Parent on Behalf of Student v. Los Altos School District

Student filed with the Office of Administrative Hearings his Due Process Complaint on May 30, 2017, against Los Altos School District.^[1] OAH continued this matter on July 18, 2017.

Presiding Administrative Law Judge Peter Paul Castillo heard this matter in Los Altos, California, on August 29, 30, 31, and September 6, 2017.

Peter Sturges, Attorney at Law, represented Student. Mother and Father attended the hearing on all days. Student did not attend the hearing.^[2]

Laurie Reynolds, Attorney at Law, represented District. Jennifer Keicher, District’s Director of Special Education, attended the hearing on all days.

At the parties’ request, OAH continued the hearing to October 9, 2017, for written closing arguments. Closing arguments were timely filed, the record was closed, and the matter was submitted on October 9, 2017.

ISSUES

1. Did Los Altos deny Student a free appropriate public education by failing to:

a. Assess Student from May 30, 2015 to February 4, 2016; and

b. Conduct a sufficient psychoeducational, speech and language assessment in March of 2016?

2. Did District deny Student a FAPE by failing to find him eligible for special education during the individualized educational program process beginning on or about April 4, 2016?^[3]

3. Did District deny Student a FAPE by failing to provide him special education placement, supports and services from May 30, 2015 to May 30, 2017?

4. Did District deny Student a FAPE by failing to provide him with the special education discipline processes and/or protections to which he was entitled during the course of his suspension on January 28, 2016; a suspension review meeting with District administration on or about February 10, 2016; the continuation of the suspension on or about March 16, 2016; a report to law enforcement on or about January 28, 2016; and an involuntary transfer to the Almond Elementary School on or about February 22, 2016?^[4]

SUMMARY OF DECISION

Student contends he was denied a FAPE because District did not comply with its child find duties in failing to assess Student for special education eligibility before Parents requested that District assess Student on February 4, 2016, based on District’s knowledge of Student’s behavior and social communication deficits. Further, District’s failure to find Student eligible for special education services and provide Student with services was the cause for the January 2016 disciplinary incident as Student’s conduct was a manifestation of disabilities related to autism and attention deficit hyperactivity disorder that District would have addressed if it had assessed and found Student eligible for special education services. Further, Student contended that District inappropriately determined that Student was not eligible for special education services after it assessed Student as District should have found Student eligible under the categories of autism, other health impaired due to his attention deficit hyperactivity disorder, and speech language impairment.

District contends it did not deny Student a FAPE because it had no obligation to assess him for special education eligibility as his behavior and social communication problems were not atypical for a student of his age and receptive to general education interventions. Further, District’s assessments established that Student did not qualify for special education services because his deficits were not as severe as Student’s assessors erroneously found and any deficits Student had were not unusual for a student of his age and remediated with general education interventions. Finally, because District did not have a basis of knowledge that Student required special education services, Student was not entitled to the disciplinary protections of the Individuals with Disabilities Education Act.

Student failed met his burden of demonstrating that District should have assessed him before the January 2016 disciplinary incident as his behavior and social communication deficits were not significant enough to indicate that he was a Student who might require special education services, especially as he responded to general education interventions and made appropriate academic and non-academic progress. Further, Student’s private assessors exaggerated the deficits that Student had by relying too much on information provided by Parents and downplaying information provided by Student’s teachers, especially how Student responded to general education interventions to improve his behavior and social communication. Therefore, because District was not on notice that it needed to assess Student before Parents’ February 4, 2016 request, and because he was appropriately determined not eligible for special education services after being assessed, Student was not entitled to IDEA’s disciplinary protections.

FACTUAL FINDINGS

BACKGROUND

1. Student was nine years old at the time of hearing. Student resided with Parents within the boundaries of District during all times in this matter. Student attended Loyola Elementary School upon enrollment in kindergarten at the 2013-2014 school year. District has never found Student to be eligible to receive special education services.

DUTY TO ASSESS BEFORE JANUARY 2016

2. Student asserted that District had an obligation to assess him before January 2016, as it was aware of the severity of his behavior and social communication deficits based on the communications between his teachers and Parents and implementation of a Student Success Team plan. However, the evidence presented did not demonstrate that Student had significant behavioral or social communication deficits that would put District on notice that it needed to assess him, especially since Student responded successfully to general education interventions.

First Grade, 2014-2015 School Year

3. Tiara Wirkkala was Student’s first grade teacher at Loyola for the 2014-2015 school year. Parents also employed Ms. Wirkkala to tutor Student during second grade. Ms. Wirkkala obtained a bachelor’s degree in 2002 and worked in non-educational jobs between 2002 and 2011, when she returned to school to obtain a masters of arts in education in 2012, along with her California multiple subject credential. Ms. Wirkkala student-taught during the 2011-2012 school year, and after graduation was employed by District as a first grade teacher at Loyola through the 2015-2016 school year and a third grade teacher during the 2016-2017 school year.

4. During Student’s first grade, Ms. Wirkkala’s class had 24 students. Ms. Wirkkala stated that Student’s strengths were math and reading. Writing was a challenge for Student and Ms. Wirkkala’s major area of academic focus for Student as she worked with him to use the proper pencil grip. Student took time to get started on writing projects as it was not a favored activity. However, Student’s writing issues due to his pencil grasp was not unusual for first grade students. In her class, Student was in the top third academically. However, Ms. Wirkkala freely admitted that Student was among one of the more challenging students in her class due to his behavior and attention issues.

5. At the start of first grade, Student had problems sitting next to his classmates during floor reading. He was distractible when the instruction did not interest him, liked to fidget with items and was more interested with items of his classmates. Ms. Wirkkala described Student’s attention difficulties as pretty typical in her experience for first grade students at the start of the school year as she works on classroom expectations. In her experience, first grade students, like Student, required directions in concrete terms as they had difficulty with abstract concepts, and required positive feedback.

6. To improve Student’s class attention, starting in October 2014, Ms. Wirkkala used stickers as rewards when he followed directions and had kind words to other students. Ms. Wirkkala also used the sticker reward for another student. The sticker reward was successful for Student in keeping him on task, whereas it was not successful for the other student. Ms. Wirkkala discussed with Mother at pick up time how Student was doing in class, including his behavior issues, the sticker reward and Student’s improvement with staying on task. Ms. Wirkkala did not have concerns about Student’s behavior through the middle of the school year through spring 2015. Student played well with classmates at recess and interacted appropriately during group instruction, and understood non-verbal communication by Ms. Wirkkala and his classmates.

7. In the spring, Student began to have issues properly playing with his classmates based on reports from the other students. In class, Ms. Wirkkala observed that Student did not hand paper to a classmate and said that the other student was bad. Ms. Wirkkala emailed Parents about these issues to explore with Parents different methods to improve Student’s interaction with peers. During this exchange, Parents shared with Ms. Wirkkala that Student was having problems with other kids during extracurricular activities.

8. In March 2015, Student was involved in an incident in which he stated that he did not like a classmate because he was Polynesian.^[5] Ms. Wirkkala discussed the incident with Student, which according to Student was based on a log running dispute with his classmate. She informed him that his conduct was not the appropriate way to resolve disputes and discussed how to properly resolve disagreements.

9. Ms. Wirkkala emailed Mother about this incident and another incident of Student ripping a classmate’s work that Ms. Wirkkala felt was unusual as Student had made great progress through the school year in listening and appropriate class participation. Mother replied and stated that she spoke to Student about the name calling and traced the conduct to Student having difficulty with expressing his feelings. Mother expressed that Student was having issues with anger at home. Ms. Wirkkala thanked Mother for her response and stated she would work with Student in talking to adults if Student and classmates had a dispute and not resort to name calling.

10. Based on these major incidents and generalized concerns about Student’s classroom behavior, on April 1, 2015, Ms. Wirkkala documented her concerns on a document entitled Student Success Team: Phase One. Ms. Wirkkala wrote down her concerns about Student’s worsening behaviors and concerns expressed by Mother. This plan also included strategies to improve Student’s behavior based on Ms. Wirkkala’s experience as a teacher, her working with Student and information provided by Mother.

11. The areas of concern documented were sitting still on the carpet, making unkind comments to classmates, getting frustrated and verbal outbursts, being distracted in class, and keeping his hands to himself. The action plan called for Student to have fidgets, work on sitting still, rewards for proper class behavior and saying kind words to classmates, and checking in with Parents as to concerns they had and their observations of Student’s behavior.

12. Ms. Wirkkala developed the plan, consulting with the school psychologist, Christine Anderson,^[6] Ph.D., on strategies to use. Ms. Wirkkala was aware that Student’s brother had a Section 504 plan.^[7] Mother stated that she was not requesting at the moment that Student be assessed for a Section 504 plan. Ms. Wirkkala has had students who received special education services through an IEP in her class and was aware on how to refer a student for a special education eligibility assessment, but did not feel, based on her experience, education, working with Student and consulting with Dr. Anderson that Student might be in need of special education services and therefore assessed.

