Parent on Behalf of Student v. Covina-Valley Unified School District

On November 21, 2023, the Office of Administrative Hearings, called OAH, received a due process hearing request from Parents on behalf of Student naming Covina-Valley Unified School District, called Covina-Valley. Administrative Law Judge Jennifer Kelly heard this matter by videoconference on May 7, 8, 9, 14, 15, 16, and June 10, 11, and 12, 2024.

Attorneys Mark Woodsmall and Abigail Lombardo represented Student. Parents attended all hearing days on Student’s behalf. Attorney Amy Rogers represented Covina-Valley. Covina-Valley’s Program Specialist Brianne Umana attended all hearing days on its behalf.

At the parties’ request, the matter was continued to July 15, 2024, for written closing briefs. The record was closed, and the matter was submitted on July 15, 2024.

ISSUES

The April 29, 2024 Order Following Prehearing Conference clarified, and reorganized the issues as allowed by the holdings in J.W. v. Fresno Unified School Dist. (9th Cir. 2010) 626 F.3d 431, 442-443, and Ford v. Long Beach Unified School Dist. (9th Cir. 2002) 291 F.3d 1086, 1090. The order directed the parties to submit any concerns regarding the wording of the issues in writing prior to the first day of hearing. Student’s attorney submitted written concerns which were discussed on the first day of hearing, May 7, 2024. The issues were further clarified pursuant to another motion by Student on May 16, 2024, and discussed during hearing. OAH issued orders memorializing the issue clarifications on May 10, 2024, and May 17, 2024.

The issues at the due process hearing as alleged in the complaint and clarified by the parties and the ALJ at the due process hearing are:

1. Did Covina-Valley deny Student a free appropriate public education, or FAPE, by failing to provide Student’s individualized education program, or IEP, documents after IEP team meetings held on:

a. December 8, 2021; and

b. May 20, 2022?

2. Did Covina-Valley deny Student a FAPE during the 2021-2022 regular and extended school year, beginning November 28, 2021, by failing to timely assess Student in preparation for Student’s three-year evaluation, specifically in:

a. speech and language:

b. occupational therapy;

c. functional behavior;

d. assistive technology; and

e. recreation therapy?

3. Did Covina-Valley deny Student a FAPE in a December 8, 2021, IEP by:

a. denying Parents full and effective participation in the IEP process;

b. failing to consider the recommendations from an October 25, 2021 independent educational evaluation in functional behavior;

c. failing to consider the recommendations from a September 2021 independent educational evaluation in occupational therapy;

d. failing to offer appropriate services in:

i. specialized academic instruction;

ii. trained and qualified aide support;

iii. speech and language

iv. occupational therapy; v. behavioral support;

vi. assistive technology;

vii. recreation therapy;

viii. counseling; and

ix. transportation;

e. failing to develop a behavior intervention plan;

f. failing to offer Student research-based behavioral and instructional methodologies;

g. predetermining Student’s placement offer; and

h. failing to make a clear placement offer?

4. Did Covina-Valley Deny Student a FAPE in May 20, 2022 IEP by:

a. denying Parents full and effective participation in the IEP process;

b. failing to ensure all necessary IEP team members attended the IEP team meeting;

c. failing to consider the findings from an independent educational evaluation in psychoeducation dated April 7, 2022;

d. failing to offer appropriate services in:

i. specialized academic instruction;

ii. trained and qualified aide support;

iii. speech and language;

iv. occupational therapy; v. behavioral support;

vi. assistive technology;

vii. recreation therapy;

viii. counseling; and

ix. transportation?

e. failing to develop a behavior intervention plant;

f. failing to offer Student research-based behavioral and instructional methodologies;

g. predetermining Student’s placement offer; and

h. failing to make a clear placement offer?

5. Did Covina-Valley deny Student a FAPE in a June 1, 2022, IEP by:

a. denying Parents full and effective participation in the IEP process;

b. failing to ensure all necessary IEP team members attended the IEP team meeting;

c. failing to consider the findings from an independent educational evaluation in psychoeducation dated April 7, 2022;

d. failing to accurately state Student’s present levels of performance in:

i. social-emotional behavior;

ii. fine and visual motor skills;

iii. communication development; and

iv. gross motor skills;

e. failing to develop measurable goals in:

i. prevocational-commenting or asking questions;

ii. attention;

iii. auditory filtering;

iv. executive functioning; v. fine motor skills;

vi. gross motor skills;

vii. social skills; and

viii. pragmatics-social inference;

f. failing to make an appropriate offer of services, specifically in:

i. specialized academic instruction;

ii. trained and qualified aide support;

iii. speech and language;

iv. occupational therapy; v. behavioral support;

vi. assistive technology;

vii. recreation therapy;

viii. counseling; and

ix. transportation;

g. failing to develop a behavior intervention plan;

h. ailing to offer Student research-based behavioral and instructional methodologies;

i. failing to offer extended school year services for the 2021-2022 extended school year, specifically in:

i. specialized academic instruction;

ii. trained and qualified aide support;

iii. speech and language services;

iv. occupational therapy services; v. behavioral support, including a behavior intervention plan;

vi. assistive technology;

vii. recreation therapy;

viii. counseling; and

ix. transportation;

j. Predetermining Student’s placement offer; and

k. Failing to make a clear placement offer?

6. Did Covina-Valley deny Student a FAPE during the 2022-2023 regular and extended school year, continuing through November 21, 2023, by failing to appropriately assess Student in all areas of suspected disability, specifically in:

a. psychoeducation;

b. academics;

c. speech and language;

d. occupational therapy;

e. assistive technology;

f. functional behavior;

g. recreation therapy; and

h. adapted physical education?

7. Did Covina-Valley deny Student a FAPE during the 2022-2023 regular and extended school year by failing to provide Student a school environment free from harassment and bullying, specifically regarding events occurring on or around:

a. September 12, 2022, and

b. October 5, 2022?

8. Did Covina-Valley deny Student a FAPE in a June 1, 2023 IEP by:

a. Denying Parents full and effective participation in the IEP process;

b. Failing to ensure all necessary IEP team members attended the IEP team meeting;

c. Failing to accurately state Student’s IEP team members attended the IEP team meeting;

i. social-emotional behavior;

ii. preacademeic-academic/functional skills;

iii. communication development;

iv. gross-fine gross development; v. vocational;

vi. adaptive-daily living skills; and

vii. health;

d. failing to develop measurable goals in:

i. reading comprehension;

ii. mathematics;

iii. receptive-expressive language; and

iv. social-emotional;

e. failing to make an appropriate offer of services, specifically in:

i. specialized academic instruction;

ii. trained and qualified aide support;

iii. speech and language;

iv. occupational therapy; v. behavioral support;

vi. assistive technology;

vii. recreation therapy;

viii. counseling, and

ix. transportation;

f. failing to develop a behavior intervention plan;

g. failing to offer Student research-based behavioral and instructional methodologies;

h. failing to offer extended school year services for the 2022-2023 extended school year, specifically in:

i. specialized academic instruction;

ii. trained and qualified aide support;

iii. speech and language services;

iv. occupational therapy services; v. behavioral support, including a behavioral intervention plan;

vi. assistive technology;

vii. recreation therapy;

viii. counseling; and

ix. transportation;

i. predetermining Student’s placement offer; and

j. failing to make a clear placement offer?

9. Did Covina-Valley deny Student a FAPE during the 2023-2024 regular and extended school year by failing to timely review an assistive technology assessment dated July 17, 2023?

In his closing brief, Student withdrew Issue 8(b) (failing to include all necessary IEP team members) and 8(j) (failing to make a clear placement offer) regarding the June 1, 2023 IEP. Therefore, this Decision does not make a finding on these issues.

JURISDICTION

This hearing was held under the Individuals with Disabilities Education Act, its regulations, and California statutes and regulations. (20 U.S.C. § 1400 et. seq.; 34 C.F.R. § 300.1 (2006) et seq.; Ed. Code, § 56000 et seq.; Cal. Code Regs., tit. 5, § 3000 et seq.) All future references to the Code of Federal Regulations are to the 2006 version. The main purposes of the Individuals with Disabilities Education Act, referred to as the IDEA, are to ensure:

• All children with disabilities have available to them a FAPE that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living, and

• The rights of children with disabilities and their parents are protected. (20 U.S.C. § 1400(d)(1); see Ed. Code, § 56000, subd. (a).)

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, assessment, or educational placement of the child, or the provision of a FAPE to the child. (20 U.S.C. § 1415(b)(6), (f); 34 C.F.R. § 300.511; Ed. Code, §§ 56501, 56502, and 56505; Cal. Code Regs., tit. 5, § 3082.) The party requesting the hearing is limited to the issues alleged in the complaint, unless the other party consents, and has the burden of proof by a preponderance of the evidence. (20 U.S.C. § 1415(f)(3)(B); Ed. Code, § 56502, subd. (i); Schaffer v. Weast (2005) 546 U.S. 49, 57-58, 62 [126 S.Ct. 528, 163 L.Ed.2d 387]; and see 20 U.S.C. § 1415(i)(2)(C)(iii).) Student had the burden of proof on all issues. The factual statements in this Decision constitute the written findings of fact required by the IDEA and state law. (20 U.S.C. § 1415(h)(4); Ed. Code, § 56505, subd. (e)(5).)

Student was 11 years old and had just completed fifth grade at the time of the hearing. Student resided with Parents within Covina-Valley’s geographic boundaries at all relevant times. Student qualified for special education under the categories of autism and speech or language impairment. At the time of hearing, Student was parentally privately placed at The Frostig School, a California certified non-public school.

STATUTORY FRAMEWORK

A FAPE means special education and related services that are available to an eligible child that meets state educational standards at no charge to the parent or guardian. (20 U.S.C. § 1401(9); 34 C.F.R. § 300.17.) Parents and school personnel develop an IEP for an eligible student based upon state law and the IDEA. (20 U.S.C. §§ 1401(14), 1414(d)(1); and see Ed. Code, §§ 56031, 56032, 56341, 56345, subd. (a), and 56363, subd. (a); 34 C.F.R. §§ 300.320, 300.321, and 300.501.)

In general, a child eligible for special education must be provided access to specialized instruction and related services which are individually designed to provide educational benefit through an IEP reasonably calculated to enable a child to make progress appropriate considering the child’s circumstances. (Board of Education of the Hendrick Hudson Central School Dist. v. Rowley (1982) 458 U.S. 176, 201-204 (Rowley); Endrew F. v. Douglas County School Dist. RE-1 (2017) 580 U.S. 386, 402 [137 S.Ct. 988, 1000] (Endrew F.).)

COVINA-VALLEY’S REQUEST FOR OFFICIAL NOTICE OF BOARD POLICY

On July 15, 2024, the last day to submit closing arguments, Covina-Valley submitted a request for official notice with its closing brief. This request asked OAH to take official notice, the administrative equivalent of judicial notice, of Covina-Valley’s School District’s Board policy 5116.1, which states a district policy of limiting access to transportation for any student who attends school outside their attendance area.

In reaching a decision in an administrative matter, official notice may be taken, either before or after submission of the case for decision, of any generally accepted technical or scientific matter within the agency's special field, and of any fact which may be judicially noticed by the courts of this state. (Gov. Code, § 11515.) However, while official notice may be taken of the existence of a governmental act, the truth of anything stated in that act is not subject to judicial or official notice. (People v. Castillo (2010) 49 Cal.4th 145, 157.)

Covina-Valley offers no explanation for failing to offer the Board policy as an exhibit during hearing, which would have allowed for corroboration and cross-examination as to its content. Furthermore, findings of fact in a special education hearing may not be based solely on hearsay evidence. (Cal. Code Regs., tit. 5, § 3082 subd. (b).)

Covina-Valley’s request for judicial notice of the Board policy is denied. Covina-Valley failed to establish that this policy is relevant to the issues in this proceeding; specifically, Student’s contention Covina-Valley should have offered Student transportation services in the IEPs at issue. Therefore, official notice of the policy is denied.

DECEMBER 8, 2021 AMENDMENT IEP ISSUES

ISSUES 3(a)-(h)

DID COVINA-VALLEY DENY STUDENT A FAPE ARISING FROM THE DECEMBER 8, 2021 IEP TEAM MEETING AND OFFER?

Student contends Covina-Valley denied Student a FAPE in an amendment IEP team meeting held on December 8, 2021, by denying parental participation and failing to consider independent educational evaluations in functional behavior and occupational therapy. Student further contends Covina-Valley failed to offer appropriate services in

• Specialized academic instruction,

• Trained aide support,

• Speech and language,

• Occupational therapy,

• Behavioral support,

• Assistive technology,

• Recreation therapy,

• Counseling, and

• Transportation.

Finally, Student contends Covina-Valley denied Student a FAPE by failing to develop a behavior intervention plan, offer research-based behavioral and instructional methodologies, predetermining Student’s placement offer, and failing to make a clear placement offer.

Covina-Valley contends Student failed to meet his burden of proof on these issues. Covina-Valley maintains Parents and their attorney meaningfully participated in the December 8, 2021 amendment IEP team meeting. Covina-Valley contends it considered the independent educational evaluations in occupational therapy and functional behavior and made changes to Student’s goals, accommodations, and services based on the recommendations of the evaluators. Covina-Valley argues its offer of special education and related services was appropriate to meet Student’s needs in light of the information known to the IEP team at the time. Covina-Valley maintains Student did not demonstrate behaviors that required behavior interventions, including a behavior intervention plan or behavioral or instructional methodologies other than what it offered in Student’s IEP. Covina-Valley contends it did not predetermine Student’s FAPE offer and that its offer was clear.

The IEP is the “centerpiece of the [IDEA’s] education delivery systems for disabled children” and consists of a detailed written statement that must be developed, reviewed, and revised for each child with a disability. (Honig v. Doe (1988) 484 U.S. 305, 311 [108 S.Ct. 592, 98 L.ED.2d 686]; 20 U.S.C. §§ 1401(14), 1414(d)(1)(A); 34 C.F.R. § 300.320; Ed. Code, §§ 46032, 56032, 56345.) An IEP provides 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 nondisabled peers. (20 U.S.C. 1401(14), 1414(d)(1)(A); 34 C.F.R. § 300.320; Ed. Code, §§ 56032, 56345, subd. (a)(1)(A).)

In resolving the question of whether a school district has offered a FAPE, the focus is on the adequacy of the school district’s proposed program. (Gregory K. v. Longview School Dist. (9th Cir. 1987) 811 F.2d 1307, 1314 (Gregory K.).) For a school district’s offer of special education services to a disabled pupil to constitute a FAPE under the IDEA, a school district’s offer must be designed to meet the student’s unique needs, comport with the student’s IEP, and be reasonably calculated to provide the student with some educational benefit in the least restrictive environment. (Ibid.)

Whether a student was offered or denied a FAPE is determined by looking at what was reasonable at the time the IEP was developed, not in hindsight. (Adams v. State of Oregon (9th Cir. 1999) 195 F.3d 1141, 1149 (Adams).) An IEP is “a snapshot, not a retrospective.” (Ibid., citing Fuhrmann v. East Hanover Bd. of Educ. (3d Cir. 1993) 993 F.2d 1031, 1036, 1041.) It must be evaluated in terms of what was objectively reasonable when the IEP was developed. (Id.)

BACKGROUND AND MARCH 24, 2021 IEP

Student was initially found eligible for special education at age three under the category of speech or language impairment. Student attended Rowland Elementary School, called Rowland, Student’s school of residence, from first through second grade. Parents obtained an intradistrict transfer permit and Student transferred from Rowland to Manzanita Elementary School, called Manzanita, at the start of third grade during the 2020-2021 school year.

Covina-Valley conducted a three-year evaluation of Student in April 2019. Parents disagreed with the appropriateness of Covina-Valley’s assessment and requested independent education evaluations in April 2020. On June 2, 2020, Covina-Valley consented to independent educational evaluations in psychoeducation, occupational therapy, and functional behavior. The independent educational evaluations in occupational therapy and functional behavior were conducted in fall 2021 and reviewed at a December 8, 2021 amendment IEP team meeting. An independent neuropsychological evaluation was conducted in April 2022, and reviewed at a May 20, 2022 IEP team meeting.

At the time of the December 8, 2021 amendment IEP team meeting, Student’s last agreed upon and implemented IEP was dated March 24, 2021, and developed when Student was in third grade. The March 24, 2021 IEP team determined Student remained eligible for special education under the categories of autism and speech or language impairment. Student’s behaviors and speech delays impacted his ability to keep pace with his typically developing peers. He required specialized academic instruction and other related services to access the general education curriculum. Student had needs in

• Reading,

• Writing,

• Math,

• Communication,

• Social pragmatics,

• Social emotional, and

• Coping skills.

The March 24, 2021 IEP team recommended continued placement in a general education setting and a reduction in special education services in specialized academic instruction, speech and language, and occupational therapy. The Covina-Valley IEP

team members believed Student made progress or met his prior IEP goals and would benefit from more interaction with his typically developing peers. The March 24, 2021 IEP’s offer of special education and related services included:

• 300 minutes weekly specialized academic instruction in a separate setting;

• 850 minutes yearly speech and language services, delivered 25 minutes weekly in a group setting;

• 100 minutes yearly occupational therapy consultation-collaboration services between the occupational therapist and the teacher and IEP team; and

• 30 minutes monthly individual counseling.

Student would spend 80 percent of his day in the regular class and nonacademic activities and 20 percent of his day outside the regular class and nonacademic activities.

Parents consented to some of the March 24, 2021 IEP’s proposed goals and program accommodations in a letter to Covina-Valley dated April 29, 2021. Parents disagreed with Covina-Valley’s offer of specialized academic instruction, speech and language, occupational therapy, and individual counseling services and requested Student’s services from his prior IEP be implemented.

