to sit in the back of the class under the table. Mother reported Student had sensory difficulties in that he was sensitive to loud noises, people touching or cuddling him, and shower water touching him. Mother’s rating scale scores suggested Student struggled to read social cues, had less desire to participate in social activities than his peers, demonstrated some mannerisms in common with children with autism spectrum disorder, exhibited difficulty in social reciprocity, awareness, motivation, communication, and mannerisms that may interfere with interpersonal relationships.

72. At hearing, Student’s special education teacher Ms. Dikes described Student as very smart, and funny. She had good conversations with him, and even if he yelled at her, he communicated with her, and that meant a lot to her. They talked about academics the most, but also about the Chicago Bulls, Alabama College football, and Kid President. Student had a variety of interests. Ms. Dikes understood there was a broad range of symptoms of autism, but she had worked with students with autism and she did not see autism characteristics in Student. She believed three top indicators of autism were self-stimulatory behaviors, such as hand flapping; strict schedules to the point that if something happened one minute later than it ordinarily did, a student with autism would tell her for the whole 60 seconds that they were a minute late; and sensory concerns, like not wanting to be touched. Ms. Dikes had never experienced any sensory issues for Student. Student told her his day would go better if she would hug him every morning; so she did that. When Student exhibited a negative behavior, she sometimes hugged him and it redirected him. He did not usually approach Ms. Dikes and request a hug, but if he had a growl on his face, she asked him if he needed a hug and he accepted it.

73. In Ms. Dikes’ experience, Student did not have difficulty reading social cues at school. In the classroom, he was responsive to “the teacher stare” or “the mommy stare,” which caused him to stop what he was doing. He maintained normal eye contact by looking at her when she spoke to him and by tracking her when she walked around the room. He had difficulties with boundaries and norms, displaying some verbal and physical behavioral incidents, often when he was upset or provoked. But he was able to adhere to boundaries and norms when he was not upset. With respect to establishing and maintaining friendships, when Student was younger he established and maintained appropriate relationships. In second and third grade, Student had a “best buddy.” He was able to have squabbles with peers but still maintain friendships. In fourth grade, Ms. Dikes saw Student establish friendships, and he could maintain them, but they were not always the healthiest. She saw him be friends with a person one day, and enemies with that person the next day.

74. Ms. Dikes also had observed non-compliance in Student, but she did not think it was due to autism. She worked with students with behavior disorders who were sometimes non-compliant due to oppositional defiant disorder, or conduct disorder, or bipolar, sometimes attention deficit hyperactivity disorder, and those were the things she thought of when dealing with Student. She did not think his non-compliant behaviors were characteristic of autism.

75. Ms. Garva had concerns about Student’s ability to read social cues, but she believed the difficulties he had were not constant. Sometimes, when he was in an elevated mood, he perceived peers were targeting him or laughing at him, but he perceived things differently than they actually were. At other times, he got along well with his peers, had a few select friends, had appropriate social boundaries, initiated conversations, and displayed proper and positive social functioning. Student’s social difficulties were related to his mood disorder and were not an indication of autism, because he did not consistently have problems in social interactions. Ms. Garva believed students with autism had consistent behaviors, not times of ability and times of inability. Ms. Garva also did not agree that Student had sensory sensitivities as she observed in children with autism. Student welcomed physical touch, hugs, and having his back scratched; these things were soothing for him and he asked Ms. Garva and the behavior therapist for back scratches when he felt dysregulated or overwhelmed. She did not see Student dysregulated by large crowds of people or loud noises, as she saw in children with autism.

76. Mr. D’Amico acknowledged Student had some difficulty reading social cues, but it was due to Student being hypersensitive and misinterpreting things people said. Student took things internally, tended to be hypercritical of himself, and got upset with himself and overworked. People with autism lacked the ability to understand what other people were doing through social cues. More severely impacted people with autism did not understand non-verbal communication, like a hand waving. Mr. D’Amico did not see Student having difficulty with eye contact or other non-verbal communication. Mr. D’Amico thought Student could be described as having difficulty with boundaries when he was engaging in physically aggressive behaviors, but Student did not have a lack of understanding of what people preferred. He was able to initiate and maintain conversations with peers and adults, but not when he was very agitated.

77. Student’s ability to build and maintain relationships worsened after the time of the triennial reassessment in November 2015. He had become more aggressive and Student’s peers did not like that. As Student’s mood became more significant and had a new pattern, it impacted his social functioning for the worse. Students with autism typically lacked social skills or abilities to engage in social skills from an early age. Student initially had been successful socially. He had built and maintained peer relationships, but as things became worse with his mood, his social skills declined. Mr. D’Amico explained that for the educational criteria of special education eligibility under the categories of emotional disturbance and autism, there were overlapping criteria as both had social skill components or involved an inability to build and maintain relationships. Mr. D’Amico thought emotional disturbance was a better descriptor of many of the behaviors Student displayed. Student had inappropriate behaviors and feelings under normal circumstances. When Student was in a more agitated state, he displayed a lot more behaviors. His behaviors were not consistent, and they were sometimes frequent, and sometimes infrequent. Student had some social skill deficits, but they looked more like a student with a mood disorder, with emotional disturbance, than a student with autism.

78. Mr. D’Amico was critical of Dr. Dyson’s assessment and diagnosis. He thought the assessment was inadequate in assessing the presence of autism spectrum disorder. All information was from rating scales only completed by Mother. Some areas of high scores also reflected emotional disturbance as well as the possibility of autism spectrum disorder. Dr. Dyson did not do any observations in a social environment, which was critical for assessing autism. Also, Dr. Dyson’s assessment report did not assess the presence of emotional disturbance; there were overlapping areas but she did not address them. Mr. D’Amico believed Dr. Dyson’s description of her administration of the Autism Diagnostic Observation Schedule sounded like a student with an emotional disturbance, based on the language Student used or descriptions of how he behaved, such as that he did not want to talk to her, ignored her, or said he was bored and wanted to do something else. Mr. D’Amico thought those responses were more typical of a student with emotional disturbance than autism. Mr. D’Amico believed scores on the Autism Diagnostic Observation Schedule tended to be very elevated for students with an emotional disturbance, because of the overlap of symptoms. An emotional disturbance, a mood disorder, or misbehavior during the assessment might impact results. For the evaluation to be more complete, it needed information from teachers, social observations, and to tease apart and consider the influence of other disabilities, rather than only looking at autism.