13. Ms. Wirkkala did not convene a meeting with Parents and other school personnel to discuss her plan or give a copy to Parents. District had changed the Student Success Team process recently in which typically a teacher would develop a plan that documented a student’s issues based on teacher observations and information provided by parents. The teacher would then develop a plan to address those concerns with general education interventions, consulting if needed with the school psychologist. The teacher would place a copy of the plan in the student’s educational file and give a copy to the school psychologist, and both would monitor to see if the student targeted concerns improved. If the student did not improve, the school psychologist would convene a Student Success Team with Parents, the teacher, school psychologist and other interested personnel. Nothing in the District’s Student Success Team process prevented a teacher or school psychologist from bypassing step one and immediately convening a meeting. Ms. Wirkkala was aware of that and did not feel a meeting was necessary.

14. Student’s behavior improved with the general education interventions she placed in the plan. Student handled peer conflict properly, and his attention in class improved and when he became distracted Ms. Wirkkala could easily redirect him back to task. Ms. Wirkkala convincingly established that despite Mother’s opinion to the contrary, Student had friends at school that he played with, and interacted with, like a typical first grade student and that he did not disrupt her class or interfere with the learning of his classmates. Ms. Wirkkala was a credible witness based on her education and experience, demeanor, consistent testimony to other evidence and her genuine concern for Student.

15. During first grade, Mother did volunteer in Ms. Wirkkala’s class regularly and had opportunity to observe Student in class and the playground. Mother’s testimony was not credible as she overemphasized, to a fault, all of Student’s peer conflict and impulsive behavior. Mother’s expectations of Student were too demanding as Ms. Wirkkala was convincing that based on her teaching first grade for several years that Student’s behaviors, while troublesome, were not atypical for a first grade student, and responded to general education interventions that she has used over the years. Thus, while at the end of first grade Student did have issues in properly resolving frustration, being focused, and with his handwriting, Student’s difficulties were not significantly greater than his classmates to warrant a special education assessment.

Second Grade, 2015-2016 School Year through January 28, 2016

16. Lisa Swarbrick was Student’s second grade teacher during the 2015-2016 school year at Loyola, with 25 students in her class. Ms. Swarbrick has a bachelor’s degree and obtained her multiple subject teaching credential in 1994. She has been on a leave of absence for the past two years. Before that, she taught for 13 years with District and before that for five years in a neighboring school district.

17. At the beginning of the school year, Ms. Swarbrick set out for her class her behavior expectations. She practiced proper behavior with her class, talking individually to students when needed to correct behavior. She also discussed behavior concerns with parents if needed.

18. Ms. Swarbrick described Student’s core academic skills as high, especially math. Student was a good writer in setting forth his idea and could write sentences and paragraphs. She admitted that Student had fine motor deficits with his handwriting. Student was active in class, always in motion and had problems in wanting to touch other kids. Ms. Swarbrick gave Student a journal to doodle in to work off energy and permitted him to go to the back of the class if he finished an assignment early. She slightly moved his desk away from his classmates so he could not easily touch them, and had his desk at the end so he had more space. Ms. Swarbrick gave Student fidgets. She tried a cushioned seat, which did not work in keeping Student sitting still and brainstormed with Dr. Anderson different techniques to try. Student had friends in his class and played with the other boys at recess. Student could work with his classmates in group instruction.

19. At the start of the school year, Ms. Swarbrick had to send Student and a tablemate to Principal Kimberley Attell to discuss an incident in which they were not keeping their hands and feet to themselves. Ms. Swarbrick moved Student’s and the classmate’s desks. In October 2015, Student and a couple of classmates disturbed another class by banging on the window while walking back from the bathroom, which she and Principal Attell discussed with the students why their conduct was not appropriate. Ms. Swarbrick admitted that parents of other students would blame Student for incidents for which he was not at fault and this blaming spilled over to his classmates blaming Student. Ms. Swarbrick discussed her concerns about all these matters with Mother.

20. However, Ms. Swarbrick stated that Student was not atypical, as she usually had a couple kids in her class with similar attention and behavior issues. And like those students in the past, Student’s attention and behavior improved in her class with the classroom strategies she employed for the entire class. While Student did have some issues understanding social cues and expressing his feelings, his deficits were not significant for a second grade student.

21. Mother did volunteer in class and had a chance to observe Student. However, like with Mother’s description of problems Student had in first grade, Mother exaggerated the significance of problems Student had with peers. Both Parents are devoted to Student and gave him additional academic tutoring after school as they believed he needed these additional supports. However, Ms. Swarbrick was convincing that Student was a bright student in his own right as he was meeting grade level standards, and problems like his with writing were not unusual for second grade students. While Father described motor coordination issues Student displayed in extra-curricular sports and peer relationship problems, Ms. Swarbrick did not see that as what she saw, and was correct in seeing, was a typical second grade child with some deficits that were not that unusual and not indicative of a student who might require special education services. Ms. Swarbrick was aware of her child find obligations and knew that she could request a special education assessment if warranted, but rightfully did not feel that one was required. Ms. Swarbrick was a credible witness based on her education and experience, demeanor, consistent testimony to other evidence and her genuine concern for Student.

January 2016 Disciplinary Incident

22. On January 28, 2016, Student was playing during lunch recess in an unsupervised portion of the playground behind a shed with a male and female classmate. The play between Student and his female classmate became sexualized as they showed their private parts to each other. Although disputed by Student, there are indications that Student and his male classmate may have continued this play too far in forcing the girl to keep her pants pulled down against her will. Other students observed this incident and reported it. Principal Attell was notified and she questioned Student and the male and female classmate, and student witnesses. Parents were not notified of what happened until Mother was in line in her car to pick up Student and asked to park and get out to meet Principal Attell. Ms. Swarbrick was not teaching class this day.

23. In response to the incident, District suspended Student and informed Mother that Student was not to return to school while District investigated the incident. Due to the severity of the incident, the Principal spoke to the District Superintendent, and the decision was made to get law enforcement involved. District’s initial disciplinary document of January 29, 2016, stated that the incident was “[a]ttempted or committed sexual assault or a sexual battery.” The District’s form stated for this incident that District must notify local law enforcement, which Principal Attell did. However, the sheriff’s office did not interview Student immediately. The document also indicated that Student would return to school on February 4, 2016, which did not occur.

24. A few days later after the initial notice,^[8] District issued a second disciplinary notice that elevated the incident to “[s]exual assault or sexual battery”, and mandatory recommendation for expulsion.

25. Based on the severity of what was transpiring, Mother retained the services of Dr. Jocelyn Pan to assess Student to examine what may have been the impetus for Student’s conduct as part of a defense as to the pending criminal investigation. Based on the findings in Dr. Pan’s assessment that Student had attention deficit hyperactivity disorder and high functioning autism (Asperger’s Syndrome), Parents requested on February 4, 2016, that District assess Student, and gave District a copy of a two page letter Dr. Pan wrote to the investigating officer that summarized her assessment findings.^[9]

26. Right before the February winter recess, which began on February 15, 2016, District informed Parents that Student could attend a District school. However, District did not permit Student to return to Loyola because the victim was still attending that school. District informed Parents that for Student to attend a District school that he needed to attend another campus. Student began attending Almond after the winter break on February 22, 2016, in Raquel Matteroli’s second grade class. On March 16, 2016, District changed the disciplinary notice back to improper physical conduct, which is not an automatic expellable offense. However, as a condition of Student’s return, District assigned an aide to monitor Student during all recesses, who is still assigned to monitor Student at the time of this hearing, to prevent a similar incident as occurred on January 28, 2016.

ASSESSMENTS

Dr. Jocelyn Pan

27. Jocelyn Pan, Ph.D., performed a neuropsychological assessment of Student over two days, February 1 and 3, 2016. Dr. Pan is a licensed clinical psychologist, providing individual and group therapy, and psychological and neuropsychological assessments, including special education assessments. Dr. Pan obtained her bachelor of science degree in Psychobiology from University of California, Los Angeles, and her master degree and doctoral degree in clinical psychology in California School of Professional Psychology. Since 2010, Dr. Pan has operated Appletree Psychological Service. Her practice serves 50 to 60 clients a week, with slightly more than half being children and adolescents. She does about 120 to 150 assessments a year, with 60 percent being psychoeducational assessments, using examiners under her supervision to conduct some of the testing. Dr. Pan had done some work for Mother in the past for Mother’s criminal defense clients and had assessed Student’s older brother and found him to have ADHD.

28. Dr. Pan assessed Student three hours each day. The assessment was focused on issues Parents presented regarding difficulties Student had in following directions, controlling his impulses and demonstrating odd behavior. Dr. Pan’s assessment consisted of Parent interviews, the Wechsler Intelligence Scales for Children, Fifth Edition, Wide Range Achievement Test, Fourth Edition, NEPSY, Second Edition, Quotient ADHD System Test, Gilliam Autism Rating Scale, Third Edition, and Behavior Assessment System for Children, Third Edition. Based on this assessment, Dr. Pan diagnosed Student according to the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition, as having moderate attention deficit hyperactivity disorder and high functioning autism. Dr. Pan’s assessment focused on providing a defense as to the pending criminal investigation, not whether Student was eligible for special education services.