Student attended fourth grade at Manzanita during the 2021-2022 school year. Student attended a general education class taught in part by general education teacher Allyson Crosmer, and in part by another general education teacher. Student received 90 minutes daily specialized academic instruction in a separate setting with education specialist Jennifer Bartlett. Student received twice weekly speech and language services for 25 minutes a session and 60 minutes monthly individual counseling services.

ISSUES 3(b) AND 3(c): STUDENT FAILED TO PROVE COVINA-VALLEY DENIED HIM A FAPE BY FAILING TO CONSIDER THE INDEPENDENT FUNCTIONAL BEHAVIOR AND OCCUPATIONAL THERAPY EVALUATIONS AT THE DECEMBER 8, 2021 AMENDMENT IEP TEAM MEETING

Student contends Covina-Valley denied him a FAPE by failing to consider independent educational evaluations in functional behavior and occupational therapy. Covina-Valley contends the evaluations were thoroughly reviewed and considered at a December 8, 2021 IEP amendment meeting.

An independent education evaluation is an evaluation conducted by a qualified examiner not employed by the school district. (34 C.F.R. § 300.502(c).) A school district must consider an independent educational evaluation of a student with respect to the provision of a FAPE if the assessment meets agency criteria. (34 C.F.R. § 502(c)(1).) When presented with an outside expert’s report, a school district need only review and consider the report; it need not follow its recommendations. (Id.; G.D. v. Westmoreland School Dist. (1st. Cir. 1991) 930 F.2d 942, 947.) The IDEA uses the term “evaluation,” while the California Education Code uses the term “assessment.” In this Decision, the terms mean the same thing and are used interchangeably. (34 C.F.R. § 300.300; Ed. Code, § 56302.5.)

INDEPENDENT FUNCTIONAL BEHAVIOR ASSESSMENT

Student failed to prove an independent functional behavior assessment was not considered during the December 8, 2021 IEP team meeting. Board-certified behavior analyst Amanda Hsu conducted a functional behavioral assessment and produced a 31-page written report dated October 25, 2021. A board-certified behavior analyst is called a behavior analyst.

Hsu attended the December 8, 2021 IEP team meeting and shared the results of her functional behavior assessment. Hsu reported Student had “many abilities rather than disabilities.” Student was independent and motivated to do well within the classroom environment. Student remained on task independently, redirected himself back to tasks, accessed necessary materials during assignments, asked his teacher for clarification, followed multiple-step instructions, and completed tasks.

Student engaged in some off-task and self-stimulating behaviors, like rocking and briefly clapping. These behaviors occurred more frequently in Student’s general education math class. Hsu opined this likely was attributable to the increased auditory and visual stimuli in the larger general education setting. In her report and at hearing, Hsu determined Student’s off-task behaviors did not prevent him from accessing the curriculum.

Hsu did not observe any tantrums during her observations. Hsu reported Student, “engaged in tantrum behaviors in zero instances during all observational periods.” Student’s education specialist reported to Hsu that Student engaged in tantrum behaviors approximately eight days per month, but these behaviors had decreased since the beginning of the school year. Student was easily redirected after tantrum behaviors.

Hsu did not recommend full-time, one-to-one aide support and believed Student could access his curriculum without this level of support. Hsu reported full-time, one-to-one aide support would reinforce Student’s behaviors of asking for help before he needed it and create dependency on adults. Hsu made a variety of recommendations, including one-to-one aide support during his general education math class to set him up for “greater success” in regulating his behavior during frustrating situations.

The entire IEP team, including Parents and their attorney, considered Hsu’s recommendation for a one-to-one aide during math class. The Covina-Valley IEP team members did not agree Student needed one-to-one aide support in his math class. Crosmer shared with the IEP team that Student participated in math class and independently completed his work. Crosmer did not believe Student required aide support in her class.

After considering Hsu’s report, the IEP team modified Student’s regulation goal. The goal added visual supports for Student to utilize self-regulation skills within the classroom and was intended to decrease Student’s needs for verbal reminders. The IEP team offered 30 minutes monthly consultation between Covina-Valley’s behavior analyst and Student’s general and special education teachers to support this goal.

The evidence established Covina-Valley thoroughly considered Hsu’s assessment results and made modifications to Student’s IEP based on some of her recommendations. Student failed to meet his burden of proving Covina-Valley failed to consider Hsu’s functional behavior evaluation.

INDEPENDENT OCCUPATIONAL THERAPY ASSESSMENT

Student failed to prove an independent occupational therapy assessment was not considered during the December 8, 2021 IEP team meeting. Licensed occupational therapist Michele Alaniz conducted an occupational therapy assessment of Student in September 2021 and produced a 13-page report of her findings and recommendations. Alaniz’s findings were discussed at the December 8, 2021 IEP team meeting.

Alaniz reported Student could work independently and sustain attention during class. He managed his belongings independently and had legible handwriting. He consistently turned in his homework, independently transitioned between activities, and interacted with his peers and staff. Alaniz was concerned about Student’s difficulty sustaining attention during group instruction and his need for cues to maintain focus during individual instruction. She also had concerns about Student’s hand strength, social participation, and his ability to participate in structured playground games without adult intervention.

Alaniz’s report made a variety of recommendations, including 10 hours of occupational therapy consultation to develop/collect data and develop a sensory diet and individual school-based occupational therapy, at a frequency and duration to be based on Student’s occupational therapy goals. She recommended providing Student scheduled movement breaks or a longer recess, noise cancelling headphones to assist with Student’s auditory sensitivity, and goals in independently completing work assignments, utilizing appropriate spacing between words, and taking off his jacket independently.

Covina-Valley’s IEP team members, including the school psychologist, occupational therapist, and Student’s special and general education teachers asked Alaniz questions and responded to her recommendations. In response to Alaniz’s concerns, the IEP team added Covina-Valley’s occupational therapist as a responsible party to implement Student’s coping skills goal. In addition, the December 8, 2021 amendment IEP offered 15 minutes weekly individual occupational therapy services.

The IEP team also discussed Alaniz’s concern about Student’s inability to sustain attention to task. Covina-Valley’s occupational therapist shared that Student previously had an IEP goal in sustaining attention to task, which Student met. Student’s general and special education teachers agreed Student could sustain attention to task, even with classroom distractions. Crosmer reported Student participated in all activities and class discussions. Alaniz agreed Student sustained attention to task during her observations. However, she was concerned about Student’s ability to transition between activities. Crosmer shared Student sometimes displayed frustration when shifting between preferred and non-preferred activities. Education specialist Bartlett reported Student transitioned well into her class, but sometimes required up to two prompts to transition between activities.

The IEP team addressed Alaniz’s concerns about Student’s writing skills, specifically in letter spacing. Student’s general and special education teachers both shared that Student’s letter spacing was age appropriate. Crosmer reported Student’s writing was “perfect” and she did not share Alaniz’s concerns.

The IEP team considered Alaniz’s proposed goals. The IEP team members, including Parent, agreed Student could independently take his jacket on and off and open packages independently and did not recommend this goal. Instead, the IEP team recommended a goal to improve Student’s fine motor and visual motor skills and bilateral coordination by tying his shoes. The IEP team also offered a goal aimed for Student to participate in a playground game with his peers during unstructured time and demonstrate game proficiency for at least 10 minutes. Additionally, the IEP team agreed to add weekly “pinch and grip” exercises and noise cancelling headphones as accommodations pursuant to Alaniz’s recommendations.

The preponderance of the evidence proved Covina-Valley considered Alaniz’s occupational therapy evaluation at length and in response added goals, accommodations, and 15 minutes weekly direct occupational therapy services. Student failed to prove that Covina-Valley did not consider Alaniz’s evaluation at the December 8, 2021 IEP team meeting.

Covina-Valley prevailed on Issues 3(b) and (c).

ISSUES 3(d)(i)-(ix): STUDENT FAILED TO PROVE COVINA-VALLEY

DENIED HIM A FAPE BY FAILING TO OFFER APPROPRIATE SERVICES IN THE DECEMBER 8, 2021 IEP

Student contends Covina-Valley denied him a FAPE in the December 8, 2021 amendment IEP by failing to offer appropriate services in

• Specialized academic instruction,

• Trained and qualified aide support,

• Speech and language,

• Occupational therapy,

• Behavior support,

• Assistive technology,

• Recreation therapy,

• Counseling, and

• Transportation.

Covina-Valley contends its offer of specialized academic instruction, speech and language, occupational therapy, and counseling was reasonably calculated to enable Student to make progress appropriate in light of Student’s circumstances and Student did not require additional related services.

An IEP must include a statement of the child’s present levels of academic achievement and functional performance, including how the child’s disability affects the child’s involvement and progress in the general education curriculum. (20 U.S.C. § 1414(d)(1)(A); 34 C.F.R. § 300.320 (2007).) The IEP document must also include projected service and modification start dates, and the anticipated frequency, location, and duration of services and modifications. (20 U.S.C. § 1414(d)(1)(A)(i)(VII); 34 C.F.R. § 300.320(a)(7) (2007); Ed. Code, § 56345, subd. (a)(7).)

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]; Irving Independent School Dist. v. Tatro (1984) 468 U.S. 883, 891 [104 S.Ct. 3371, 82 L.Ed.2d 664]; Union School Dist. v. Smith (9th Cir. 1994) 15 F.3d 1519, 1527 (Union).) Related services may include recreation therapy, counseling services, speech and language services, and occupational therapy services. (20 U.S.C. § 1401(26)(A); Ed. Code, § 56363, subd. (a).) Related services shall be provided when the instruction and services are necessary for the pupil to benefit educationally from his instructional program. (Ed. Code, § 56363, subd. (a).)

To determine whether a school district offered a FAPE, the analysis must focus on the adequacy of the school district’s proposed program and not on the family’s preferred alternative. (Gregory K., supra, at p. 1314.) An IEP need not conform to the parents’ wishes to be sufficient or appropriate. (Shaw v. District of Columbia (D.D.C. 2002) 238 F.Supp.2d 127, 139 [the IDEA does not provide for an “education … designed according to the parent’s desires”], citing Rowley, supra, 458 U.S. at p. 207.) A school district is not required to furnish every special education service necessary to maximize the child’s potential. (Rowley, supra, 458 U.S. at p. 100.)

No one test exists for measuring the adequacy of educational benefits conferred under an IEP. (Rowley, supra, 458 U.S. at pp. 202, 203, fn. 25.) A student may derive educational benefit under Rowley if some of his goals and objectives are not fully met, or if he makes no progress towards some of them, as long as he makes progress toward others. A student’s failure to perform at grade level is not necessarily indicative of a denial of a FAPE, so long as the student is making progress commensurate with his abilities. (Walczak v. Florida Union Free School Dist. (2nd Cir. 1998) 142 F.3d 119, 130; E.S. v. Independent School Dist. No. 196 (8th Cir. 1998) 135 F.3d 566, 569; M.P. v. Poway Unified School Dist. (S.D.Cal., July 12, 2010, No. 09 CV 1627 JLS(NLS) 2010 WL 2735759, at *11-12.)

In evaluating an IEP, it is not appropriate to critique it with the benefit of hindsight. Rather, it must be evaluated to determine whether the goals and methods proposed were reasonably calculated to ensure that the child would receive educational benefit at the time of implementation. (See Anchorage School District v. M.P. (9th Cir. 2012) 689 F.3d 1047, 1057, citing Adams, supra, 195 F.3d 1141, 1149.)

ISSUE 3(d)(i): SPECIALIZED ACADEMIC INSTRUCTION

At hearing, Student offered no evidence, including assessments or expert testimony, proving Student required specialized academic instruction in an amount more than 300 minutes weekly to make appropriate progress in light of his circumstances. Student also did not establish through cross-examination of Covina-Valley’s witnesses that 300 minutes weekly specialized academic instruction was insufficient.

At the time of the December 8, 2021 IEP team meeting, Student made steady progress towards his annual IEP goals. In reading, Student could independently make an inference and support it with details in one out of three trials. Student made progress towards his writing goal and could compose a five-sentence paragraph with supporting details. Student required adult support to organize his thoughts and use linking words. In math, Student could identify key words in multiplication and division word problems. Student required teacher support to compose an equation to solve the problem.

None of the December 8, 2021 IEP team members expressed concerns about Student’s progress towards his IEP goals or believed Student required additional specialized academic instruction. General education teacher Crosmer and special education teacher Bartlett shared that Student was making progress in their classes. Crosmer reported Student worked independently and turned in his assignments. Student could problem solve and self-regulate. Bartlett reported Student’s ability to self-regulate when he answered a question incorrectly had improved.

Student failed to meet his burden of proving by a preponderance of evidence that Covina-Valley denied him a FAPE by failing to offer additional or different specialized academic instruction at the December 8, 2021 IEP team meeting.

Covina-Valley prevailed on Issue 3(d)(i).

ISSUE 3(d)(ii) & (v): ONE-TO-ONE AIDE AND BEHAVIOR

SUPPORTS

Student contends Covina-Valley denied him a FAPE by failing to offer one-to-one aide support. Student contends he required one-to-one aide support to support his behaviors of speaking out of turn, failing to timely complete assignments, following directions, and sustaining attention. Covina-Valley contends that, at the time of the December 8, 2021 IEP team meeting, the IEP team discussed independent evaluator Hsu’s recommendation for one-to-one aide support during general education math class, but determined Student did not require this level of support. Covina-Valley further contends Student’s progress towards his behavioral and academic goals demonstrates Student’s ability to successfully access his general education curriculum without one-to-one aide support.

Student failed to prove he required one-to-one aide support or other behavior supports at the time of the December 8, 2021 amendment IEP team meeting. None of Covina-Valley’s IEP team members, including Student’s general and special education teachers, believed he required one-to-one aide support. Student’s expert witness Hsu opined Student could benefit from one-to-one aide support during his math class. Hsu considered “skills Student needed for the long term.” Hsu’s recommendation was not based on Student’s needs at the time but on her goal of “setting him up for greater success” in acquiring skills to manage his behaviors “during frustrating situations.” Hsu’s testimony about Student’s need for one-to-one aide support was vague and unpersuasive. The recommendation was not based on any reported tangible benefit Hsu believed Student would derive from one-to-one aide services during math class. Rather, it seemed the recommendation expressed an impression Hsu developed without any data collection. Hsu did not opine, in her report or at hearing, that Student required aide support in math to receive a FAPE.

Student did not offer evidence of any specific behavior supports he required to benefit educationally from his instructional program. (Ed. Code, § 56363.) There was an absence of evidence of any behavior supports Student required other than what was offered in his IEP. (Schaffer, supra, 546 U.S. 49, 57-58, 62.)

Student’s general education teacher did not believe Student required a one-to-one aide. Crosmer persuasively opined Student was becoming more self-sufficient in class. Student verbalized frustration when having difficulty and raised his hand when he needed help. Student was easily redirected when frustrated and he sought help from peers. When he had difficulty solving problems, Crosmer encouraged him to try to solve the problem on his own before asking for help. Crosmer opined Student was capable of independently solving problems. Crosmer’s testimony was more persuasive than Hsu’s in demonstrating Student’s needs based on her teaching experience, her familiarity working with Student daily during the 2021-2022 school year, and her consistent attendance at Student’s IEP team meetings.

Student did not meet his burden of proving Covina-Valley denied him a FAPE by failing to offer aide support or other behavioral supports in the December 8, 2021 IEP.

Covina-Valley prevailed on Issue 3(d)(ii) and 3(d)(v).

ISSUE 3(d)(iii): SPEECH AND LANGUAGE SERVICES

Student contends Covina-Valley denied him a FAPE in the December 8, 2021 IEP by decreasing its offer of speech and language services from 1,625 minutes annually to 850 minutes annually. Covina-Valley argues Student did not offer any evidence that Covina-Valley’s proposed speech and language services were insufficient to address Student’s communication needs at the time.

Student did not prove Covina-Valley denied him a FAPE by failing to offer appropriate speech and language services in the December 8, 2021 amendment IEP. In his closing brief, Student argues Covina-Valley “proposed to slash” Student’s speech and language services at the December 8, 2021 IEP team meeting. However, Covina-Valley did not propose reducing Student’s speech and language services at this meeting. Covina-Valley’s last offer of speech and language services prior to the December 8, 2021 meeting was made in Student’s March 24, 2021 annual IEP, which was not at issue at the hearing and fell outside the two-year statute of limitations. Therefore, Student’s argument was unpersuasive.

The December 8, 2021 IEP document reflected Student made progress towards his communication goal in answering inferential questions about a real-life or hypothetical social scenario. He demonstrated the ability to answer inferential questions with at least 60 percent accuracy given no prompting. On a pragmatic language goal, Student could maintain the topic of conversation for three conversational rotations by making a comment or asking a question in at least two of three opportunities given no prompting. No IEP team member raised any concern about Student’s progress towards his communication goals or the need to increase his speech and language services.

Student offered no evidence by a speech-language pathologist that Student required more speech-language services at the time of the December 8, 2021 amendment IEP team meeting. Student offered no evidence establishing Covina-Valley’s offer of 850 minutes annual speech and language services, implemented 25 minutes weekly, was insufficient for Student to make progress towards his communication goals.

Student did not meet his burden of proving that Covina-Valley denied him a FAPE by failing to offer appropriate speech and language services in the December 8, 2021 IEP. Covina-Valley prevailed on Issue 3(d)(iii).

ISSUE 3(d)(iv): OCCUPATIONAL THERAPY SERVICES

Student contends Covina-Valley denied him a FAPE by failing to offer Student appropriate occupational therapy services in the December 8, 2021 IEP. Covina-Valley argues it offered 15 minutes individual occupational therapy services to support Student’s fine motor and self-regulation goals.