79. Ms. Lane agreed Student struggled at times with reading social cues, with maintaining eye contact, with boundaries with peers, with establishing and maintaining friendships, and with initiating and maintaining some conversations. She had not noticed that Student had a preference for adults or older children. She did not see him staying away from other students in class. She had sometimes seen him be sensitive to loud noises, but she had not seen other sensory sensitivities. Student had shared that he liked hugs to calm him down, and she had seen Ms. Dikes hug Student when he was starting to get escalated and it calmed him. She did not know about any sensitivity to shower water. While some of the difficulties Student had were possibly indicators of autism, at Miller Elementary what they had seen was that he had abilities he was sometimes able to apply, and at other times he had difficulty. He sometimes had problems with social cues, but other times he was very in tune with what was happening in class. His eye contact also depended on his mood. His difficulties were not across the board and at all times. Dr. Dyson did not observe Student in school, and did not talk to his teachers or school-based mental health providers; those were key components to an assessment. Ms. Lane thought Dr. Dyson’s assessment was not thorough enough to rule in or rule out autism.

DISTRICT PROPOSED INDEPENDENT EDUCATIONAL EVALUATIONS

80. District and Mother met on June 21, 2017. District proposed some services and supports for Student that were not dependent upon the parties entering into a settlement agreement. District offered to fund independent educational evaluations in the areas of academics, autism, and educationally related mental health services by Dr. Jeffrey Owens.

81. District wrote to Mother on July 17, 2017. The letter was mailed to Mother’s correct address at the time. Mother denied that she received the letter. She moved a couple weeks after the date of the letter. The letter was also sent to Student’s attorney. District’s July 17, 2017 letter reiterated the proposals and that they were not contingent upon resolution of the due process case but were intended to support Student and Mother prior to the start of the 2017-2018 school year. District included its independent educational evaluation policies and procedures with the letter.

82. On August 23, 2017, before the second day of hearing started, District presented Mother a new assessment plan for District to assess Student for autism. Mother signed consent.

LEGAL CONCLUSIONS

INTRODUCTION: LEGAL FRAMEWORK UNDER THE IDEA^[13]

1. This hearing was held under the Individuals with Disabilities Education Act, its regulations, and California statutes and regulations intended to implement it. (20 U.S.C. § 1400 et seq.; 34 C.F.R. § 300.1 (2006)^[14] et seq.; Ed. Code, § 56000, et seq.; Cal. Code Regs., tit. 5, § 3000 et seq.) The main purposes of the IDEA are (1) to ensure that all children with disabilities have available to them a FAPE that emphasizes special education and related services designed to meet their unique needs and prepare them for employment and independent living, and (2) to ensure that the rights of children with disabilities and their parents are protected. (20 U.S.C. § 1400(d)(1); see Ed. Code, § 56000, subd. (a).)

2. A FAPE means special education and related services that are available to an eligible child at no charge to the parent or guardian, meet state educational standards, and conform to the child’s IEP. (20 U.S.C. § 1401(9); 34 C.F.R. § 300.17; Cal. Code Regs., tit. 5, § 3001, subd. (p).) “Special education” is instruction specially designed to meet the unique needs of a child with a disability. (20 U.S.C. § 1401(29); 34 C.F.R. § 300.39; Ed. Code, § 56031.) “Related services” are transportation and other developmental, corrective, and supportive services that are required to assist the child in benefiting from special education. (20 U.S.C. § 1401(26); 34 C.F.R. § 300.34; Ed. Code, § 56363, subd. (a) [in California, related services are also called designated instruction and services].) In general, an IEP is a written statement for each child with a disability that is developed under the IDEA’s procedures with the participation of parents and school personnel that describes the child’s needs, academic and functional goals related to those needs, and a statement of the special education, related services, and program modifications and accommodations that will be provided for the child to advance in attaining the goals, make progress in the general education curriculum, and participate in education with disabled and non-disabled peers. (20 U.S.C. §§ 1401(14), 1414(d); Ed. Code, § 56032.)

3. In Board of Education of the Hendrick Hudson Central School District v. Rowley (1982) 458 U.S. 176, 201 [102 S. Ct. 3034] (“Rowley”), the Supreme Court held that “the ‘basic floor of opportunity’ provided by the [IDEA] consists of access to specialized instruction and related services which are individually designed to provide educational benefit to” a child with special needs. Rowley expressly rejected an interpretation of the IDEA that would require a school district to “maximize the potential” of each special needs child “commensurate with the opportunity provided” to typically developing peers. (Id. at p. 200.) Instead, Rowley interpreted the FAPE requirement of the IDEA as being met when a child receives access to an education that is reasonably calculated to “confer some educational benefit” upon the child. (Id. at pp. 200, 203-204.) The Supreme Court’s recent decision in Endrew F. v. Douglas County Sch. Dist. RE-1 (2017) (2017) 580 U.S. ___ [137 S. Ct. 988] (Endrew F.)] reaffirmed that to meet its substantive obligation under the IDEA, a school must offer an IEP reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances; any review of an IEP must appreciate that the question is whether the IEP is reasonable, not whether the court regards it as ideal.

4. The IDEA affords parents and local educational agencies the procedural protection of an impartial due process hearing with respect to any matter relating to the identification, evaluation, or educational placement of the child, or the provision of a FAPE to the child. (20 U.S.C. § 1415(b)(6); 34 C.F.R. § 300.511; Ed. Code, §§ 56501, 56502, 56505.) The party requesting the hearing is limited to the issues alleged in the complaint, unless the other party consents. (20 U.S.C. § 1415(f)(3)(B); Ed. Code, § 56502, subd. (i).) Subject to limited exceptions, a request for a due process hearing must be filed within two years from the date the party initiating the request knew or had reason to know of the facts underlying the basis for the request. (20 U.S.C. § 1415(f)(3)(C), (D).) At the hearing, the party filing the complaint has the burden of persuasion by a preponderance of the evidence. (Schaffer v. Weast (2005) 546 U.S. 49, 56 to 62 [126 S.C -t. 528]; see 20 U.S.C. § 1415(i)(2)(C)(iii) [standard of review for IDEA administrative hear ing decision is preponderance of the evidence].) In this case, Student, as the complain ing party, bears the burden of proof on all issues remaining in the case.

ISSUE 1: FAILURE TO CONVENE A BEHAVIOR EMERGENCY IEP TEAM MEETING WITHIN TWO DAYS OF THE APRIL 8, 2016 BEHAVIOR EMERGENCY INTERVENTION

5. Student argues that District’s failure to convene an IEP team meeting within two days of the Friday, April 8, 2016 behavior emergency denied him a FAPE by denying Mother’s right to meaningful participation in the educational decision-making process.