29. The cognitive and academic testing found Student to be average to high average in all areas of reading, math, spelling, verbal comprehension, memory, and reasoning. On the Wechsler, Student had a full-scale intelligence quotient of 104, in the average range where 100 is the median score. Student’s ability to sustain attention and concentrate was in the average range, which belies Dr. Pan’s contention and Parental history that Student had significant attentional deficits. Student’s academic achievement testing found Student’s skills to be in the fourth grade level, above his second grade status. Dr. Pan noted that Student might be feeling that he is not being intellectually stimulated at school, while not stated in her report, as a plausible explanation for some of Student’s behavior issues in class.

30. The NEPSY assesses executive functioning skills in children ages 3 to 16 years of age on planning, cognitive flexibility, impulsivity, auditory attention, self-regulation and problem solving. Dr. Pan found that Student had significant discrepancies in four out of the six domains tested that indicated unbalanced neurological abilities. However, a review of the clinician report for the NEPSY attached to Dr. Pan’s assessment showed that nearly all of Student’s scores in the subtests for the six domains tested were either in the expected level (skills more developed than 50 percent of his peers) or above expected level (skills more developed than 70 percent of his peers.) Student had only a few areas out of over 70 areas that were borderline (skills not as developed as 70 percent of his peers) and below expected level (skills not as developed as 90 percent of his peers), with no clumping of below average score in any domain. Dr. Pan’s cherry picking of scores is extremely troubling and indicative of her assessment looking for something wrong about Student to satisfy Parents’ concerns that something seriously wrong had to exist for Student to have engaged in the January 28, 2016 incident.

31. Dr. Pan’s biases were evident in her interpretation of the behavior rating scales questionnaires that Parents, Ms. Wirkkala and Ms. Swarbrick completed. Mother’s and Father’s scores in nearly all domains were average or at-risk, and not at the level of true concern of clinically significant. The same was true for Ms. Wirkkala and Ms. Swarbrick, except that neither had any area of clinically significant. Instead of trusting the overall results, Dr. Pan selectively chose answers from the questionnaires the four completed, which defeats the purpose of the rating scales that aggregates scores from various questions to give results for the various subtest scores.

32. Of most concern was Dr. Pan’s diagnoses of autism were the results of the autism rating scale was based solely from Mother’s questionnaire with no plausible explanation why Ms. Swarbrick and Ms. Wirkkala were not given a questionnaire as they had completed the behavior questionnaire. Mother’s responses to questions about restricted or repetitive behaviors typical with persons with autism had a scaled score of 15, with 10 being median score, indicating 95 percentile. Mother also had scores for emotional response, 12, cognitive style, 14 and maladaptive speech, 13, that are highly indicative of a child with significant autism deficits. However, Student’s social interaction scaled score was 10, and for social communication, 9, which is in average range.

33. Dr. Pan’s assessment had no information as to whether others observed autistic behaviors especially at school. Neither Ms. Wirkkala nor Ms. Swarbrick observed at school the severe deficits that Mother described as to restricted or repetitive behaviors, emotional response, cognitive style, and maladaptive speech. Additionally, Dr. Pan did not as part of her assessment observe Student in a public setting or after Student returned to school to observe to confirm her findings of autism. Finally, the autism index score of 120 and severity level of three, as explained by Dr. Anderson, who is knowledgeable about the Gilliam Autism Rating Scales and its scoring, would indicate a child who would require a special day class, not a general education class which Student attended and was doing better academically and not-academically that Mother’s score would indicate.

34. Dr. Pan’s testimony and her report findings about the severity of Student’s deficits related to her finding that Student had autism and ADHD and her ultimate conclusion that Student required special education services was not credible. A review of the scores that Dr. Pan included in her report clearly demonstrated that she selectively chose particular scores to support her conclusions and ignored scores to the contrary with no good reasoning why, other than those scores did not support the ultimate finding that she wanted to make.

Dr. Alice Ruzicka

35. To get further information for the upcoming IEP team meeting about whether Student was eligible for special education services, Parents retained the services of Alice Ruzicka, Ph.D., to review Dr. Pan’s assessment, focusing on the areas of concern Dr. Pan noted. Dr. Ruzicka has extensive educational psychology experience after getting her master’s degree in 1965 and has conducted countless special educational eligibility assessments and attended IEP team meetings. She worked as a school psychologist for several school districts through 2001. She received a Ph.D. in clinical psychology and in 1993 became a licensed psychologist. She then completed a two year postdoctoral program in neuropsychology. She started a private educational psychology practice from 1985 through 1997, when she obtained her neuropsychology degree and has been a clinical neuropsychologist since then. Her current practice involves primarily assessing students from kindergarten through 12th grade.

36. Dr. Ruzicka reviewed Dr. Pan’s report and spoke to Parents about their concerns about Student and to get Student’s educational history. Dr. Ruzicka did not conduct extensive further testing of Student because of Dr. Pan’s prior testing and only administered Test of Problem Solving, Third Edition, and test of Integrated Visual and Auditory, Second Edition. The time Dr. Ruzicka spent with Student in her office on March 13, 2016, a Sunday morning, testing him and getting to know him was about an hour. Dr. Ruzicka was not aware that District was concurrently assessing Student. Dr. Ruzicka also observed Student twice at Almond.

37. Dr. Ruzicka used the Test of Problem Solving to tease out further if Student had deficits consistent with Dr. Pan’s autism diagnosis. Student’s overall score was 77, which placed him in the sixth percentile. In the six subtests, Student’s lowest score was 57, first percentile, in problem solving, and highest was 91, 27th percentile, for sequencing. Student’s other subtests scores ranged from 78 to 89, seventh through 23rd percentiles. Dr. Ruzicka opined that Student’s scores on the Test of Problem Solving were consistent with Dr. Pan’s autism findings.

38. The Integrated Visual and Auditory testing focuses on ADHD. Student’s combined sustained attention score was 74, fourth percentile. On auditory sustained attention, Student’s standard score was 56, first percentile, while he was in the average range with a score of 92 on visual sustained attention. Dr. Ruzicka opined that Student’s combined score was consistent with Dr. Pan’s ADHD diagnoses.

39. After the office visit, Dr. Ruzicka observed Student at Almond, the first time in Ms. Matteroli’s class and recess and the second visit at lunch. In the first visit, which Student was aware he was being observed in class and was indistinguishable from his classmates as to his behavior, attention and social communication. Of concern for Dr. Ruzicka was Student’s behavior at recess in which he went to the playground by himself and just walked around in a circle, not responding to other children who tried to engage him. Dr. Ruzicka found Student’s playground behavior extremely troubling and highly indicative of autism.

40. However, during the second visit, Student played appropriately with two classmates in moving from the lunch table to play structure. Dr. Ruzicka did not explain the difference why Student would demonstrate extreme signs of autism in one visit and typical interaction in the next visit. Additionally, Dr. Ruzicka did not speak to Ms. Matteroli to find out how Student was transitioning to a new school and whether the behavior she observed during the first visit was typical for Student.

41. Dr. Ruzicka’s failure to check if information to the contrary existed to challenge her initial impression was extremely troublesome. She took Dr. Pan’s report at face value and did not challenge any of the glaring holes about Dr. Pan’s autism diagnosis and the severity of Student’s attention deficits based on Dr. Pan not interpreting the teachers’ behavior questionnaires correctly. Dr. Ruzicka stood by her testing results even though Student’s low scores are equally explained by test fatigue as Dr. Anderson had just completed her extensive testing, plus possibility that testing Student on a Sunday morning on a day when the clocks changed for daylight savings^[10] so Student may have lost an hour of sleep. Finally, Dr. Ruzicka, like Dr. Pan, was never asked by Student to explain Dr. Anderson’s assessment results to the contrary and why Dr. Ruzicka’s and Dr. Pan’s findings were correct and Dr. Anderson’s were not.

District’s Psychoeducational Assessment

42. Dr. Anderson performed the District’s psychoeducational assessment, assisted by Diane Sasaki who performed the academic assessment. Dr. Anderson obtained her bachelor’s degree in psychology in 2005, her master’s degree in school psychology in December 2006 and Ph.D. in school psychology in December 2010. She possesses a school psychologist credential and is a licensed educational psychologist. She was a school psychologist intern in the 2006-2007 and 2008-2009 school years and in private practice as a clinical psychologist intern the year between. Dr. Anderson has been employed as a school psychologist with District since 2009 and her duties include conducting and reviewing psychoeducational assessments, attending IEP team meetings, developing behavior intervention plans, school counseling and consultation to teachers on students who are eligible for special education services and those who are not, but whom the teacher has concerns about the student. She has also been involved with a District therapeutic special day class for children with severe emotional and behavioral deficits and assisting in developing changes to the District’s Student Success Team process. Dr. Anderson has had training on identifying and working with students with autism and ADHD and has assessed these students and has worked with them as a school psychologist.

43. Dr. Anderson was the school psychologist at Loyola at the time of the disciplinary incident. Although Student was not going to return Loyola, she conducted Student’s psychoeducational assessment based on her knowledge of Student with the Student Success Team plan she assisted Ms. Wirkkala and observations of Student when in his class and on the playground based on teacher concern or during observations of other students. Dr. Anderson was not involved in any of the interviews and disciplinary decision making process. However, Dr. Anderson’s response to questions about the disciplinary incident made it apparent that she believed that District overreacted as to any threat Student might pose. Based on information provided by Parents as to Student’s areas of disability, information in Dr. Pan’s two page letter as Dr. Anderson did not receive a copy of Dr. Pan’s assessment until just before the April 4, 2016 IEP team meeting, and her review of Student’s educational records, District’s assessment would explore suspected disabilities related to other health impaired due to Student’s ADHD diagnosis, autism, specific learning disability, emotional disturbance and speech language impairment.

