Parent on Behalf of Student v. Benicia Unified School District

Student filed a request for due process hearing with the Office of Administrative Hearings (OAH Case No. 2017040249) on April 4, 2017, naming the Benicia Unified School District. On May 22, 2017, Benicia filed a request for due process hearing (OAH Case No. 2017050972), naming Student. On May 25, 2017, OAH consolidated the matters and ordered them to proceed on the timeline of Benicia’s case. On September 11, 2017, Student filed a second amended complaint and the matter was continued. Administrative Law Judge Charles Marson heard the matter in Benicia, California, on October 25, 26, and 31, and November 1 and 15, 2017.

Tania L. Whiteleather, Attorney at Law, represented Student throughout the hearing. Student’s Parents attended the hearing. Student was not present except when he testified.

Jan E. Tomsky, Attorney at Law, represented Benicia throughout the hearing. Dr. Carolyn Patton, Benicia’s Director of Special Services, attended the hearing on its behalf.

On November 15, 2017, the matter was continued to December 1, 2017, for the filing of written closing arguments. On November 28, 2017, at Student’s request, the time for filing closing arguments was continued to December 4, 2017. On that day the parties filed closing arguments, the record was closed, and the matter was submitted for decision.

ISSUES

STUDENT’S ISSUES (CASE NO. 2017040249):

Did Benicia deny Student a free appropriate public education between April 4, 2015, and July 20, 2017, by:

1) failing to hold Student’s annual individualized education program team meeting;

2) failing to obtain adequate assessment information on which to base an offer of FAPE, as specifically described in issues 3, 4, 6 and 7 below;

3) failing to conduct assessments of Student in the areas of autism, speech and language and mental health;

4) failing to conduct a timely and appropriate assessment of Student in the area of vocational / transitional needs;

5) failing to provide Student a legally compliant transition plan;

6) failing timely to review and consider the reports of the independent educational assessments of Student that were ordered paid for by OAH’s Decision in Case No. 2017041016;

7) failing to identify Student as eligible for special education and related services in the category of autism; and

8) failing to complete the May 10, 2017 IEP team meeting and offer Student an IEP for the school year 2017-2018?^[1]

DISTRICT’S ISSUE (CASE NO. 2017050972):

May Benicia award Student a regular high school diploma effective June 9, 2017?

SUMMARY OF DECISION

Parents did not prove that Benicia failed to assess Student in the areas of autism, speech and language, mental health, or vocational and transitional needs. Benicia proved it assessed Student in all those areas. Parents did prove that Benicia was significantly late in holding an annual IEP team meeting due to be held in October 2016, but did not prove its tardiness resulted in a denial of FAPE. Parents also did not prove that Student’s transition plan was not legally compliant; that he should have been made eligible for special education in the category of autism; that independent assessments were not considered; or that Benicia owed Student an offer for the 2017-2018 school year.

Benicia proved that Student completed all the requirements for graduation with a diploma and was lawfully graduated with a diploma on June 9, 2017.

FACTUAL FINDINGS

STUDENT’S ISSUES (CASE NO. 2017040249)

JURISDICTION

1. Student is a 21-year-old male who resides with Parents within Benicia’s boundaries and has been receiving special education and related services in the category of other health impaired. He had macrocephaly (an unusually large head) at birth, and now has an asymptomatic arachnoid cyst that affects his cognition, processing speed, fine motor skills, attention and visual perception. He is cognitively delayed. He is outgoing, cheerful, hard-working and well-liked by peers and adults.

2. Since October 2014, in the fall of his 12th grade year, Student’s IEP has placed him on track to receive a certificate of completion rather than a regular high school diploma. In June 2015, at the end of his 12th grade year, Student received a certificate of completion from Benicia. He has participated since August 2015 in the Benicia Bridge Adult Program, a program of community-based instruction operated by the Solano County Office of Education. He will be 22 years old in June 2018.

THE DELAYED ANNUAL MEETING

3. Student’s current IEP was drafted and agreed to in October 2014, and modified in May 2015 to reflect his move to the Benicia Bridge Program. The parties have not agreed to any change to his IEP since then. At an annual meeting on October 13, 2015, Benicia proposed a new IEP, including a new transition plan, but Parents declined to agree to it.

4. On January 8, 2016, Benicia discovered that Student had completed sufficient credits to graduate with a diploma. At an IEP team meeting on January 11, 2016, it purported to graduate Student over his objection, terminated his eligibility for special education, and denied his pending requests for independent educational evaluations on the ground that he was no longer eligible to receive them. The meeting was acrimonious, and the parties did not agree on anything. Benicia terminated Student’s education in the Benicia Bridge Program the next day. On April 18, 2016, Student filed a request for due process hearing in OAH Case No. 2016041016, challenging his graduation and the denial of his requests for independent evaluations. Parents obtained a stay put order on May 31, 2016, returning him to the Benicia Bridge Program. An OAH-facilitated mediation in June 2016 was unsuccessful.

5. Student’s next annual IEP team meeting was due on or before October 13, 2016, while Case No. 2016041016 was pending. Benicia sent Parents reports on Student’s progress on his goals, but declined to schedule an annual meeting, seeing no point in such a meeting because a stay put order was in effect and because, in Benicia’s view, Student had graduated. Parents filed an administrative complaint with the California Department of Education, alleging that Benicia’s refusal to hold the annual meeting was unlawful. The Department disagreed, ruling on December 29, 2016, that Benicia was in compliance with the law. It reasoned as follows:

6. After a hearing in Case No. 2016041016, this ALJ ruled on March 28, 2017, that Benicia procedurally and substantively denied Student a FAPE by removing him from the certificate of completion track, graduating him, terminating his eligibility for special education and denying his requests for independent educational assessments because it did so without adequate notice to Parents and in contravention of his IEP. That Decision ordered Benicia not to take any action based upon any decisions made at the January 11, 2016 IEP team meeting; to provide compensatory education for the period of time Student was removed from the Bridge Program; and to compensate Parents for three independent assessments they had obtained. The ALJ takes official notice of the Decision, pleadings and papers on file in Case No. 2016041016.

7. After the decision in Case No. 2016041016, Benicia began to arrange Student’s delayed annual IEP team meeting. Due to complications in scheduling involving a large number of people, including outside professionals who were to report on assessments, the IEP team did not meet until May 10, 2017. Pursuant to prior notice Benicia had provided Parents in April 2017, Benicia proposed at the meeting to graduate Student with a diploma on June 9, 2017. Student’s supporters refused to discuss graduation, presented the report of one of its independent assessors, and indicated their intent to demand additional services past Student’s 22d birthday. The meeting was again acrimonious and unproductive. The IEP team did not complete the meeting and reconvened in September 2017, but the parties still made no progress. On June 9, 2017, Benicia purported to graduate Student, sending him a diploma. Parents sent it back.

ALLEGED FAILURE TO ASSESS FOR AUTISM

8. In the summer of 2012, the North Bay Regional Center arranged an evaluation of Student by Dr. Elise Hanzel, a clinical psychologist, to rule out autism spectrum disorder. Dr. Hanzel wrote a report on August 30, 2012, describing her interviews of Mother and her administration of the Autism Diagnostic Observation Schedule (ADOS), a series of planned social interactions in which behavior of a particular type is likely to occur. Dr. Hanzel found that Student used complex speech and appropriate (though sometimes idiosyncratic) vocabulary, was consistently socially responsive, and did not exhibit any repetitive motor behaviors or actions. She found that Student received a score of seven on the ADOS, which was just at the margin of autism spectrum disorder. Dr. Hanzel diagnosed him as having Pervasive Developmental Disorder Not Otherwise Specified, the least serious autism spectrum disorder described in the fourth edition of the Diagnostic and Statistical Manual of Mental Disorders published by the American Psychiatric Association (DSM-IV).^[2] That diagnosis qualified Student for Regional Center services.

9. In October 2014, the fall of Student’s 12th grade year, he took the California High School Exit Examination, a measure which is no longer given but was designed to determine whether students had sufficient skills to graduate from high school. He passed the Math portion with a score of 357 (350 being a passing grade), and was just two points from passing the English Language Arts portion, with a score of 348.

10. In October 2014, in preparation for Student’s triennial review, Benicia school psychologist Lisa Johnson completed a triennial assessment report with the assistance of colleagues. The assessment was multidisciplinary and was intended to address all of Student’s areas of suspected disability.

11. While reviewing Student’s records for her 2014 triennial assessment, Ms. Johnson learned that, at a 2013 IEP team meeting, Mother had asserted that the North Bay Regional Center had found Student to be autistic. Ms. Johnson asked Mother by telephone and email to supply a copy of the assessment report, but Mother did not do so. Mother explained at hearing that she had executed a waiver of confidentiality at the Regional Center, and assumed Benicia would inquire at the Regional Center about the report. There was no evidence she ever informed Benicia of the execution of that waiver, or that she expected Benicia to seek the report from the Regional Center rather than directly from her. Mother also testified: “I’m really bad with paperwork . . .” Benicia did not receive the Hanzel report until the mid-February 2017 hearing in Case No. 2016041016.

12. Ms. Johnson testified at length at hearing about Student and about her 2014 assessment. She was an articulate and precise witness, and was quite familiar with Student, his history, and his records. Her answers were careful and consistent, and her testimony was not undermined by cross-examination. She was therefore a credible witness, and her testimony and opinions are given significant weight here.

13. Ms. Johnson noted in her 2014 triennial assessment report that “[i]nformation from [Student’s] home is not available at this time.” At hearing, she explained that she sent Mother a scale questionnaire as part of the Behavior Assessment System for Children, second edition (BASC-II); a similar scale questionnaire for the Asperger Syndrome Diagnostic Scale; and a form requesting updated information on Student’s developmental history. Mother did not respond to any of those requests for information.

14. Ms. Johnson nonetheless determined to assess Student for autism based on the information she could obtain. She had observed Student in class many times over the years, and was aware that neither she nor any other Benicia staff member had noticed any reason to believe that Student was on the autism spectrum. Ms. Johnson obtained answers on a BASC-II questionnaire from Lynne Hile, who had been Student’s teacher and case manager throughout high school, who had been in contact with all his teachers, and whose knowledge of Student was “vast.” She also obtained answers from Student on a BASC-II questionnaire. She then administered the Asperger Syndrome Diagnostic Scale, a screening instrument for autism spectrum disorder, on which a score below 69 indicated that autism (in the form of Asperger Syndrome) was a “very unlikely probability . . .” Student’s score was 44, and Ms. Johnson noted that Student’s scores “fall within the average range in all areas measured.” Ms. Johnson then determined that further assessment for autism was unnecessary.

15. There was no evidence at hearing that any characteristic of autism interfered with Student’s education in high school. On the contrary, the teacher reports Ms. Johnson obtained indicated that Student was generally comfortable in the educational environment, though sometimes anxious. Her own observations of Student over the years showed that he had excellent conversational abilities, was outgoing, and had friends; he was popular among his peers in his classes. Ms. Johnson noted at hearing that Student had even been described as a social leader by the teacher of one of his senior year classes.

16. Student’s IEP’s do not reveal that anyone, including Parents, raised any concerns related to autism after 2013. On the contrary, a typical description of his present levels of performance, this one from his October 13, 2015 IEP, stated:

There was no evidence that Parents disagreed with any of these descriptions until they spoke to their independent assessors and testified at hearing.

17. During his high school years Student usually had two periods of academic support in resource classes, but he studied the same general education curriculum as nondisabled students, and his overall grade point average for the four years of high school was 3.229 on a 4-point scale. That grade average was higher than educators expected in light of Student’s cognitive and processing limitations, and was the result of Student’s hard work and dedication.