Student failed to prove Covina-Valley denied him a FAPE by failing to offer appropriate occupational therapy services to address Student’s fine motor and self-regulation deficits. At hearing, Student relied on independent evaluator Alaniz’s report and recommendations. Alaniz made a variety of recommendations, including 10 hours of occupational therapy consultation to develop a sensory diet and collect data, and individual school-based occupational therapy, at a frequency and duration to be based on Student’s occupational therapy goals. She recommended providing Student scheduled movement breaks or a longer recess, noise cancelling headphones to assist with Student’s auditory sensitivity, and goals in independently completing work assignments, utilizing appropriate spacing between words, and taking off his jacket independently.

As previously discussed in Issue 3(c), the December 8, 2021 IEP team thoroughly considered and accepted some of Alaniz’s recommendations. The IEP team added weekly occupational therapy services, accommodations, and new goals to Student’s IEP. Student did not prove the services offered were not designed to meet Student’s needs, comport with his IEP, or not designed to provide Student with educational benefit. (Rowley, supra, 458 U.S. 176, 201-204.) Student did not meet his burden of proving Covina-Valley’s offer of occupational therapy services was insufficient to meet Student’s needs at the time of the December 8, 2021 amendment IEP team meeting.

Covina-Valley prevailed on Issue 3(d)(iv).

ISSUE 3(d)(vi): ASSISTIVE TECHNOLOGY

When developing an IEP, the IEP team must consider whether the student requires assistive technology devices and services. (20 U.S.C. § 1414(d)(3)(B)(v); 34 C.F.R. § 300.324(a)(2)(v); Ed. Code, § 56341.1, subd. (b)(5).) A school district is required to provide any assistive technology device that is needed to provide a FAPE to a child with a disability. (20 U.S.C. § 1412(a)(12)(B)(i); 34 C.F.R. § 300.105; Ed. Code, § 56341.1, subd. (b)(5).)

Student did not prove that the December 8, 2021 IEP team had any reason to believe Student needed an assistive technology device or services. No evidence was offered that Parents or any teachers expressed concerns that Student required assistive technology to benefit educationally. Neither Parent nor any of Student’s teachers referred him for an assistive technology assessment. Student had the burden of proving this issue by a preponderance of the evidence. (Schaffer, supra, 546 U.S. 49, 57-58.) Student failed to meet his burden on this issue based on a lack of evidence. Covina-Valley prevailed on Issue 3(d)(vi).

ISSUE 3(d)(vii): RECREATION THERAPY

Recreation therapy may be included as a related service under the IDEA. (20 U.S.C. § 1401(26)(A); 34 C.F.R. § 300.34(b)(11); Ed. Code, § 56363, subd. (a).) California law provides that recreation services, as part of designated instruction and services defined in the IEP, shall be available when the instruction and services are necessary for the student to benefit from his educational program. (Ed. Code, § 56363, subds. (a) and (b); see also Cal. Code Regs., tit. 5, § 3051.15, subd. (a) and (b) [defining “recreation services” as, inter alia, “those specialized instructional programs designed to assist pupils in becoming as independent as possible in leisure activities” and “emphasize the use of leisure activity in the teaching of academic, social, and daily living skills.”].)

The IDEA does not require a disabled child “to be provided with each and every special service available to nonhandicapped children.” Rather, the applicable test under Rowley is “whether the handicapped child’s IEP, when taken in its entirety, is reasonably calculated to enable the child to receive educational benefits.” (Rowley, supra, 458 U.S. at p. 197.) A school district satisfies the FAPE standard by providing adequate related services such that the child can take advantage of educational opportunities. (Park v. Anaheim Union High School Dist. (9th Cir. 2006) 464 F.3d 1025, 1031-1033 (Park).)

Student failed to prove Covina-Valley denied him a FAPE by failing to offer recreation services in the December 8, 2021 IEP. Student relied on Hsu’s recommendation that Student could benefit from recreation therapy. As part of her functional behavior assessment, Hsu administered the Adaptive Behavior Assessment, Third Edition, a standardized assessment tool that measures an individual’s adaptive skills. Mother and education specialist Bartlett completed rating scales in leisure and social skills. Mother rated Student’s social functioning in the low range. She rated Student’s ability to engage in leisure or recreation activities in the below average range, and his ability to have friends in the lower extreme range. Bartlett rated Student’s social function in the lower extreme range and his ability to engage in leisure and recreation activities in the low range. Bartlett rated Student’s ability to have friends in the average range.

Hsu observed Student a total of four hours and 20 minutes on September 9 and 21, and October 6 and 19, 2021. Hsu observed Student during recess and choir for one hour on October 6, 2021. Hsu observed Student playing handball during recess, lining up with his classmates, and waiving hello to another student. Student and a classmate walked into the choir classroom. During choir, Student raised his hand, followed directions, and participated in all activities. Hsu observed Student during recess on October 19, 2021, for an unspecified period. Student played handball and bounced the ball back and forth with his classmate. Student communicated with a group of classmates during snack and while lining up for class.

Hsu determined Student demonstrated an intrinsic motivation and ability to interact and connect with his peers, although his interactions were short in duration. Hsu believed Student required “further skill development” in socialization skills and recommended that Student be assessed by a recreation therapist. Hsu did not opine, in her report or at hearing, that Student required recreation skills to receive a FAPE.

At hearing, Crosmer convincingly opined Student interacted with his peers during general education math class. Student also participated in physical education class with his peers, and no teacher or staff reported concerns about Student’s ability to participate in physical education or any other recreational activities at school.

At hearing, neither party offered evidence that the December 8, 2021 IEP team discussed Student’s need for recreation therapy. Nor did Parent or any teacher request that Student be assessed in recreation therapy. At hearing, Hsu opined she looked “at skills Student needs long-term.” While Student may have benefitted from recreation therapy services, the evidence did not prove he required these services to receive a FAPE in December 2021.

After considering the results of Hsu’s evaluation, Covina-Valley offered 30 minutes monthly consultation between its behavior analyst and Student’s general and special education teachers. Covina-Valley amended Student’s IEP by adding 30 minutes monthly behavior analyst consultation to the supplementary aids and services and supports for school personnel or Student portion of the IEP. In addition, Student’s March 24, 2021 IEP contained a social interaction goal, which was to be implemented by Student’s special education teacher. The goal aimed for Student to participate in a playground game for at least 10 minutes with peers and demonstrate game proficiency. The goal was measured by teacher observations. The March 24, 2021 IEP also had two communication goals, implemented by the speech-language pathologist. One goal was in social pragmatics and required Student to maintain a topic of conversation. Another goal aimed for Student to answer inferential questions about real-life or hypothetical social scenarios. Student was still working towards these goals in December 2021.

Student failed to meet his burden of proving the combination of supports offered in his December 8, 2021 IEP were insufficient to meet his recreation and leisure needs. Covina-Valley prevailed on Issue 3(d)(vii).

ISSUE 3(d)(viii): COUNSELING

Student contends Covina-Valley denied him a FAPE by failing to offer appropriate counseling services to address Student’s coping skills. Covina-Valley argues Student failed to present any evidence at hearing that Covina-Valley’s offer of 30 minutes monthly counseling services was inappropriate for Student to make sufficient progress towards his social-emotional goals.

Student did not meet his burden of proving Covina-Valley denied him a FAPE by failing to offer insufficient counseling services. The March 24, 2021 IEP contained a social-emotional goal, which was implemented by the educational specialist, school psychologist, and occupational therapist. The goal aimed for Student to use self-regulation and coping strategies, such as movement breaks and deep breathing, instead of crying or ignoring teacher and staff directions. To achieve this goal, Student would use self-regulation strategies in four out of five opportunities with one reminder. The goal was measured by teacher and staff observations and documentation. The March 24, 2021 IEP offered Student 30 minutes monthly individual counseling services in a separate setting. The IEP also offered numerous accommodations, including movement breaks, verbal or visual praise, modeling expectations for class activities and appropriate play-turn taking skills within his peer group.

At the time of the December 8, 2021 amendment IEP team meeting, Student could use coping strategies in three out of five opportunities with one reminder. Student still required one to three prompts to utilize a coping strategy to self-regulate. Covina-Valley’s occupational therapist reported Student made progress on his coping goal and met the goal’s benchmarks.

None of the IEP team members, including Parents or their attorney, discussed Student’s need for additional counseling services at the December 8, 2021 IEP team meeting. Student offered no expert testimony that Covina-Valley’s offer of 30 minutes monthly individual counseling services was inappropriate to meet Student’s needs at the time. Accordingly, Student did not meet his burden of proof on this issue. Covina-Valley prevailed on issue 3(d)(viii).

ISSUE 3(d)(ix): TRANSPORTATION

Student contends Covina-Valley denied him a FAPE by failing to offer transportation services at the December 8, 2021 IEP team meeting. Covina-Valley contends Student attended Manzanita based on an intradistrict transfer permit and did not require transportation to have access to appropriate special education instruction and related services at no cost.

Student did not prove Covina-Valley denied him a FAPE by failing to offer transportation services as a related service. In determining the educational placement of a child with a disability, the IDEA requires IEP teams to ensure the child’s placement is as close as possible to the child’s home. (34 C.F.R. § 300.116(b)(3).) The California Education Code defines home-to-school transportation as the transportation of severely disabled day class pupils and orthopedically impaired pupils. (Ed. Code, § 41850, subd. (d)(1) & (2); see also, 34 C.F.R. § 300.34(c).) In addition, home-to-school transportation is defined as transportation of individuals with exceptional needs as specified in their IEPs, who do not receive special education services as defined in subdivision (d). (Ed. Code, § 41850, subd. (b)(5).)

The California Department of Education, Special Education Division, provided guidance on determining whether a student requires home-to-school transportation services as a related service under Education Code section 41850, subdivision (d)(5). This guidance recommends IEP teams determine whether “pupils who live beyond reasonable distance to their school would not, without transportation, have access to appropriate special education instruction and related services at no cost.” (Special Education Transportation Guidelines, California Department of Education, Laws, Regulations & Policies (Last Reviewed, July 19, 2023).)

Manzanita was not Student’s school of residence; Rowland was. Parents requested an intradistrict transfer to Manzanita starting in the 2020-2021 school year because Parents wanted Student to attend the same school as Student’s older sister. Covina-Valley approved the intradistrict transfer.

Student offered no evidence he required home-to-school home transportation as a related service to have access to appropriate special education instruction and related services. Neither party offered evidence that Parents requested transportation services at the December 8, 2021 IEP team meeting. Student did not meet his burden of proving he required home-to-school transportation to access his educational program. Covina-Valley prevailed on Issue 3(d)(ix).

ISSUES 3(e) AND 3(f): STUDENT FAILED TO PROVE COVINA-VALLEY DENIED HIM A FAPE BY FAILING TO DEVELOP A BEHAVIOR INTERVENTION PLAN OR OFFER RESEARCH-BASED BEHAVIORAL AND INSTRUCTIONAL METHODOLOGIES

Student asserts that Covina-Valley should have offered research-based behavioral and instructional methodologies to Student at the December 8, 2021 IEP team meeting. Specifically, Student argues in closing that research-based methodologies were proposed by the behavior analyst Hsu, including

• Recreation therapy,

• Modeling,

• Visual supports,

• Prompting,

• Differential reinforcement,

• Ecological (i.e. antecedent-based) interventions, and

• Functional communication training.

Covina-Valley argues Student failed to prove which of the research-based methodologies he required. Covina-Valley also contends they are not required to adopt every recommendation made by an assessor. Finally, Covina-Valley asserts Student failed to prove that the methods it used to serve him were not research-based.

The IEP shall include a statement of the special education and related services and supplementary aids and services, based on peer-reviewed research to the extent practicable, to be provided to the pupil, or on behalf of the pupil, and a statement of the program modifications or supports for school personnel that will be provided to enable the pupil to do all of the following:

• Advance appropriately toward attaining the annual goals;

• To be involved in and make progress in the general education curriculum and to participate in extracurricular and other nonacademic activities;

• To be educated and participate with other individuals with exceptional needs and nondisabled pupils in the activities described in this subdivision. (Ed. Code, §56345, subd. (a)(4).)

Educational benefit is not limited to academic needs. Behavioral and emotional needs must be addressed through an IEP if they affect academic progress, school behavior, or socialization. (County of San Diego v. California Special Educ. Hearing Office (9th Cir. 1996) 93 F.3d 1458, 1467 (County of San Diego).) When a child’s behaviors impede his learning or that of others, the IDEA requires that the IEP team consider the use of positive behavioral interventions and supports and other strategies to address that behavior. (20 U.S.C. § 1414(d)(3)(B)(i); 34 C.F.R. § 300.324(a)(2)(i); Ed. Code, § 56341.1, subd. (b)(1).) Children with disabilities who exhibit serious behavioral challenges are entitled to development and implementation of positive behavioral interventions and supports. (20 U.S.C. § 1400(c)(5)(F); Ed. Code, § 56520, subd. (b).)

In this case, Student failed to offer any evidence that the December 8, 2021 IEP team members had reason to believe Student required a behavior intervention plan or different, or additional research-based behavioral or instructional methodologies. Student did not offer any evidence that he needed different or additional research-based instructional methodologies. And, while Student argues that Hsu recommended research-based behavior methodologies for Student, on the contrary, Hsu offered general recommendations which, while the language of each included Student’s first name, did not address any need Hsu identified of particular concern for Student. Covina-Valley correctly argues that a district is not required to accept every suggested approach recommended by an assessor. Nor was Covina-Valley required to use a methodology Parent preferred. (J.L. v. Mercer Island Sch. Dist. (9th Cir. 2010) 592 F.3d 938, 945, n.5.)

Student also argues that Alaniz recommended “research-based interventions for executive functioning.” A review of the recommendation, however, reveals that the occupational therapy report recommends that the “team should discuss what evidence-based interventions are being utilized to address executive function skills.” This is neither a recommendation of a specific methodology or even a recommendation that any additional methodologies be used.

No witness, including Alaniz or Hsu, observed serious maladaptive behaviors that impacted Student’s ability to be involved in or make progress in general education or necessitated the need for a behavior intervention plan. No witness, including Hsu, stated a behavior intervention plan was necessary for Student to receive a FAPE.

Student failed to meet his burden of proving by a preponderance of the evidence that Covina-Valley denied him a FAPE by failing to offer a behavior intervention plan or research-based behavioral and instructional methodologies.

Covina-Valley prevailed on Issues 3(e) and 3(f).

ISSUE 3(g): STUDENT FAILED TO PROVE COVINA-VALLEY DENIED HIM A FAPE BY PREDETERMINING THE DECEMBER 8, 2021 PLACEMENT OFFER

Student contends Covina-Valley predetermined the December 8, 2021 IEP by deciding before the meeting it would not offer transportation services to Student based on its district policy of not offering transportation to students who attend school based on an intradistrict permit. Covina-Valley contends Student did not meet his burden of proving the December 8, 2021 IEP was predetermined.

Pretermination occurs when placement is determined without parental involvement in developing the IEP. (34 C.F.R. §§ 300.327, 300.501(c)(1); Deal v. Hamilton County Bd. Of Educ. (6th Cir. 2004) 392 F.3d 840, 858 (Deal).) A school district violates the IDEA if it predetermines placement for a student before the IEP is developed or steers the IEP team to a predetermined placement. (W.G. v. Bd. of Tr. of Target Range Sch. Dist. No. 23 (9th Cir. 1992) 960 F.2d 1479, 1484 (Target Range).) A school district predetermines an offer when it presents one placement option at an IEP team meeting and is unwilling to consider other alternatives. (H.B., et al., v. Las Virgenes Unified School Dist. (9th Cir. 2007) 239 Fed.Appx. 342, 344.) A district may not arrive at an IEP team meeting with a “take it or leave” it offer. (J.G. Douglas County School Dist. (9th Cir. 2008) 552 F.3d 786, 801, fn. 10.) In such cases, regardless of the discussions that may occur at the meeting, the school district's actions would violate the IDEA's procedural requirement that parents have the opportunity “to participate in meetings with respect to the identification, evaluation, and educational placement of the child.” (Las Virgenes, supra, 239 Fed. Appx. 342, 344; citing 20 U.S.C. § 1415(b)(1); see also 34 C.F.R. § 300.501(c)(1).)

Student failed to prove Covina-Valley predetermined Student’s offer of placement at the December 8, 2021 IEP team meeting. No evidence was offered that the December 8, 2021 IEP team discussed the issue of Student’s placement, including any need for a change of placement, nor did Covina-Valley make a new placement offer in this IEP. Therefore, there was no placement offer that could be predetermined.

In his closing brief, Student argues for the first time that Covina-Valley made a predetermined decision not to offer Student transportation services. No evidence was offered that any Covina-Valley IEP team member discussed the issue of Student’s transportation before the IEP team meeting. Nor did the IEP team discuss Student’s need for transportation. Parents and their attorney were active participants in the IEP team meeting. They did not request transportation services for Student. In short, there was an absence of evidence on this issue and Student did not meet his burden of proof.

Covina-Valley prevailed on Issue 3(g).

ISSUE 3(h): STUDENT FAILED TO PROVE COVINA-VALLEY DENIED HIM A FAPE BY FAILING TO MAKE A CLEAR PLACEMENT OFFER IN THE DECEMBER 8, 2021 IEP

Student contends Covina-Valley denied him a FAPE by failing to provide Parents with a formal, written placement offer following the December 8, 2021 IEP team meeting. Student’s contention is identical to Issue 1(a) discussed later in this Decision. Covina-Valley contends the modifications to the December 8, 2021 amendment IEP were clear and Student failed to prove otherwise.

The IDEA requires school districts to provide parents with a formal, written, and specific offer of placement. (20 U.S.C. § 1414(d)(1)(A)(i).) This requirement is “enforced rigorously” because it provides a clear record if disputes arise and because the written offer helps parents decide whether to accept or reject a proposed program. (20 U.S.C. § 1414(d)(1)(A)(i); Los Angeles Unified School District v. A.O. by and through Owens (9th Cir. 2024) 92 F.4th 1159, 1169, citing Union, supra, 15 F.3d 1519, 1526.)