44. For her assessment, Dr. Anderson reviewed Student’s educational file. She had Mother fill out a health and developmental information questionnaire and discussed with both Parents their areas of concerns regarding Student’s social communication and behavior. Mother concurred with Dr. Pan’s diagnoses of autism and ADHD as it explained the significant deficits Mother had observed with Student’s social skills, repetitive mannerisms, difficulty handling stressful situations, poor handwriting and impulsivity.

45. Dr. Anderson also spoke with Student’s kindergarten teacher, Ms. Wirkkala, Ms. Swarbrick, Ms. Matteroli, and the school psychologist at Almond. Based on these interviews, Dr. Anderson was aware of school incidents, such as name calling to the Polynesian student and banging on the windows of another class with his classmates. Dr. Anderson also observed Student at Almond in his classroom and during unstructured time at recess and lunch. She also performed formalized testing over several days in late February 2016 and early March 2016 to avoid test fatigue so that Student would perform at his best. Dr. Anderson was qualified by education, training and experience to conduct Student’s psychoeducational assessment and on the instruments she used for the assessment.

46. As noted earlier, Dr. Anderson was aware of Student before the January 2016 disciplinary incident based on Ms. Wirkkala’s Student Success Team plan and monitoring the plan to see how Student responded. In the teacher interviews, Ms. Wirkkala, Ms. Swarbrick, and Ms. Matteroli were all consistent that while Student had some attention and impulsivity issues, these problems were pretty typical of other students his age and his classroom distraction to other students was minimal. Student was responsive to general education accommodations and interventions, such as a reward system, moving slightly Student’s desk, verbal redirection and explaining one to one to Student what he did wrong and what the proper behavior should be. All stated that Student’s major weakness was his handwriting, but not that far out of the norm compared to his peers. All of Student’s teachers said that Student had friends that he played with at school, that the play was appropriate and his problems with social communication were not uncommon for students his age.

47. Dr. Anderson conducted a combined playground and classroom observation and then just a separate playground observation and separate classroom observation. All three observations were unremarkable. With the playground observations, Student played appropriately with his classmates at recess, taking turns, transitioning back and forth to different games and communicating with each other. Dr. Anderson’s classroom observations were equally unremarkable as Student transitioned easily to class after recess and sat at his desk, followed teacher instruction, stayed on task primarily and when it appeared that his mind was wandering off returned back to attention appropriately. Student raised his hand to answer questions and answered correctly when called upon, and participated in group activities. Dr. Anderson’s observations were similar to those of Dr. Ruzicka, other than the playground incident that Dr. Ruzicka latched onto of Student wandering in circles at recess as definitive proof of Student’s autism.

48. On the Differential Abilities Scale, Second Edition, which measures a child’s cognitive abilities, Student had an overall ability score of 112, placing him in the 79th percentile. Dr. Anderson chose this cognitive test since it also has a non-verbal component and Parents had expressed concerns about Student’s verbal abilities. On the non-verbal composite score, Student was at 110, at the 75th percentile. Student’s strengths in this testing were in verbal reasoning and working memory, and overall all of Student’s subtest scores were in the average or above range.

49. To check for auditory processing deficits, Dr. Anderson conducted the Test of Auditory Processing Skills, Third Edition, and all his subtest scores were average or above, for an overall score of 111, 77th percentile. To examine visual processing, Dr. Anderson administered the Test of Visual Processing Skills, Third Edition, and all his subtest scores were average or above, for an overall score of 108, 70th percentile. The results of both of the processing assessments indicated that Student did not have any processing deficits in receiving classroom instruction, orally or in writing, and verbally, and then responding either verbally or in writing.

50. Due to concerns about Student’s motor abilities, Dr. Anderson administered the Developmental Test of Visual Motor Integration, Sixth Edition, which also looks at fine motor skills as students copy shapes from simple to complex. Student obtained a score of 93, placing Student in the average range in the 32nd percentile.

51. To examine Student’s executive functioning, Dr. Anderson administered the Das Naglieri Cognitive Assessment System, Third Edition, which looks at a student’s cognitive processing abilities as to planning, attention, simultaneous and successive tasks. On the Planning Index, Student had a Standard Score of 128, placing him in the 97th percentile, and on the Attention Index a standard score of 106, 66th percentile. None of the subtest scores were below the 50th percentile, which demonstrated that Student had average to above average abilities to plan, pay attention and complete tasks.

52. The Conners Rating Scales, Third Edition, is a questionnaire completed by parents and classroom teacher to examine cognitive, behavioral and emotional issues, with a focus on ADHD related problems. The questionnaire asks the person completing the form to consider the student’s actions in the past 30 days when answering the questions. Dr. Anderson gave the questionnaire to both Parents and to Ms. Matteroli. As to attention, hyperactivity/impulsivity, defiance/aggression and peer relations, Parents rated Student very elevated in these areas, which are indicative of a student with significant ADHD problems, especially elevated concerns about Student’s executive functioning skills.

53. In contrast, Ms. Matteroli^[11] rated Student as average in all areas. While Ms. Matteroli had been Student’s teacher for a short period, the Conners only looks at the past 30 days. Further, her scoring was consistent with Ms. Wirkkala’s and Ms. Swarbrick’s responses on the behavior questionnaires completed for Dr. Pan’s assessment that did not indicate significant attention problems, and consistent with her observations of Student for the remainder of the school year. Of note, Student’s behavior and attention were typical on Ms. Matteroli’s questionnaire even though he just transitioned to a new school and classroom, and remained that way for the remainder of the school year, which one would not expect if Student had the severity of autism and ADHD deficits that Dr. Pan and Dr. Ruzicka claimed.

54. Dr. Anderson gave Parents and Ms. Matteroli Autism Spectrum Rating Scale questionnaires. The Autism Spectrum Rating Scale asks questions as to symptoms, behaviors and associated features of children and adolescents diagnosed with autism spectrum disorder, based on observations during the past 30 days. The areas asked about involve social skills and communication, unusual and stereotypical behaviors, ability to self-regulate, non-verbal communication, and sensory sensitivity. In 10 out of the 12 areas evaluated, Parents rated Student in the very elevated range for a total score of 76, very elevated. Based on Parents’ scores, which were consistent with the Gilliam scores in Dr. Pan’s assessment, Dr. Anderson stated that Student would fit the profile of a child in a District autism special day class with moderate disabilities.

55. However, Student did not fit the profile that Parents’ responses would suggest. Ms. Matteroli’s questionnaire responses were a more accurate representation of Student. In all areas Ms. Matteroli rated Student as average, which corresponded to the observations of Ms. Wirkkala and Ms. Swarbrick of Student in their classrooms and on the playground and what Dr. Anderson observed. Student did not have problems communicating with his peers, verbally or non-verbally, no stereotypical or unusual mannerisms, proper emotional responses to situations and no sensory sensitivity.

56. To look at Student’s behavior and social emotional health, Dr. Anderson gave Parents, Ms. Matteroli and Ms. Swarbrick questionnaires from the Achenbach System of Empirically Based Assessment, which looks at adaptive and maladaptive functioning. Similar with the other questionnaires, Parents rated with significant issues in five out of the eight areas examined, withdrawal, social problems, thought problems, rule breaking and aggression, and borderline as to anxiousness and attention. Ms. Matteroli and Ms. Swarbrick rated Student as typical in all areas. Parents responses to this questionnaire, and all questionnaires they completed for Dr. Pan’s and Dr. Anderson’s assessment amplified any deficits that Student had, not accepting that any difficulty Student had as to attention and impulsive behavior were not out of the norm for students his age.

57. Dr. Anderson gave Parents, Ms. Matteroli and Ms. Swarbrick questionnaires for the Scales for Assessing Emotional Disturbance, Second Edition, which asks questions relevant to five qualifying characteristics of the special education eligibility of emotional disturbance based on observations in the past 60 days. Parents rated as high indicative issues related to relationship problems and indicative as to unhappiness or depression and physical symptoms. Ms. Matteroli and Ms. Swarbrick rated Student as not indicative of any problems in all areas, except that Ms. Swarbrick rated Student as indicative as to inappropriate behavior. When asked about this area of concern by Dr. Anderson, Ms. Swarbrick stated that for the last month of Student’s attendance in her class that Student would destroy papers by pressing holes into them and cutting up erasers, plus mild problems with disrespect for authority, cruelty to peers, cheating or lying and threats to others. However, the one area of concern that Ms. Swarbrick had was not an area of concern of Parents.

58. On the academic testing Ms. Sasaki conducted, Student’s composite scores for reading in three tested areas, written expression, mathematics and math fluency were all above average, with the lowest standard score of 112, 79th percentile, in basic reading to 145 in math fluency, 99th percentile. This corresponded to Student’s classroom performance and his report card progress.