18. In fall 2016, Mother privately employed Dr. Carina Grandison, a developmental neuropsychologist, to assess Student and advise her on educational placement and services.^[3] Dr. Grandison began her assessment on October 18, 2016. She interviewed Mother at length and reviewed Student’s records, including Dr. Hanzel’s 2012 finding that Student marginally met the criteria for PDD-NOS. Dr. Grandison administered tests to Student in two sessions of two-and-a-half to three hours each, and reported her observations that he was sometimes “notably slow” in responding to her questions, was sometimes overwhelmed by information, and his “contribution to reciprocal dialogue was stilted.” She administered the Wechsler Adult Intelligence Scale, fourth edition, and rated Student’s full scale IQ as 74. A previous assessment by Benicia had rated his full scale IQ as 81.

19. Dr. Grandison tested for autism by observation and by administering the Autism Diagnostic Interview – Revised, a diagnostic tool that consisted of another interview of Mother. That instrument showed that Mother thought Student had deficits in social communication and interaction, failed to respond properly in conversation or to understand social cues, did not integrate verbal and non-verbal communication, had a significant deficit in developing peer relations, was cognitively inflexible, had limited non-verbal behavior during social interaction, and had unusual sensory interests.

20. Dr. Grandison observed Student for half an hour at the Bridges Program, during which Student was conducting job searches on a computer. She then observed Student at a day care facility owned and operated by Stepmother, where he worked one full day and four partial days a week. Dr. Grandison concluded in her report that Student’s “ability to navigate in society is limited” in light of his disabilities. She agreed with Dr. Hanzel’s diagnosis of autism spectrum disorder on the grounds that Student’s social interaction and communication were impaired, he exhibited restricted patterns of behaviors and had not been able to develop friendships with peers. In a report written February 6, 2017, Dr. Grandison recommended a wide variety of vocational, academic and social skills therapies.

21. Benicia became aware of Dr. Grandison’s opinions so late in the IEP process that it had no significant time to investigate or act on them before Student’s graduation. Dr. Grandison saw Student on October 18, 25, and 31, and November 1, 2016. Her report is dated February 6, 2017. The evidence did not show when Benicia received it. Dr. Grandison presented her report and findings by telephone at the IEP team meeting on May 10, 2017, and answered questions posed by Benicia team members. As explained below, Benicia lawfully graduated Student on June 9, 2017.

22. Dr. Grandison’s conclusion that Student is autistic rested almost entirely on information given her by Mother. Significant parts of that information proved at hearing to be incorrect or excessively pessimistic. For example, Mother told Dr. Grandison that Student’s curriculum in high school was “heavily modified,” but the weight of evidence showed it was not. She told Dr. Grandison that Student could read text but not understand its meaning, although Student’s academic performance in high school and practical exercises in the Bridge Program showed otherwise. She told Dr. Grandison that Student had been moved to certificate of completion track in the 10th grade; he was actually moved in 12th grade. She told Dr. Grandison that he was not being taught job skills at the Bridge Program; the evidence at hearing showed that he was. Dr. Grandison accepted these and many other assertions by Mother at face value.

23. Dr. Grandison’s methodology showed bias. She avoided obtaining any information that might have contradicted her predetermined views, which were formed by her interviews with Mother. Dr. Grandison sent a questionnaire of her own design to Kathy Renardson, Student’s teacher and case manager at the Bridge Program, and received responses that contradicted much of Mother’s information. Ms. Renardson wrote on the form that Student had average adult skills in both practical skills and communications, and that he got along “well/average” with peers. Dr. Grandison stated at hearing that she did not follow up on Ms. Renardson’s information because, after reading the answers on the questionnaire, “[i]t made me think . . . it appears that [Student] is not well understood, or his challenges are not appreciated or seen by this educator.” She concluded that Ms. Renardson “lacked information when it came to [Student’s] challenges” and “did not show understanding of [Student’s] challenges.” Dr. Grandison therefore did not contact Ms. Renardson further, or speak to her, even when she visited Ms. Renardson’s class for a half hour observation of Student.

24. Dr. Grandison never contacted anyone else at the school district or the county who was involved in Student’s education. She sought to explain this by stating she understood he was not in any other program than the Bridge Program, and had not been for a while, and she would have therefore have needed to ask about a student who was a former student. She did not explain why this would have been difficult, unproductive or unusual. When asked at hearing why she gave a test scale questionnaire to Mother but not to any educator, she testified that she declined to do so because “the responses I had received so far told me that they were not fully appreciative of [Student’s] challenges.” Because the only response Dr. Grandison sought or received was from Ms. Renardson, her reference to having received other responses was neither comprehensible nor credible.

25. Had Dr. Grandison not avoided contact with Student’s educators, she would have learned that educators in addition to Ms. Renardson who were familiar with Student saw him in a very different light. For example, as part of his program, Student has worked as a volunteer since 2015 at the transitional kindergarten class taught by Christey Henning. Ms. Henning, a teacher for 28 years, knew Student because she was his case manager in seventh grade and provided most of his academic classes.^[4] She greatly values him as a volunteer in her class, and has been so pleased with his performance that she wishes she could hire him as a district employee.

26. At hearing Ms. Henning described Student as “exceptional” and praised his performance in her class at length. He is respectful and successful with the students in her class. Under Ms. Henning’s supervision, he sets up and runs “stations,” which are small groups of students organized around a particular activity, sometimes with a computer. At the stations he furnishes direct instruction to these groups, and frequently shows initiative in doing so. He takes a leadership role in the class. Ms. Henning’s testimony was consistent with her reports over time to others, was undamaged on cross-examination, and was credible.

27. Ms. Henning commented that, as a volunteer, Student was at least as helpful as the other adult volunteers in the class, and sometimes more so. Every day Ms. Henning assigns him something that must be done by an adult, and he does it well. While maintaining the level of supervision she exercises over all adult volunteers, Ms. Henning delegates significant responsibilities to him. He completes assessments. He reads to students with expression, and the children enjoy it. He answers the telephone when she is busy. He roams around the class helping children solve problems. He is especially helpful with computers, which have just been introduced into her classroom. He is a positive male role model and a kind and respectful disciplinarian. She relies on him a great deal and he has not let her down.

28. For the reasons above, Dr. Grandison’s conclusion that Student is autistic was unpersuasive and unreliable. It was the result of bias and a one-sided methodology predetermined to produce a particular result. It is not given significant weight here.

29. During the time period at issue here, Benicia had no reason, based upon the information the IEP team had available to it, to assess Student for autism again after Ms. Johnson’s assessment in October 2014.

ALLEGED FAILURE TO ASSESS SPEECH AND LANGUAGE NEEDS

30. Student received speech and language services up to the 7th grade, when they were discontinued because they were no longer needed. Student was then in a special day class, which Ms. Henning taught. She recalled at hearing that his language services were terminated in middle school. His speech teacher, Joan Zimmerman, did not believe that Student was still benefiting from her services. He needed more services from her when he was younger, but by 7th grade had “kind of graduated” and no longer could benefit from them. When her recommendation was discussed at an IEP team meeting, Parents requested and received another speech and language assessment. That assessment concluded that Student was no longer eligible for speech and language services. Parents then agreed to the cessation of services.

31. When Dr. Hanzel assessed Student for the Regional Center in August 2012, she noted that he “used complex speech and appropriate vocabulary . . .” and did not include any speech or language support in her 12 recommendations.

32. Ms. Johnson’s 2014 multidisciplinary assessment addressed the area of speech and language impairment. Between Student’s sixth and 12th grades, Ms. Johnson was frequently in his classrooms, observed him, and interacted with him informally. She was aware that he had been receiving speech and language services in earlier grades, but in her 2014 assessment she did not observe anything that would have suggested he needed referral for a speech and language assessment. She found him “very conversational”; he was articulate and did not need directions repeated. She sent questionnaires to his teachers, who reported that he was outgoing, cheerful, well-liked and eager to learn, but did not report any speech and language concerns. In her report she noted the results of several tests for verbal reasoning and verbal expression. She reported that Student “demonstrates a relative strength in his word knowledge and understanding of vocabulary” and expressed his responses “in an articulate and concise manner . . .”

33. Whether Ms. Johnson’s October 2014 multidisciplinary assessment constituted a speech and language assessment was litigated and finally decided in Case No. 2016041016. There Parents claimed entitlement to an independent educational evaluation in the area of speech and language, and successfully argued that Ms. Johnson’s 2014 assessment was the speech and language assessment with which they disagreed. The Decision found that the October 2014 assessment sufficiently assessed speech and language to support a disagreement, and therefore to support a claim for an independent speech and language assessment. The Decision ordered Benicia to compensate Mother for a speech and language assessment she had obtained. The previous ruling that Ms. Johnson assessed in the area of speech and language is binding on the parties.

34. Student testified at hearing for well over an hour. He was a careful and articulate speaker whose speech and vocabulary were of a considerably higher quality than reports of his cognitive limitations would suggest. He spoke clearly and fluently, understood the questions asked of him (except when the questions were unclear), and showed no sign of expressive or receptive speech difficulties.^[5]

35. Parents did not prove that Ms. Johnson, or anyone else at Benicia, had any reason to assess Student in the area of speech and language beyond Ms. Johnson’s assessment in 2014.

ALLEGED FAILURE TO ASSESS MENTAL HEALTH

36. In her 2014 triennial assessment, Ms. Johnson also addressed Student’s social and emotional status. During her assessment, she found Student talkative and friendly. In responding to a BASC-II questionnaire, Student’s then-case manager Ms. Hile reported no clinically significant behaviors in the areas of depression, anxiety, hyperactivity, aggression or withdrawal. She did note behaviors that placed Student in the at-risk range for anxiety. Student’s own BASC-II responses also lacked anything of clinical significance, although his answers showed him at risk in the areas of social stress, anxiety, hyperactivity, and a sense of inadequacy. His responses also indicated that he liked who he was; that school often felt good to him; and that people thought he was fun to be with.

37. In 2014 Ms. Johnson compared Student’s scores with his earlier scores on 2011 triennial assessments, and concluded that his “social-emotional status is significantly improved.” She also noted “teacher reports that [Student] generally presents as happy, social, and interested in doing his best at school.” His teachers reported, and her own observations confirmed, that he was generally positive and comfortable in the educational environment.

38. In his later high school years, Student displayed some anxiety connected with the stress of schooling. Ms. Johnson described his level of anxiety as normal and did not think it required further investigation. She added at hearing that it was important not to “pathologize normal stress.” This view was confirmed by Justin Keppel, Student’s counselor throughout high school. Mr. Keppel was a careful witness and was familiar with Student and his history. Cross-examination revealed no weakness in his testimony. He was a credible witness, and his testimony is given weight here. Mr. Keppel established that Student displayed anxiety when things at school were difficult, and frequently sought his advice, but Student’s level of stress was not much different from that of other students when assignments piled up.

39. Mother testified that Student had high levels of anxiety, based upon incidents in the home which she used to illustrate that view at hearing. However, there was no evidence that Student’s anxiety in any educational setting interfered with his education or approached the level that would suggest that he should be assessed for mental health needs. There was also no evidence that his high level of anxiety at home was disclosed to Benicia in time for it to do any educational planning in the time period examined here.

ALLEGED INADEQUATE ASSESSMENT OF TRANSITION / VOCATIONAL NEEDS LEGAL COMPLIANCE OF TRANSITION PLAN

Benicia’s Transition Assessment and Transition Plan

40. In February 2015, during Student’s senior year, either Sally Sweatfield, the coordinator of Solano County’s Special Education Local Plan Area, or J.B. Ramirez, program manager of the Solano County Office of Education’s Adult Transition Program and Supervisor of the Benicia Bridge program, interviewed Student and recorded his answers to a series of questions about his future plans. Among his answers was the statement that he would like to teach or work with young people with disabilities.