6. District contends it made reasonable efforts to convene an IEP team meeting to review Student’s behavior emergency within two days, was unable to do so in order to secure participation of Student’s special education teacher who was obligated to be in court on what would have been the second school day after the incident, and convened an IEP team meeting three days later, at which Mother meaningfully participated. District argues Student was not denied a FAPE by this brief delay, because Mother was not denied participatory rights in the IEP process and Student continued to receive instruction, services, and supports.

Legal Authority

7. Effective July 1, 2013, certain provisions previously contained in California Code of Regulations, title 5, section 3052^[15] relating to emergency behavior interventions and procedures relative thereto were deleted as regulations and enacted into statute at Education Code section 56521.1. The former regulation contained in California Code of Regulations, title 5, section 3052, subdivision (i)(7) was codified in section Education Code section 56521.1, subdivision (g). If a behavior emergency report is written regarding a student who has an IEP but who does not have a behavior intervention plan, “the designated responsible administrator shall, within two days, schedule an [IEP] team meeting to review the emergency report, to determine the necessity for a functional behavioral assessment, and to determine the necessity for an interim plan. The IEP team shall document the reasons for not conducting the functional behavioral assessment, not developing an interim plan, or both.” (Ibid.)

8. Central to Student’s Issue 1 is the meaning of the word “schedule” in Education Code section 56521.1, subdivision (g). Student’s Amended Due Process Complaint and Prehearing Conference Statement alleged and framed the issue as whether Student was denied a FAPE by District’s failure to “convene” an IEP team meeting within two days of the April 8, 2016 behavior emergency, and Student argues District was required to “hold” a Behavior Emergency Report IEP team meeting within two days of the April 8, 2016 behavior emergency.

9. In support of his interpretation of the statute as requiring a school district to convene, or said another way, hold, an IEP team meeting, Student relies on the consolidated OAH Case Nos. 2009110397 and 2009110083, Student v. Patterson Joint Unified School District and Patterson Joint Unified School District v. Student (Patterson), which was decided in 2010, when section 3052, subdivision (i)(7) was in effect. Student interprets the case as requiring that a Behavior Emergency Report IEP team meeting be held within two days. Student specifically cites page 51, paragraph 16, of the Patterson Decision.

10. One issue in Patterson was whether the school district had denied the student a FAPE by using inappropriate physical restraints and aversive interventions on the student, failing to prepare behavior emergency reports, failing to notify the student’s parents of the emergency interventions, and not convening IEP team meetings to discuss the emergency interventions, even though the student had what were referred to under section 3052 as “serious behavior problems.” At the time of the multiple emergency behavior interventions, the student had a behavior support plan, but did not have a behavior intervention plan. The school district took the position that because the student had a behavior support plan, the school district was not required to prepare behavior emergency reports or hold emergency IEP team meetings when it used behavior emergency interventions. The concern in the case was not the timeliness of the IEP team meetings the school district actually held, but the fact that the school district had not held IEP team meetings to review the use of the behavior emergency interventions at all. In the paragraph Student relies on in this case, the ALJ decided California Code of Regulations, title 5, section 3052, subdivision (i) required the school district “to complete the B[ehavior] E[mergency] R[eport] regardless of whether the student had either a B[ehavior] S[upport] P[lan] or a B[ehavior] I[ntervention] P[lan], and needed to hold an emergency IEP meeting because [the] [s]tudent did not have a B[ehavior] I[ntervention] P[lan].” The ALJ decided that the school district’s failure to complete behavior emergency reports, provide them to the student’s parents, and hold IEP team meetings to discuss the behavior emergencies denied the student’s parents a meaningful opportunity to participate in the student’s educational decision-making process. The ALJ did not, as Student contends, decide that an IEP team meeting to discuss a behavior emergency incident was required to be held within two days. The ALJ only decided that under the circumstances of the student’s behaviors and the school district’s responses, the school district had been required to actually hold an IEP team meeting to discuss the behavior emergencies.

11. Another OAH case considered a school district’s obligation to schedule an IEP team meeting to review a behavior emergency. In the consolidated matters of OAH Case Nos. 2010050392 and 2010050679, Student v. Oakdale Joint Unified School District and Oakdale Joint Unified School District v. Student, one issue raised by the student was whether the school district had denied him a FAPE by failing to hold required IEP team meetings after behavior emergency interventions. The issue stated in the Decision concerned the school district “failing to hold required IEP team meetings.” A summary of the parties’ contentions stated the student contended that in September 2009, the district “did not schedule IEPs within two days as it was required to do,” and in November 2009, the district did not complete a Behavior Emergency Report, “nor did it schedule an IEP team meeting within two days as it was required to do.” The Decision found that on August 13, 2009, the school district sent notice to the student’s parent of the next IEP team meeting scheduled on September 9, 2009. The student’s parent was unavailable due to a surgical procedure and the unavailability of her advocate. The earliest the student’s parent was available was September 24, 2009. An IEP team meeting was scheduled for that date. Behavior emergency interventions were used on September 10, 11, and 16, 2009. The ALJ applied section 3052, subdivision (i)(7), which provided that when a Behavior Emergency Report was written for a student who did not have a behavior intervention plan, the school district must “schedule” an IEP meeting within two days to review the incident. The ALJ decided that at the time the behavior emergency interventions were used in September 2009, an IEP team meeting was “already scheduled when the emergency restraints were used,” and the requirement that the school district schedule an IEP within two days of the incident was satisfied, and the student was not denied a FAPE. With respect to the November 23 and 25, 2009 behavior incidents, the ALJ decided that the school district was not required to have an IEP team meeting to review them because the student had a behavior intervention plan in place by that time, and the behaviors were not new.^[16]

12. Other statutes in the Education Code pertaining to IEP team meetings set time restrictions for actually holding an IEP team meeting. For example, “Once a child has been referred for an initial assessment to determine whether the child is an individual with exceptional needs and to determine the educational needs of the child, these determinations shall be made, and an individualized education program team meeting shall occur within 60 days of receiving parental consent for the assessment....” (Ed. Code, § 56043, subd. (c), emphasis added.) Also, “Once a child has been referred for an initial assessment to determine whether the child is an individual with exceptional needs as defined in Section 56026 and to determine the educational needs of the child, these determinations shall be made, and an individualized education program meeting shall occur, within 60 days of receiving parental consent for the assessment.... ” (Ed. Code, § 56302.1, subd. (a), emphasis added). Additionally, “A meeting of an individualized education program team requested by a parent to review an individualized education program pursuant to subdivision (c) of Section 56343 shall be held within 30 days, not counting days between the pupil's regular school sessions, terms, or days of school vacation in excess of five schooldays, from the date of receipt of the parent’s written request.” (Ed. Code, § 56343.5, emphasis added.) Where the Legislature intends that an IEP team meeting be held or occur within a specific amount of time, it has used those words.