59. Dr. Anderson concluded her report in finding that Student was not eligible for special education services under the autism category, even with Dr. Pan’s autism diagnosis, as Student did not exhibit any developmental disability that significantly affected his communication, verbal or non-verbal, based on her assessment, the speech and language assessment discussed below by Shari Laramie, her observations of Student not only for this assessment, but for the past two years, and information provided by Student’s teachers. Further, Student did not display repetitive or stereotypical behaviors, easily transitioned between different activities and did not have unusual responses to sensory experiences. And finally, as to any deficit Student might have had, he did not require special education services to access the general education curriculum as he was doing above average academically and socially as well as he was able to make and maintain friends and interacted appropriately with his peers, absent the disciplinary incident.

60. As to other health impaired special education eligibility, Dr. Anderson acknowledged Student’s ADHD diagnosis from Dr. Pan. However, regarding Student’s behavior in class, based on the assessment testing, Dr. Anderson’s observations in class and during the testing, and information from his classroom teachers, Dr. Anderson found that Student did not have limited strength, vitality and alertness, as he was able to pay attention to classroom instruction and was little more of a disturbance to classmates than a typical student with his fidgeting, talking in class and impulsiveness. Further, Student’s teachers were able to resolve any attention issues with general education interventions, such as with use of the rewards system or simple redirection, which Student easily responded to those and went back to task.

61. Student did not demonstrate that Dr. Anderson was not qualified to conduct any of the assessment instruments, that she improperly conducted any of the assessment instruments, or that the information she obtained was not accurate. The fact that Dr. Anderson’s conclusion did not mirror Parents’ input did not mean that Dr. Anderson failed to consider their input. Dr. Pan and Dr. Ruzicka failed to establish any faults with Dr. Anderson’s assessment. Finally, Dr. Anderson was more credible that Dr. Pan and Dr. Ruzicka due to the accuracy of her assessment and properly interpreting test results.

District’s Speech and Language Assessment

62. Ms. Laramie is a District speech and language pathologist who assessed Student. Ms. Laramie has a bachelor's and master’s degree in speech and language pathology, and a clinical rehabilitation credential that permits her to be a school speech and language pathologist. Ms. Laramie has been a speech and language pathologist with District since 2000 and worked for another school district in that role from 1998 to 2000. Ms. Laramie’s duties include conducting initial and triannual speech and language assessments and to provide speech and language services to eligible Student and consultation services to District personnel. Ms. Laramie has assessed hundreds of children with autism diagnoses, and students with ADHD.

63. Over eight days in March 2016, Ms. Laramie conducted formalized and informal testing of Student. Based on Parents’ assessment request and concerns related to Student’s autism diagnosis, Ms. Laramie chose testing to examine Student’s social communication skills, expressive and receptive language abilities and abilities to produce understandable speech. Ms. Laramie found that Student remained focused during all her testing and gave his best effort. Ms. Laramie’s assessment also included observing Student on the playground and in class, and reports from Parents.

64. Student did not challenge Ms. Laramie’s assessment through another expert or any witness who could dispute her findings. Further, Ms. Laramie presented as a credible witness as she was qualified to conduct the test instruments performed, performed them correctly, assessed in all areas of suspected need, and obtained accurate results. What District’s speech and language assessment found was that Student did not have any speech and language deficits. His expressive language skills were average, 50th percentile, on the Expressive Vocabulary Test, Second Edition, and receptive language slightly above average, 66th percentile, on the Peabody Picture Vocabulary Test, Fourth Edition.

65. On the Comprehensive Assessment of Spoken Language, which examines receptive, expressive and pragmatic language, all of Student’s subtest scores were above average. Student’s score on the nonliteral language, 91st percentile, and inference, 82nd percentile, demonstrated abstract thinking was a strength of Student, when it should have been a weakness for a child with autism, like pragmatic judgment, where Student placed in the 73rd percentile, or grammatical morphemes that tests ability to understand analogies, 81st percent.

66. The Social Skills Improvement System is a questionnaire that Ms. Laramie gave to Student, Parents, Ms. Matteroli and Ms. Swarbrick to look at various aspects of Student’s social skills and communication. Like with the other questionnaires, Parents’ scores were indicative of Student having significant issues, and both Ms. Matteroli and Ms. Swarbrick reporting that Student had good social skills. As to problem behaviors, Ms. Swarbrick reported that Student had slightly above average issues, while Ms. Matteroli was slightly below average, while Parents were extremely above average. Of note were Student’s responses that scored himself below average with social skills 17th percentile, while his Parents were in the first percentile, and above average on problem behaviors, 73rd percentile, with his Parents in the 97th percentile.

67. On the Social Language Development Test, which measures verbal and nonverbal communication, Student was slightly below average with a standard score of 84, 14th percentile. On the Goldman-Fristoe Test of Articulation, Student’s score in ability to make sounds in words was low average of score at 86, 18th percentile, and sound in sentences, average with a score of 92, 30th percentile. Ms. Laramie found that while Student had misarticulations in his speech due substituting sounds, ‘w’ for ‘r’, and some difficulty with vowel combinations, that his speech was intelligible.

68. During the testing, rapport with Student was easily obtained and Student had no problem with transition in being taken from his class to testing, discussed easily what he was doing in and out of school, and able to remain focused during the testing. The playground and classroom observations were similar to Dr. Anderson, as Student talked and played with other student’s on the playground normally and in class paid attention to his teacher, maintaining eye contact, was able to work through distraction with a chatty classmate, and properly raising his hand and answering questions.

69. Ms. Laramie did not find Student eligible for special education under speech language impairments as he did not meet the eligibility criteria as he had no score below the 7th percentile on any of the assessment instruments administered as overall his speech and language skills over all the domains tested were either average to above average, except for social skills, which while low, was not below the seventh percentile on the test instruments.

Axiom Learning Social Skills Services

70. Out of concern about Student’s social skills and emotional regulation, Parents enrolled Student at Axiom Learning, which provides various educational services, including social skills, academic tutoring and test preparation classes. Axiom Learning conducted an ‘assessment’ of Student to determine the social skills services it would provide Student based on his areas of need. The assessor did not testify to explain the report findings. Anthony Ho from Axiom Learning testified as to the services he provided Student. Mr. Ho does have a college degree, but it is not in the field of education. All of Mr. Ho’s training and experience in the education field has been provided by Axiom Learning in the two and a half years he has been employed there. None of the documents introduced at hearing from Axiom Learning or information about the services provided and Student’s progress from Axiom Learning established that Student was eligible for special education services, especially as Mr. Ho was not qualified to give any expert testimony as to Student’s eligibility, or authenticate the Axiom Learning documents. Finally, Mr. Ho’s observations of Student did not show that Student had the level of significant social skills deficits set forth in Dr. Pan’s report.

APRIL 2016 INDIVIDUALIZED EDUCATION PROGRAM TEAM MEETINGS

71. Student’s IEP team meeting convened on April 4, 2016, to go over District’s assessments, private assessments conducted by Dr. Pan and Dr. Ruzicka, who attended this meeting, information from Axiom Learning from its representative, and information about Student from his Parents and Ms. Matteroli. The IEP team meeting was continued to April 20, 2016, to complete the discussion on Student’s eligibility. In addition to Dr. Ruzicka, Dr. Pan attended and discussed her report.

72. For the IEP team meetings, Parents prepared information packets that contained an eight page letter summarizing their concerns about Student’s educational performance, behavior and social communication deficits, which included attachment of classwork. Mother also presented a two page plan letter for areas of focus for Student’s IEP, which included methods for one on one instruction for social communication, and a 10 page timeline of educational, behavioral and social skills problems, and 33 pages of emails between Parents and District personnel regarding problems involving Student.

73. None of the information packets presented provided District with any new information about Student that District did not already have regarding his educational performance and problems Student had at school as to his behavior, attention, impulsiveness, social skills or social communication. The information presented by Parents was highly skewed with just negative information about their son that did not match the child that District personnel saw in their day to day interactions with Student. District witnesses were forthright in discussing positive and negative issues involving Student, and complementing Parents for being very involved in their child’s education and how well they treated District personnel even though Parents were upset at District on how it responded to the January 2016 disciplinary incident.

74. Based on all the information available to District as of April 20, 2016, it rightfully determined that Student was not eligible for special education services as Student was meaningfully progressing academically, had no significant behavior, emotional or communication deficits, and who presented little problem to his teachers in or out of the class, but for the unfortunate incident on January 28, 2016.^[12] However, one isolated incident, no matter how horrific, does not qualify Student for special education services as that incident was not representative of Student before or afterwards.

LEGAL CONCLUSIONS

INTRODUCTION: LEGAL FRAMEWORK UNDER THE IDEA^[13]

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

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

3. In Board of Education of the Hendrick Hudson Central School District v. Rowley (1982) 458 U.S. 176, 201 [102 S.Ct. 3034] (“Rowley”), the Supreme Court held that “the ‘basic floor of opportunity’ provided by the [IDEA] consists of access to specialized instruction and related services which are individually designed to provide educational benefit to” a child with special needs. Rowley expressly rejected an interpretation of the IDEA that would require a school district to “maximize the potential” of each special needs child “commensurate with the opportunity provided” to typically developing peers. (Id. at p. 200.) Instead, Rowley interpreted the FAPE requirement of the IDEA as being met when a child receives access to an education that is reasonably calculated to “confer some educational benefit” upon the child. (Id. at pp. 200, 203-204.) 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. (J.L. v. Mercer Island School Dist. (9th Cir. 2010) 592 F.3d 938, 950, fn. 10.) The Supreme Court’s recent decision in Endrew F. v. Douglas County Sch. Dist. RE-1 (2017) (2017) 580 U.S.___ [137 S.Ct. 988] (Endrew F.)] reaffirmed that to meet its substantive obligation under the IDEA, a school must offer an IEP reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances; any review of an IEP must appreciate that the question is whether the IEP is reasonable, not whether the court regards it as ideal.