41. On May 27, 2015, Student’s IEP team amended his IEP for the upcoming school year in the Bridge Program. Ms. Sweatfield, Mr. Ramirez, a Workability representative,^[6] and Ms. Renardson attended the meeting. The IEP team discussed that Student’s Workability eligibility would lapse when he received his certificate of completion in June 2015. The team proposed a new transition plan based on interviews conducted during his 2014 triennial assessment, and other interviews and interest inventories. The team developed four new transition goals, and agreed that, in the 2015-2016 school year, Student would participate in the Bridge Program three days a week and take a college class two days a week. Student would also work as a volunteer in the District’s transitional kindergarten program at Semple Elementary School one full day and four partial days a week. Both Student and Mother agreed to the amendments, including the amendments to the goals in the October 2014 transition plan.

42. Student has participated in the Bridge Program’s training in living skills since August 2015. He receives instruction in a wide variety of practical skills including recognizing safety signs, money skills, street crossing, social skills, greeting people, self-advocacy and asking for help, using the restroom, cooking, shopping, doing dishes and laundry, and keeping a calendar. He has also learned job interview skills, how to look up job requirements, and how to identify community resources.

October 2015 Transition Plan

43. Early in the Bridge Program and under the direction of a County vocational specialist, Student obtained an assessment of his job-related skills on the online site California Career Zone, which identifies the career clusters in which a student scores highest.

44. In fall 2015, in preparation for Student’s transition planning, Ms. Renardson conducted a transitional assessment of him. She administered portions of the Brigance Transition Skills Inventory; a survey entitled “Getting From Where I Am to Where I Want to Be”; a questionnaire for Student about his future plans and goals; a Postsecondary Outcome Assessment measuring Parents’ preferences and interests; a Student Interest Survey; a lengthy questionnaire for Student entitled Careers for Me II; and a College Survival and Success Scale. Ms. Renardson did not report on her assessment in a separate document, but incorporated her report and findings in the body of the new transition plan. Her assessment results included descriptions of Student’s interest in careers in human resources; his ability to read an employee manual; and his facility in maintaining a calendar with appointments, work schedule and recreational activities (with which he needed some assistance at the time).

45. In her report, Ms. Renardson also described Student’s success in his workplaces. She noted that he got along very well with others and was always offering to help other students. She described his duties in the transitional kindergarten class, and his life skills (cooking, cleaning, grocery shopping and the like) as displayed in the home. She noted he was studying for a driver’s permit and described his ability to read and understand a bus schedule. Student’s answers to surveys of his career plans continued to emphasize his desire to work in day care or with disabled youth.

46. By the time of Student’s October 13, 2015 annual IEP team meeting, he had been involved successfully in his post-secondary program for about two months. It was a hybrid program combining the Benicia Bridge Program and a college course with part-time volunteer work five days a week in the transitional kindergarten class at Semple Elementary. He was also working five days a week at the day care facility owned and operated by Stepmother, which was at the time located in the family home but was later moved to a separate facility in Benicia. One morning a week he had a Workability job at a local pizza restaurant, where he folded boxes, cleaned glass and vacuumed.

47. Benicia held Student’s annual IEP team meeting on October 13, 2015. Benicia proposed a revised transition plan based on Ms. Renardson’s assessment results as part of a new annual IEP for Student. The new IEP also proposed that he receive 180 minutes a month of career awareness training in a classroom at Benicia High. Neither Mother nor Student agreed to the proposed IEP.^[7]

Dr. Greene’s Independent Transition Assessment

48. In winter or spring 2017, Parents privately retained Dr. Gary Greene, a transition specialist, to assess Student for his transitional needs.^[8] Dr. Greene reviewed Student’s records and previous assessments, and administered a series of test instruments that largely consisted of interviews. First, Dr. Greene administered the Making Action Plans (MAPS) interview to Student, primarily about his life plans. He allowed Mother to participate in this interview of Student, and many of the answers in the interview actually came from her. Second, Dr. Greene administered the Parent Transition Survey/Parent Transition Interview to Mother, who responded to questions in eight different realms and generally rated Student’s needs as pressing and his skills as low. Third, he administered another test instrument to Mother, the Life Skills Inventory Independent Living Skills Assessment Tool, obtaining ratings from Mother about Student’s skills in 14 areas of life skills that collectively showed “basic to intermediate competency.”

49. Dr. Greene interviewed Ms. Renardson by telephone, and received information and opinions that conflicted sharply with Mother’s. Ms. Renardson told him that Student had average to good social skills, good greeting behavior, very good manners, was very personable, very polite and helpful to others, behaved like a gentleman, displayed good judgment and had a good sense of personal safety. She stated he had basic writing skills but had passed the California High School Exit Examination in English and Math, and “does pretty well academically.” Addressing Student’s independent living skills, she told Dr. Greene that he used the restroom independently, possessed good money management skills, knows where things are located in his home, school, and community; has good hygiene; is capable of shopping, making purchases, and determining the correct amount of change. She opined that Student “is very capable and ready to transition to adult services (i.e., Regional Center).” She closed the interview by stating that Student was a “very capable young man who can be successful in the future.”

50. Ms. Renardson also completed the Study Skills Inventory for Dr. Greene, a rating of Student’s facility with 11 different study skills such as reading, note-taking, report writing, reference materials, time management and self-management. She rated Student as having mastered or partially mastered all 11 skills. In addition, Ms. Renardson completed the Work Personality Profile, a rating of Student’s work performance in 50 different areas. She gave Student the highest rating in 42 of the areas. Dr. Greene concluded that “these very strong ratings indicate [Student] possesses excellent behaviors and capability for success in future paid employment.”

51. Ms. Renardson also completed the School and Community Social Skills Rating Checklist, which consisted of ratings in seven areas of skills. From her ratings Dr. Greene concluded: “Results demonstrate that social skills are a definite strength for [Student] and match the perceptions of [Student] obtained during this assessment and from reports from his mother.”

52. Dr. Greene did not personally observe Student in any setting. He explained at hearing that it is his practice not to leave Southern California for observations.

53. Dr. Greene summarized his findings in a written report dated “May 2017.” He made no attempt to reconcile the conflicting information he had obtained from Mother and Student’s teacher, or to evaluate the accuracy of information from either of them. Instead he made several positive recommendations for Student’s future concerning such matters as community organizations, college programs, the Department of Rehabilitation and the Regional Center. He concluded that there were a number of transition skills that Student “lacked,” but did not identify them. He opined that another year in an adult transition class “would likely benefit him.” Dr. Greene then listed several areas in which he believed Student “needs further development . . .” Student’s IEP team received Dr. Greene’s report at or shortly before its meeting on May 10, 2017.

54. Dr. Greene’s oral presentation of his report, and his answers to questions from District staff at an IEP team meeting, were delayed for months by the actions of Parent’s advocate Linda Geller. Benicia had arranged (at Mother’s request) for Dr. Greene to deliver his findings to the IEP team by telephone at the May 10, 2017 annual meeting. However, Ms. Geller successfully obstructed Dr. Greene’s sharing of his opinions at the meeting. She objected to the order of items on the meeting agenda generally, pointed out that Dr. Greene’s report was not listed on the notice of meeting, and opposed its discussion by the team. Ms. Geller did agree to allow Dr. Grandison to present her report by telephone, although that report was not listed on the notice of meeting either. Dr. Greene did not present his report to the IEP team until the second session of the annual meeting in September 2017, well after Student had lawfully graduated and after the period of time at issue here.

55. In his report, Dr. Greene gave an opinion of the transition plan included in Student’s October 13, 2015 proposed IEP. Dr. Greene reported that he set out to determine whether the plan complied with the Individuals With Disabilities Education Act by applying eight criteria from the National Transition Technical Assistance Center, “all of which must be met in order for the overall ITP document to be considered in compliance” with the IDEA. He concluded that the plan met all eight criteria “and was in compliance with IDEA requirements.” He added: “Particularly noteworthy on the ITP was the breadth of information contained in the summary of age-appropriate transition assessment section.” He stated at hearing that in his opinion the plan met the letter of the law but lacked quality, which he would have supplied by including additional services.

Dr. Greene’s Criticisms at Hearing of the 2015 Transition Plan

56. Dr. Greene opined at hearing that he believed Benicia’s October 2015 transition plan complied with the IDEA, but he would have preferred substantial improvements in it. He criticized the plan for failing to make provisions for training in mobility and self-advocacy. Parents go further now, arguing that the absence of those two provisions in the transition plan renders it unlawful.

STUDENT’S MOBILITY NEEDS

Public Transportation

57. Benicia is served by a public bus system. Almost all the information available to Benicia during the time period addressed here indicated that Student was fully capable of taking the bus and did not need additional training to do so.

58. A County staff member interviewed Student in February 2015 in anticipation of his move to the Bridge Program in the fall. In answer to a question about whether he had taken the public bus, Student responded that he had independently taken the city bus since sixth grade.

59. At the May 27, 2015 amendment IEP team meeting, where Student’s post-secondary program was decided, Student and Mother agreed to and signed an amendment to the triennial IEP stating, among other things, that Student “can take public transportation to school” and “can ride the bus home.” There was no evidence that either Student or Mother disagreed with those statements at the time.

60. Dr. Carolyn Patton, Benicia’s Director of Student Services, was present at the May 2015 meeting and testified about it at hearing.^[9] Dr. Patton’s testimony at hearing was given in three segments which together consumed several hours. She was extremely familiar with Student and his records. She could usually recite his IEP history accurately without looking at documents. She spoke carefully and did not exaggerate or advocate. Her testimony was not weakened during extensive cross-examination. She was a credible witness, and her testimony is given weight here.

61. Dr. Patton established that all participants in the May 2015 IEP team meeting, including both Parents and Student, agreed that Student could take public transportation, and ruled out mobility training as a need. She also noted that Benicia’s bus service had a limited route and schedule and was not very useful, and that Student preferred to walk most places.

62. Student’s hybrid schedule at the Bridge Program was complex and required him to move around Benicia frequently. He attended class at the Bridge Program three days a week, took a college class two days a week, worked in the transitional kindergarten five days a week and worked once a week at the pizza restaurant. Witnesses uniformly testified that Student was timely and punctual in arriving at those places.

63. Sheila Vogel, a vocational and employment training specialist employed by the County, was assigned to the Bridge Program in fall 2016 and had Student on her caseload. She did not have access to Student’s IEP at the time, but believed he had a goal relating to public transportation. In a discussion of his goals, he told her that he did not need to work on transportation because he could get around. Ms. Renardson also told Ms. Vogel that bus travel was no longer a goal for Student, though earlier it was. Ms. Vogel was aware that Student had been displaying the ability to get to work and school on time, and was not aware of any reports that he was ever late for any of these activities. Ms. Vogel decided not to pursue transportation issues and focused on other matters.

64. Parents now claim that Student’s ability to take the bus was more limited than Benicia believed. They told Dr. Greene in May 2017 that Student can read a bus schedule, but he has never had actual experience traveling from one place to another on the bus, either semi-independently or fully independently. They confirmed this view at hearing. Mother testified that Student either walks around Benicia or she or Stepmother drives him. He started riding the bus to school with his brother, and only with substantial practice did he ride it to school himself. He is not able to use a bus schedule to go somewhere. He cannot determine how to get to surrounding cities like Pleasant Hill, Vallejo or Danville on a bus. He needs to practice using public transportation. Stepmother testified that Student has never independently taken the bus. However, there was no evidence that Parents ever communicated these claims to Benicia during the time period at issue here. Nor were they communicated in Dr. Greene’s report, which merely says that, in an interview, Mother rated Student’s ability to take transportation as “basic,” that Student needed “further development” in transportation skills, and that he should seek mobility training from the regional center. Mother’s views of Student’s transportation problems were first discussed in any depth at an IEP team meeting on September 5, 2017, after the time period addressed here.