13. The failure to timely hold an IEP team meeting or timely prepare an IEP is a procedural violation. A procedural violation results in a denial of a FAPE only if the violation: (1) impeded the child’s right to a FAPE; (2) significantly impeded the parent’s opportunity to participate in the decision making process; or (3) caused a deprivation of educational benefits. (20 U.S.C. § 1415(f)(3)(E)(ii); 34 C.F.R. § 300.513(a)(2); Ed. Code, § 56505, subd. (f)(2) and (j); W.G., et al. v. Board of Trustees of Target Range School District, 960 F.2d 1479, 1484; seeN.B. v. Hellgate Elementary School Dist., ex rel. Bd. of Directors, Missoula County, Mont. (9th Cir. 2008) 541 F.3d 1202, 1208, quoting Amanda J. ex rel. Annette J. v. Clark County School Dist. (9th Cir. 2001) 267 F.3d 877, 892.)

14. The IDEA and the regulations promulgated pursuant to the IDEA guarantee that the parents of each child with a disability participate in any group that makes decisions on the educational placement of their child. It emphasizes the participation of the parents in developing jointly with the school district the child’s educational program and assessing its effectiveness. (20 U.S.C. § 1415(a); see also 20 U.S.C. § 1400(d)(1)(B) (rights of parents protected); 20 U.S.C. § 1414(c)(1)(B) (input from parents specified); 20 U.S.C § 1414(a)(1)(D) (parental consent specified); 20 U.S.C. § 1415(b) (opportunity for parents to examine the record specified); and 20 U.S.C. § 1414(d)(2)(C)(i) and (ii) (requiring school district to consult with parents of students transferring into district in the development of a comparable interim IEP).) Analysis

15. Student did not prove by a preponderance of the evidence that District denied him a FAPE by failing to convene an IEP team meeting within two days of the April 8, 2016 behavior emergency intervention.

16. The April 8, 2016 behavior emergency intervention occurred on a Friday. On Monday, April 11, 2016, District attempted to set an IEP team meeting for the next day, Tuesday, April 12, 2016. Student’s special education teacher was scheduled to be in court on that date. By 10:30 a.m. on Monday, April 11, 2016, Mother was notified that an IEP team meeting would be held on April 15, 2016, at 7:30 a.m. to review the April 8, 2016 behavior emergency. Mother confirmed she would attend.

17. Education Code section 56521.1 only requires that when a behavioral emergency report is written regarding a student who has an IEP but does not have a behavioral intervention plan, the school district must schedule an IEP team meeting within two days. The statute does not require the IEP team meeting to be held within two days. By notifying Mother on the morning of the first school day after the April 8, 2016 behavior emergency that an IEP team meeting would be held on April 15, 2016, District complied with the requirement to schedule an IEP team meeting within two days after the behavior emergency.

18. Even if Student had proven a procedural violation of Education Code section 56521.1, subdivision (g), Student failed to demonstrate how any violation amounted to a denial of a FAPE. Student did not demonstrate how holding an IEP team meeting to review the April 8, 2016 behavior emergency five school days, seven calendar days, after the behavior emergency deprived Student of educational benefit. The IEP team meeting held on April 15, 2016, resulted in Student being referred for a functional behavior assessment. The decision to conduct a functional behavior assessment was made in consideration of both the April 8 and April 13, 2016 behavior emergencies. Student did not prove that had an IEP team meeting been held on any date between April 8, 2016 and April 13, 2016, the date of the second behavior emergency, an IEP team would have referred Student for a functional behavior assessment. Further, Student did not demonstrate how holding an IEP team meeting to review the April 8, 2016 behavior emergency five school days, seven calendar days, after the behavior emergency significantly impeded Mother’s participation in the educational decision-making process. Mother attended the April 15, 2016 IEP team meeting. Her participation led to the determination that a functional behavior assessment was recommended. Accordingly, Student was not denied a FAPE.

ISSUE 2: FAILURE TO DETERMINE THE NECESSITY FOR AN INTERIM BEHAVIOR INTERVENTION PLAN AND/OR DOCUMENT THE REASONS FOR NOT DEVELOPING AN INTERIM BEHAVIOR INTERVENTION PLAN DURING THE APRIL 15, 2016 EMERGENCY BEHAVIOR IEP TEAM MEETING

19. Student contends District denied him a FAPE by failing at the April 15, 2016 Behavior Emergency IEP team meeting to determine the necessity of an interim behavior intervention plan, and/or to document the reasons for not developing an interim behavior intervention plan. Student argues District’s failures significantly impeded Mother’s ability to participate in the decision-making process.

20. District contends it discussed and determined at the April 15, 2016 Behavior Emergency IEP team meeting that Student did not require an interim behavior intervention plan while District conducted a functional behavior assessment, and that any failure to record in the IEP team meeting notes the fact that the discussion occurred did not deny Student a FAPE.

Legal Authority

21. If a behavior emergency report is written regarding a student who has an IEP but who does not have a behavior intervention plan, an IEP team meeting shall be held “to review the emergency report, to determine the necessity for a functional behavioral assessment, and to determine the necessity for an interim plan. The IEP team shall document the reasons for not conducting the functional behavioral assessment, not developing an interim plan, or both.” (Ed. Code, § 56521.1, subd. (g).) Analysis

22. The preponderance of the evidence established that the IEP team discussed the necessity for an interim behavior intervention plan while the functional behavior assessment was being conducted, but the notes of the IEP team meeting did not document the reasons for not developing an interim plan. However, Student did not establish by a preponderance of the evidence that District’s failure to include in the IEP team meeting notes the reasons the team decided an interim behavior intervention plan was not necessary deprived Student of educational benefit or significantly impeded Mother’s opportunity to participate in the educational decision-making process.

23. The testimony of Ms. Garva convincingly established that during the April 15, 2016 IEP team meeting, the team discussed the two behavior emergency incidents, and also discussed what could be implemented or added to help Student avoid these behaviors in the future and the team decided nothing needed to be added at that time. While the discussion seems to have occurred without formal announcement that the discussion specifically was addressing the question of whether an interim behavior intervention plan was needed while the functional behavior assessment the team recommended was being conducted, the substance of the conversation was had; the team concluded an interim behavior intervention plan was not needed because District and Vista Hill personnel did not have reliable information regarding the efficacy of the many interventions they were in the process of trying with Student to manage his extreme but variable behaviors.