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

ISSUE 1(A): CHILD FIND DUTIES

5. Student asserted that District did not comply with its child find obligations as Student’s behavior and social communications problems were so significant that District should have assessed for special education eligibility.

Legal Authority

6. A school district has an affirmative, continuing obligation to identify, locate, and evaluate all children with disabilities residing within its boundaries. (20 U.S.C. § 1412(a)(3).) This duty is commonly known as “child find.” The duty is not dependent on any action or inaction by parents. A school district must actively and systematically seek out all individuals with exceptional needs who reside in the district. (Ed. Code, § 56300.) Child find applies to those children, among others, who are suspected of being a child with a disability and in need of special education and related services, even though they are advancing from grade to grade. (34 C.F.R. 300.111(a).)

7. The suspicion that a student may have an impairment that is affecting the student’s educational performance, and requires special education, is sufficient to trigger a need to assess. (Park v. Anaheim Union High School Dist., et. al. (9th Cir. 2006) 464 F.Supp. 1025, 1032, citing Ed. Code, § 56320.) The threshold for suspecting that a child has a disability is relatively low. A district’s appropriate inquiry is whether the child should be referred for an evaluation, not whether the child actually qualifies for services. (Dept. of Educ. v. Cari Rae S. (D. Hawaii 2001) 158 F.Supp.2d 1190, 1195; Tamalpais Union High School Dist. v. D.W. (N.D. Cal. Sept. 21, 2017, Case No. 16–cv–04350–HSG) ___ F.Supp.3d ___, 2017 WL 4176444, **5-6.) A failure under child find is a procedural violation of the IDEA.

Analysis

8. Student did not establish that District should have referred Student for a special education assessment before Parents’ February 4, 2016 assessment request as a child who might require special education services. Ms. Wirkkala and Ms. Swarbrick were convincing based on their education and experience, Student observations, and interactions with Student that while Student did have attention deficits, these deficits were not that severe, nor unusual for students in first and second grades. Further, Student responded to general education interventions, like simple redirections, a change in where he sat in the class and a sticker reward program. While Student did have difficulty understanding the perspective of other classmates and did engage in name calling, Student did have friends, played appropriately and did fine with in group instruction and activities in class. Finally, both teachers were aware of the process of contacting the school psychologist to start the special education assessment process if they felt a student had significant enough educational difficulties to warrant an assessment and credible that they would have made such a request for Student if warranted even if Student was progressing as well academically as he was.

9. Ms. Wirkkala’s creation of the Phase 1 Student Success Team plan did not rise to a level of issues facing Student that warranted a special education assessment. The issues documented in the plan based on Ms. Wirkkala’s contact with Student and information provided by Mother were not so serious to establish that Student was a child who might require special education services and should be assessed. Neither Dr. Pan nor Dr. Ruzicka opined that the information in the Phase 1 plan put District on notice that it needed to assess Student. Further, Dr. Anderson explained that she was aware of the difficulties that Student was experiencing in Ms. Wirkkala’s classroom by consulting with Ms. Wirkkala in the development of the plan and her observations of Student in class and on the playground, and that they did not warrant a special education assessment, especially as Student’s attention and behavior problem improved with the general education interventions in the plan. Further, Mother in discussing her concerns that led to the development of this plan never made a request for a special education assessment as her statement that Student might require a Section 504 assessment was based on Student having possibly similar issues as his sibling who has a Section 504 plan.

10. Parents described similar issues as to difficulties they saw with Student as to his attention and social skills deficits, but they tended to overemphasize every problem that Student had to be bigger than it was. In her email correspondence with Ms. Wirkkala and Ms. Matteroli, even when Mother acknowledged progress that Student was making, especially with the general education interventions the teachers provided, she was quick to focus on some other problems that she perceived that Student had. Parents’ description of Student having stereotypical behavior, unusual mannerisms, social communication and social skills deficits was not credible as they described a child with significant autistic traits, which were not observed at Loyola by teachers or staff. Also, Student did not demonstrate the level of inattention at school as Parents described as he was able to access the curriculum and stay on task with general education interventions.

11. In conclusion, Student did not establish by a preponderance of the evidence that District was on notice that Student displayed significant deficits as to attention or autistic behaviors that would warrant a special education assessment. Student responded to general education interventions provided by his teachers that permitted him to access the academic curriculum and make adequate progress, and to obtain non-academic benefits in having friends he played with at school and being able to participate in group activities.

ISSUES 1(B), 2 AND 3: ASSESSMENT ADEQUACY AND SPECIAL EDUCATION ELIGIBILITY

12. Student contended that District should have found him eligible for special education services under the category of autism based on Student’s significant social communication deficits and stereotypical mannerism; other health impaired due to his significant attention issues; and finally under speech language impairment with his significant pragmatic and social skills deficits. Because Student contends he was eligible for special education services, District needed to develop an IEP so he could receive a FAPE.

Legal Authority

13. Assessments are required to determine eligibility for special education, and what type, frequency and duration of specialized instruction and related services are required. In evaluating a child for special education eligibility and prior to the development of an IEP, a district must assess him in all areas related to a suspected disability. (20 U.S.C. § 1414(b)(3)(B); Ed. Code, § 56320, subd. (f).)

14. A school district’s failure to conduct appropriate assessments or to assess in all areas of suspected disability may constitute a procedural denial of a FAPE. (Park v. Anaheim Union High School Dist. (9th Cir. 2007) 464 F.3d 1025, 1031-1033.) To assess or reassess a student, a school district must provide proper notice to the student and his or her parents. (20 U.S.C. § 1414(b)(1); Ed. Code, §56381, subd. (a).) Parental consent for an assessment is generally required before a school district can assess a student. (20 U.S.C. § 1414(a)(1)(B)(i); Ed. Code, § 56321, subd. (a)(2).)

15. The personnel who assess the student shall prepare a written report that shall include, without limitation, the following: (1) whether the student may need special education and related services; (2) the basis for making that determination; (3) the relevant behavior noted during observation of the student in an appropriate setting; (4) the relationship of that behavior to the student’s academic and social functioning; (5) the educationally relevant health, development, and medical findings, if any; (6) if appropriate, a determination of the effects of environmental, cultural, or economic disadvantage; and (7) consistent with superintendent guidelines for low incidence disabilities (those effecting less than one percent of the total statewide enrollment in grades K through 12), the need for specialized services, materials, and equipment. (Ed. Code, § 56327.) Within 60 days of parental consent to the assessment, the assessment report must be provided to the parent (Ed. Code, § 56329, subd. (a)(3)), and an IEP team meeting must be held to consider the assessment. (Ed. Code § 56302.1, subd. (a).)

16. An IEP is evaluated in light of information available at the time it was 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.” (Id. at p. 1149.) It must be evaluated in terms of what was objectively reasonable when the IEP was developed. (Ibid.) Also, after-acquired evidence “may shed light” on the adequacy of the program a public agency proposed, although such evidence is not outcome determinative. (Adams, supra, 195 F.3d at p. 1149.) The holding of Adams “that exclusive use of hindsight is forbidden does not preclude consideration of subsequent events. [Citation to Adams, supra, 195 F.3d at p. 1149-1150, quoting Fuhrmann, supra, 993 F.2d at p. 1041.] The clear implication of permitting some hindsight is that additional data, discovered later in the evaluation process, may provide significant insight into the child’s condition, and the reasonableness of the school district’s action, at the earlier date.” (E.M. v. Pajaro Valley Unified School Dist. (9th Cir. 2011) 652 F.3d 999, 1006.)

17. Under the IDEA, only children with certain disabilities are eligible for special education. (20 U.S.C. § 1401(3)(A); Ed. Code § 56026, subd. (a).) For purposes of special education eligibility, the term “ child with a disability” means a child with mental retardation, hearing impairments (including deafness), speech or language impairments, visual impairments (including blindness), serious emotional disturbance, orthopedic impairments, autism, traumatic brain injury, other health impairments, a specific learning disability, deaf-blindness, or multiple disabilities, and who, by reason thereof, requires instruction, services, or both, which cannot be provided with modification of the regular school program. (20 U.S.C. § 1402(3)(A)(ii); 34 C.F.R. § 300.8(a).) Similarly, California law defines an “individual with exceptional needs” as a pupil who is identified by an IEP team as “a child with a disability” pursuant to 20 U.S.C. section 1402(3)(A)(ii), and who requires special education because of his or her disability. (Ed. Code § 56026, subds. (a), (b).)