Student failed to prove Covina-Valley did not make a clear placement offer in the December 8, 2021 IEP. The December 8, 2021 IEP offer of special education and related services included:

• 300 minutes weekly specialized academic instruction in a separate setting;

• 850 minutes yearly speech and language services, delivered 25 minutes weekly in a group setting;

• 15 minutes weekly individual occupational therapy services delivered in a push-in model;

• 100 minutes yearly occupational consultation services between the occupational therapist, Student’s teachers, and the IEP team; and

• 30 minutes monthly individual counseling in a separate setting.

Parents and their attorney participated in the IEP development process. They were informed of Student’s problems at that time, gave input, and asked questions. Student failed to submit any evidence that Parents were confused by the goals, accommodations, or services. Accordingly, Student failed to meet his burden of proof on this issue.

Covina-Valley prevailed on Issue 3(h).

MAY 20, 2022 AMENDMENT IEP ISSUES

ISSUE 4(b)

DID COVINA-VALLEY DENY STUDENT A FAPE IN THE MAY 20, 2022 IEP BY FAILING TO ENSURE ALL NECESSARY IEP TEAM MEMBERS ATTENDED?

Student contends Covina-Vally denied him a FAPE by not including a speech-language pathologist at the May 20, 2022 amendment IEP team meeting. Covina-Valley contends the purpose of meeting was to review Dr. Shannon O’Bannon’s independent neuropsychological evaluation and a speech-language pathologist was not a necessary IEP team member.

Each meeting to develop, revise, or revise an IEP must be conducted by an IEP team. (Ed. Code, § 56341, subd. (a).) The IEP team must include:

• One or both parents;

• Not less than one regular education teacher;

• Not less than one special education teacher;

• A representative of the school district who is qualified to provide, or supervise the provision of specially designed instruction and knowledgeable about the general education curriculum and the availability of school district resources;

• An individual who can interpret the instructional implications of any assessment results;

• And at the discretion of the parent or the school district, other individuals with knowledge or special expertise regarding the student and,

• If appropriate, the student. (20 U.S.C. § 1414(d)(1)(B); 34 C.F.R. § 300.321(a); Ed. Code, § 56341, subd. (b).)

The first five designated participant categories are mandatory team members.

Student did not meet his burden of proving all mandatory IEP team members failed to attend the May 20, 2022 IEP team meeting. The IEP team included

• Parents and their attorney,

• Student’s general education and special education teachers,

• An occupational therapist,

• A school psychologist, and

• Covina-Valley’s program specialist.

A speech-language pathologist did not attend and was not a mandatory member of the team because Covina-Valley did not anticipate that a neuropsychological evaluation report would include discussion of modifications to speech and language services. Parent did not request that a speech-language pathologist attend, and speech and language was not an area planned for discussion at the meeting.

Student failed to cite any legal authority for his contention that Covina-Valley was required to ensure the attendance of a speech-language pathologist. Student’s argument that a speech-language pathologist should have been at the meeting because O’Bannon’s evaluation indicated Student had speech-language deficits was unpersuasive. The purpose of the meeting was to consider O'Bannon’s neuropsychological assessment, not a speech-language evaluation by a speech-language pathologist. Therefore, a speech-language pathologist was not a mandatory IEP team member. Student did not meet his burden of proof on this issue.

Covina-Valley prevailed on Issue 4(b).

ISSUE 4(c)

DID COVINA-VALLEY DENY STUDENT A FAPE IN THE MAY 20, 2022 IEP BY FAILING TO CONSIDER FINDINGS FROM AN APRIL 7, 2022 INDEPENDENT PSYCHOEDUCATIONAL EVALUATION?

Student contends Covina-Valley failed to consider O’Bannon’s independent neuropsychological evaluation at the May 20, 2022 amendment IEP team meeting. Covina-Valley contends it reviewed O’Bannon’s report and recommendations. Student frames the issue as a psychoeducational evaluation, but the evaluation was conducted by a neuropsychologist, not a licensed school psychologist.

Covina-Valley convened an amendment IEP team meeting on May 20, 2022, to review O’Bannon’s independent neuropsychological evaluation. All required team members were present at the meeting, including Parents and their attorney. O’Bannon also attended to present the evaluation report.

Student failed to meet his burden of proving Covina-Valley did not consider O’Bannon’s evaluation. O’Bannon assessed Student on January 17 and 19, 2022, and produced a 24-page report dated April 7, 2022. On May 20, 2022, O’Bannon reported to the IEP team regarding her observations and testing of Student, which were also described in the written report she provided to the IEP team prior to the IEP team meeting.

The IEP team considered O’Bannon’s various recommendations for accommodations for Student, including

• Check-ins by his teacher,

• Additional time to complete work,

• Verbal and visual aids, and

• Organizational strategies, such as using checklists and planners.

O’Bannon recommended twice weekly occupational therapy services for an unspecified duration to target Student’s fine motor and sensory processing weaknesses. She also recommended two to three weekly sessions of speech and language services for 60 minutes a session to improve pragmatic language and reading comprehension. O’Bannon recommended Student’s IEP team consider placement in a non-public school should Covina-Valley “be unable to offer appropriate levels of support and demonstrate consistent academic gains.” This comment resulted in a conversation among all the team members about whether a non-public school was necessary or more restrictive than Student required.

Upon learning that O’Bannon recommended significant proposed changes to Student’s speech-language services, Covina-Valley offered, and Parents and their attorney agreed, to continue the May 20, 2022 IEP team meeting to include Covina-Valley’s speech-language pathologist. As discussed later in this Decision in Issue 5, the IEP team convened on June 1, 2022 to continue the discussion of O’Bannon’s recommendations.

Covina-Valley reviewed and considered O’Bannon’s report and recommendations. The IEP team members listened to O’Bannon’s recommendations, and asked questions. Although Covina-Valley did not adopt O’Bannon’s recommendations for additional speech-language and occupational therapy services, it fulfilled its obligation under the IDEA to consider the evaluation.

Covina-Valley prevailed on Issue 4(c).

ISSUES 4(d)(i), (iii), (iv), (vi)-(ix)

DID COVINA-VALLEY DENY STUDENT A FAPE IN THE MAY 20, 2022 IEP BY FAILING TO OFFER APPROPRIATE SPECIALIZED ACADEMIC INSTRUCTION, SPEECH AND LANGUAGE SERVICES, OCCUPATIONAL THERAPY SERVICES, ASSISTIVE TECHNOLOGY, RECREATION THERAPY, COUNSELING, AND TRANSPORTATION?

Student contends Covina-Valley denied him a FAPE in the May 20, 2022 amendment IEP by failing to offer appropriate services in

• Specialized academic instruction,

• Speech and language,

• Occupational therapy,

• Assistive technology,

• Recreation therapy,

• Counseling, and

• Transportation.

Covina-Valley argues that, at the time of the May 20, 2022 IEP offer, its offer of specialized academic instruction, speech and language services, occupational therapy, services, and counseling was reasonably calculated to enable Student to make progress appropriate in light of Student’s circumstances. Covina-Valley further argues that, at the time of its May 20, 2022 IEP team meeting, Student did not need assistive technology services or devices, recreation therapy, or transportation to receive a FAPE.

ISSUE 4(d)(i): SPECIALIZED ACADEMIC INSTRUCTION

Student did not meet his burden of proving the specialized academic instruction offered in the May 20, 2022 IEP was inappropriate given the information available to the IEP team at the time of the meeting. (Anchorage School District, supra, 689 F. 3d at p. 1057; Adams, supra, 195 F.3d at p. 1149.)

When the IEP team met on May 20, 2022, Student had made continued progress towards his IEP goals. Student met his social inference, writing, self-regulation, social interaction, bilateral coordination, and coping skills goals. Student made progress towards his math goal but still required support in going through steps in word problems. The IEP team did not review Student’s progress on his two communication goals because the speech-language pathologist was not at the meeting.

At hearing, Student offered no evidence, including assessments or expert testimony, proving Student required specialized academic instruction in an amount more than the 300 minutes of specialized academic instruction offered in the May 20, 2022 IEP or that Covina-Valley had reason to believe he needed additional academic support. Nor was there evidence that the May 20, 2022 IEP team discussed the need for additional or different specialized academic instruction. Even O’Bannon did not recommend that Student receive additional or specialized academic instruction. O’Bannon believed Student could access his general education curriculum with the level of specialized academic instruction and accommodations in his IEP at the time.

Covina-Valley prevailed on Issue 4(d)(i).

ISSUE 4(d)(iii): SPEECH AND LANGUAGE SERVICES

Student contends Covina-Valley denied him a FAPE in the May 20, 2022 IEP by failing to offer appropriate services to address his communication deficits. Covina-Valley contends the May 20, 2022 IEP team did not address Student’s communication needs because the meeting was held to consider O’Bannon’s independent neuropsychological evaluation.

The May 20, 2022 IEP team did not discuss Student’s need for additional or different speech-language services because Covina-Valley held the meeting specifically to discuss O’Bannon’s evaluation. While O’Bannon advocated for increased speech-language services at the time, she was not a licensed speech-language pathologist and did not administer speech and language assessments traditionally administered by a licensed speech-language pathologist in the educational setting. She did not determine whether Student qualified for special education under the category of speech-language impairment and was not qualified to do so.

O’Bannon’s recommendations about Student’s needs in speech-language were generally unpersuasive. O’Bannon believed Student needed to improve his language processing skills. Despite her lack of qualifications, O’Bannon recommended Student receive 60 minutes, two to three hours weekly speech-language services to address Student’s deficits in understanding implicit information, reading comprehension, and social reciprocity. O’Bannon did not explain which speech and language goals these services should target. O’Bannon was not qualified to make recommendations about the frequency, length, and duration of speech-language services Student required.

At hearing, O’Bannon explained her recommendation for additional speech and language services was based on checking with a speech-language pathologist at Insight Collective. O’Bannon could not remember the name of the speech-language pathologist and did not know if that person had ever met, observed, or assessed Student. O’Bannon’s testimony about her discussions with the speech-language pathologist were vague and uncertain, which made her opinions unreliable.

Student failed to meet his burden of proving Covina-Valley denied him a FAPE by failing to offer appropriate speech and language services in the May 20, 2022 IEP.

Covina-Valley prevailed on 4(d)(iii).

ISSUE 4(d)(iv): OCCUPATIONAL THERAPY

Student contends Covina-Valley denied him a FAPE by failing to offer twice weekly occupational therapy services as recommended by Dr. O’Bannon. Covina-Valley contends Student did not prove he required additional occupational therapy to meet any specific needs.

Student did not meet his burden of proving Covina-Valley denied him a FAPE by failing to offer appropriate occupational therapy services at the May 20, 2022 IEP team meeting. O’Bannon recommended that Student required occupational therapy services two times weekly to target “fine motor and sensory processing deficits.” O’Bannon was not a licensed occupational therapist. She lacked the qualifications to conduct standardized assessments to determine occupational therapy needs or to determine necessary service levels to meet occupational therapy needs. Therefore, O’Bannon’s opinions about Student’s need for additional occupational therapy services were given little weight.

Student did not offer any persuasive evidence that proved Student required additional or different occupational therapy services than were offered at the May 20, 2022 IEP team meeting.

Covina-Valley prevailed on Issue 4(d)(iv).

ISSUE 4(d)(vi): ASSISTIVE TECHNOLOGY SERVICES

Student did not prove that Covina-Valley denied him a FAPE by failing to offer assistive technology services at the May 20, 2022 IEP team meeting. As mentioned early in this Decision, at the time of this IEP team meeting neither Parents nor a teacher had referred Student for an assistive technology assessment. Covina-Valley had not determined Student’s educational or related services needs warranted an assistive technology assessment at the May 20, 2022 IEP team meeting or anytime during the 2021-2022 regular and extended school year. None of the May 20, 2022 amendment IEP team members determined Student required assistive technology services, including occupational therapist Alaniz. Therefore, based on an absence of evidence, Student failed to meet his burden of proof on this issue.

Covina-Valley prevailed on Issue 4(d)(vi).

ISSUE 4(d)(vii)): RECREATION THERAPY

Student failed to prove Covina-Valley denied him a FAPE by failing to offer recreation services in the May 20, 2022 amendment IEP. Student relied on Hsu’s earlier recommendation that Student could benefit from recreation therapy. Student offered no evidence of changed circumstances or new facts supporting his contention Covina-Valley should have offered recreation therapy.

Occupational therapist Annette Armen shared with the May 20, 2022 IEP team that she observed Student playing and interacting with his peers on the playground and in the classroom. At hearing, Crosmer convincingly opined Student interacted with his peers during general education math class. Student also participated in physical education class with his peers, and no teacher or staff reported concerns about Student’s inability to participate in physical education.

While Student may have benefitted from recreation therapy services, the evidence did not prove he required these services to receive a FAPE. Therefore, Student did not meet his burden of proof on this issue.

Covina-Valley prevailed on Issue 4(d)(vii).

ISSUE 4(d)(viii): COUNSELING SERVICES

Student did not meet his burden of proving Covina-Valley denied him a FAPE by failing to offer additional counseling services. At the time of the May 20, 2022 amendment IEP team meeting, Student met his coping and self-regulation goals. None of the IEP team members, including Parents or their attorney, discussed Student’s need for additional counseling services. Student offered no expert testimony establishing that Covina-Valley’s offer of 30 minutes monthly individual counseling services was inappropriate to meet Student’s needs at the time. Accordingly, Student did not meet his burden of proof on this issue.

Covina-Valley prevailed on Issues 4(d)(viii).

ISSUE 4(d)(ix): TRANSPORTATION SERVICES

Student did not prove Covina-Valley denied him a FAPE by failing to offer transportation services as a related service. Student offered no evidence he required home-to-school transportation as a related services to have access to appropriate special education instruction and related services. No evidence was offered that Parents requested transportation services at the May 20, 2022 IEP team meeting. There was an absence of evidence Student required home-to-school transportation to access his educational program. Therefore, Student did not meet his burden of proof on this issue.

Covina-Valley prevailed on Issue 4(d)(ix).

ISSUES 4(d)(ii), (v), 4(e), AND 4(f)

DID COVINA-VALLEY DENY STUDENT A FAPE IN THE MAY 20, 2022 IEP BY FAILING TO OFFER ONE-TO-ONE AIDE SUPPORT, OTHER BEHAVIOR SUPPORTS, FAILING TO DEVELOP A BEHAVIOR INTERVENTION PLAN, AND FAILING TO OFFER RESEARCH-BASED BEHAVIORAL AND INSTRUCTIONAL METHODOLOGIES?

Student contends Covina-Valley denied him a FAPE in the May 20, 2022 amendment IEP by failing to offer trained and qualified aide support, other behavior supports, a behavior intervention plan, and research-based behavioral and instructional methodologies.

Covina-Valley argues that, at the time of the May 20, 2022 IEP team meeting, Student did not need trained and qualified aide support or additional behavior supports. Covina-Valley maintains Student did not prove he required a behavior intervention plan or any specific research-based behavioral and instructional methodologies to receive a FAPE.

Student did not meet his burden of proving Covina-Valley denied him a FAPE by failing to offer a one-to-one aide or other behavior supports in the May 20, 2022 amendment IEP. Student did not offer evidence about additional behavior supports he required. No witness testified that Student’s behaviors were significant enough to offer a behavior intervention plan. Student offered no evidence of any research-based behavioral and instructional methodologies Student required to make appropriate progress in light of his circumstances. Student did not elicit testimony from Covina-Valley’s witnesses suggesting Student required these supports.

No evidence was offered at hearing that Student’s behaviors increased or that maladaptive behaviors occurred between the December 8, 2021 and May 20, 2022 IEP team meetings. In fact, the Covina-Valley IEP team members believed Student could benefit from more time in the general education environment. O’Bannon’s findings supported this conclusion. She reported Student was on task in the special and general education settings. She believed Student could access his general education curriculum. O’Bannon did not recommend that Student receive one-to-one aide support or any other behavior supports or interventions.

Neither O’Bannon nor any other IEP team member recommended a one-to-one aide for Student. O’Bannon observed Student on-task during his general education math class. He listened to the teacher and followed directions. He engaged in some self-stimulating behavior, but it did not impede his learning or that of others.

Similarly, Education Specialist Bartlett did not believe Student required one-to-one aide support. Student worked independently. Student’s ability to self-regulate when he answered a question incorrectly had improved. Crosmer also reported Student worked independently and turned in his assignments. Student could problem solve and self-regulate. Other than arguing Student required one-to-one aide support, Student did not offer evidence about any other behavior supports he required to address his self-regulation or behavior needs. Therefore, Student did not meet his burden of proof on these issues.

Covina-Valley prevailed on Issues 4(d)(ii), 4(d)(v), 4(e), and 4(f).

ISSUE 4(g)

DID COVINA-VALLEY DENY STUDENT A FAPE IN THE MAY 20, 2022 IEP BY PREDETERMINING HIS PLACEMENT OFFER?

Student vaguely argues in his closing brief that Covina-Valley failed to discuss aspects of Student’s IEP offer at the May 20, 2022 IEP team meeting. The primary complaint appeared to be that Covina-Valley had not reviewed documents. Student offered no evidence of the aspects of the IEP placement he was asserting were not discussed. He offered no persuasive legal authority that failing to review documents prior to an IEP team meeting constituted predetermination of the IEP.

Covina-Valley maintains Student did not meet his burden of proof on this issue. Covina-Valley further argues that the May 20, 2022 IEP team thoroughly reviewed and considered O’Bannon’s neuropsychological evaluation, including accommodations recommended by O’Bannon that already were in Student’s IEP.