24. The IEP team meeting notes of the April 15, 2016 IEP team meeting did not document the reasons the IEP team decided not to develop an interim behavior intervention plan while the functional behavior assessment was being conducted. The lack of documentation was a procedural violation of the Education Code.

25. However, Student did not establish by a preponderance of the evidence that District’s failure to include in the IEP team meeting notes the reasons the team decided an interim behavior intervention plan was not necessary while District conducted a functional behavior assessment deprived Student of educational benefit. Student also failed to demonstrate how the failure to document the reasons for the IEP team’s determination significantly impeded Mother’s opportunity to participate in the educational decision-making process. Mother attended the meeting and was present for the discussion regarding whether things could be changed or added to address Student’s behavior. She had the opportunity to request and provide information relating to whether Student would have an interim behavior plan. Therefore, although District procedurally violated the Education Code, District did not deny Student a FAPE.

ISSUE 3A: FAILURE TO TIMELY CONDUCT AN EDUCATIONALLY RELATED MENTAL HEALTH SERVICES ASSESSMENT

26. Student contends District should have conducted an educationally related mental health services assessment at the beginning of the 2016-2017 school year, and its failure to assess Student until October 2016 denied Student a FAPE.

27. District argues it timely presented Mother with an assessment plan at the start of the 2016-2017 school year and Mother did not consent to the assessment at that time. District contends Mother later signed another assessment plan and that District timely assessed Student, and Student therefore was not denied a FAPE.

Legal Authority

28. A local educational agency must conduct a reassessment at least once every three years, unless the parent and the agency agree that it is unnecessary. (20 U.S.C. § 1414(a)(2)(B)(ii); 34 C.F.R. § 300.303(b)(2); Ed. Code, §§ 56043, subd. (k), 56381, subd. (a)(2).) The agency must also conduct a reassessment if it determines that the educational or related service needs of the child, including improved academic achievement and functional performance, warrant a reassessment. (20 U.S.C. § 1414(a)(2)(A)(i); 34 C.F.R. § 300.303(a)(1); Ed. Code, § 56381, subd. (a)(1).)

29. If parents do not consent to a reassessment plan, the district may conduct the reassessment by showing at a due process hearing that it needs to reassess the student and it is lawfully entitled to do so. (20 U.S.C. § 1414(c)(3); 34 C.F.R. § 300.300(c)(1)(ii); Ed. Code, §§ 56381, subd. (f)(3), 56501, subd. (a)(3).) However, a district is not required to pursue a due process hearing to override the lack of parental consent to an assessment and does not violate its obligations to the child by declining to pursue the assessment or reassessment. (34 C.F.R. § 300.300(c)(1)(ii) & (iii); Ed. Code, §§ 56381, subd. (f)(3) & (4).)

30. Without an order after a due process hearing, reassessments require parental consent. (20 U.S.C. § 1414(c)(3); Ed. Code, § 56381, subd. (f)(1).) To obtain parental consent, the school district must provide proper notice to the student and his or her parent. (20 U.S.C. §§ 1414(b)(1); 1415(b)(3),(c)(1); 34 C.F.R. § 300.304(a); Ed. Code, §§ 56321, subd. (a).) The notice consists of the proposed assessment plan, and a copy of parental procedural rights under the IDEA and related state laws. (Ed. Code, § 56321, subd. (a).) The assessment plan must be in language easily understood by the public and in the native language of the parent; explain the types of assessments to be conducted; and state that no IEP will result from the assessment without the consent of the parent. (Ed. Code, § 56321, subd. (b)(1)-(4); 20 U.S.C. § 1415(b)(3)&(4); see also 34 C.F.R. § 300.9(a).) The district must give the parent at least 15 days to review, sign, and return the proposed assessment plan. (Ed. Code, § 56321, subd. (a).) Analysis

31. On the final day of the 2016 extended school year, July 22, 2016, the IEP team discussed conducting an educationally related mental health services assessment of Student to consider additional supports to address Student’s educationally related mental health needs. One week after the start of the 2016-2017 school year, on August 30, 2016, District transmitted to Mother via a folder placed inside Student’s backpack an assessment plan for the educationally related mental health services assessment.

32. District was required to afford Mother at least 15 days to return the assessment plan. Mother did not return the assessment plan.

33. District provided Mother the assessment plan it agreed to develop at the start of the 2016-2017 school year. Mother did not consent to the assessment based on Student’s new medication regimen and improved conduct, and she expressly informed the school psychologist she wanted to wait to see how Student did in the new school year. While Mother could have changed her mind after talking to the school psychologist and within 15 days, or more, signed consent and returned the assessment plan to District to immediately begin the assessment, she did not. After sending Mother an assessment plan on August 30, 2016, District was not under any further obligation to pursue an educationally related mental health services assessment. (Ed. Code, § 56356381, subd. (f)(3) & (4).) District did not fail to timely assess Student regarding educationally related mental health services, and Student was not denied a FAPE.

34. Furthermore, over the month of September 2016, Student again began exhibiting dangerous, aggressive behavior. On September 27, 2016, Mother expressed concern that the Intensive Behavior Intervention program at Miller Elementary was not the appropriate placement for Student and she requested an IEP team meeting. District again sought consent from Mother to conduct an educationally related mental health services assessment and gave Mother another assessment plan on October 4, 2016, proposing to conduct an educationally related mental health services evaluation to consider additional supports or the need for a different placement to address Student’s educationally related mental health needs. Mother signed the assessment plan on October 7, 2016.

35. The IEP team timely met to review the results of the educationally related mental health services assessment on December 5, 2016. District offered to add to Student’s newly developed November 1, 2016 IEP 30 minutes a week of behavior intervention services. The five week delay in beginning the educationally related mental health services assessment of which Student complains was due to Mother’s decision in August to wait to begin the assessment.

36. Based upon the foregoing, a preponderance of evidence showed that District did not fail to timely assess Student in the area of educationally related mental health, and therefore did not deny him a FAPE.

ISSUE 3B: FAILURE TO ASSESS STUDENT FOR AUTISM AFTER DECEMBER 5, 2016

37. Student contends District should have assessed Student for autism after Dr. Dyson told the December 5, 2016 IEP team that she had assessed Student and diagnosed him with autism spectrum disorder. Student argues he was denied educational benefit and Mother was denied meaningful participation in the educational decision-making process and Student was therefore denied a FAPE.

38. District argues prior to December 5, 2016, District did not suspect autism as an area of disability for Student. District contends it did not unreasonably delay assessing Student after Dr. Dyson told the December 5, 2016 IEP team she had diagnosed Student with autism because District only waited an appropriate amount of time to receive the written assessment report Dr. Dyson promised to provide before District gave Mother an assessment plan on April 7, 2017. District contends Student was not denied a FAPE.