65. The evidence showed that, between April 4, 2015, and July 20, 2017, Benicia had no reason to believe that Student’s public transportation skills were so deficient that he needed transition services to improve them. On the contrary, Benicia had substantial reason to believe that Student’s public transportation skills were adequate.

Driver’s License

66. Three times in the recent past, Student has taken a test administered by the Department of Motor Vehicles as part of an effort to obtain a California driver’s license. Each time he did not pass, although he studied hard for the test each time. Parents fault Benicia for not providing transition services to help Student obtain a driver’s license.

67. The evidence did not show when Student failed the tests, although witnesses spoke of the failures as recent. Benicia’s October 2015 annual IEP offer mentioned only that Student “is studying for his driving permit” and “working on getting his driver’s license.” Dr. Greene’s May 2017 report mentioned nothing about Student’s failing the tests; it stated only that Student was “interested” in getting a driver’s permit and “would like” to get one. Dr. Greene, Ms. Vogel, and Dr. Patton all heard of the three failures for the first time at the September 2017 IEP team meeting, well past the time period at issue here.

STUDENT’S SELF-ADVOCACY NEEDS

68. Mother testified that Student is not good at advocating for himself. According to the meeting notes of the May 2015 IEP team meeting, she commented that Student “is reluctant to ask questions especially given unfamiliar adults.” Later that year, at the October 2015 annual meeting, Student stated (and said again at hearing) that he would like to be able to speak up more when he was having difficulty with something. Dr. Grandison repeated Mother’s information that Student needs self-advocacy training, and Dr. Greene, based on information from Mother and Dr. Grandison, also recommended such training. Dr. Greene testified at hearing that, in his opinion, the October 2015 transition plan should have included training in self-advocacy.

69. However, there was no evidence that Student’s education, employment, or community involvement had ever suffered from a lack of the ability to advocate for himself. Benicia introduced substantial evidence showing that Student’s self-advocacy skills were reasonably good, considering his cognitive and processing limitations. After obtaining information from teachers, Ms. Johnson wrote in her October 2014 assessment: “[S]tudent is fantastic at self advocating when he does not understand something in class. He asks clarifying questions and seeks out teacher assistance when needed. This is a great strength – encourage continuation of this!”

70. The evidence showed that, during the time period relevant here, Student had substantial ability to advocate for himself and others. For example, shortly after the 2014 annual IEP, Student was moved from diploma track to certificate of completion track and given different classes. He did not like his classes, and was assertive in complaining about them. He was “very persistent,” according to Ms. Johnson, in coming to her several times asking when he could be returned to his earlier classes. He approached his counselor Justin Keppel personally and by email with the same request.

71. By October 2015, District staff perceived that Student was able to communicate with strangers. In the section of Student’s October 13, 2015 IEP for present levels of performance, Benicia reported that “Given an opportunity to communicate with an unknown person in the community, [Student] willingly communicates to seek or give information, on 5 of 5 opportunities” and that he “will continue to practice this skill through classroom/community activities.” Self-advocacy was part of the skills curriculum taught at the Bridge Program and therefore part of Student’s training since August 2015.

72. Student’s skills at advocating for himself were frequently applied for the benefit of others. In Ms. Henning’s transitional kindergarten class, Student routinely advocated for the disabled students.

73. Student even showed some sophistication in his advocacy. In January 2017, for example, he noticed that another student was mocking a disabled student in a wheelchair by taking pictures and calling the student obscene names. After obtaining advice from Parents about approaching the matter, and perhaps with parental help, he wrote to an administrator:

I know that I’m not in school anymore, but I need your help on this. Recently [other student] has been sending snapchat pictures to me . . . of someone from behind who’s in a wheel chair and calling that student some horrible names [examples]. I also understand that his goal is to try and be funny, this isn’t the way to be funny. Will you help me to resolve this issue and also I would like to remain anonymous. Thank you so much for your help.

74. Student’s teachers believed that Student knew how to ask for help when he needed it, and some of Student’s witnesses agreed. In 2014, he worked in a local bakery and restaurant run by Christine Meade, who testified that early in his work he sometimes assumed he knew how to do his job, but soon learned that he might get yelled at in the kitchen if he made a mistake, so he learned to ask questions about his duties. Even Stepmother, who generally shared Mother’s view that Student needs help in many things, testified that he is “good about asking for help if he doesn’t understand something.”

75. Student’s ability to advocate for himself was confirmed when he testified at hearing. Student was quiet in his appearance and manner, was grave and careful in answering questions, and did not always respond quickly. These characteristics are consistent with his deficits in cognition and processing, and may always impose some limits on his self-advocacy. But for more than an hour, Student answered sometimes difficult questions from the opposing attorneys, and repeatedly asked them to clarify ambiguous or poorly phrased questions. He is in his fourth year at the Bridge Program and is increasingly impatient there, and was able to articulate a number of grievances with the way the class was operated. He was forthright in his opinions, positive or negative. He did not hesitate to disagree with a questioner.

76. Student’s capacity for self-advocacy, while restricted by his deficits, was substantial. The evidence did not show that his self-advocacy abilities were such that they required transition services, or that transition services might improve them.

STUDENT’S NEED FOR SPEECH AND LANGUAGE SUPPORT

77. Parent’s argument that Student should have received speech and language support between April 4, 2015, and July 20, 2017, depended almost entirely on an assessment by speech and language pathologist Deborah Burns-McCloskey.^[10] She assessed Student on January 5, 2017, and completed a report that same day. Benicia made diligent efforts to obtain Ms. Burns-McCloskey’s attendance at the May 10, 2017, IEP team meeting, shortly before Student was scheduled by Benicia to graduate, but Ms. Burns-McCloskey was unavailable, and did not present her report at an IEP team meeting in the time period relevant here.

78. Ms. Burns-McCloskey’s report was available to Benicia at the May 10, 2017 IEP team meeting. In it she reported that she had administered several standardized speech and language tests to Student, and his scores were scattered; some of them were very low. Based on those scores, she recommended that he receive two hours a week of speech and language support. Ms. Burns-McCloskey expanded on those views at hearing, but her hearing testimony was not available to the IEP team at any relevant time. She was unable, on cross-examination, to identify any of the low scores that were not consistent with Student’s cognitive and processing deficits.

STUDENT’S NEED FOR TRAINING IN PERSONAL HYGIENE

79. Parents testified that Student does not always pay sufficient attention to his personal hygiene. He does not always brush his teeth or wear clean clothes, and they frequently have to remind him to do these things. But the evidence showed that in the outside world, Student’s hygiene and personal appearance were appropriate. When Dr. Hanzel assessed Student for the regional center in 2012, she noted that he was “appropriately dressed and groomed . . .” Ms. Vogel, the County transition specialist, worked with Student every week in the 2016-2017 school year, never noticed any flaw in his hygiene or clothes and did not hear of any such complaints from employers or others. Ms. Henning, in her third year of working with Student in the transitional kindergarten class, found him “always very clean” and always looking “very put together” when he arrived in class. Ms. Meade, who employed him in her bakery and restaurant, found that he dressed well and “look[ed] the part.” There was no evidence to the contrary. Benicia had no reason to believe Student needed further transitional support in personal hygiene.^[11]

DISTRICT’S ISSUE (CASE NO. 2017050972)

PROCEDURES FOLLOWED FOR GRADUATION

80. At or near the time of the January 11, 2016 IEP team meeting, Benicia provided Parents a “Summary of the Student’s Academic Achievement and Functional Performance.” The Summary reviewed Student’s strengths, interests, and learning styles; his written language, math and communication skills; his social, emotional and behavioral status; his skills at self-help and self-advocacy; his vocational activities up to that date; and his aspirations for future employment. It listed other agencies that might assist him in the future, recommended a variety of accommodations and supports that might be helpful in his later learning or employment, and provided the name and contact information of a Benicia staff member if he had further questions.

81. On April 4, 2017, Benicia sent Parents a notice of the IEP team meeting on May 10, 2017, which listed Student’s graduation with a diploma as an agenda item. On April 19, 2017, Benicia sent Parents a prior written notice that it intended to graduate Student with a diploma on June 9, 2017. At the IEP team meeting on May 10, 2017, Benicia team members attempted to discuss Student’s upcoming graduation with Parents, but Parents stated they opposed his graduation and otherwise declined to discuss it. Student’s eligibility to graduate with a diploma was confirmed by his school principal, Benicia’s Superintendent of Schools, and the President of Benicia’s Governing Board. On or about June 9, 2017, Benicia sent Student’s diploma to Parents. They sent it back.

CREDITS FOR GRADUATION

82. Student entered Benicia High School in fall 2011, studied there for eight semesters, and finished in spring 2015. He needed 220 credits for graduation, and obtained 240 credits. He completed the required 40 credits of English and 10 more than the required 20 credits in math.

83. In order to graduate with a diploma, State law required that a student take three courses in English, which amount to 30 units, and which Student completed by the end of his junior year. Benicia’s school board required taking an additional 10 units of English for graduation.

84. In his freshman and sophomore years, Student took and passed English 9 and 10, earning A’s and B’s. In his junior year he took English 11, receiving an “A-” in the first semester and a “B” in the second. In the beginning of his senior year, up until October 2014, Student took English 12 in a resource class. But the entry on his transcript for English 12 that year listed no grades, and listed credits accumulated as “0.” Instead, his senior year transcript again listed English 11, and stated that he received an “A-” in the first semester and a “B+” in the second.

85. This anomaly was explained at hearing by Mr. Keppel, who was Student’s academic counselor during all four of his years at Benicia High and monitored his transcript as it was being developed. When asked why Student’s transcript showed that he took English 11 again in his senior year, instead of completing English 12, Mr. Keppel explained that the additional district requirement is that a student take 40 units of English, but not necessarily in four different courses. He added that Student was briefly in English 12 at the beginning of his senior year, but then was switched into English 11 when his IEP was changed in October 2014 as a result of his change to certificate of completion track. After that, he was registered for English 11 again in resource class, but he was working on different material in the second year of that class than in the first. Mr. Keppel testified that he believed Student had obtained more than sufficient credits to graduate with a diploma.

86. Dr. Patton explained that Benicia’s resource classes differ from its other general education classes primarily in their smaller class sizes, and because the teachers know better how to present material to disabled students and to measure accomplishment by methods in addition to tests. But the resource classes use the regular Common Core general education curriculum, and their teachers are given the same training as general education teachers. These resource classes are general education and diploma track classes.

87. Dr. Patton explained further that the role of the governing board is to issue diplomas and oversee which classes meet specific graduation requirements. Benicia’s local requirement for 10 additional units of English, beyond the requirements of state law, means that a student must take eight semesters of English classes approved by the board. It does not mean that a student must take four separate English courses. Dr. Patton established that at times students get credit for repeating the same class, if the content of a class is substantially different, or if it is a continuation of a previous class. For example, some students take four years of band, and get credit for all four years. All students are required to take physical education twice; they get credit for both years. And they take resource classes more than once and get credit for them more than once.