Student failed to prove Covina-Valley predetermined Student’s placement offer at the May 20, 2022 IEP team meeting. Student did not offer evidence about any aspects of Student’s placement that were predetermined. No evidence was offered that Covina-Valley prematurely made decisions about changing Student’s IEP or refused to change it before the meeting. Student did not offer evidence of an unwillingness by Covina-Valley to consider Parents’ concerns as to placement or that they presented the placement in a take it or leave it manner. Parents and their attorney actively participated in the meeting and the Covina-Valley IEP team members listened to their concerns.

Covina-Valley prevailed on Issue 4(g).

ISSUE 4(h)

DID COVINA-VALLEY DENY STUDENT A FAPE IN THE MAY 20, 2022 IEP BY FAILING TO MAKE A CLEAR PLACEMENT OFFER?

Student contends Covina-Valley’s alleged failure to provide a copy of the May 20, 2022 IEP document amounts to a failure to make a clear offer. Covina-Valley contends no changes to Student’s program were made in the May 20, 2022 IEP, and the meeting was continued to June 1, 2022.

No changes were made to the May 20, 2022 IEP. Student offered no persuasive evidence that any portion of that amendment was unclear.

In his closing brief, Student argues the failure to provide Parents a copy of the May 20, 2022 IEP document amounts to a failure to make a clearly defined offer of placement and related services. Student relies on M.M. v. Layfette School Dist. (9th Cir. 2014) 767, F.3d 842, 852. In Layfette, a school district’s failure to provide parents data collected in determining whether the student had a specific learning disability denied parents participation in the student’s IEP.

In contrast, Student did not offer evidence Parents were not provided information about Student’s needs at the May 20, 2022 IEP team meeting. No evidence suggested Parents were denied meaningful participation. Parents and their attorney attended the meeting, expressed concerns, and asked questions.

Student’s argument the failure to provide Parents a copy of the IEP document conflates two different procedural requirements: the obligation to provide Parents a copy of the IEP document and the requirement the offer is clear. Thus, Student’s argument that the IEP was unclear because a copy was not provided fails.

Covina-Valley prevailed on issue 4(h).

ISSUE 1(a) AND (b)

DID COVINA-VALLEY DENY STUDENT A FAPE BY FAILING TO PROVIDE PARENTS COPIES OF THE DECEMBER 8, 2021, AND MAY 20, 2022 IEP DOCUMENTS?

Student alleges Covina-Valley failed to provide Parents IEP documents following the December 8, 2021, and May 20, 2022 IEP team meetings. Covina-Valley asserts that Parents failed to meet their burden to prove the documents were not received and were active participants in the IEP team meetings.

School districts must provide Parents with a copy of the IEP document. (34 C.F.R. § 300.322(f); Ed Code, § 56341.5, subd. (j).)

Student failed to prove Covina-Valley did not provide Parents copies of the December 8, 2021, and May 20, 2022 IEP documents. Parents received the December 8, 2021, and May 20, 2022 IEP documents after the respective meetings. At hearing, Mother claimed she did not receive the IEP documents. However, Mother did not present as a reliable witness. Often Mother could not recall important events. At hearing, when asked about receiving the documents, Mother seemed hesitant and nervous, which rendered her testimony unpersuasive.

Father’s testimony was equally vague as to whether Parents received the IEP documents. Father testified that Covina-Valley did not send Parents the IEP documents and also that they sent them “later than anticipated.” Father testified he did not recall when the December 8, 2021 IEP document was received, but that it was “sometime after the meeting,” suggesting Parents received the IEP document after the December 8, 2021 IEP team meeting. Father could not remember when he received the May 20, 2022 IEP, but he believed it was “not close in time” to the meeting, implying that Parents did receive the May 20, 2022 IEP amendment sometime after the meeting. Neither Parent offered persuasive testimony that they did not receive the IEP documents following the December 8 2021, or May 20, 2022 IEP team meetings. Parents offered no documentary evidence supporting their position, such as emails asking for copies or noting none were provided. While it was not incumbent upon Parent to prove they asked for copies of the documents Covina-Valley was obligated to provide; it is Parents’ burden to prove by a preponderance of the evidence the documents were not provided and this they did not do.

Covina-Valley prevailed on Issues 1(a) and (b).

ISSUE 3(a) AND 4(a)

DID COVINA-VALLEY DENY STUDENT A FAPE AT THE DECEMBER 8, 2021 AND MAY 20, 2022 IEP TEAM MEETINGS BY DENYING PARENTAL PARTICIPATION?

Student contends Covina-Valley denied him a FAPE by failing to provide him copies of the December 8, 2021 and May 20, 2022 IEP documents. This is identical to Issues 1(a) and (b). In his closing brief, Student argues that the failure to propose a recreation assessment, untimely assessing Student for his three-year evaluation, failing to have all necessary IEP team members attend, and predetermining Student’s need for transportation denied Parents’ opportunity to participate in the IEP process.

Covina-Valley contends Parents and their attorney were present at the IEP team meetings and were provided an opportunity to participate in the discussion and the decision-making process.

Student failed to establish any denial of parental participation in either the December 8, 2021 or May 20, 2022 IEP team meetings. Student’s contentions that a failure to propose a recreation assessment, untimely assessing Student for his three-year evaluation, failing to have all necessary IEP team members attend, and predetermining Student’s need for transportation denied Parents’ opportunity to participate in the IEP process conflates separate issues, each of which are discussed elsewhere in this Decision.

At hearing, it was established that Student’s contentions Parents were denied the opportunity to participate in the IEP team meetings were duplicative of Student’s contention that Covina-Valley failed to consider independent educational evaluations. As already determined in Issues 3(b), 3(c), and 4(c), Student failed to prove Covina-Valley did not consider the independent functional behavior occupational therapy, and neuropsychological evaluations. Student raised no other instance of Covina-Valley denying Parents their opportunity to participate in the December 8, 2021, and May 20, 2022 IEP team meetings.

Covina-Valley prevailed on Issues 3(a) and 4(a).

ISSUE 2(a)-(e)

DID COVINA-VALLEY DENY STUDENT A FAPE DURING THE 2021-2022 SCHOOL YEAR BEGINNING NOVEMBER 28, 2021, BY FAILING TO TIMELY ASSESS STUDENT IN PREPARATION FOR HIS THREE-YEAR EVALUATION IN SPEECH AND LANGUAGE, OCCUPATIONAL THERAPY, FUNCTIONAL BEHAVIOR, ASSISTIVE TECHNOLOGY, AND RECREATION THERAPY?

Student contends Covina-Valley should have assessed Student’s functional behavior, assistive technology, and recreation therapy based upon known or suspected deficits in these areas but failed to do so. Student further contends Covina-Valley failed to timely assess Student in speech and language and occupational therapy prior to his three-year evaluation due on April 8, 2022.

Covina-Valley contends Student’s three-year evaluation was due on April 8, 2022, but that the parties mutually agreed to extend the deadline to provide Student’s IEP team an opportunity to consider O’Bannon’s independent neuropsychological evaluation. Covina-Valley further contends the parties agreed to review the results of O’Bannon’s evaluation, and then, determine if additional assessments were necessary.

School district evaluations of students with disabilities under the IDEA serve two purposes: (1) identifying students who need specialized academic instruction and related services because of an IDEA-eligible disability, and (2) helping IEP teams identify the special education and related services the student requires. (20 U.S.C. § 1414(a); 34 C.F.R. §§ 300.301, 300.303.) The first refers to the initial evaluation to determine if the child has a disability under the IDEA, while the latter refers to the follow-up or repeat evaluations that occur throughout the course of a student’s education. (See 71 Fed. Reg. 46,640 (Aug. 14, 2006).) Assessments also determine the type, frequency, and duration of specialized instruction and related services. (34 C.F.R. § 300.320(a)(7).)

The IDEA requires reevaluations to be conducted at least once every three years unless the parent and school district agree in writing that it is not necessary. (20 U.S.C. § 1414(a)(2)(B)(ii); 34 C.F.R. § 300.303(b)(2); Ed. Code, § 56381, subd. (a)(2).) A reassessment must be conducted if the school district determines the educational or related service needs, including improved academic achievement and functional performance, of the student warrant a reassessment, or if the student’s parents or teachers request a reassessment. (20 U.S.C. § 1414(a)(2)(A)(i) and (ii); 34 C.F.R. § 300.303(a)(1) and (2); Ed. Code, § 56381, subd. (a)(1).)

The district must give the parent at least 15 days to review, sign, and return the proposed assessment plan. (Ed. Code, § 56321, subd. (a).) The assessment must be completed, and an IEP team meeting held to discuss the results of the reassessment, within 60 days of the date the school district receives the signed assessment plan, not including school breaks of five days or more. (20 U.S.C. § 1414(a)(1)(C); 34 C.F.R. § 300.301(c)(1)(i), (ii); Ed. Code, §§ 56043, subd. (f)(1), 56302.1, subd. (a), and 56344, subd. (a).) However, in any event, the assessment plan shall be developed within 10 days after the commencement of the regular school year, as determined by each district’s school calendar for each pupil where a referral has been made 10 days or less prior to the end of the regular school day. (Ibid.) A school district’s failure to conduct appropriate assessments or to assess in all areas of suspected disability may constitute a procedural violation of the IDEA. (Park, supra, 464 F.3d at pp. 1031-1033; 20 U.S.C. § 1415(f)(3)(E)(ii); 34 C.F.R. § 300.513(a)(2); Ed. Code, § 56505, subd. (f)(2).)

Procedural violations do not automatically require a finding of a FAPE denial. A procedural violation only constitutes a denial of FAPE if the violation:

1. impeded the child’s right to a FAPE;

2. significantly impeded the parents’ opportunity to participate in the decision-making process regarding provision of a FAPE to the student; or

3. caused a deprivation of educational benefits. (20 U.S.C. § 1415(f)(3)(E)(ii); Ed. Code, § 56505, subd. (f)(2); see Target Range, supra, 960 F.2d 1479, 14844.)

A parent has meaningfully participated in the development of an IEP when they are informed of the child’s problems, attend the IEP team meeting, express disagreement regarding the IEP team’s conclusions, and request revision in the IEP. (Knox, supra, 315 F.3d 688, 693; Fuhrmann, supra, 993 F.2d 1031, 1036.)

ISSUE 2(c), (d) AND (e): STUDENT FAILED TO PROVE COVINA-VALLEY WAS REQUIRED TO ASSESS IN FUNCTIONAL BEHAVIOR, ASSISTIVE TECHNOLOGY, AND RECREATION THERAPY

Student’s three-year evaluation was due on April 8, 2022. On February 15, 2022, Covina-Valley issued an assessment plan proposing to assess Student in

• Academic achievement by an education specialist,

• Health by a school nurse,

• Intellectual development by a school psychologist,

• Language-speech-communication development by a speech-language pathologist,

• Social-emotional-behavior by a school psychologist, and

• Adaptive behavior by a school psychologist.

On February 23, 2022, Student’s attorney sent an email to Covina-Valley’s attorney acknowledging receipt of Covina-Valley’s assessment plan. On behalf of Student, attorney Young requested that Covina-Valley agree to consider O’Bannon’s evaluation in lieu of a psychoeducational evaluation by Covina-Valley’s assessor to avoid duplication of test instruments and repeated testing. Parents agreed to the additional proposed assessments by Covina-Valley. No other assessment areas were requested by Parents.

Covina-Valley’s attorney responded to Parents’ request in a February 28, 2022 email. Covina-Valley asked whether Parents would agree to an extension of Covina-Valley’s assessment timeline to allow it to review O’Bannon’s evaluation and determine if additional or supplemental evaluations were required. Covina-Valley proposed that Covina-Valley be provided 15 days from the date of the IEP team’s review of O’Bannon’s evaluation to determine if additional evaluations were required. Attorney Young responded in a March 1, 2022 email that Parents agreed to an extension of the assessment timeline.

FUNCTIONAL BEHAVIOR ASSESSMENT

Student did not prove Covina-Valley was required to perform a functional behavior assessment as part of Student’s three-year evaluation. The IDEA regulations only require a functional behavior assessment in certain disciplinary situations. (34 C.F.R. § 300.530(d)(1)(ii) & (f)(1)(i).)

Student was referred for an independent functional behavior assessment in 2020 because of Parents’ concerns about Student’s attention to task and tantrum behaviors. Hsu’s October 25, 2021 functional behavior assessment was reviewed by the December 8, 2021 IEP team. Hsu reported Student’s inattention to task and tantrum behaviors did not impact Student’s ability to access his educational program. Student had known behavioral needs, but Student did not have disciplinary concerns. Covina-Valley’s February 15, 2022 assessment plan proposed to assess Student in social-emotional-behavior and adaptive behavior by a school psychologist to review Student’s behavioral needs.

Student did not prove that Parents or their attorney requested a functional behavior assessment during the 2021-2022 school year. Covina-Valley did not determine Student required a functional behavior assessment, but proposed behavior assessments by its school psychologist. Further, Student did not prove that Student’s behavioral needs required a functional behavior assessment. Therefore, Student did not meet his burden in proving Covina-Valley denied him a FAPE by failing to conduct a functional behavior assessment from November 28, 2021, through the end of the 2021-2022 school year. Covina-Valley prevailed on Issue 2(c).

ASSISTIVE TECHNOLOGY ASSESSMENT

Student failed to prove Covina-Valley was required to perform an assistive technology assessment as part of Student’s three-year evaluation. Student did not prove there was a request for an assistive technology assessment by Parents or a teacher, or that Covina-Valley determined Student’s educational or related services warranted evaluation in this area. Student’s IEP did not include assistive technology and there was no evidence that he required assistive technology to access the general education curriculum.

Accordingly, Student did not meet his burden in proving Covina-Valley denied him a FAPE by failing to conduct an assistive technology assessment from November 28, 2021, through the end of the 2021-2022 school year. Covina-Valley prevailed on Issue 2(d).

RECREATION THERAPY ASSESSMENT

Student did not prove Covina-Valley should have conducted a recreation therapy assessment as part of his three-year reevaluation. Student did not prove there was a request for a recreation therapy assessment by Parents or a teacher, or that Covina-Valley determined Student’s educational or related services warranted evaluation in this area. Student’s IEP did not include recreation therapy and there was no evidence that he required recreation therapy to access the general education curriculum.

Student relied on Hsu’s recommendation in her October 25, 2021 functional behavior assessment report in support of his contention Covina-Valley should have conducted a recreation therapy assessment. As discussed earlier in this Decision, Hsu believed Student had a need for “further skill development” and recommended Student be assessed by a recreation therapist to “increase skill development” with socialization skills. Covina-Valley considered Hsu’s recommendations at the December 8, 2021 IEP team meeting and disagreed that Student required a recreation therapy assessment. Nothing changed in Student’s educational or functional needs to warrant a recreation therapy assessment for the remainder of the 2021-2022 school year.

Student did not meet his burden of proving Covina-Valley denied him a FAPE by failing to conduct a recreation therapy assessment from November 28, 2021, through the end of the 2021-2022 school year.

Covina-Valley prevailed on Issue 2(e).

ISSUE 2(a) AND (b): COVINA-VALLEY COMMITTED A PROCEDURAL VIOLATION UNDER THE IDEA BY FAILING TO TIMELY ASSESS STUDENT IN SPEECH AND LANGUAGE AND OCCUPATIONAL THERAPY IN PREPARATION FOR HIS THREE-YEAR EVALUATION

Covina-Valley committed a procedural violation by failing to timely assess Student in preparation for his three-year evaluation due on April 8, 2022 in speech and language and occupational therapy. The IEP team convened on May 20, 2022, to review O’Bannon’s evaluation. The IEP team agreed to continue the IEP team meeting to include Covina-Valley’s speech-language pathologist. The IEP team reconvened on June 1, 2022. The last day of the 2021-2022 school year was June 2, 2022.

The May 20, and June 1, 2022 IEP teams did not discuss additional evaluations by Covina-Valley for Student’s three-year evaluation, as they and Student’s attorney agreed to do. Covina-Valley did not issue a new assessment plan within 15-days of either the May 20, 2022 IEP team meeting or the June 1, 2022 IEP team meeting as stated in Covina-Valley’s February 28, 2022 email to Student’s attorney. Covina-Valley also did not notify Parents of additional assessments it intended to complete. At the end of the 2021-2022 school year, it was unclear whether Covina-Valley intended to complete additional assessments in speech-language and occupational therapy.

Based on the parties’ agreement, Covina-Valley should have issued an assessment plan within 15 days of the May 20, 2022 IEP team meeting. The last day of the 2021-2022 school year was June 2, which was less than 15 days after the May 20, 2022 IEP team meeting. If a referral for special education is made 10 days or less prior to the end of the regular school year, an assessment plan “shall be developed within10 days after the commencement of the regular school year, as determined by each district’s school calendar ….” (Ed. Code, § 56321, subd. (a).) The first day of the 2022-2023 school year was August 22, 2022. Under these facts, Covina-Valley should have issued an assessment plan by September 5, 2022; 10 days after the commencement of the regular 2022-2023 school year.

Covina-Valley issued a new assessment plan on October 1, 2022. This was 28 school days after the start of the 2022-2023 school year. The October 1, 2022 assessment plan proposed a comprehensive assessment of Student in

• Academic achievement by an education specialist,

• Health by a school nurse,

• Intellectual development by a school psychologist,

• Language-speech and communication development by a speech-language pathologist,

• Social-emotional and behavior by a school psychologist, and

• Adaptive behavior by a school psychologist.

The October 1, 2022 assessment plan also proposed to assess Student in sensory processing by an occupational therapist.

Student proved Covina-Valley committed a procedural violation by failing to timely assess his needs in speech and language and occupational therapy. (Park, supra, 464 F.3d 1025, 1032-1033.) However, Student failed to prove this procedural violation constituted a substantive FAPE denial. (Amanda J. ex rel. Annette J. v. Clark County School Dist. (9th Cir. 2001) 267 F.3d 877, 892.)