Legal Authority

39. California Code of Regulations, title 5, section 3030, subdivision (b)(1), defines autism, for eligibility for special education and related services, as “a developmental disability significantly affecting verbal and nonverbal communication and social interaction, generally evident before age three, and adversely affecting a child’s educational performance. Other characteristics often associated with autism are engagement in repetitive activities and stereotyped movements, resistance to environmental change or in daily routines, and unusual responses to sensory experiences.” Section 3030, subdivision (b)(1)(A), qualifies the definition of autism by noting, “Autism does not apply if a child’s educational performance is adversely affected primarily because the child has an emotional disturbance, as defined by subdivision (b)(4) of this section.” Further, a child who manifests the characteristics of autism after age three could be identified as having autism of the criteria in subdivision (b)(1) are satisfied. (Cal. Code Regs., tit. 5, § 3030, subd. (b)(1)(B).)

40. California Code of Regulations, title 5, section 3030, subdivision (b)(4), defines emotional disturbance as a condition exhibiting one or more of the following characteristics over along period of time and to a marked degree that adversely affects a child’s educational performance: (A) an inability to learn that cannot be explained by intellectual, sensory, or health factors; (B) an inability to build or maintain satisfactory interpersonal relationships with peers and teachers; (C) inappropriate types of behavior or feelings under normal circumstances; (D) a general pervasive mood of unhappiness or depression; (E) a tendency to develop physical symptoms or fears associated with personal or school problems; (F) emotional disturbance includes schizophrenia. The term does not apply to children who are socially maladjusted, unless it is determined that they have an emotional disturbance under subdivision (b)(4).

41. The district must ensure that “the child is assessed in all areas of suspected disability.” (20 U.S.C. § 1414(b)(3)(B); Ed. Code, § 56320, subd. (f).) A disability is “suspected,” and a child must be assessed, when the district is on notice that the child has displayed symptoms of that disability or that the child may have a particular disorder. (Timothy O. v. Paso Robles Unified School Dist. (9th Cir. 2016) 822 F.3d 1105, 1109 (Timothy O.).) Such notice may come in the form of concerns expressed by parents about a child’s symptoms, opinions expressed by informed professionals, or other less formal indicators, such as the child’s behavior. (Id. at p. 13 [citing Pasatiempo by Pasatiempo v. Aizawa (9th Cir. 1996) 103 F.3d 796 and N.B. v. Hellgate Elementary School Dist. (9th Cir. 2008) 541 F.3d 1202].)

42. The threshold for suspecting that a child has a disability is relatively low. (Department of Educ., State of Hawaii v. Cari Rae S. (D. Hawaii 2001) 158 F. Supp. 2d 1190, 1195.) A school district’s appropriate inquiry is whether the child should be referred for an evaluation, not whether the child actually qualifies for services. (Ibid.) The actions of a school district with respect to whether it had knowledge of, or reason to suspect, a disability must be evaluated in light of information that the district knew, or had reason to know, at the relevant time. It is not based upon hindsight. (See Adams v. State of Oregon (9th Cir. 1999) 195 F.3d 1141, 1149, citing Fuhrmann v. East Hanover Bd. of Educ. (3rd Cir. 1993) 993 F.2d 1031, 1041.) Analysis

43. As of December 5, 2016, District and Vista Hill personnel had served Student for four years, from the middle of kindergarten through the middle of fourth grade. He was initially assessed in 2012, and his triennial reassessment was completed in November 2015. The same school psychologist who conducted the triennial reassessment also conducted a functional behavior assessment in spring 2016 and an educationally related mental health services assessment in fall 2016. Student was placed in the Intensive Behavior Intervention program, including services from Vista Hill, and through District he received the services and supports of a general education teacher, a special education teacher, a behavior therapist, a mental health therapist, and psychiatrists, through a program that had qualified as an outpatient mental health clinic. Student also had been observed and received the oversight services of a special education program specialist. None of the educational, mental health, behavioral health, or medical professionals who had worked with Student through District had observed in Student characteristics or symptoms of autism, and none suspected autism as an area of disability for Student. Although Student sometimes displayed difficulties in social interactions and with reading social cues, there were many times he was quite capable in nonverbal communication and with building and maintaining relationships with peers and adults. When he demonstrated typical behavior and social interaction, such as in his general education math class, he was entirely appropriate. He did not demonstrate a consistent inability to engage in appropriate social communication and interaction, have consistent aversions to sensory stimuli, or show other characteristics of autism.

44. In May 2016, Student was treated at a behavioral clinic for significant explosive and aggressive behaviors at school, and he reported hearing voices. In June 2016, Student was hospitalized at Rady Children’s Hospital’s Child and Adolescent Psychiatry Services, where he was again hospitalized in July 2016. After July 2016, he received medication management from Dr. Tung and weekly family therapy from licensed clinical psychologist Dr. Dyson.

45. Between November 2015 and December 2016, Mother reported to District that Student had diagnoses of attention deficit hyperactivity disorder, intermittent explosive disorder, oppositional defiant disorder, possible bipolar disorder, and possible schizophrenia. Sometime between October 7, 2016, and December 5, 2016, as part of the District’s educationally related mental health services assessment, Dr. Dyson reported to District diagnoses of unspecified psychosis and disruptive mood dysregulation disorder. Dr. Dyson described to District that Student presented with phases of manic mood that included sleep dysregulation, an overly energetic mood, being overly happy, racing thoughts, and impulsive speech with increased volume. Typically after these phases, Student fell into an irritable mood. As Student got older, those cycles were becoming more consistent and easier to track. After treating Student weekly over several months, Dr. Dyson did not report concerns Student had autism.

46. Notably, Dr. Dyson did not report to District during the time immediately before the December 5, 2016 IEP team meeting that she was conducting an autism assessment at Mother’s request. However, on December 5, 2016, Dr. Dyson telephonically participated in the IEP team meeting held to review District’s educationally related mental health services assessment. After District presented its assessment report and the team recommended Student receive 30 minutes a week of behavior intervention services, Dr. Dyson stated only that she had completed an assessment, Student had autism spectrum disorder, and she would give a report to Mother to give to District.

47. Dr. Dyson’s statements during the December 5, 2016 IEP team meeting were sufficient to put District on notice that Student was suspected of having a disability that had not previously been suspected: autism. District was personally informed by a licensed clinical psychologist that she had diagnosed Student with autism spectrum disorder. Under Timothy O., supra, District became obligated to assess Student for autism, regardless of the subjective views of its staff members concerning the likely outcome of such an assessment. (822 F.3d at p. 1121.) The question is whether District’s delay of approximately four months in beginning the assessment process was a procedural violation of the IDEA.