88. Dr. Patton explained that Student was moved from English 12 to English 11 in fall 2014 as part of the adjustment of his curriculum when he moved from diploma track to certificate of completion track. Each resource class met only once a day, and Student had to be moved out of his previous English 12 resource class because its period conflicted with one of his new classes. So he was moved into a resource class that was labeled English 11, but which was actually a combined English 11/English 12 class, in which there were other students as well as Student studying at a 12th grade level. The resource teacher taught at each student’s instructional level, so Student was actually receiving English 12 instruction in the new resource class. When asked why his transcript did not reflect that, she described it as a matter of administrative convenience. In order to make it appear on his transcript that he continued to take English 12, the district would have had to create a new class for that period, with new attendance rosters and grading rosters for the teacher; it did not take the trouble to do that. But Student was in fact receiving English 12 instruction in the class.

SKILL LEVELS FOR GRADUATION

89. Dr. Grandison administered some standardized tests to Student, and reported that the results showed his skills were below a high school level. She based this opinion on a single test she administered, the Kaufman Test of Educational Achievement – Third Edition, on which Student’s scores on various subtests ranged from a grade equivalent of 3.3 for written expression to 11.0 for letter-word recognition, and showed math scores at the sixth and eighth grade level. From these results she opined in her report that Student’s ability “to write coherently” was at a 3d grade level; his spelling at 8th grade level; and his math skills at middle school level. She did not directly express an opinion on whether Student had the skills to graduate.

LEGAL CONCLUSIONS

INTRODUCTION: LEGAL FRAMEWORK UNDER THE IDEA^[12]

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 et seq. (2006);^[13] Ed. SCode, § 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 further education, 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 appropriate 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 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 specifies 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)(1)(A); Ed. Code, §§ 56032, 56345, subd. (a).)

3. In Board of Education of the Hendrick Hudson Central School Dist. v. Rowley (1982) 458 U.S. 176, 201 [102 S.Ct. 3034, 73 L.Ed.2d 690] (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 Ninth Circuit Court of Appeals has held that, despite legislative changes to special education laws since Rowley, Congress has not changed the definition of a FAPE articulated by the Supreme Court in that case. (J.L. v. Mercer Island School Dist. (9th Cir. 2010) 592 F.3d 938, 950-951.) Although sometimes described in Ninth Circuit cases as “educational benefit,” “some educational benefit” or “meaningful educational benefit,” all of these phrases mean the Rowley standard, which should be applied to determine whether an individual child was provided a FAPE. (Id. at p. 951, fn. 10.)

4. The Supreme Court recently clarified the Rowley standard in Endrew F. v. Douglas County Sch. Dist. RE-1 (2017) 580 U.S. __, 137 S.Ct. 988 [197 L.Ed.2d 335]. It explained that Rowley held that when a child is fully integrated into a regular classroom, a FAPE typically means providing a level of instruction reasonably calculated to permit a child to achieve passing marks and advance from grade to grade. (Id., 137 S.Ct. at pp. 995-996, citing Rowley, 458 U.S. at p. 204.) As applied to a student like Endrew F., who was not fully integrated into a regular classroom, the student’s IEP must be reasonably calculated to enable the student to make progress appropriate in light of his circumstances. (Endrew F., supra, 137 S.Ct. at p. 1001.) The high court noted that “[a]ny review of an IEP must appreciate that the question is whether the IEP is reasonable, not whether the court regards it as ideal.” (Id. at p. 999 [italics in original].)

5. 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), (f); 34 C.F.R. § 300.511; Ed. Code, §§ 56501, 56502, 56505; Cal. Code Regs., tit. 5, § 3082.) 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, 56-62 [126 S.Ct. 528, 163 L.Ed.2d 387].) By this standard, Student had the burden of proof on his issues here, and Benicia had the burden of proof on its issue.

6. A procedural error does not automatically require a finding that a FAPE was denied. 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 regarding the provision of a FAPE to the parent’s child; or (3) caused a deprivation of educational benefits. (20 U.S.C. § 1415(f)(3)(E)(ii); see Ed. Code, § 56505, subd. (f)(2); W.G. v. Board of Trustees of Target Range Sch. Dist. No. 23 (9th Cir. 1992) 960 F.2d 1479, 1484.)

STUDENT’S ISSUES (CASE NO. 2017040249): ISSUE 1.A.: DID BENICIA DENY STUDENT A FAPE BETWEEN APRIL 4, 2015, AND JULY 20, 2017, BY FAILING TO HOLD STUDENT’S ANNUAL INDIVIDUALIZED EDUCATION PROGRAM TEAM MEETING?

7. It is undisputed that Benicia did not hold an annual IEP team meeting for Student between October 14, 2015 and May 10, 2017.^[14] Benicia did not wholly fail to hold the meeting, but it did delay the meeting for almost seven months.

8. An IEP team must “review[] the child’s IEP periodically, but not less frequently than annually,” to determine whether his goals are met and to make appropriate revisions to his IEP. (20 U.S.C. §1414(d)(4)(A); 34 C.F.R. § 300.324(b)(1)(i), (ii); Ed. Code, § 56380, subd. (a).) The statutes and regulation make no exception for students whose programs are subject to stay put orders.

9. The finding by the California Department of Education that Benicia was not obliged to hold an annual meeting in October 2016 because a stay put order was in effect is entitled to some weight, but it is not binding on OAH. (See People v. Sims (1982) 32 Cal.3d 468, 479; Student v. Dry Creek Elementary Sch. Dist. (OAH, Feb. 18, 2010, No. 2009071109), p. 12, fn. 4.) The ALJ respectfully disagrees with that finding. The stay put statute itself contemplates a change in the student’s placement during litigation if parents and the district can agree on it: “Unless the ... local educational agency and the parents otherwise agree, the child shall remain in the then-current educational placement of the child ... until all [ ] proceedings [under the IDEA] have been completed . . .” (20 U.S.C. § 1415(j).) A stay put order does not bar modifications to a student’s program “so long as such revisions do not involve changes to the academic setting in which instruction is provided or constitute significant changes in the student's educational program.” (Anchorage Sch. Dist. v. M.P. (9th Cir. 2012) 689 F.3d 1047, 1057.) “The stay-put provision was never intended to suspend or otherwise frustrate the ongoing cooperation of parents and the school district to reach an amenable resolution of a disagreement over educational services.” (C.H. v. Cape Henlopen Sch. Dist. (3d Cir. 2010) 606 F.3d 59, 72.) Benicia should have held an annual IEP team meeting in October 2016 because it was at least theoretically possible that the parties could have reached some sort of agreement modifying Student’s program even while the May 31, 2016 stay put order was in effect, and its failure to do so was a procedural violation of the IDEA.

10. However, that procedural violation did not deny Student a FAPE because there was no showing by Parents of any detriment to Student’s education or to their participatory rights under the standards set forth above. (20 U.S.C. § 1415(f)(3)(E)(ii); see Ed. Code, § 56505, subd. (f)(2).) The statutory purposes of the annual meeting requirement are to examine Student’s progress on his goals and make any necessary adjustments to his IEP. (20 U.S.C. §1414(d)(4)(A); 34 C.F.R. § 300.324(b)(1)(i), (ii); Ed. Code, § 56380, subd. (a).) During the seven-month delay, Student remained in the Bridge Program, a placement Parents preferred and had struggled to obtain. At or near the time the annual meeting should have been held, Benicia sent reports to Parents on Student’s progress on his goals.

11. Notably, Parents do not argue that in October 2016 they were unaware of Student’s progress, or unhappy with his goals, or that his transition plan needed to be updated, or that there were any adjustments to his IEP that they wished to advocate. In their closing brief, Parents make no serious effort to establish that any detriment resulted from the delay in holding Student’s annual meeting. In a single phrase, they claim only that they were denied their participatory rights and Student’s education was damaged “by denying him the timely review of his goals, progress, needs, and services.” That can be said of every instance in which an annual meeting is delayed; the mere recital of the meeting’s purposes cannot make an adequate showing of prejudice unless the violation is essentially a per se denial of FAPE.

12. The law is clear, however, that missing or delaying an IEP team meeting required by statute is not a per se denial of FAPE; specific prejudice must be shown. In Department of Educ., State of Haw. v. M.F. (D. Hawai’i 2011) 840 F.Supp.2d 1214, 1219-1223, a hearing officer found that the agency failed to hold an annual IEP team meeting for 18 months while the student was parentally placed in a private school. (Id. at pp. 1219-1221.) Without inquiring into whether the failure prejudiced the student or her parents, the hearing officer ruled that the failure denied the student a FAPE. (Id. at p. 1222.) But the District Court held it was reversible error for the hearing officer simply to assume that the failure to review the IEP annually was prejudicial, and remanded for further proceedings on that question because the hearing officer had “omitted the relevant ‘harmless error’ inquiry.” (Id. at pp. 1228, 1232.) It stated that “if M.F.'s parents would not have accepted a public placement for SY 2008–2009 or SY 2009–2010, there would be no ‘loss of educational opportunity’ from the . . . failure to review the May 2008 IEP annually . . .” (Id. at p. 1232.) On denying reconsideration, the District Court re-emphasized that “the essential question remains whether M.F. (or her parents) desired or would have accepted a public placement during the approximately eighteen-month period.” (Department of Educ., State of Haw. v. M.F. (D. Hawai’i, Feb. 28, 2012, Civil No. 11-00047 JMS-BMK) 2012 WL 639141, p. 2.)

13. In MM v. School Dist. of Greenville County (4th Cir. 2002) 303 F.3d 523, 528-529, 532-534, parents were determined that the school district should reimburse them for a Lovaas program for their autistic child. An IEP team meeting was unsuccessful, and the district scheduled but then cancelled a second session of it, and never made an offer for the school year. It therefore failed to have an IEP in place at the beginning of the school year. (Id., 303 F.3d at pp. 528-529; see 20 U.S.C. § 1414(d)(2)(A).) The Court of Appeal held that the violation did not amount to a denial of FAPE because “there is no evidence that MM's parents would have accepted any FAPE offered by the District that did not include reimbursement for the Lovaas program . . . . In these circumstances, MM suffered no prejudice from the District's failure to agree to her parents' demands . . .” (Id. at p. 535.)

14. In C.H. v. Cape Henlopen Sch. Dist., supra, 606 F.3d 59, the district began but failed to conclude an IEP team meeting and failed to have an IEP in place for the school year, during which parents removed their child to a private school. (Id. at pp. 63-64, 68.) The Court of Appeal noted the absence of any specific evidence of educational harm, and declined to find a denial of FAPE: “[W]e decline to hold as a matter of law that any specific period of time without an IEP is a denial of a FAPE in the absence of specific evidence of an educational deprivation.” (Id. at p. 69; see also A.R. v. Hawai’i (D. Hawai’i, March 31, 2011, No. 10–00174 SOM/RLP) 2011 WL 1230403, pp. 8-9 [no prejudice shown from brief delay in IEP offer]; Hupp v. Switzerland of Ohio Local Sch. Dist. (S.D. Ohio 2012) 912 F.Supp.2d 572, 592 [same]; cf. Miller v. San Mateo-Foster City Unified Sch. Dist. (N.D.Cal. 2004) 318 F.Supp.2d 851, 863 [no compensable injury from child find violation where parents had no intention of returning student to public school].)

15. On the unusual facts presented here, Benicia’s seven-month delay in holding Student’s annual IEP team meeting had no practical consequence. By October 2016, Case No. 2016041016 had been pending since April, and the stay put order had been in effect since May. The parties were adamant in their vastly different positions. Benicia believed it had lawfully graduated Student in January, and was waiting for OAH to ratify that belief in litigation. Parents believed that Student’s graduation was invalid; that he was entitled to special education until age 22, and in addition was entitled to services beyond that date to compensate for Benicia’s perceived IDEA violations. It was inevitable that any IEP team meeting conducted in October 2016 would have been dominated by disagreement and would have accomplished nothing, just as in the late or unheld meetings in the decisions cited above when Parents were determined to have a specific program and the district was determined not to provide it.