Student did not prove Parents were denied the ability to meaningfully participate in Student’s IEP development because of the delay in issuing the assessment plan. Parents did not dispute they received the October 1, 2022 assessment plan. They did not sign it or respond to Covina-Valley with questions or request assessments in additional areas. Mother did not sign the assessment plan at the time because Student was “going through a lot of things” in fall 2022. Mother was evasive and uncomfortable when questioned at hearing about Parents’ failure to sign the assessment plan in light of their concerns about Student’s communication and sensory needs. Mother did not express any confusion about the content of the assessment plan or provide any reason why she did not sign it. Father also did not offer testimony about the reasons for Parents’ decision not to sign the assessment plan at the time.

The evidence proved Covina-Valley made additional efforts to obtain Parents’ consent to the assessment plan, but Parents were unresponsive. Parents ultimately signed the assessment plan, with a request for additional assessments, on March 14, 2023. Based on these facts, Student did not establish Parents were denied meaningful participation in his IEP development. (D.O. by and Through Walker v. Escondido Union School Dist. (9th Cir. 2023) 59 F.4th 394, 414 (school district’s four-month delay in assessing student for autism did not seriously infringe on mother’s opportunity to participate in the IEP formulation process.)

Student also failed to prove the failure to timely assess Student impeded Student’s right to a FAPE or caused a deprivation of educational benefits. Student did not offer evidence Covina-Valley made substantial changes to Student’s IEP after it completed the assessments. (Id.) Student did not prove that any delay deprived Student of educational opportunity. “A loss of educational opportunity occurs, for example, when there is a ‘strong likelihood’ that, but for the procedural error, an alternative placement ‘would have been better considered’.” (D.O., supra, 59 F.4th at p. 417, citing Timothy O. v. Paso Robles Unified School Dist. (9th Cir. 2016) 822 F.3d 1105, 1124.) Even though Covina-Valley’s assessment was delayed, Student did not produce evidence that if it has been conducted earlier, an alternative placement would have occurred or been considered. Student did not offer evidence that Student had needs in speech and language or occupational therapy that were left unaddressed as a result of Covina-Valley’s failure to timely assess. Based on an absence of evidence, Student failed to prove Covina-Valley’s failure to timely assess Student caused a substantive FAPE denial.

Covina-Valley prevailed on Issues 2(a) and (b).

ISSUE 5(a)-(k)

DID COVINA-VALLEY DENY STUDENT A FAPE ARISING FROM THE JUNE 1, 2022 IEP TEAM MEETING AND OFFER?

Student contends Covina-Valley denied Student a FAPE in a June 1, 2022 IEP team meeting and offer by

• Denying parental participation in the IEP process,

• Failing to include all necessary IEP team members,

• Failing to consider O’Bannon’s recommendations from her independent neuropsychology evaluation,

• Failing to accurately state Student’s present levels of performance, and

• Failing to offer measurable goals and appropriate related services.

Student also contends Covina-Valley should have developed a behavior intervention plan, and offered research-based behavioral and instructional methodologies, and extended school year services. Student further asserted Covina-Valley predetermined Student’s placement offer and that the placement offer was unclear.

Covina-Valley contends Student failed to meet his burden of proof on these issues. Covina-Valley maintained Parents and their attorney meaningfully participated in the June 1, 2022 IEP team meeting and that Covina-Valley considered O’Bannon’s recommendations at the May 20, 2022 IEP team meeting. Covina-Valley argued its offer of special education and related services was appropriate to meet Student’s needs in light of the information known to the IEP team at the time. Covina-Valley contends it did not predetermine Student’s FAPE offer and that its offer was clear.

Covina-Valley convened Student’s annual IEP team meeting on June 1, 2022. The June 1, 2022 IEP contained Covina-Valley’s FAPE offer for the upcoming 2022-2023 school year. The IEP team included

• Parents and their attorney,

• Program specialist Umana,

• Covina-Valley’s attorney Danielle Lowe,

• School psychologist Danielle Palomar,

• General education teacher Crosmer,

• Occupational therapist Armen, and

• Speech-language pathologist Adele White.

ISSUE 5(a), (b) AND (c): PARENTAL PARTICIPATION, NECESSARY IEP TEAM MEMBERS AND O’BANNON’S INDEPENDENT NEUROPSYCHOLOGIAL EVALUATION

Student contends O’Bannon was a necessary IEP team member. Student further contends Covina-Valley denied Parents the opportunity to meaningfully participate in the IEP team meeting.

Covina-Valley contends O’Bannon’s report was previously considered at the May 20, 2022 IEP team meeting and O’Bannon was not a necessary member of the June 1, 2022 IEP team. Covina-Valley further contends Parents and their attorney actively participated in the IEP team meeting.

The June 1, 2022 IEP team meeting was a continuation of the May 20, 2022 IEP team meeting and was convened to discuss the speech and language recommendations in O’Bannon’s report and to develop Student’s IEP for the upcoming school year. O’Bannon is not a licensed, credentialed speech-language pathologist. However, Covina-Valley convened another meeting that included a licensed, credentialed district speech-language pathologist to further consider and discuss O’Bannon’s recommendations. O’Bannon had previously presented her recommendations at the May 20, 2022 IEP team meeting. As determined in Issue 4(c), Covina-Valley considered O’Bannon’s full report at the May 20, 2022 IEP team meeting. Given O’Bannon’s lack of speech and language expertise, further input from her was unnecessary. She was not a mandatory IEP team member at the June 1, 2022 IEP team meeting.

Further, the preponderance of the evidence proved Parents and their attorney were active participants in the June 1, 2022 IEP team meeting. Student’s attorney asked questions on Parents’ behalf throughout the meeting. Parents also expressed their concerns about supports offered to Student. For example, Mother expressed her concern that Student had difficulty remembering and organizing his assignments. Program specialist Umana responded to Mother’s concern and recommended that the IEP team add an accommodation to Student’s IEP that required Covina-Valley to notify Parents of upcoming assignments, projects, and activities.

Covina-Valley prevailed on Issue 5(a), (b), and (c).

ISSUE 5(d)(i)-(iv): PRESENT LEVELS OF PERFORMANCE

Student contends Covina-Valley denied him a FAPE by failing to include present levels of performance in the June 1, 2022 IEP. Covina-Valley contends the present levels listed in the IEP were accurate.

An IEP must include a student’s present levels of performance. The present levels of academic achievement and functional performance must include how the student’s disability affects the involvement and progress in the general education curriculum. (20 U.S.C. § 1414(d)(1)(A)(i)(I); 34 C.F.R. § 300.320(a)(1); Ed. Code, § 56345, subd. (a)(1).)

Student did not prove Covina-Valley denied him a FAPE by failing to include accurate present levels in social-emotional-behavior, fine and visual motor skills, communication development, and gross motor skills. The June 1, 2022 IEP document included updated information about Student’s strengths and weaknesses in academics, communication development, gross and fine motor development, and social-emotional-behavior. The present levels were based on recent diagnostic assessments in math and reading, a standardized reading assessment report, classroom observations, and informal assessments in communication. They also were based on input from Parents and their attorney, teacher reporting, and O’Bannon’s neuropsychological evaluation. The required IEP description of “how Student’s disability affects his involvement and progress in general education” noted Student’s autism behaviors and speech delays hindered his ability to keep pace with typically developing peers and he required specialized academic instruction and related services to remediate these delays.

The IEP team determined Student had needs in reading, writing, math, and social skills. Student’s overall reading level was at third grade. His comprehension in literature was at an early fourth-grade level, and his comprehension of informational text and vocabulary was at a third-grade level. His overall math ability was at the third-grade level. In communication development, Student presented with receptive and expressive language skills within normal limits, could understand conversational and story meanings, follow directions, and ask and respond to questions. He could make social inferences and use nonverbal cues during conversation. Student had needs in social-emotional behavior. Student initiated conversations easily but struggled with changing topics. He followed directions and classroom routines and raised his hand to ask questions. He relied heavily on adult support instead of seeking out peers or trying to independently problem solve before asking the teacher. Student occasionally became frustrated but could easily be calmed and refocused. The present levels of performance in these areas of need accurately captured Student’s educational and functional needs that resulted from his disability.

The June 1, 2022 IEP team did not determine Student had needs in visual motor or fine motor skills. Student could participate in his classroom activities that required fine and visual motor skills. He could participate in the general and special education classroom routines. He could take care of his self-needs and tied his shoes independently.

Student did not prove the IEP team relied upon incomplete or incorrect present levels of performance. Parents and their attorney attended the June 1, 2022 IEP team meeting. They did not express disagreement with the present levels of performance. At hearing, Covina-Valley’s witnesses, including general education teacher Crosmer and speech-language pathologist Adele White, offered persuasive testimony that the June 1, 2022 IEP accurately stated Student’s present levels of performance.

Further, even if Covina-Valley committed a violation by failing to include detailed specific levels of performance in social-emotional-behavior, fine and visual motor skills, communication, and gross motor skills, that procedural violation did not give rise to substantive FAPE denial. Parent and their attorney provided input and asked questions. Student did not offer persuasive evidence that Student’s right to FAPE was impeded or that he was denied educational benefit. Student did not meet his burden of proving the June 1, 2022 IEP did not contain accurate present levels of performance.

Covina-Valley prevailed on Issue 5(d)(i)-(iv).

ISSUE 5(e): MEASURABLE GOALS

Student contends Covina-Valley denied him a FAPE by failing to offer measurable goals in prevocational-commenting or asking questions, attention, auditory filtering, executive functioning, fine motor, gross motor, socials skills, and pragmatics-social inference. Covina-Valley contends the goals offered in the June 1, 2022 IEP were measurable and met Student’s identified areas of need. It further contends Student did not require goals in

• Attention,

• Auditory filtering,

• Executive functioning,

• Fine motor skills. and

• Gross motors skills.

For each area in which a special education student has an identified need, the IEP team must develop measurable annual goals that are based on the child’s present levels of academic achievement and functional performance, and which the child has a reasonable chance of attaining within one year. (Ed. Code, § 56345.) The purpose of annual goals is to permit the IEP team to determine whether the pupil is making progress in an area of need. (Ed. Code, § 56345, subd. (a).) The IEP team need not draft goals in a manner that the parents find optimal, as long as the goals are objectively measurable. (Capistrano Unified Sch. Dist. v. S.W. (9th Cir. 2021) 21 F.4th 1125, 1133-1134, cert. denied (U.S. 2022) 143 S.Ct. 98 (Capistrano).) California law “does not require … additional information, beyond that explicitly required by the IDEA.” (Id., citing Ed. Code, § 56345, subd. (i).) An IEP must describe “how the child’s progress toward meeting the annual goals … will be measured.” (20 U.S.C. § 1414(d)(1)(A)(i)(III); 34 C.F.R. § 300.320(a)(3).) As noted by the Ninth Circuit, “there is no specific form of measurement required by statute or caselaw.” (Capistrano, supra, 21 F.4th 1125, 1135 (goal measurement can be “based on teachers’ subjective observations”).) Goals can be measured ordinally, quantitatively, or in some other way. (Id. at p. 1134.) A failure to offer appropriate goals may be a procedural violation under the IDEA. (Park, supra, 464 F.3d at p. 1031.)

Student argues in his closing brief that Covina-Valley failed to offer measurable goals in seven different areas, but conceded that four of the areas: attention, auditory filtering, executive functioning, and gross motor skills were not offered goals. Goals that are not offered cannot deny a FAPE for failing to be measurable.

Student’s closing brief challenges only three identified goals as to measurability:

(1) Goal A (social skills), (2) Goal F (prevocational counseling or asking questions) and

(3) Goal G (pragmatics-social inference). As to these three goals, Student argues the description of the required prompting is vague and open-ended. Student also complains the goals “lack a timeframe,” but fails to explain what he means by that assertion. Student failed to present any evidence from an expert, or other witness, establishing that these goals were not measurable as written.

Goal A was a social skills goal. This goal aimed for Student to initiate a conversation exchange with a peer during recess with 80 percent success across three consecutive weeks. The school psychologist was responsible for implementing this goal. The goal contained three short-term objectives.

In his closing brief, Student unpersuasively argues Goal A was “too vague and open-ended and did not specify the number of back-and-forth conversations or the measurement setting. The short-term objectives state Student will engage in a back-and-forth exchange, for example a greeting and asking about a shared interest such as a television show with 60 percent, 70 percent, and finally 80 percent success across three consecutive weeks. Student did not establish why it was necessary to include a specific number of conversational exchanges.

Goal F was a prevocational-commenting or asking questions goal. Student’s baseline reflected Student ignored peers and adults when he was engaged in preferred activities. The goal aimed for Student to respond to a peer or teacher with a comment or question with no more than one prompt within 15 seconds of being spoken to in four out of five opportunities with no prompting. The education specialist and speech-language pathologist were responsible for implementing the goal. The goal included three short-term objectives. The goal, as written, includes two contradictory statements:

(1) it requires Student to respond both with “no prompting” or (2) “no more than one prompt.” However, the short-term objectives clarify that to achieve this goal Student would respond with a comment or question with no more than three prompts from an adult within 45 seconds. The second short-term objective requires Student to respond with no more than two prompts within 30 seconds of being spoken to. Finally, the third short-term objective requires Student to respond with no more than two prompts within 15 seconds.

Goal G was a pragmatics-social inference goal. Student’s baseline reflected he met his prior goal and could answer inferential questions about a real-life or hypothetical social scenario with 80 percent accuracy. The goal aimed for Student to answer five basic inferential questions about a common hypothetical or real-life social scenario given cues as necessary in four out of five opportunities. The education specialist and speech-language pathologist were responsible for implementing the goal. The goal was measured by data and notes by the speech-language pathologist and Student’s teacher.

Each goal noted the evaluation methods, persons responsible for measuring the goals, and benchmarks for progress. Each goal identified a relevant state standard of other educational need resulting from Student’s disability. As drafted, the goals were measurable.

Further, even if a procedural violation occurred, there was no evidence Parents were denied the opportunity to participate in the IEP development. Parents and their attorney were at the IEP team and did not raise concerns about the content of the goals or how they were measured. Nor was evidence offered that Student’s right to FAPE was impeded or that he was denied educational benefit based on the how the proposed goals were measured. Accordingly, Student failed to meet his burden of proving Covina-Valley failed to offer measurable goals in the June 1, 2022 IEP.

Covina-Valley prevailed on Issue 5(e).

ISSUE 5(f)(i)-(ix): RELATED SERVICES

Student contends he was denied a FAPE because Covina-Valley failed to offer appropriate special education and related services in

• Specialized academic instruction,

• Aide support,

• Speech and language,

• Occupational therapy,

• Behavior support,

• Assistive technology,

• Recreation therapy,

• Counseling, and

• Transportation.

Covina-Valley contends it offered sufficient minutes of specialized academic instruction, speech and language, occupational therapy, and counseling services. Covina-Valley also contends Student failed to meet his burden of proving he required

• Trained and qualified aide support,

• Behavioral support,

• Assistive technology,

• Recreation therapy, and

• Transportation services.

ISSUE 5(f)(i): SPECIALIZED ACADEMIC INSTRUCTION

Student failed to prove the offer of specialized academic instruction was not designed to meet Student’s needs in math and English language arts, did not comport with Student’s IEP, or was not reasonably calculated to provide Student with educational benefit in the least restrictive environment. (Gregory K., supra, 811 F.2d 1307, 1314.) The June 1, 2022 IEP offered Student 90 minutes daily specialized academic instruction in a group setting in a separate classroom. 60 minutes of daily specialized academic instruction was dedicated to math and 30 minutes was dedicated to English language arts. Student would spend 67 percent of his day in the regular class and nonacademic activities and 33 percent of his day outside the regular class and nonacademic activities.

Student did not offer witness or documentary evidence in support of his contention he required more than 90 minutes daily specialized academic instruction at the time of the June 1, 2022 IEP team meeting. In his closing brief, Student suggests O’Bannon recommended Student receive more time in special education than in the general education setting. This directly contradicted the evidence. O’Bannon did not state in her report, suggest to the May 20, 2022 IEP team, or opine at hearing that the specialized academic instruction offered to Student was insufficient. To the contrary, at the May 20, 2022 IEP team meeting, O’Bannon reported the amount of specialized academic instruction offered to Student was sufficient. O’Bannon believed a combination of specialized academic instruction and related services “would likely be able to meet his needs.” In support of Student’s contention that he required additional specialized academic instruction, Student argued that the June 1, 2022 IEP goals were set one grade level below standard, thereby denying Student the opportunity to “strive for more challenging objectives.” Parents sought for Student to meet grade-level standards, as might be expected of a parent. Placement in a general education classroom, however, does not necessarily equate to grade-level abilities or performance. As stated in Rowley, and reiterated in Endrew, FAPE requirements are met when a child receives access to education that is reasonably calculated to confer some educational benefit upon the child. (Rowley, supra, 458 U.S. 176, 201-204; Endrew F., supra, 580 U.S. 386, 402.)

The June 1, 2022 IEP team determined Student met his academic goals in decoding single and multisyllabic words and writing an opinion paragraph. He made progress towards his goal of solving multi-step whole number word problems but required support in completing the steps of problems in order. On a diagnostic reading test taken in February 2022, Student’s overall reading level was at third grade, or one grade level below. Student was at mid-grade level or above grade level in phonological awareness, phonics, and high-frequency words. He scored one grade level below in vocabulary and comprehension of informational text, and at early grade-level four in comprehension of literature. On a diagnostic math test taken in February 2022, Student’s overall math level was at third grade. Student’s year-end report card demonstrated Student met state standards in

• English language arts,

• Writing,

• Math,

• Social studies, and

• Science.