48. Student was not similarly situated to the student in Timothy O. The student at issue in Timothy O. was almost three years old and undergoing an initial evaluation to determine his eligibility for special education and related services after he had received services through a regional center related to symptoms of a developmental disorder when he was 27 months old. The school district conducted some formal assessments in academic/pre-academic achievement, sensory-motor development, communication development, and health issues, but did not conduct any assessments under the category of “social/adaptive behavior” or the category covering disorders on the autism spectrum. During the assessment, a school psychologist stopped by and informally observed the student for 30 to 40 minutes. From the time he observed the Student, the school psychologist concluded there was no need for the school district to assess the student for any disorder on the autism spectrum because of the student’s use of facial expressions, display of emotions, and skill at turn-taking. The school district was aware that autism was a suspected area of disability because it had been informed by the regional center that the regional center was going to assess the student for eligibility for continued services and by process of elimination it was apparent the regional center was going to assess for autism. The school district’s awareness that the regional center was going to assess the student for autism led the school district to instruct the school psychologist to informally observe the student because there was the possibility of looking at autism as a disabling condition. Because the school district had reason to suspect autism as an area of disability but it did not assess the student for autism, the Ninth Circuit held the school district had violated the procedural requirements of the IDEA. (Timothy O., supra, 822 F.3d at p. 1123-1124.)

49. The Court further found that the school district’s failure to assess the student for autism created a lack of information that denied the student educational opportunities and substantially hindered the student’s parents’ ability to participate in the IEP process. The student presented evidence that less than a month after the school district’s assessment, the regional center assessor diagnosed the student with Pervasive Developmental Disorder – Not Otherwise Specified, a disorder on the autism spectrum. The student also presented expert evidence that because he was not assessed for autism, members of the school district staff treated him as if he had selective mutism, an anxiety disorder; the expert opined that the ways the school district staff responded to his lack of verbalization might have actually reinforced his refusal to speak, and prevented him from being referred to a behaviorist. (Timothy O., supra, 822 F.3d at p. 1125.) The school district had considered assessing the student for autism but decided not to after the school psychologist’s informal observation. The school district never explained this to the student’s parents, and they were left without information that might have caused them to question the initial evaluation report or request an independent educational evaluation. (Ibid.) Therefore, the school district’s failure to assess the student for autism denied the student a FAPE.

50. In this case, Student was not a three year old child with whom District had no experience and about whom District and its personnel knew very little. Student had participated in District’s preschool services in the summer before kindergarten, was assessed during kindergarten, was reassessed during third grade, and had received the entire range of services available in the Intensive Behavioral Intervention program, including general education instruction, special education instruction, school psychologist services, mental health therapy, behavior interventions, and medical diagnosis and pharmacology management services from medical doctors. District had extensive information from years of educating Student, as well as from conferring with Student’s outside medical and mental health provider, Rady Children’s Hospital, during the educationally related mental health services assessment District conducted very close in time to when Dr. Dyson assessed Student for autism. Autism was never a suspected area of disability by anyone, including his treating therapist and doctor at Rady Children’s Hospital.

51. At the December 5, 2016 IEP team meeting, District requested Dr. Dyson’s report. Mother received the report from Dr. Dyson at Student’s next therapy session after December 5, 2016. Mother did not supply the report to District then. At a later time, during another one of many meetings between District staff and Mother, District again asked for the report. Mother still did not provide it. In addition to District requesting that Mother provide the report, Dr. Dyson’s report itself recommended to Mother that the report be provided to District. Mother offered no explanation for her failure to provide the report before she finally did in July 2016.

52. Mother never requested that District assess Student in the area of autism, even in Student’s original Due Process Complaint. Despite District’s doubts that Student had autism based on four years of experience with Student, District was willing to assess Student for autism. District wanted to see Dr. Dyson’s report to know which testing instruments she had used, to be sure to plan an assessment that did not inappropriately re-administer the same instruments and obtain invalid results. District waited four months for the report before giving Mother an assessment plan to authorize District to conduct its own autism assessment.

53. Student argues District was obligated to obtain for itself directly from Dr. Dyson a copy of her assessment report and that Mother cannot be held responsible for any delay in assessing Student that resulted from her failure to provide District a copy of the report she had been provided. Student contends Union School Dist. v. Smith (9th Cir 1994), 15 F.3d 1519, 1523 to 1524 (Union), required District to “procure[] D r. Dyson’s report for itself. But, it did nothing to obtain the report. District cannot now blame Parent for its own failure to do so.” Student incorrectly reads Union. In that case, the parents withheld from the school district portions of a private assessment report they had obtained, but the parents did show the school district the pages of the report that diagnosed the student with autism. Ultimately, the placement the school district offered the student was not influenced by the information the school district lacked, but it was based on its belief that the student did not reside within the school district, and that the parents would not have accepted an offer of placement at the school district’s program for autistic children. Still, the Ninth Circuit stated that under the school district’s duty to assess children who are suspected of having a disability, the school district “was legally obligated to procure its own report from a specialist such as [the one who had assessed the student].... Any failure of the [parents] to turn over portions of a specialist’s report cannot excuse the District’s failure to procure the same information for itself.” (Ibid.) Thus, Union does not obligate a school district to obtain for itself a copy of the report of an independent evaluator a parent has had assess the student; it only requires that where a parent does not provide complete information to the school district about the substance of such a report, the school district must itself conduct an assessment to obtain the same information, meaning evaluative data relative to the suspected area of disability.