18. On the other hand, federal regulations require “each State must ensure that a FAPE is available to any individual child with a disability who needs special education and related services, even though the child has not failed or been retained in a course or grade, and is advancing from grade to grade.” (34 C.F.R. § 300.8 (c)(i).) Further, the IDEA requires that the term “unique educational needs” be broadly construed to include a disabled child’s academic, social, health, emotional, communicative, physical and vocational needs. (Seattle School Dist. No. 1 vs. B.S., (9th Cir. 1996) 82 F. 3d 1493, 1500.)

19. In broadly construing Student’s unique educational needs, his status as intellectually gifted cannot be discounted. Intellectual giftedness is not a category of disability under the IDEA, and students are not IDEA-eligible on that basis alone. Gifted students, however, are still protected by the IDEA, and may qualify for special education if they exhibit one or more of the disabilities listed in the IDEA. The mere fact that a student is gifted does not disqualify him from eligibility for special education. Further, a student who is eligible as a student with a disability is eligible regardless of his academic success. (Letter to Anonymous, 55 IDELR 172 (OSEP 2010). As example, a gifted student may have high or above average academic scores, however this cannot automatically constitute ineligibility, if the student has deficits in other areas such as communication, pragmatics, and social-emotional skills.

20. A child shall qualify as an individual with exceptional needs, pursuant to Education Code section 56026, if the results of the assessment as required by Education Code section 56320 demonstrate that the degree of the child’s impairment as described in subdivisions (b)(1) through (b)(13) require special education in one or more of the program options authorized by Education Code section 56361. The decision as to whether or not the impairment requires special education shall be made by the IEP team, in accordance with Education Code section 56431(b). The IEP team shall take into account all the relevant material which is available on the child. No single score or product of scores shall be used as the sole criterion for the decision of the IEP team as to the child’s eligibility for special education.

21. In pertinent parts, the Education Code defines autism as a developmental disability significantly affecting verbal and nonverbal communication and social interaction, generally evident before age three, and adversely affecting a child’s educational performance. Other characteristics often associated with autism are engagement in repetitive activities and stereotyped movements, resistance to environmental change or change in daily routines, and unusual responses to sensory experiences. (Ed. Code § 56026, subd. (b)(1).)

22. California Code of Regulations, title 5, section 3030, subdivision (b)(1), describes the criteria for determining whether a child qualifies for special education under the category of autism:

23. It is clear Student remains a child with autism under a medical diagnosis of autism. Autism does not simply disappear; however, the intensity or impact of a child’s deficits may change. Further, autism is a spectrum disorder, indicating a range of disability, some of which allow a child to appropriately function without special education. As a result, a medical diagnosis alone is not sufficient to support a finding of eligibility for special education. (See, E.J. v. San Carlos Elem. Sch. Dist. (N.D.Cal. 2011) 804 F. Supp. 2d 1024, 1032.) OAH cases have frequently supported a finding that a student with a medical diagnosis of autism who does not exhibit significant behaviors or deficits in the educational setting, does not meet the specific eligibility criteria for autism. (See e.g., Dublin Unified Sch. Dist. v. Student (2006) Cal.Offc.Admin.Hrngs. Case No. 2006060896; Student v. Manteca Unified Sch. Dist. (2009) Cal.Offc.Admin.Hrngs. Case No. 2009060164); Tustin Unified School District v. Student (2016) Cal.Offc.Admin.Hrngs. Case No. 2015080076.)

24. A student “whose educational performance is adversely affected by a suspected or diagnosed attention deficit disorder or attention deficit hyperactivity disorder” and who meets the eligibility criteria for other health impairment under Education Code section 56337 and California Code of Regulations, tit. 5, section 3030, subdivision (b)(9), is entitled to special education and related services. (Ed. Code, § 56339, subd. (a).) “Other health impairment” is defined, in relevant part, as “having limited strength, vitality, or alertness, including a heightened alertness to environmental stimuli, that results in limited alertness with respect to the educational environment, that . . . is due to chronic or acute health problems such as . . . attention deficit disorder or attention deficit hyperactivity disorder . . . and [a]dversely affects a child’s educational performance.” (34 C.F.R. § 300.8(c)(9); see also Cal. Code Regs., tit. 5, § 3030, subd. (b)(9).)

25. A student is eligible for special education due to speech and language impairment if his academic performance is adversely affected by difficulty understanding or using spoken language. Conditions that may cause this difficulty include articulation disorders, abnormal voice, fluency difficulties, or difficulty acquiring expressive or receptive spoken language with language performance significantly below that of peers. (Ed. Code § 56333.) These conditions are more specifically described in title 5 of the California Code of Regulations, section 3030, subdivision (b)(11), which includes a provision that eligibility can be found if the subject is below the seventh percentile on two or more standardized tests.

Analysis

26. Student failed to provide evidence that District’s psychoeducational assessor, Dr. Anderson, and speech and language assessor, Ms. Laramie, were not properly credentialed or did not have the necessary experience to conduct their assessments. Student did not demonstrate that the assessors did not use multiple assessments and a variety of assessment tools including observation, interview, and standardized and non-standardized instruments to evaluate Student in the areas of psychoeducation and speech and language. Further, Student did not show that the assessment instruments chosen were not designed to provide information about Student’s special education eligibility, related services, and accommodations. None of the assessments were racially, culturally, or sexually biased. The assessments were administered in English, which was appropriately determined to be Student’s dominant language. Neither Dr. Pan nor Dr. Ruzicka could point to any fundamental errors in Dr. Anderson’s psychoeducational assessment that would render its results to be invalid, and Student did not present a speech and language assessor to challenge Ms. Laramie’s assessment.

27. Student’s primary challenge to the District’s assessments was that Dr. Anderson and Ms. Laramie failed to adequately consider information presented by Parents as to Student’s behavioral, attention and social communication and skills deficits. However, both Dr. Anderson and Ms. Laramie were convincing that they actively sought out Parent information about Student and considered that information as part of their assessments. However, the information that Parents provided did not correspond to Student’s performance on objective test results that Student did not have significant behavior or attention deficits as he could focus and perform adequately or above average on various assessments, and demonstrated average expressive, receptive and pragmatic language skills. Additionally, where information that Parents provided on questionnaires conflicted with teacher responses, Dr. Anderson explained why the teacher information was more reliable as to Student’s behavior, attention and social skills as the teacher information corresponded with her observations of Student at school and the other objective test results. Further, Parents tended to emphasize in conversations with District personnel, emails and in their testimony what Student could not do and gave him little credit for what he could do as demonstrated by his academic skills and progress that he made on improving his social skills, understanding the feelings of others and paying attention in class.

28. Student’s other challenge to Dr. Anderson’s assessment was that Dr. Pan’s assessment in which she diagnosed Student with autism and ADHD as supported by Dr. Ruzicka’s brief testing and observations of Student, was superior to Dr. Anderson’s assessment. However, an analysis of Dr. Pan’s assessment found numerous errors in her analysis of her assessment results and cherry picking of information. On the NEPSY, which measured Student’s executive functioning, which would be an area of weakness if Student had autism, nearly all of his composite and subtest scores were average or above average, but Dr. Pan based her diagnosis on the few below average results. The same selectiveness was seen in her interpretation of Student’s teacher’s behavior assessment questionnaires. Dr. Pan focused on particular responses to questions that supported her diagnoses when the computerized results of the questionnaire responses that the test publisher provided did not support Dr. Pan’s conclusions that Student had significant behavior and attention deficits. Further, she failed to question Parents’ responses on both the behavior and autism rating scales when their responses indicated that Student had significant social communication, attention and behavioral deficits that were not supported by her own observations of Student during her assessment and her other assessment test results. Finally, Dr. Pan never observed Student in public or at school to confirm her assessment findings that Student had significant social communication, behavioral and attention deficits.

29. Dr. Ruzicka’s confirmation of Dr. Pan’s assessment results and conclusions is suspect as she failed to pick out the inconsistencies in Dr. Pan’s test results that did not demonstrate significant social communication, behavior or attention deficits. Further, her own brief testing of two tests was problematic as she failed to consider that Student’s poor results on the two tests could be caused by her testing Student on a Sunday morning after a time change in which Student lost an hour of sleep. Finally, while Dr. Ruzicka observed Student twice at school her confirmation of Dr. Pan’s assessment findings came from one playground observation of Student walking in circles at recess and not playing with his classmates, which more likely corresponded with Student being at a new school and knowing he was being observed, as the rest of Dr. Ruzicka’s observations corresponded with Dr. Anderson’s and Student’s teachers observations that Student could pay attention in class with minimal redirection from his teacher, could easily transition between events and communicate well and appropriately with his classmates.

30. As to the ultimate eligibility findings, Student failed to prove that he qualified for special education under the category of autism. Student did not demonstrate that he had significant social communication deficits. Ms. Laramie’s assessment found that Student had average pragmatic language skills and her observations of Student in class and on the playground demonstrated that he could appropriately communicate with classmates and teachers. Student’s teachers all stated that Student made proper eye contact with them during conversations and with his peers that they observed. Student could follow classroom directions and engaged in reciprocal play with classmates. While Parents described Student engaging in stereotypical play and having unusual mannerism, such as hand flapping, no District personnel who interacted with Student observed these behaviors and Dr. Ruzicka did not observe such behaviors at school, other than her misinterpretation of Student walking in circles at recess. Further, such behavior was not observed at Axiom during his social skills classes. While Student’s penmanship was poor, that did not establish autism eligibility as that was the only fine or gross motor deficit Student could show. Finally, Student was able to make adequate academic progress with general education supports, including the Student Success Plan interventions developed by Ms. Wirkkala.