16. Both before and after October 2016, the parties attempted to resolve their differences and failed. They met in a mediation facilitated by OAH in June 2016, but were unable to reach agreement. By the time the annual meeting was eventually held on May 10, 2017, Parents had retained an attorney; Case No. 2016041016 had been decided; another request for due process had promptly been filed; and stay put was again in effect. Benicia had already made clear, by a timely prior written notice provided in April 2017, that it intended to graduate Student with a diploma in June 2017. (As shown below, Benicia was correct in believing it should do so.) Parents remained adamantly opposed to Student’s graduation, refused to discuss it, and wanted to present some but not all of the reports of their assessors to support later requests for additional services. Ms. Geller prevented Benicia from hearing from Dr. Greene because his report was not on the meeting notice, but insisted on hearing the report from Dr. Grandison, whose report was not on the meeting notice either. The notes of the meeting show it was rancorous, divisive, and wholly unproductive. The second session of that meeting, in September 2017, when Dr. Greene reported, was equally adversarial and unproductive. It was plain to both parties, before and after October 2016, that their dispute could only be resolved by an order obtained in litigation.

17. In addition, in October 2016 Parents were not ready to negotiate a different program for Student because they were just beginning to explore his needs. In her December 2015 letter, Parents’ advocate did not make any demands based on Student’s perceived needs; instead she stated that Parents were “confused” about the way in which Student’s education had been “mismanaged,” that previous assessments had been inadequate, and that Parents were demanding five separate independent educational evaluations at district expense. When Benicia declined to fund those assessments, Parents obtained them privately. Parents hired speech and language pathologist Deborah Burns-McCloskey to conduct a speech and language assessment, which was reported on January 5, 2017. Parents also obtained an assessment from occupational therapist Elizabeth Osono, who wrote a report on February 5, 2017. At some point during 2016 they retained Dr. Grandison for a psychoeducational assessment, but Dr. Grandison did not begin her assessment until October 18, 2016, and did not write a report until February 6, 2017. It was not until winter or spring 2017 that they retained Dr. Greene for a transition assessment; his report was written just a few days before the May 10, 2017 annual IEP team meeting. Without the information from these assessments, Parents in their own view would have been unable to argue for specific services or IEP provisions any earlier than they did, in May 2017.

18. Parents did not discharge their burden of proving that Benicia’s delay in holding the annual IEP team meeting due to be held in October 2016 impeded Student’s right to a FAPE, significantly impeded their opportunity to participate in the decision-making process, or caused a deprivation of educational benefits. They therefore did not demonstrate that Benicia’s procedural violation denied Student a FAPE.

ISSUES 2-4

DID BENICIA FAIL TO OBTAIN ADEQUATE ASSESSMENT INFORMATION ABOUT STUDENT ON WHICH TO BASE AN OFFER OF FAPE; NAMELY BY FAILING TO ASSESS HIM IN THE AREAS OF AUTISM, SPEECH AND LANGUAGE, MENTAL HEALTH, AND VOCATIONAL / TRANSITIONAL NEEDS?

19. In California, a district must ensure that a child is assessed “in all areas related to” a suspected disability, such as vision, hearing, motor abilities, language function, general intelligence, academic performance, communicative status, self-help, orientation and mobility skills, career and vocational abilities and interests, and social and emotional status. (Ed. Code, § 56320, subds. (c),(f).) Federal law also requires that the child “is assessed in all areas of suspected disability.” (20 U.S.C. § 1414(b)(3)(B); 34 C.F.R. § 300.304(c)(4).)

Autism Assessment

20. In October 2014, Benicia school psychologist Lisa Johnson assessed Student for autism as part of her multidisciplinary triennial assessment by administering the Behavior Assessment System for Children, second edition (BASC-II), and the Asperger Syndrome Diagnostic Scale (ASDS). She found that Student’s scores did not indicate he was even close to being on the autism spectrum.

21. Parents and Dr. Grandison now fault Ms. Johnson’s finding because, they assert, it relied on only a single BASC-II questionnaire from Ms. Hile, student’s teacher and case manager. This claim is incorrect; both the assessment report and Ms. Johnson’s testimony at hearing showed that the finding was also based on Student’s scores on the ASDS, Ms. Johnson’s information from teachers, and her personal observations of Student over several years. The claim is also surprising, since Ms. Johnson repeatedly tried to obtain a BASC-II questionnaire from Mother, but Mother would not return it. Ms. Johnson also tried to obtain from Mother the 2012 Regional Center assessment, an Asperger Syndrome Diagnostic Scale questionnaire, and a form requesting updated information on Student’s developmental history, but Mother did not cooperate in providing any of that material.

22. In addition, the statute of limitations bars any challenge to the adequacy (rather than the existence) of Ms. Johnson’s assessment for autism, because it was conducted in October 2014 and Parents did not challenge it in the following two years. (Ed. Code, § 56505, subd. (l); see also 20 U.S.C. § 1415(f)(3)(C).) The alleged flaws in the assessment now identified by Parents were apparent when they received the assessment report in October 2014, and Parents make no claim that their understanding of those alleged flaws was delayed. (See Avila v. Spokane Sch. Dist. 81 (9th Cir. 2017) 852 F.3d 936, 944.)

23. There was no evidence that, in the time period relevant here (between April 4, 2015, and July 20, 2017), Student displayed any characteristic outside of the home that suggested autism or interfered with his education. His overall high school grade point average of 3.229 on a 4-point scale was higher than would normally be expected of a student with his challenges, and contradicts any suggestion that autism was interfering with his education. Benicia therefore had no reason to revisit whether Student was autistic after Ms. Johnson’s 2014 assessment. Dr. Grandison’s diagnosis was not before the IEP team until a month before Student lawfully graduated, was not persuasive on its face, and was the product of a methodology and attitude so one-sided that the IEP team was reasonable in disregarding it when it was presented.

24. Parents did not prove that Benicia failed to assess Student for autism, and therefore did not prove that Benicia denied him a FAPE in that respect.

Speech and Language Assessment

25. As Parents successfully argued in Case No. 2016041016, Ms. Johnson assessed Student’s speech and language needs as part of her triennial assessment in October 2014. That ruling is binding on the parties. (See Pacific Lumber Co. v. State Water Resources Control Bd. (2006) 37 Cal.4th 921, 944; People v. Sims, supra, 32 Cal.3d at pp. 479-84.)

Mental Health Assessment

26. In her 2014 triennial assessment, Ms. Johnson also addressed Student’s social and emotional status. She found some evidence of anxiety, but nothing to suggest that it rose to the level of clinical significance. She compared Student’s 2011 scores on test instruments the same as, or similar to, the ones she administered, and concluded that his social-emotional status was significantly improved. His teachers reported, and her own observations confirmed, that Student was generally happy, social, positive and comfortable in the educational environment.

27. The evidence showed that Student did experience anxiety, but his anxiety was not much different than that of typical high school students under the stress of educational requirements. Given his challenges, Student was remarkably successful academically in high school. The statute of limitations bars any attack on the adequacy (as opposed to the existence) of Ms. Johnson’s 2014 assessment of his social and emotional condition. (Ed. Code, § 56505, subd. (l).) Parents make no attempt in their closing brief to identify any evidence that would support the conclusion that Benicia should have further assessed Student’s mental health needs during the period at issue here.

28. Parents did not prove that Benicia failed to assess Student for mental health needs, and therefore did not prove that Benicia denied him a FAPE in that respect.

Vocational/Transitional Assessment

29. The evidence showed that Benicia conducted an assessment of Student’s vocational and transitional needs in fall 2015. Ms. Renardson, Student’s teacher and case manager at the Bridge Program, administered several assessment instruments and produced a report on their results; these are described in more detail in the Factual Findings.

30. Parents do not argue in their closing brief that Ms. Renardson’s transition assessment was untimely. There was no evidence that would support such a claim.

31. Education Code section 56327 requires that an assessor “shall prepare a written report . . .of the results of the assessment” that must include eight specified subject matters. Parents do not argue that the 2015 transition assessment lacks any of these subject matters, nor could they. The report shows on its face that it does contain all required subject matters, and Parents’ own transition expert, Dr. Greene, observed in his report that all eight subjects the law requires are addressed in Ms. Renardson’s report.^[15] Dr. Greene even praised the transition plan, which includes the report, stating that the “breadth of information” in it was “[p]articularly noteworthy.”

32. Instead, Parents argue that there was no report at all. This is simply wrong; the report is incorporated in the body of the transition plan, a practice Ms. Renardson established was “common” with transition assessments. Parents’ argument is in essence that the report must be separate from the transition plan, not included in it. They offer no authority for such a claim or any reason why it should be so. The law does not require that the report be separate from the plan.

33. Parents did not prove that Benicia’s transition assessment was untimely or inappropriate, and therefore did not prove that Benicia denied Student a FAPE by its transition assessment.

34. Because Parents did not prove that Benicia failed to assess Student in all areas of suspected disability, they also did not prove that Benicia failed to obtain sufficient information through its assessments to offer him a FAPE.

ISSUE NO. 5

DID BENICIA FAIL TO PROVIDE STUDENT A LEGALLY COMPLIANT TRANSITION PLAN?

35. The transition plan in Student’s October 2014 triennial IEP is not at issue here, because the statute of limitations bars any attack on it. (Ed. Code, § 56505, subd. (l).) Parents argue that Student’s October 2015 transition plan denied Student a FAPE because many services should have been provided that were not. These include services relating to mobility, self-advocacy, hygiene, and a variety of other services recommended by Dr. Greene.

36. Beginning not later than the first IEP to be in effect when a child with a disability turns 16, and updated annually thereafter, the IEP must also include appropriate measurable postsecondary goals related to training, education, employment, and, where appropriate, independent living skills. (20 U.S.C. § 1414(d)(1)(A)(i)(VIII)(aa)-(bb); 34 C.F.R. § 300.320(b) (2006); Ed. Code, § 56345, subd. (a)(8).) Every such IEP must also include transition services to assist the child in reaching those postsecondary goals. (Ibid.)

37. “Transition services” means:

(20 U.S.C. § 1401(34); Ed. Code, § 56345.1, subd. (a).)

38. Whether an IEP offers a student a FAPE is assessed in light of information available at the time the IEP is developed; it is not judged in hindsight. (Adams v. State of Oregon (9th Cir. 1999) 195 F.3d 1141, 1149.) An IEP “is a snapshot, not a retrospective"; it must be assessed in terms of what was objectively reasonable when the IEP was developed. (Ibid. [quoting Fuhrmann v. East Hanover Bd. of Educ. (3rd Cir. 1993) 993 F.2d 1031, 1036 (Mansmann, C.J., concurring]; see also L.J. v. Pittsburg Unified Sch. Dist. (9th Cir. 2017) 850 F.3d 996, 1004 [“the ‘snapshot’ rule . . . instructs the court to judge the appropriateness of the determination on the basis of the information reasonably available to the parties at the time of the IEP meeting.”]; JG v. Douglas County Sch. Dist. (9th Cir. 2008) 552 F.3d 786, 801.) The snapshot rule bars consideration of much of the evidence introduced by Parents, for the reasons set forth below.