At hearing, Crosmer offered persuasive testimony that at the time of the June 1, 2022 IEP team meeting, Student could access the general education math curriculum in combination with the specialized academic instruction and IEP accommodations. She believed Student should spend more time in general education based on his progress. On cross-examination, Crosmer persuasively opined that although Student’s scores on district-based and state-wide assessments were below grade level in some areas, including reading, these assessment results were one data point for evaluating Student’s progress in the general education curriculum. At the time of the June 1, 2022 IEP, Student’s overall math level was at grade level considering Student’s progress in whole class discussions, small group work, schoolwork and homework, quizzes, unit tests, and his report card. Student had needs in completing multi-step word problems, and the IEP team offered a goal in this area.

The evidence established that 90 minutes daily specialized academic instruction was designed to meet Student’s needs in math and English language arts, comported with Student’s IEP and was reasonably calculated to provide Student with educational benefit in the least restrictive environment. (Gregory K., supra, 811 F.2d 1307, 1314.) Student failed to meet his burden of proof on this issue. Covina-Valley prevailed on Issue 5(f)(i).

ISSUE 5(f)(ii), (5)(f)(v): ONE-TO-ONE AIDE AND OTHER

BEHAVIORAL SUPPORTS

Student contends Student required a one-to-one aide and other behavior supports. Covina-Valley contends the services and accommodations in Student’s IEP were appropriate to meet Student’s social-emotional-behavioral needs.

An educational agency is not required to furnish every special education service necessary to maximize the child’s potential. (Rowley, supra, 458 U.S. at pp. 198-200.) Instead, an educational agency satisfies its FAPE obligation by providing adequate related services such that the child can take advantage of educational opportunities. (Park, supra, 464 F.3d 1025, 1033.) The IDEA does not mandate that a school district use a particular methodology. Educational methodology is left to the district’s direction. (Rowley, supra, 458 U.S. at pp. 207-208.)

Student did not offer assessments or expert witness testimony about Student’s need for a one-to-one aide. All witnesses at hearing, including O’Bannon and Hsu, did not believe Student needed a full-time, one-to-one aide to make progress in light of his circumstances. Student continued to rely on Hsu’s October 2021 functional behavior assessment and recommendation that Student could benefit from a one-to-one aide during general education math class. The overwhelming weight of the evidence provided Student was successful in navigating the general education and special education settings independently.

Student also did not specify what other behavior supports he required at the time of the June 1, 2022 IEP, and no witness offered testimony about other supports Student required. There was an absence of evidence on this issue. (Schaffer, supra, 546 U.S. 49, 57-58.) Student failed to meet his burden of proof on these issues.

Covina-Valley prevailed on Issues 5(f)(ii) and (v).

ISSUE 5(f)(iii): SPEECH AND LANGUAGE SERVICES

At the time of the June 1, 2022 IEP team meeting, Student met his communication goals. Student met his pragmatics goal of answering inferential questions about a real-life or hypothetical social situation. Student also met his goal of maintaining the topic of conversation for at least three conversational rotations in five out of five opportunities.

Student had needs in responding with a comment or question when spoken to by a peer or teacher. Further, although Student met his pragmatics goal in answering inferential questions during structured speech lessons, this skill was not generalized in the classroom setting. The June 1, 2022 IEP offered Student 850 minutes yearly, or 25 minutes weekly, speech and language services in a group setting in a separate classroom for his speech and language goals.

At hearing, speech-pathologist White offered persuasive testimony that 25 minutes weekly speech and language services in a group setting was sufficient to address Student’s speech and language goals. White’s testimony was credible based upon her experience as a speech-language pathologist, her knowledge of Student, and her straightforward demeanor. Student offered no persuasive evidence, including testimony by a speech-language pathologist, challenging the appropriateness of this offer. Although O’Bannon advocated for two to three hours weekly speech and language services, her testimony was not persuasive for the reasons discussed above. Student failed to meet his burden of proof on this issue. Covina-Valley prevailed on Issue 5(f)(iii).

ISSUE 5(f)(iv): OCCUPATIONAL THERAPY

The June 1, 2022 IEP offered Student 30 minutes monthly individual push-in occupational therapy services in a separate setting. This increased Student’s monthly occupational therapy services by 15 minutes. The occupational therapy services were offered to support Student’s writing and social-emotional goal of increasing independence, Goal E.

Student did not offer persuasive evidence demonstrating Student required additional occupational therapy services to meet his writing and social-emotional goal. Student relied on Alaniz’s recommendations in her fall 2022 independent evaluation. Alaniz was not familiar with Student’s fine and gross motors needs at the time of the June 1, 2022 IEP and had not reviewed Student’s IEP offer at the time of hearing. Student did not offer evidence of any new or additional needs in fine or gross motor skills and Parents and their attorney did not disagree with the offer of occupational therapy service minutes at the IEP team meeting. Student did not meet his burden of proving Covina-Valley failed to offer appropriate occupational therapy services.

Covina-Valley prevailed on Issue 5(f)(iv).

ISSUE 5(f)(viii): COUNSELING

At the time of the June 1, 2022 IEP, Student met his goal of using self-regulation and coping strategies instead of shutting down, with one reminder in four out of five opportunities. School psychologist Danielle Palomar shared with the IEP team that Student sometimes was anxious when around his general education peers after initiating a conversation. He struggled to continue the conversation or change the topic. The June 1, 2022 IEP offered Student a social skills goal targeted at Student initiating and engaging in back-and-forth conversations with his peers.

The June 1, 2022 IEP offered Student 30 minutes monthly individual counseling to support Student’s social skills goal of initiating conversations with peers. The IEP also added 15 minutes monthly consultation between the school psychologist and Student’s teachers to support Student’s social skills goal.

Parents and their attorney did not raise any questions or concerns about Student’s social skills or Student’s need for additional counseling services. At hearing, no witness, including O’Bannon, opined Student required counseling services in a frequency and duration other than offered in the June 1, 2022 IEP. Student failed to meet his burden of proof. Covina-Valley prevailed on Issue 5(f)(viii).

ISSUE 5(f)(vi), (vii) AND (ix): ASSISTIVE TECHNOLOGY, RECREATION

THERAPY, AND TRANSPORTATION

Student failed to meet his burden of proving Covina-Valley denied him a FAPE by failing to offer assistive technology, recreation therapy, and transportation in the June 1, 2022 IEP. As discussed in Issue 4(d)(vi), (vii), and (ix), Student failed to prove that Parents or any of Student’s teachers referred Student for assessment in assistive technology or recreation therapy during the 2021-2022 school year. Student also did not prove he required these services to benefit from the general education curriculum or to receive a FAPE. Further, Parents did not request, nor did Covina-Valley suspect Student needed transportation services to receive a FAPE. Therefore, Student failed to meet his burden of proof on these issues.

Covina-Valley prevailed on Issue 5(f)(vi), (vii) and (ix).

ISSUE 5(g) AND (h): BEHAVIOR INTERVENTION PLAN AND RESEARCH-BASED BEHAVIORAL AND INSTRUCTIONAL METHODOLOGIES

Student contends he required a behavior intervention plan. He also contends he required research-based behavioral and instructional methodologies. Covina-Valley contends Student did not demonstrate serious behavioral issues that mandated a behavior intervention plan. Covina-Valley further contends Student failed to prove which research-based methodologies Student required to make meaningful progress.

No witness, including O’Bannon or Hsu, opined Student required a behavior intervention plan. Although Student argues his behaviors were extreme, the evidence proved otherwise. All of Covina-Valley’s witnesses who worked with Student on a daily basis opined Student could attend to task, work independently, transition between activities, and interact with his peers. There was no dispute that Student, a child with autism, had communication and social skills deficits. These were known to Covina-Valley and addressed in his June 1, 2022 IEP through a combination of goals, accommodations, and related services as addressed earlier in this Decision. Although Student argued Covina-Valley should have offered him a behavior intervention plan, the evidence did not prove this.

Student’s experts also did not offer testimony about the need for any specific research-based behavioral and instructional methodologies necessary for Student to receive a FAPE beyond what was offered in the June 1, 2022 IEP. Student unpersuasively argued that Covina-Valley should have offered functional communication training, structured play groups, and social skills training in his IEP. Although Parents may have preferred these programs, no evidence was offered proving these were necessary for Student to receive a FAPE. Student failed to meet his burden of proof on these issues.

Covina-Valley prevailed on Issues 5(g) and 5(h).

ISSUE 5(i)(i)-(ix): EXTENDED SCHOOL YEAR AND RELATED SERVICES

Student contends Covina-Valley should have offered him extended school year placement and services at the June 1, 2022 IEP team meeting, including

• Specialized academic instruction,

• Trained aide support,

• Speech and language,

• Occupational therapy,

• Behavior support,

• Assistive technology,

• Recreation therapy,

• Counseling, and

• Transportation.

Covina-Valley contends Student did not meet his burden of proving Student required extended school year and related services.

An IEP must state whether extended school year services are offered. (Ed. Code, § 56345, subd. (b)(3).) California Code of Regulations, title 5, section 3043 provides:

“Extended school year services shall be provided, in accordance with 34 C.F.R. section 300.106, for each individual with exceptional needs who has unique needs and requires special education and related services in excess of the regular academic year. Such individuals shall have disabilities which are likely to continue indefinitely for a prolonged period, and interruption of the pupil’s educational programming may cause regression, when coupled with limited recoupment capacity, rendering it impossible or unlikely that the pupil will attain the level of self-sufficiency and independence that would otherwise to expected in view of his or her disabling condition.” The IEP team must decide whether extended school year services are warranted on an individual basis. (34 C.F.R. § 300.106(a).)

Student did not offer evidence in support of his contention that he required extended school year services at the time of the June 1, 2022 IEP team meeting. Although Student was behind grade level and required repetition and additional time to complete his work, without additional evidence that he would suffer regression, this does not meet the standard for extended school year services.

The June 1, 2022 IEP team discussed whether Student required extended school year services. The IEP team determined Student met or made substantial progress towards his previous goals and did not expect Student to experience significant regression over the summer break. For this reason, the IEP team did not recommend extended school year services for summer 2022. Parents and their attorney did not express disagreement or request extended school year services. At hearing, Student offered no evidence that Student required extended school year services to receive a FAPE. Student failed to meet his burden of proof on this issue.

Covina-Valley prevailed on Issue 5(i) (i)-(ix).

ISSUE 5(j): PREDETERMINATION

Student did not meet his burden of proving the June 1, 2022 placement offer was predetermined. The June 1, 2022 IEP team engaged in an extensive and thorough discussion about Student’s needs. Parents and their attorney actively participated in the meeting by asking questions, requesting clarification, and suggesting goals. Parents’ concerns were listened to and addressed by Covina-Valley. No evidence demonstrated Covina-Valley presented one placement option and was unwilling to consider other alternatives or that they arrived at the meeting with a “take it or leave it” offer. There was an absence of evidence demonstrating predetermination, and therefore Student did not meet his burden of proof.

Covina-Valley prevailed on Issue 5(j).

ISSUE 5(k): CLEAR PLACEMENT OFFER

Student did not prove the June 1, 2022 placement offer was unclear. The June 1, 2022 IEP offered Student:

• 90 minutes daily specialized academic instruction;

• 850 minutes yearly group speech and language services, implemented 25 minutes weekly;

• 30 minutes individual monthly counseling services;

• 30 minutes monthly push-in occupational therapy services;

• 20 minutes monthly consultation between Student’s general and special education teachers; and

• 15 minutes monthly consultation between the school psychologist and Student’s teachers.

The June 1, 2022 IEP also offered a wide range of program accommodations. The offer was clear on its face, and Parents and their attorney did not express to the IEP team that they did not understand the offer or disagree with it. Covina-Valley added additional goals in pragmatics and making inferences, increased Student’s occupational therapy service minutes, and added an accommodation to communicate to Parents about upcoming large assignments, projects, activities, and tests.

Parents sent a letter to Covina-Valley on June 23, 2022 providing written consent to implementation of the June 1, 2022 IEP’s goals, program accommodations, specialized academic instruction, and occupational therapy services. Parents did not consent to the offer of speech-language and individual counseling services. Parents made other requests, including changes to the program accommodations and a request that Student’s specialized academic instruction be delivered during the morning and at the end of the school day. Parents did not raise any questions about the FAPE offer or express any confusion about the offer. Student failed to prove the June 1, 2022 FAPE offer was unclear.

Covina-Valley prevailed on Issue 5(k).

ISSUE 6(a)-(h)

DID COVINA-VALLEY DENY STUDENT A FAPE DURING THE 2022-2023 REGULAR AND EXTENDED SCHOOL YEAR, CONTINUING THROUGH NOVEMBER 21, 2023, BY FAILING TO APPROPRIATELY ASSESS IN ALL AREAS OF SUSPECTED DISABILITY?

Student contends Covina-Valley denied him a FAPE by failing to appropriately assess in

• Psychoeducation,

• Academics,

• Speech and language,

• Occupational therapy,

• Assistive technology, and

• Recreation therapy.

Student further contends Covina-Valley denied him a FAPE by failing to assess at all in functional behavior and adapted physical education.

Covina-Valley contends it appropriately assessed Student in all areas of suspected disability, specifically in

• Academic achievement,

• Health,

• Intellectual development,

• Language-speech communication development,

• Motor development,

• Social-emotional behavior,

• Adaptive behavior,

• Sensory processing,

• Assistive technology, and

• Recreation therapy.

Covina-Valley maintains Parents did not request an adapted physical education or functional behavior assessment during the 2022-2023 school year.

A school district must follow statutory guidelines for conducting assessments. Individuals who are both knowledgeable of the student’s disability and competent to perform the assessment must conduct assessments of student’s suspected disabilities. (20 U.S.C. § 1414(b)(3)(B)(ii); Ed. Code, §§ 56320, subd. (g), 56322.) A psychological assessment must be conducted by a credentialed school psychologist who is trained and prepared to assess cultural and ethnic factors appropriate to the student. (Ed. Code, § 56324, subd. (a).) The determination of what tests are required is made based on information known at the time. (Vasheresse v. Laguna Salada Union School Dist. (N.D. Ca. 2001) 211 F.Supp.2d 1150, 1157-1158.) School district assessors must review existing evaluation data on the child, including information provided by the parents, current classroom based, local or State assessments, classroom-based observations, and observations by teachers and related service providers. (20 U.S.C. § 1414(c)(1); 34 C.F.R. § 300.305(a)(1).)

When conducting assessments, assessors must:

• Use a variety of assessment tools and strategies to gather relevant functional, developmental, and academic information, including information provided by the parents;

• Not use any single measure or assessment as the sole criterion for determining whether a child is a child with a disability; and

• Use technically sound instruments that may assess the relative contribution of cognitive and behavioral factors, in addition to physical or developmental factors. (20 U.S.C. § 1414(b)(2)(A) and (B); 34 C.F.R. § 300.304(b)(2); Ed. Code, § 56320, subd. (e).)

Assessments must be sufficiently comprehensive to identify all of the child’s special education and related service needs, whether or not commonly linked to the disability category of the child. (20 U.S.C. § 1414(b)(3)(C); 34 C.F.R. § 300.304(c)(6); Ed. Code, § 56320, subd. (c).) The assessments used must be:

• Selected and administered so as not to be discriminatory on a racial or cultural basis;

• Provided in a language and form most likely to yield accurate information on what the child knows and can do academically, developmentally, and functionally;

• Used for purposes for which assessments are valid and reliable;

• Administered by trained and knowledgeable personnel; and

• Administered in accordance with any instructions provided by the producer of such assessments. (20 U.S.C. § 1414(b)(A) & (c)(5); 34 C.F.R. § 300.304(b)(1); Ed. Code, § 56320, subds. (a), (b).)

A school district’s failure to assess constitutes a procedural violation under the IDEA. (R.B., ex rel. F.F. v. Napa Valley Unified Sch. Dist. (9th Cir. 2007) 496 F.3d 932, 940.)

As discussed in Issue 2, Covina-Valley issued its initial assessment plan for Student’s three-year evaluation on February 15, 2022. The parties agreed in writing to extend the assessment deadline pending the parties’ review of O’Bannon’s neuropsychological evaluation. Covina-Valley provided Parents a new assessment plan on October 1, 2022.

The October 1, 2022 assessment plan proposed a comprehensive assessment of Student in

• Academic achievement by an education specialist,

• Health by a school nurse,

• Intellectual development by a school psychologist,

• Language-speech and communication development by a speech-language pathologist,

• Social-emotional and behavior by a school psychologist, and

• Adaptive behavior by a school psychologist.

The October 1, 2022 assessment plan also proposed to assess Student in sensory processing by an occupational therapist. Covina-Valley also issued a prior written notice to Parents on October 1, 2022 seeking Parents’ consent to the assessment plan.

Parents did not consent to the assessment plan. On March 13, 2023, Covina-Valley issued a second prior written notice to Parents. The notice encouraged Parents to consent to the October 1, 2022 assessment plan. A copy of the assessment plan was attached to the prior written notice. Covina-Valley expressed assessments were necessary to provide the IEP team updated information about Student’s educational needs.

Parents signed the assessment plan on March 14, 2023. Parents added assessments in assistive technology and recreation therapy. Covina-Valley received the signed assessment plan on March 20, 2023. On March 30, 2023, Covina-Valley issued a prior written notice acknowledging receipt of the assessment plan and agreeing to assess Student in assistive technology. Covina-Valley further agreed to conduct a recreation therapy assessment. The prior written notice advised parents the recreation therapy assessment would be conducted by the school psychologist and speech-language pathologist. The school psychologist and speech-language pathologist would observe Student and collect input about Student’s ability to independently participate socially during classroom, leisure-social activities, lunch, and recess. Parents did not respond to the prior written notice or express disagreement.