31. As to no non-academic progress, Student’s ability to pay attention in class improved with a simple rewards system and his problems in getting along with classmates was typical for students of his age. Student would understand what he did wrong when the transgression was explained by his teacher or school principal. Finally, the score that Student obtained on the Gilliam Autism Ratings Scale in Dr. Pan’s assessment would be of a child with more significant autistic characteristics that no one, other than Parents, stated that Student had, even Student’s private applied behavior analysis provider. In the end, Student was not much different that his classmates as demonstrated by the District’s assessments and observations by his teachers and other District staff who interacted with Student.

32. As to eligibility based on other health impaired, Student did not demonstrate that he had such significant attention deficits due to his ADHD that required special education services. Dr. Ruzicka’s own observation showed that Student could pay attention to his teacher, follow instructions and while he may lose interest when not interested in the subject or is bored, he easily returned to attention when required and did not disturb his class, consistent with District assessments and personnel observations. Ms. Wirkkala, Ms. Swarbrick and Ms. Matteroli all were convincing based on the consistency of their observations of Student in that while he had some attention problems, they were not atypical for children of his age in their classrooms over the years they have taught and that they could improve his attention through simple things like a rewards system or moving his desk slightly away from classmates. Student’s report cards and the academic testing in District’s and Dr. Pan’s assessments found Student to be average to above average in all academic areas, and no significant deficits in non-academic areas, such as such as ability to make and maintain friends and participate in group classwork.

33. As to speech language impairment eligibility, Student did not present credible evidence to challenge the findings that Ms. Laramie made in her speech and language assessment that Student did not qualify with a speech language impairment because on all assessment measurements as he did not fall under the 7th percentile as his lowest score placed him in the 14th percentile on the Social Language Development Test, and above the 7th percentile on the Social Skills Improvement System questionnaires of his second grade teachers and Student, although not for Parent. Ms. Laramie considered Parent information as to Student’s speech and language weaknesses, especially in the area of social communication, but properly discounted information they provided as it did not match objective test results she found or observations she and Student’s teachers had of Student at school. Finally, Student did not have any expert testify to contradict Ms. Laramie’s assessment findings or her opinion that Student did not qualify for special education services with a speech language impairment.

34. The impetus for Parents seeking to have Student assessed for special education eligibility was to find some basis for Student’s conduct in relation to the January 28, 2016 disciplinary incident. While Dr. Pan diagnosed Student with autism and ADHD, those diagnoses by themselves do not afford Student eligibility for special education unless he requires special education services to make adequate educational progress. However, Student could not demonstrate that he had such significant deficits in any area such that he required special education services. District’s psychoeducational and speech and language assessments, Student’s academic and non-academic progress in first and second grades and observations of Student by various District personnel established that Student’s behavioral, attention, social communication and social skills deficits could be successfully managed with general education accommodations and strategies. Accordingly, Student did not prove that he was eligible for special education services such that District would need to develop an IEP for him.

ISSUE 4: NEED TO FOLLOW MANIFESTATION DETERMINATION PROCESS

35. Student asserted that District failed to follow the discipline process for students suspected of being eligible for special education services, especially after Parents requested that District assess Student. District contended that it was not required to provide the disciplinary process protections as it had no basis of knowledge that Student was a child with a disability until after the January 28, 2016 disciplinary incident.

Legal Authority

36. Under federal and state special education law, students found eligible for special education are afforded certain rights in disciplinary matters. Among those rights is the right to a determination of whether the student’s misconduct “that led to a disciplinary change of placement” was caused by or directly related to a child’s disability. (20 U.S.C. § 1415 (k)(1)(E)(I)(II); 34 C.F.R § 300.530; Ed. Code, § 48915.5, subd. (a) and (b).) These protections extend to students not previously identified as eligible for special education services only if the following factors are met: (1) the student has engaged in behavior that violated any rule or code of conduct of the school district and, (2) the school district had knowledge, or is deemed to have had knowledge, that the student was a child with a disability “before the behavior that precipitated the disciplinary action occurred.” (20 U.S.C. § 1415 (k)(5)(A).)

37. Title 20 United States Code section 1415(k) and title 34 Code of Federal Regulations, part 300.530, et seq., govern the discipline of special education students. (Ed. Code, § 48915.5.) A child with a disability may be suspended or expelled from school as provided by federal law. (20 U.S.C. §1415(a)(1)(A); Ed. Code, § 48915.5, subd. (a).) If a child with a disability violates a code of student conduct, school personnel may remove that student from his or her educational placement without providing services for a period not to exceed 10 days per school year, provided typical children are not provided services during disciplinary removal. (20 U.S.C. § 1415(k)(1)(B); 34 C.F.R. § 300.530(b)(1) & (d)(3).)

38. The “basis of knowledge” or “deemed” knowledge exists when one or more of the following has occurred: (1) the parent of the child expressed concern in writing to supervisory or administrative personnel of the appropriate educational agency, or a teacher of the child, that the child is in need of special education and related services; (2) the parent of the child has requested an evaluation of the child; or (3) the teacher of the child, or other personnel of the local educational agency, expressed specific concerns about a pattern of behavior demonstrated by the child directly to the director of special education of the agency or to other supervisory personnel of the agency. (20 U.S.C. § 1415 (k)(5)(B); 34 C.F.R. § 300.534(b).)

Analysis

39. District had no basis of knowledge that Student might be a child who might require special education services until February 4, 2016, when Parents made the assessment request. As noted above in the child find discussion, Student did not have significant deficits as to his behavior, attention, social communication and social skills and any problems he had responded effectively to general educations interventions that his teachers used with his classmates. Student was typical of a first and second grade student with slightly above average attention and behavior issues, which did not prevent him from accessing his education or interfere significantly with the education of his classmates. Also, Parents did not request or even infer to District before the January 28, 2016 disciplinary incident that they wished for District to assess Student for special education eligibility.

40. Parents requested that District assess Student after the January 28, 2016 disciplinary incident. The disciplinary protection provisions of the IDEA and implementing regulations provide students not previously found eligible for special education services protections if the educational agency had a basis of knowledge that a student might be eligible for special education services before the disciplinary incident at issue. Because Parents requested the special education assessment after the disciplinary incident and District did not have a basis of knowledge to assess Student before the January 28, 2017, Student was not entitled to any of the disciplinary protections afforded to children disabilities under the IDEA.

ORDER

Student’s requests for relief are denied.

PREVAILING PARTY

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

RIGHT TO APPEAL THIS DECISION

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

DATE: October 23, 2017

/s/ PETER PAUL CASTILLO Presiding Administrative Law Judge Office of Administrative Hearings

Footnotes

[1] District’s May 3, 2016 response, incorrectly dated May 3, 2010, complied with the notice requirements in title 42 United States Code section 1415, subdivision (c)(2)(B)(i)(I). (M.C. v. Antelope Valley Unified Sch. Dist. (9th Cir. 2017) 858 F.3d 1189, 1199-1200.)

[2] On September 25, 2017, Parents submitted notification to OAH that they would be representing Student.

[3] For this hearing, the only areas of eligibility Student contested were autism, other health impaired and speech language impaired, and those will be the only areas addressed in this decision as Student presented no evidence as to emotional disturbance or specific learning disability eligibility.

[4] The dates were clarified at hearing from what was in the Prehearing Conference Order.

[5] To protect the classmate’s identity, the exact island stated is not mentioned.

[6] After the dates relevant to this decision, Dr. Anderson married and her last name is now Platshon. For this decision she will be referred to as Dr. Anderson since all documents she prepared and references in other documents relevant to this matter refer to her as such.

[7] A Section 504 plan is an educational program created pursuant to Section 504 of the Rehabilitation Act of 1973. (29 U.S.C. § 794; see 34 C.F.R. § 104.1 et. seq. (2000).) Generally, the law requires a district to provide program modifications and accommodations to children who have physical or mental impairments that substantially limit a major life activity such as learning.

[8] The date is uncertain as Principal Attell did not put the date of the second notice on the document.

[9] The findings of Student’s private assessors and District’s assessment will be discussed below in the Decision.

[10] https://www.timeanddate.com/time/change/usa/san-francisco

[11] Ms. Matteroli has a bachelor’s degree in psychology and master’s in education, along with her multiple subject credential. Ms. Matteroli also has an administrative certificate. Ms. Matteroli taught elementary school from 2004 through the end of the 2015-2016 school year, with time as a English language learner coach and assistant principal, and is presently an educational coordinator for District.

[12] Evidence presented at hearing from Student’s subsequent private Applied Behavior Analysis provider that was paid for by private insurance due to Dr. Pan’s autism diagnosis did not provide evidence that challenges District’s eligibility finding as the evidence presented did not show that Student had significant behavioral or communication deficits. Further, April Ringer, the clinical director, who testified at hearing and was experienced and very qualified and has attended IEP team meetings, never observed Student at school and gave no expert testimony that Student met the educational definition of autism for eligibility.

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

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