Mobility

39. Parents did not prove that the 2015 transition plan was legally deficient for lack of provisions addressing mobility training. During the period at issue here, all the information Benicia had indicated that Student did not need mobility training. In February 2015 he told a County evaluator that he had been taking the city bus independently since sixth grade. He and Mother raised no objection when, at his May 2015 IEP team meeting, it was reported that he “can take public transportation to school” and “can ride the bus home.” In fall 2016 he told Ms. Vogel he did not want to work on transportation at the Bridge Program because he could get around. Benicia and the County knew he was successful in doing so; he followed a complex schedule requiring him to appear in several different places and was never late. Even Dr. Greene’s report, not available to the IEP team until May 2017 and not reported on until September 5, 2017, stated only that Mother regarded Student’s mobility skills as “basic.”

40. Parents did not establish the timing of Student’s three failed driver’s tests. The available evidence suggests either that he failed them, or the failures were communicated to Benicia, after the time period addressed here. The failures therefore cannot be considered as part of the snapshot of information Benicia had available for educational planning at any relevant time.

41. In light of the information it had, Benicia was reasonable in not including mobility training in Student’s transition plan. The shortcomings Mother and Stepmother now perceive in Student’s mobility skills contradict what Benicia knew, and were not communicated to Benicia in the time period relevant here.

Self-Advocacy

42. Parents did not prove that the 2015 transition plan was legally deficient for lack of provisions addressing self-advocacy. Mother stated at the May 2015 IEP team meeting, before Student began self-advocacy training at the Bridge Program, that Student was reluctant to ask questions of unfamiliar adults, and Student expressed a desire to be “better” at asking questions when he did not understand something. He also expressed that desire at hearing. But Parents’ desires are not determinative; the IDEA requires “an education that is ‘appropriate,’ not one that provides everything that might be thought desirable by ‘loving parents.’” (Tucker v. Bay Shore Union Free Sch. Dist. (2d Cir. 1989) 873 F.2d 564, 567, quoting Kerkam v. McKenzie (D.C.Cir. 1988) 862 F.2d 884, 886.) Student’s teachers, according to Ms. Johnson in 2014, thought he was “fantastic” at self-advocacy. And when his classes were changed in October 2014 because he was moved to certificate of completion track, he did not like his new classes and repeatedly – even persistently -- approached Ms. Johnson and Mr. Keppel in person and by email to get them changed. His emails during that period showed competency at self-advocacy. In addition, throughout his years of volunteering in Ms. Henning’s transitional kindergarten class, Student was an active advocate for disabled children. Student also demonstrated his competency in self-advocacy at hearing. He was assertive in asking lawyers to clarify questions and complaining about some aspects of the Bridge Program. He showed no sign of hesitancy in speaking up for himself. Benicia had no information during the period of time at issue demonstrating that Student’s self-advocacy skills were significantly flawed.

43. Mother told Dr. Grandison and Dr. Greene that Student lacked self-advocacy skills. Neither of them did anything to determine independently whether this was correct; each simply repeated what Mother said. Neither expert was familiar with any of the evidence described in the Findings of Fact showing Student’s self-advocacy skills. Their recommendations that Student receive self-advocacy training were therefore not persuasive.

44. The preponderance of evidence showed that Benicia was reasonable in concluding that Student was competent in self-advocacy during the relevant time period, and reasonable in omitting further self-advocacy training from his 2015 transition plan.

Speech and Language

45. Parents did not prove that the 2015 transition plan was legally deficient for lack of provisions addressing speech and language needs. Everything Benicia knew about Student’s speech and language suggested he did not need support in that area. From Ms. Johnson’s 2014 assessment, through Student’s successful years in high school and later in his workplaces, there was no evidence that any speech and language deficit noticeably detracted from his academic or functional performance. That view was confirmed by Student’s appearance at hearing.

46. In her 2017 speech and language assessment report, Ms. Burns-McCloskey recommended speech and language services in the future; she did not relate her findings to a transition plan. That report alone, without her appearance at an IEP team meeting to explain and defend it, did not support Parents’ argument that Benicia denied Student a FAPE by failing to include speech and language support in a transition plan during the period examined here. Student’s low scores on Ms. Burns-McCloskey’s assessment measures could have been the result of Student having a bad day on the single day she tested him, or could have been understood as functions of his longstanding cognitive and processing deficits rather than as indications of speech and language needs. The report became part of the IEP team’s snapshot of information only a month before Student was lawfully graduated. The IEP team was required to consider the report but not to agree with it. Because all of its experience with Student contradicted Ms. Burns-McCloskey’s findings, the IEP team was reasonable in declining to act on Ms. Burns-McCloskey’s recommendations.

Hygiene

47. Parents did not prove that the 2015 transition plan was legally deficient for lack of provisions addressing Student’s hygiene. Student and Parents may have struggled over his hygiene at home, but according to all witnesses who addressed the issue, Student’s personal hygiene was appropriate everywhere outside the home, specifically at school, in class, and in his workplaces. Benicia had no reason to believe that he needed transitional support in personal hygiene, and was reasonable in omitting it from the 2015 transition plan.

Other Skills

48. Parents argue in their closing brief that Benicia denied Student a FAPE by failing to include provisions in his 2015 transition plan for addressing “functional academics, money management, job interviewing skills, community resources, [and] social-personal skills . . . all as recommended by Dr. Greene.” In their brief Parents do not mention any evidence that would support this claim; instead they rely exclusively on Dr. Greene’s recommendations. Dr. Greene’s report was not before the IEP team until a month before Student lawfully graduated, and the oral presentation of his report did not occur until the IEP team meeting in September 2017. Benicia did not have the benefit of his views in time to base educational planning on them in the relevant time period.

49. Dr. Greene’s views were not persuasive, as they were based primarily on what he was told by Mother and secondarily on what he read in Dr. Grandison’s report, which in turn also relied nearly exclusively on Mother’s statements for its conclusions about Student’s practical skill levels. Dr. Greene did not investigate Student’s skills on his own. Without explanation, Dr. Greene disregarded the information he received from Ms. Renardson that Student’s skills were average for an adult. In addition, Dr. Greene never stated in his report that Student was noticeably lacking in these skills; he stated only that Student could benefit from “further development” in those areas. Even if the IEP team had received his opinion in time to consider it during the relevant period, it was under no legal obligation to agree. The evidence did not independently support any claim that Student was so lacking in the skills for which Dr. Greene’s recommended training that Benicia was unreasonable in omitting them from Student’s 2015 transition plan.

50. For the reasons above, Parents did not prove that Benicia failed to provide Student a legally compliant transition plan by omitting services for mobility, self-advocacy, functional academics, money management, job interviewing skills, community resources, or social-personal skills. Benicia did not deny Student a FAPE by omitting training related to those skills from his 2015 transition plan.

ISSUE 6

DID BENICIA DENY STUDENT A FAPE BY FAILING TIMELY TO REVIEW AND CONSIDER THE REPORTS OF THE INDEPENDENT EDUCATIONAL ASSESSMENTS ORDERED PAID FOR BY OAH’S DECISION IN CASE NO. 2016041016?

51. A district must consider the report of an independent assessor. (20 U.S.C. § 1414(c)(1)(A)(i); 34 C.F.R. § 300.502(c)(1); Ed. Code, §§ 56329, subds. (a)(1), (c).) At her own expense, Mother obtained a psychoeducational assessment (Dr. Grandison), a speech and language assessment (Ms. Burns-McCloskey) and an occupational therapy assessment (Ms. Isono). On March 28, 2017, the Decision in Case No. 2016041016 ordered the district to reimburse Mother for those three assessments, which it did. Parents claim in their current complaint that Benicia did not consider those assessments between April 4, 2015, and July 20, 2017.

52. Benicia considered Dr. Grandison’s report and oral presentation at the May 10, 2017 annual IEP team meeting. The evidence did not show whether Benicia considered Ms. Burns-McCloskey’s assessment report, which it had by May 10, 2017, but Ms. Burns-McCloskey was unresponsive to Benicia’s several efforts to obtain her attendance at that meeting in person or by telephone. Ms. Osono wrote a report and originally agreed to attend the meeting, but did not. Ms. Gellar, acting on Mother’s behalf, succeeded in blocking discussion of that report at the May 10 meeting on the ground that it was not on the meeting notice. Ms. Burns-McCloskey’s report and Ms. Osono’s report may have been considered at the second session of the meeting in September 2017, but that is beyond the time period addressed here.

53. Parents did not discharge their burden of proving that Benicia failed to consider the independent assessments ordered reimbursed in Case No. 2016041016. Any delay in considering the reports of Ms. Burns-McCloskey and Ms. Osono was not attributable to Benicia. And even if it were, Parents did not prove that anything detrimental resulted in the absence of services in the brief period of time between the May meeting and Student’s June graduation.

ISSUE NO. 7

DID BENICIA DENY STUDENT A FAPE BY FAILING TO IDENTIFY HIM AS ELIGIBLE FOR SPECIAL EDUCATION AND RELATED SERVICES IN THE CATEGORY OF AUTISM?

54. Parents did not prove that Benicia denied Student a FAPE because it did not consider his possible eligibility for special education in the category of autism. The evidence did not support such a claim, for the reasons set forth in the factual findings and in the Legal Conclusions above concerning Ms. Johnson’s autism assessment. Parents do not mention this contention in their closing brief.

55. Nor would the law support such a claim. As the United States Department of Education has advised, “a child's entitlement is not to a specific disability classification or label, but to a free appropriate public education.” (Letter to Fazio (OSEP 1994) 21 IDELR 572, 21 LRP 2759; see also 20 U.S.C. § 1412(a)(3)(B); Weissburg v. Lancaster Sch. Dist. (9th Cir. 2010) 591 F.3d 1255, 1259; Heather S. v. State of Wisconsin (7th Cir. 1997) 125 F.3d 1045, 1055.)

56. Benicia did not deny Student a FAPE by failing to consider his eligibility in the category of autism.

ISSUE NO. 8

DID BENICIA DENY STUDENT A FAPE FAILING TO COMPLETE THE MAY 10, 2017 IEP TEAM MEETING AND OFFER HIM AN IEP FOR THE SCHOOL YEAR 2017-2018?

57. The evidence showed that the May 10, 2017 IEP team meeting consumed more than two hours, much of it involving listening to Mother, Ms. Gellar, and Dr. Grandison. It was not possible to discuss everything on the agenda in those two hours, so Dr. Patton offered Parents several dates in May, June, and August for the second part of the meeting, but either Mother or her independent assessors were unavailable on those dates. The second half of the meeting was held in September 2017. So the May 10, 2017 IEP team meeting was eventually completed, and its delay until September was not due to any failing by Benicia. Parents do not mention this contention in their closing brief.

58. As shown below, Benicia lawfully graduated Student with a diploma on June 9, 2017. That ended his eligibility for special education and related services. (34 C.F.R. § 300.102(a)(3)(i); Ed. Code, § 56026, subd.. (c)(4).) Benicia had no legal obligation to offer Student an IEP for the school year 2017-2018, and did not deny him a FAPE by declining to do so.

DISTRICT’S ISSUE (CASE NO. 2017050972)

MAY BENICIA AWARD STUDENT A REGULAR HIGH SCHOOL DIPLOMA EFFECTIVE JUNE 9, 2017?

59. Benicia and Parents dispute whether Student had the required credits and the required skills to graduate with a diploma, and whether the Summary of Performance given him was adequate. The evidence showed that on April 19, 2017, Benicia provided to Parents a legally compliant prior written notice of its intent to graduate Student with a diploma on June 9, 2017, and, with proper notice, held an IEP team meeting on May 10, 2017, at which it invited a discussion of his graduation. (See 34 C.F.R. § 300.102(a)(3)(iii)[prior written notice required]; Letter to Richards (OSERS 1990) 17 IDELR 288 [IEP team meeting required].) Benicia complied with all procedural requirements in notifying Parents of its intent to graduate Student, and Parents do not argue otherwise.