54. District offered on April 7, 2017, to assess Student for autism. The four month delay between when District was put on notice that an outside professional had diagnosed Student with autism spectrum disorder was not unreasonable. For example, in Tamalpais Union High School District v. D. W., the evaluation the school district conducted in June 2014 to prepare for the student’s transfer into the school district in fall 2014 reflected that the student struggled with defiance/aggression, hyperactivity, learning, executive function, inattention, and social relations. ((N.D. Cal., Sept. 21, 2017, No. 16-CV-04350-HSG) 2017 WL 4176444, at *3-4.) The school district assessed the student again in May 2015 for the student’s annual IEP, but the school district did not assess the student’s mental health. The student’s parents filed a due process complaint alleging the school district denied the student a FAPE by failing in the 2014 IEP to offer the student counseling as a related service, and by failing in spring 2015 to assess the student’s mental health. The District Court concluded the “negative peer interactions,” “aggressive behavior,” and “severe episode of hair pulling” revealed in the June 2014 assessment put the school district on notice that the student had symptoms of anxiety and aggression that could be rooted in a social-emotional or mental health condition, but the student did not meet his burden of proving that he required counseling in the 2014 IEP. However, based on the information in the 2014 assessment, the school district was on notice that the student’s mental health was a suspected area of disability and “it should have at least conducted a mental health evaluation the following year.” (Id. at *5.) The District Court condoned waiting until the next annual assessment period to assess Student. But the failure to conduct a mental health evaluation of the student in that annual assessment, one year after the school district was on notice of the student’s symptoms of a mental health disability, was a procedural violation. The District Court held the procedural violation caused a substantive violation of the IDEA because it significantly impeded the parents’ opportunity to participate in the decision-making process regarding the provision of a FAPE to the student by making it impossible for the parents to know whether the school district’s May 2015 IEP offer recommended the appropriate goals, accommodations, and services to address the student’s unique needs. (Id. at *5-6.) When a delay of up to one year in conducting an assessment of a suspected area of disability can be deemed acceptable, the four-month delay in this case cannot be said to have resulted in a denial of FAPE to Student.

55. District’s failure to provide Mother an assessment plan until April 7, 2017, was not a procedural violation of the IDEA. Moreover, Mother did not sign the assessment plan District provided in April 2017. Any further delay in having Student assessed by District for autism was caused by Mother, not by District.

56. Even if Student had proved a procedural violation, Student failed to demonstrate how District’s failure to provide Mother an assessment plan until April 7, 2017 denied Student a FAPE. Student did not establish that he has autism or how his educational program should have been different if he had autism. Student did not establish that he was deprived of educational benefits. Student did not establish that Mother’s ability to participate in educational decision-making regarding Student’s IEP was significantly impeded by the delay in assessing Student. First, Mother, and only Mother, had the information in Dr. Dyson’s report regarding any educational implications of Dr. Dyson’s diagnosis, and she had the ability to advocate for Student’s education based on the information in Dr. Dyson’s report. Second, when Mother was presented the opportunity to gain through District information about whether Student had autism and what impact it might have on his educational needs, she did not consent to the assessment until over four months later. If Mother was impeded in her ability to participate in educational decision-making, it was due to her own delay. District did not significantly impede parental participation.

57. Based upon the foregoing, Student failed to demonstrate by a preponderance of the evidence that District’s failure to assess Student for autism during the four months after Dr. Dyson disclosed her autism spectrum disorder diagnosis denied Student a FAPE.

ORDER

Student’s request for relief is denied.

PREVAILING PARTY

Pursuant to California Education Code section 56507, subdivision (d), the hearing decision must indicate the extent to which each party has prevailed on each issue heard and decided. Here, District prevailed on all issues.

RIGHT TO APPEAL THIS DECISION

This Decision is the final administrative determination and is binding on all parties. (Ed. Code, § 56505, subd. (h).) Any party has the right to appeal this Decision to a court of competent jurisdiction within 90 days of receiving it. (Ed. Code, § 56505, subd. (k).)

DATED: October 10, 2017

KARA HATFIELD Administrative Law Judge Office of Administrative Hearings KARA HATFIELD Administrative Law Judge Office of Administrative Hearings

Office of Administrative Hearings

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Footnotes

[1] District filed its response to Student’s Amended Complaint case on May 8, 2017, which permitted the hearing to go forward. (M.C. by and through M.N. v. Antelope Valley Union High Sch. Dist. (9th Cir. 2017) 858 F.3d 1189.)

[2] Based on discussion with the parties at the beginning of the hearing, Student’s Issue 1 was clarified from the Order Following Prehearing Conference to conform to the allegation and issue stated in Student’s Amended Due Process Complaint.

[3] Dr. Patel’s first name was not in evidence.

[4] The date on which Student was diagnosed was not in evidence.

[5] Dr. Connor’s first name was not in evidence.

[6] Ms. Garva testified that the definition of bipolar I did not change from the American Psychiatric Association’s Diagnostic and Statistical Manual version IV to version 5.

[7] Dr. Larson’s first name was not in evidence.

[8] Student argues that the fact the IEP team meeting notes did not contain a statement regarding the discussion of whether Student’s goals and services were reviewed and determined to continue to be appropriate while the functional behavior assessment was being conducted, as the notes from the May 27, 2016 Behavior Emergency IEP team meeting did, and as a similar notation in the notes from the July 22, 2016 Behavior Emergency IEP team meeting did, established that the team did not have the required discussion on April 15, 2016. Student’s inference drawn from the various IEP team meeting notes supports his alternative theory of liability, regarding failure to document the conversation that was had on April 15, 2016, but it is insufficient to overcome the testimony of Ms. Garva, which the ALJ found credible.

[9] This term used in the behavior intervention plan was also labeled as slow triggers, and included no or limited sleep the night before, and an agitated mood.

[10] Mother also described this person as “the crisis lady who was working with him.”

[11] District incorrectly stated Parent informed the IEP team that Rady Children’s Hospital had diagnosed Student; it was the licensed clinical psychologist herself who stated to the IEP team that she had completed an autism assessment and Student met diagnostic criteria for autism spectrum disorder.

[12] This reason for delaying assessment is specious. District had reason to suspect it would not find Dr. Dyson’s report adequate. On December 5, 2016, Dr. Dyson stated her assessment was completed and Student met diagnostic criteria for autism spectrum disorder. On December 5, 2016, or shortly thereafter, District was aware both that no teacher or school-based therapist had been interviewed, consulted, or provided a rating scale to complete, and that Dr. Dyson had not conducted an observation of Student at school. District was unlikely to accept the results and implement the recommendations of an autism assessment that did not consider Student’s functioning in the school environment.

[13] Unless otherwise indicated, the legal citations in the introduction are incorporated by reference into the analysis of each issue decided below.

[14] All references to the Code of Federal Regulations are to the 2006 version, unless otherwise noted.

[15] California Code of Regulations, title 5, section 3052 will be referred to as section 3052.

[16] The ALJ did not cite the regulation supporting this conclusion, but section 3052, subdivision (i)(7), requiring an IEP team meeting, only applied to when a behavior emergency intervention report, required in only certain circumstances by other regulations, was written regarding a student who did not have a behavioral intervention plan. Section 3052, subdivision (i)(8) required that when a behavior emergency intervention report was written regarding a student who had a behavioral intervention plan, a referral should be made to an IEP team only when the incident involved previously unseen serious behavior or where a previously designated intervention was not effective.