Required Credits

60. California law requires that, in grades nine through 12, a student must complete a certain number of courses in order to graduate with a diploma:

(1) At least the following numbers of courses in the subjects specified, each course having a duration of one year, unless otherwise specified: (A) Three courses in English. (B) Two courses in mathematics. (C) Two courses in science, including biological and physical sciences. (D) Three courses in social studies, including United States history and geography; world history, culture, and geography; a one-semester course in American government and civics; and a one-semester course in economics. (E) One course in visual or performing arts, foreign language, or career technical education. (F) Two courses in physical education.

(2) Other coursework requirements adopted by the governing board of the school district.

(Ed. Code, § 51225.3, subd.. (a).) One of the math courses must be algebra. (Ed. Code, § 51224.5.)

61. The evidence showed that during grades nine through 12, Student attended Benicia High School for eight semesters, and finished 240 credits for graduation, 20 more than required by state or local law. His transcript showed that he took each of the courses required by Education Code sections 51225.3, subdivision (a) and 51224.5, for at least a year. It showed that he completed the required 40 credits of English and 10 more than the required 20 credits in math. Benicia therefore discharged its burden of proving that Student had sufficient credits to graduate with a diploma.

62. State law required completion of three years of English, and it is undisputed that Student met the state requirement. Benicia’s school board required an additional year of English, and Parents argue that Student did not complete English 12 because his transcript showed he completed English 11 twice instead.

63. Student’s transcript refutes any suggestion that he did not pass English 11 in his junior year; he received an “A-” in the first semester and a “B” in the second.

64. Mr. Keppel and Dr. Patton established at hearing that Parents misunderstood the local English requirement. It is not that a student must complete a fourth English course labeled “English 12”; it is only that he take four years of English, which Student did. They explained that his move from English 12 to English 11 in the fall of his senior year was merely a collateral consequence of Parents’ insistence that he be moved from diploma track to certificate of completion track. In fact the “English 11” resource class into which he was moved contained both 11th and 12th graders and was taught at the level of each student, and Mr. Keppel confirmed that Student studied different material than he had studied the previous year in English 11. But that was more than Benicia needed to prove; it needed only to prove that he took four years of English to meet the local requirement.

65. Benicia proved that Student met all state law requirements for graduation, and also met the local requirement for taking four years of English.

Summary of Performance

66. Before a student graduates with a diploma, federal law requires that he be given “a summary of the child's academic achievement and functional performance, which shall include recommendations on how to assist the child in meeting the child's postsecondary goals.” (20 U.S.C. § 1414(c)(5)(B)(ii); see also Ed. Code, § 56381, subd. (i)(2).) In January 2016, Benicia provided Parents such a summary. As shown in the Factual Findings, the summary contained the information required by the statute.

67. Parents assume in their closing brief that if the summary of performance was defective, Student should not be allowed to graduate. They identify no legal authority for this assumption, nor any reasoning that would support such a drastic remedy for any shortcomings in the summary.

68. Parents now criticize the summary of performance on the grounds that “in and of itself [it] indicated little to no high school-level ability” and did not mention the Regional Center’s autism diagnosis nor anything about Student’s occupational therapy, speech and language, mobility, or self-advocacy needs. But the statutes requiring the summary of performance do not require that these matters be included, and Parents do not cite any authority suggesting that the summary must contain them. Nothing about the summary of performance bars Student’s graduation.

Required Skill Levels

69. Parents argue that Student should not graduate because, according to Dr. Grandison, he lacks the skills to graduate. Their argument depends entirely on Dr. Grandison’s opinion. Dr. Grandison found on a single test instrument in the fall of 2016 (the Kaufman Test of Educational Achievement) that Student had skill levels as low as third grade in written expression and sixth to eighth grade in math. Parents’ argument is flawed both legally and factually.

70. IDEA regulations define a regular high school diploma as a diploma “fully aligned with State standards . . .” (34 C.F.R. § 300.102(a)(3)(iv).) But the IDEA does not tell states what graduation standards must be. It imposes no proficiency requirements for graduating with a diploma; that is a state and local concern. “The establishment of proficiency standards for a high school diploma is a State function which is not addressed in [IDEA] or the [IDEA] regulations.” (Letter to Anonymous (OSEP 1994) 22 IDELR 456.)

71. Some OAH decisions suggest that OAH has no jurisdiction over the validity of a graduation. (See, e.g., Student v. Newport-Mesa Unified Sch. Dist. (OAH, Feb. 5, 2014, No. 2013060620.) That issue does not arise here because Parents did not file their action to interrupt Student’s graduation; Benicia filed its action to accomplish that graduation. Graduation is a change of placement (34 C.F.R § 300.102(a)(3)(iii)), and OAH has jurisdiction over Benicia’s request to change Student’s placement. (Ed. Code, § 56501, sub. (a).) Parents in essence are asserting Student’s alleged lack of skills as an affirmative defense.

72. However, the burden of establishing an affirmative defense is on the party asserting it. (Oldcastle Precast, Inc. v. Lumbermens Mutual Cas. Co. (2009) 170 Cal.App.4th 554, 561-562; Travelers Cas. and Sur. Co. v. Superior Court (Lockheed Martin Corp.) (1998) 63 Cal.App.4th 1440, 1456.) Legally, Parents do not establish that there is any such affirmative defense. They cite no law suggesting that a student should not be allowed to graduate with a diploma if his skill levels are not high enough. As shown above, state law requires the completion of certain courses, not the establishment of certain skill levels.

73. Parents’ argument is also factually unpersuasive. Dr. Grandison based her findings about Student’s skill levels on a single test instrument – something that, if done by a district in determining eligibility, would be considered so unreliable that it would violate federal and state law. (See 20 U.S.C. § 1414(b)(2)(B); 34 C.F.R., § 300.304(b)(2); Ed. Code, § 56320, subd.. (e).) She tested Student years after he took his academic courses and displayed the skills required to pass them. A contemporaneous and better measurement of his skills is found in his scores in his senior year on the California High School Exit Examination; he passed the math portion and came within two points of passing the English language arts portion. (Dr. Grandison did not mention this fact.) Most importantly, Dr. Grandison’s view of Student’s skill levels is contradicted by Student’s four years of passing grades in general education in high school, in which he received a grade point average of 3.229 on a 4-point scale.

74. Parents did not discharge their burden of proving, either legally or factually, that Student should not graduate because of his allegedly low skill levels.

75. Appropriate relief in Benicia’s case requires recognition of the validity of its act in awarding Student a diploma on June 9, 2017. The governing board of the District authorized and issued Student’s diploma, and Benicia sent it to Parents, who sent it back. The prior order in Case No. 2016041016 did not prohibit Benicia from graduating Student at all; it merely prohibited his graduation “based on decisions made at the January 11, 2016 IEP team meeting.” Benicia’s graduation of Student on June 9, 2017 was not based on any decision made on January 11, 2016; it was based instead on a new and valid prior written notice, a procedurally proper IEP team meeting, and on the evidence described above, which convincingly showed that Student had met all requirements for graduating with a diploma well before June 9, 2017. Student has earned and deserves his diploma, and Benicia’s graduation of Student with that diploma on June 9, 2017, was lawful and correct.

ORDER

CASE NO. 2017040249

All Student’s requests for relief are denied.

CASE NO. 2017050972

Benicia lawfully graduated Student with a diploma on June 9, 2017.

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. In Case No. 2017040249, Benicia prevailed on all issues. In Case No. 2017050972, Benicia prevailed on the only issue decided.

RIGHT TO APPEAL

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: January 11, 2018

/s/ CHARLES MARSON Administrative Law Judge Office of Administrative Hearings

Footnotes

[1] Student’s issues were slightly amended by the ALJ during the hearing to clarify evidentiary rulings. Neither party objected to the amendments.

[2] The fifth edition of the DSM abolished PDD-NOS as a separate diagnosis.

[3] Dr. Grandison is an Assistant Clinical Professor in the Department of Psychiatry of the University of California at San Francisco, and maintains a private practice. She has a master’s degree in psychology and a Ph.D. in developmental psychology. In the 1990’s she was a clinical assistant, a clinical instructor, and then a licensed psychologist at Massachusetts General Hospital and, for one year, at Harvard Medical School. She has held her position at the University since 1997 and for six years was a pediatric neuropsychologist at Children’s Hospital in Oakland. For three of those years she was the Director of the hospital’s Neuropsychology Assessment Service. She is licensed in California as a clinical psychologist.

[4] Before coming to Benicia, Ms. Henning taught in Illinois and then Vacaville. She has taught a wide variety of classes at Benicia, and now teaches transitional kindergarten at Benicia’s Robert Semple elementary school. She has a bachelor’s degree in elementary and special education, a master’s degree in curriculum and instruction, and multiple subject and mild/moderate special education credentials. She also has an added authorization in autism. She has taught for a total of 35 years.

[5] One of Parents’ experts held the same view. In 2017, Parents obtained a transitional assessment from Dr. Gary Greene, which is discussed more fully below. In his May 2017 report, Dr. Greene observed that “[Student’s] speech is within normal limits and he is easily understood by everybody.”

[6] The Superintendent of Public Instruction funds and oversees Project Workability, a program established by statute. (See Ed. Code, §§ 56462, subd. (b)(2), 56470-56474.) The program is intended to provide special education students, during their transitions, with multiple employment options, adequate information for choosing a job or career path, and a variety of vocational experiences. Local educational agencies and counties statewide operate workability programs in which disabled students are placed with local employers to obtain real-world job experience, with supervision by workability program staff.

[7] In December 2015, Student signed a power of attorney delegating his educational rights to Mother.

[8] Dr. Greene has a master’s degree and a Ph.D. in special education. He has multiple subject, learning handicapped, resource specialist and administrative services credentials. He was a mentor teacher in the Irvine Unified School District from 1984 to 1987, and worked as a resource specialist for various districts from 1977 to 1987. From 1993 to 2012 he was a professor of special education at California State University at Long Beach, where he specialized in the transitional needs of disabled students. He has written and presented extensively on the subject, and since 2009 has worked privately as a transition assessment specialist.

[9] Dr. Patton has a bachelor’s degree in psychology, a master’s degree in education, and a doctorate in educational leadership. She is a school psychologist with a pupil personnel services credential. She has been working in special education since 1995, including 12 years as a school psychologist. She has been a principal of an elementary school and a community day school, and at one time supervised all the special education programs in the Mt. Diablo Unified School District. She came to Benicia five years ago as Director of Special Services and now supervises all the District’s special education activities.

[10] Ms. Burns-McCloskey has bachelor’s and master’s degrees in speech pathology, is a State-licensed speech and language pathologist, and has had a certificate of clinical competence from the American Speech-Language Association since 1985. She worked as a speech and language pathologist for the San Francisco Unified School District from 1981 to 1987, and since then has maintained a private practice focused on augmentative communications and related technologies. Her business is a certified non-public agency, and she has contracted for augmentative communications services with a wide variety of California school districts. She has published and presented in the areas of communications sampling and augmentative communications strategies.

[11] Parents also obtained an independent assessment from occupational therapist Elizabeth Isono, who wrote a report on February 5, 2017, but do not make any argument concerning occupational therapy services here.

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

[13] All subsequent references to the Code of Federal Regulations are to the 2006 version.

[14] The January 11, 2016 meeting was not announced or held as an annual meeting, and neither Student’s progress on goals nor modifications to his IEP were discussed.

[15] Dr. Greene’s legal conclusion was subject to objection as an inadmissible opinion on the law. (See Evid. Code, § 801; Summers v. A.L. Gilbert Co. (1999) 69 Cal.App.4th 1155, 1178-1184.) However, it was admitted without objection.