ISSUE 6(a) AND (b): PSYCHOEDUCATIONAL AND ACADEMIC ASSESSMENTS

Covina-Valley conducted Student’s three-year evaluations in

• Academic achievement,

• Health,

• Intellectual development,

• Language/speech communication development,

• Motor development,

• Social-emotional behavior,

• Adaptive behavior,

• Sensory processing,

• Assistive technology, and

• Recreation therapy.

Covina-Valley reviewed the assessments with Parents at the June 1, 2023 IEP team meeting. The assistive technology assessment was not yet completed and was reviewed at a November 28, 2023 IEP team meeting after the filing of Student’s due process complaint, as discussed in Issue 9. The IEP team carefully reviewed each assessment and answered Parent’s questions about the assessments and Student’s present needs. No one, including Parents, Student’s teachers, or any IEP team member, requested additional assessments for Student.

Covina-Valley’s reassessments were conducted by qualified assessors. Licensed school psychologist Sarah Foster led the team administering Student’s three-year evaluation. The assessment consisted of

• A review of Student’s records,

• Observations of Student in the general education classroom, during recess and during testing,

• Interviews with Parents, Student, and Student’s teachers,

• Rating scales, and

• Multiple standardized assessments.

As part of her assessment, Foster also reviewed O’Bannon’s April 2022 neuropsychological evaluation. Foster assessed Student across four testing sessions lasting 30 minutes to one-hour per session. Foster conducted the psychoeducational assessment and prepared a 35-page report dated May 26, 2023.

Foster was a licensed school psychologist, experienced in the areas she assessed, followed testing protocols, and was familiar with Student. During hearing, Foster credibly testified that Covina-Valley adequately assessed Student’s needs as part of the three-year review assessments.

Foster interviewed Parents on May 3, 2023. They described Student as loving, creative, and having a good sense of humor. Student desired to learn, but fifth grade had been a difficult year. They believed Student struggled more than in prior years and the new content moved too fast for Student. Parents did not believe Student made academic progress in all areas. Student often cried about going to school and displayed anxiety. At the time Foster administered the assessment, Student’s behaviors of crying and school refusal were not manifesting at school. Student displayed frustration when work was difficult, but he was easily redirected.

To address Parents’ concerns about Student’s behavior, Foster had Mother and teacher complete rating scales from the Behavior Assessment for Children, Third Edition, a norm-referenced rating scale measuring numerous aspects of behavior and personality. Student’s teacher rated Student’s ability to attend to task as average, while Parent rated Student’s attention as clinically significant. In executive functioning, or the ability to regulate behavior and attentional control, Parent rated Student at risk, and teacher rated Student in the average range. Teacher reported Student demonstrated age-appropriate work habits and was neat and organized.

Foster observed Student across multiple settings. Foster observed Student in the general education classroom for 35 minutes. Student worked on a problem and reviewed the answer. When instructed to work with a partner, Student began working with the peer seated next to him. Student and his partner appeared to equally contribute to solving the problem.

Foster observed Student during testing. Student transitioned readily into the testing room. He was polite and greeted Foster. Student initiated conversation with Foster and was compliant. At times, Student struggled to attend to the assessment task and made off topic comments. Student was easily re-directed with one verbal prompt. Student rocked in his seat or clapped his hands. During difficult tasks, Student displayed visible frustration or verbalized he was worried he obtained a wrong answer. Student asked how long each test would take, and if the assessment lasted longer than anticipated, Student displayed frustration and said the time was up. Foster reported Student’s inconsistent attention to task, anxiety, and rigidity could demonstrate a slight under-representation of his assessment results.

Foster assessed Student’s intellectual abilities using the Wechsler Individual Achievement Test – Fourth Edition. Student’s full scale intelligence quotient fell in the below average range. Student scored in the below average range in verbal comprehension when compared to other children his age. Student’s processing speed, or the ability to quickly process information, fell in the low range. Student’s score in visual-spatial processing fell in the average range. Student’s verbal working memory, or the ability to retain information, fell in the below average range. Student’s fluid reasoning skills, or the ability to problem solve using deductive and inductive reasoning, fell in the average range.

Foster administered an additional assessment, the Comprehensive Test of Phonological Processing, Second Edition to assess Student’s auditory processing and auditory memory. This test measured how a child understood and remembered verbal instructions. Student scored in the average range on the rapid digit naming and rapid letter naming composites. The results of this assessment indicated Student’s auditory processing skills were in expected limits based on his age.

Foster assessed Student’s listening comprehension skills through the Test of Auditory Processing Skills, Fourth Edition. Student’s ability to process and orally recall directions was in the below average range. To further examine Student’s language processing abilities, Foster administered the verbal comprehension index from the Wechsler Intelligence Scale for Children. Student scored in the below average range on the similarity and vocabulary portions of this index. Foster concluded Student displayed a normative weakness in oral language skills.

Foster assessed Student’s phonological processing abilities using the Comprehensive Test of Phonological Processing, Second Edition, and the Wechsler Intelligence Scale. Phonological processing is the ability to use sounds, or phonemes, to process spoken and written language. Student’s scores in omitting sounds in words, pseudoword decoding and phonemic proficiency fell in the average range. Student’s ability to orally blend different sounds of words together fell in the below average range. Foster determined Student’s phonological processing skills were age appropriate.

Foster assessed Student’s processing speed, or the ability to quickly process information. Student scored in the low range. Foster compared Student’s current processing speed score with his prior processing score, which indicated an average ability. Foster determined Student’s processing speed weakness did not negatively impact Students academic performance or process.

Student’s visual-spatial processing, or the ability perceive and analyze visual patterns, was in the below average range. Student’s spelling ability and visual recognition of letters and words fell in the average range. Foster administered three assessments to evaluate Student’s verbal working memory, or the capacity to retain information. Student’s scores in verbal working memory fell in the low to below average low range. Student’s visual-spatial working memory fell in the average range.

The Beery-Buktenica Developmental Test of Visual-Motor Integration, Sixth Edition, measured a student’s sensory motor skills by evaluating the child’s ability to reproduce designs using a paper and pencil. This assessment required Student to copy geometric shapes. Student scored in the average range, indicating Student did not appear to have any sensory-motor deficits.

Foster determined Student’s overall cognitive ability was in the average range. He displayed average abilities in

• Processing,

• Attention,

• Auditory processing,

• Executive functioning,

• Fine motor,

• Fluid reasoning,

• Verbal long-term recall,

• Phonological processing,

• Orthographic processing, and

• Visual-spatial working memory.

He scored in the below average range in verbal working memory and oral language.

To evaluate Student’s academic achievement, Foster reviewed Student’s current academic skills in reading, writing, and math. Student nearly met state standards in reading, writing, and math. On a recent math diagnostic test, Student scored at the fifth-grade level. In reading, Student scored at the third-grade level.

Foster considered input from Student’s fifth-grade general education teacher, Brenda Seliskar. Student performed well academically in the general education classroom. He could complete his work and ask for help. Student engaged in sensory seeking behaviors, such as hand clapping and moving, but these behaviors did not impact his ability to access his curriculum. Socially, he asked peers to join in class activities. When academic work was difficult, he sometimes displayed agitation, stated “it’s too hard”, or put his head down. Student appeared to understand the content of the curriculum and asked his teacher for help if he needed it. He followed school rules and class directives.

Foster also considered the results of academic achievement testing administered by special education teacher Lynsey Padilla. Padilla held both general education and special education teaching credentials. She had worked as a special education teacher for 10 years. Padilla was familiar with Student from implementing Student’s specialized academic instruction during the 2020-2021 and 2022-2023 school years. She was experienced and qualified to assess Student in the areas she assessed, followed the testing protocols, and was knowledgeable about Student’s unique needs.

Padilla administered the Wechsler Individual Achievement Test, Fourth Edition over six days in April and May 2023. The Wechsler Individual Achievement Test was a nationally standardized measure of academic achievement. The scores represented an approximate level of skills as compared to students of the same grade or age. Padilla also observed Student in the special education classroom, considered results on curriculum-based measures, and reviewed Student’s work samples.

Padilla reported Student worked on grade-level content in math and English language arts. He worked independently and could complete tasks with minimal adult support. He was easily frustrated when tasks were too difficult. He used coping strategies, including taking deep breaths, when he felt frustrated.

Student’s overall reading skills fell in the average range and in the 55th percentile. On the word reading subtest, which measured the ability to identify words, Student scored in the average range and at the fourth-grade equivalency. In reading comprehension, Student scored in the average range. Padilla administered the San Diego Quick Assessment of Reading to determine Student’s independent reading level. Student’s scores reflected his independent reading level was at the fourth-grade level, and his instructional level was at fifth grade.

To delve further into Student’s reading abilities, Padilla administered the supplemental basic reading composite to assess Students phonological processing and decoding skills. On the phonemic proficiency subtest, which required Student to manipulate sound within words, Student scored in the average range. On the pseudoword decoding subtest, Student scored in the average range. Padilla determined Student’s word recognition and decoding abilities fell in the average range.

In mathematics, Student scored in the average range in numerical operations and math problem solving. Student had difficulty comparing fractions and solving problems using angles. Student’s overall math score fell in the average range. In writing, Student’s spelling fell within the average range. Student’s ability to compose sentences and compose essays fell in the average range.

Padilla assessed Student’s listening comprehension skills using the listening comprehension composite subtest from the Wechsler Individual Test of Achievement. Student’s score of 91 was in the average range. Padilla considered Student’s abilities in oral expression using the oral expression composite. Student’s overall score of 97 was in the average range. On the math fluency composite, Student performed in the average range and at a fifth-grade, fifth-month equivalency. In the writing fluency composite, Student scored in the average range.

Padilla observed Student on May 18, 2023 in the general education classroom during an English language arts lesson. Student followed the teacher’s directions, answered questions asked by the teacher, and participated in a discussion with his peer.

To evaluate Student’s social-emotional and behavior needs, Foster provided the Behavior Assessment System for Children, Third Edition, to Mother and Student’s teacher. Mother and teacher did not indicate concerns in hyperactivity, aggression, or conduct. Mother rated Student clinically significant in depression, functional communication, leadership, and attention. Teacher rated Student clinically significant in internalizing problems.

Foster provided Mother and teacher Autism Spectrum Rating Scales; a norm-referenced rating form used to quantify observations of children that exhibit behaviors associated with autism spectrum disorders. Mother rated Student slightly elevated in unusual behaviors, social-emotional reciprocity, and stereotypy. She rated him very elevated in atypical language. Teacher rated Student elevated in unusual behaviors and slightly elevated in peer socialization and stereotypy. Teacher found Student very elevated in sensory sensitivity.

Foster administered the Vineyard Adaptive Behavior Scales, Third Edition to Parent and teacher. This was a norm-based measure of a child’s adaptive behavior. Parent rated Student moderately low in communication and socialization, and low in daily living skills. Teacher rated Student adequate in communication, daily living skills, and socialization.

Foster determined Student remained eligible for special education under the categories of autism and speech or language impairment based on Covina Valley’s speech-language assessment discussed in Issue 6(c). Foster prepared a psychoeducational report dated May 25, 2023. The report was reviewed by the June 1, 2023 IEP team.

Student failed to present persuasive evidence that contradicted Foster’s testimony, impugned her qualifications, or questioned the adequacy of her psychoeducational assessment. Student argued Foster disregarded O’Bannon’s evaluation and relied on Student’s test scores from 2019. This statement was contradicted by Foster’s testimony at hearing and her written report, which included a summary of O’Bannon’s evaluation. Further, the evidence showed that O’Bannon’s and Foster’s assessments similarly found Student had deficits in processing speed, and visual-spatial processing. On the Wechsler Individual Test of Achievement, both assessors scored Student in the low average to average ranges in reading comprehension, pseudoword decoding, and phonemic proficiency. O’Bannon found Student in the extremely low range in math problem solving, while Covina-Valley’s assessment found Student in the average range. Both evaluations determined Student had average sentence composition skills.

Student also argued Foster did not analyze classroom-based, local, or state assessments. This was contrary to the evidence which established Foster’s report included a review and analysis of Student’s report cards, teacher interviews, diagnostic tests, and standardized reading scores. Student also contested the validity of the academic achievement testing because Padilla administered the assessment over multiple days. Student did not offer the testing protocols into evidence or prove Padilla failed to follow them.

Student did not prove Covina-Valley’s psychoeducational assessment was inappropriate. Together, all components of the assessment looked at Student’s intellectual capacity, phonological processing, behaviors, and academic achievement. The assessment did not rely on any one component to make determinations about Student’s cognition, behaviors, or academic achievement. Foster and Padilla were qualified to administer their respective portions of the May 25, 2023 psychoeducational evaluation. They used a variety of assessment measures that were valid and reliable for the purposes used for the assessment. They assessed Student’s known needs in cognition, behavior, and academic achievement. Their findings were memorialized in the May 25, 2023 psychoeducational assessment, which met all statutory requirements. They presented their findings to Student’s June 1, 2023 IEP team. Student did not meet his burden of proving Covina-Valley failed to appropriately assess him in psychoeducation and academics.

Covina-Valley prevailed on Issues 6(a) and (b).

ISSUE 6(c): SPEECH AND LANGUAGE

Cynthia Uribe conducted Covina-Valley’s speech and language assessment of Student. Uribe held a preliminary speech-language pathology license with a master’s degree in communicative disorders. At the time of hearing, she was supervised by White. Uribe had experience administering assessments and providing speech-language services to students.

Uribe used a variety of assessment tools and instruments designed to gather functional, developmental, and academic information to assess Student’s speech-language and overall communication needs. She reviewed Student’s records, consulted with Student’s teachers, and observed Student

• In the classroom,

• During recess, lunch, physical education, and

• During speech sessions.

Uribe also administered standardized assessments to determine Student’s speech-language needs, specifically:

• Test of Pragmatic Language, Second Edition;

• Oral and Written Language Scales, Second Edition;

• Peabody Picture Vocabulary Test, Fourth Edition;

• Expressive Vocabulary Test, Second Edition; and the

• Goldman-Fristoe Test of Articulation, Third Edition.

Uribe administered the Oral and Written Language Scales, Second Edition, to measure Student’s expressive and receptive language skills. Student’s listening and oral comprehension fell in the below average range. Student had difficulties in understanding inflection, making an inference, and understanding words with double meanings. On the Peabody Picture Vocabulary Test, which assessed a student’s receptive vocabulary skills, Student scored in the average range compared to his same age peers. The Expressive Vocabulary Test assessed a student’s expressive vocabulary and word retrieval. Student scored in the average range.

The Test of Pragmatic Language, Second Edition measured a student’s ability to effectively use pragmatics, or social language. This assessment evaluated a student’s ability to analyze, integrate and respond to various social situations. Student scored within the below average range on this assessment.

Uribe evaluated Student’s overall articulation using the Goldman-Fristoe Test of Articulation. Student scored in the average range in speech sound production at the word and sentence levels. Student had average articulation skills and was intelligible to familiar and unfamiliar listeners.

Uribe observed student in the classroom, during lunch, at recess, and during physical education. Student independently followed the classroom routine without prompting and participated in the class activities. During lunch, Student ate by himself. During recess, Student walked around the playground and watched his peers. He played hula-hoop by himself. During physical education, Student participated in a group activity with his classmates.

Uribe reported on Student’s speech sessions. He talked to his peers and asked follow-up questions. He enjoyed participating in cooperative class activities. Sometimes Student arrived at speech and appeared upset or frustrated, but he could talk through his feelings and find a solution with minimal assistance. Student could understand non-verbal cues and maintain conversations with minimal prompting.

Uribe compiled her assessment results in a 12-page report that included all observations, test results, consideration of Student’s speech-language and communication needs at school, and a reasoned determination that Student had deficits in expressive and receptive language and pragmatic language. Uribe concluded Student continued to meet eligibility for special education under the category of speech or language impairment.

Student did not offer testimony by a speech-language pathologist to counter Uribe’s assessment, findings, or recommendations. Student failed to present any persuasive evidence which contradicted the validity of Uribe’s competency, her assessment, or her report. Student failed to meet his burden of proving Covina-Valley failed to appropriately assess him in speech and language.

Covina-Valley prevailed on Issue 6(c).

ISSUE 6(d): OCCUPATIONAL THERAPY

Aimee Oropeza conducted Covina-Valley’s occupational therapy assessment for Student. Oropeza was a licensed occupational therapist with a master’s degree in occupational therapy. Oropeza had experience administering assessments and providing occupational therapy services to students with disabilities. Oropeza used a variety of assessment tools and instruments designed to gather functional, developmental, and academic information to assess Student’s gross and fine motor and sensory strengths and weaknesses. She interviewed Student’s teacher and obtained input from Parents and administered standardized assessments.

Student’s teacher did not have concerns about Student’s gross or fine motor or sensory needs. Student could independently navigate and transition between classrooms. Student had adequate muscle strength for classroom tasks and self-care.

Oropeza administered the Bruininks-Oseretsky Test of Motor Proficiency, Second Edition, to evaluate Student’s motor skills. Student demonstrated average fine motor precision and integration skills. He could cut out a circle using appropriate position of tools and paper. He could draw straight lines to connect dots and fold paper along designated lines. He had sufficient visual discrimination, motor planning, and overall fine motor integration skills to participate in the classroom. Oropeza reviewed Student’s work samples and determined his writing had sufficient sizing and orientation and was legible.

Oropeza administered The Sensory Processing Measure, Second Edition, to evaluate Student’s sensory processing needs in the classroom and at home. In the school setting, Student demonstrated typical sensory processing skills in vision, body awareness, balance and motion, social participation, and planning and ideas to access the curriculum in the classroom setting. He had moderate challenges in the areas of hearing and touch. Parents reported Student had moderate difficulties in vision, body awareness, balance and motion, and social participation. Parents also reported Student had severe difficulties in hearing, touch, planning, and ideas.

Oropeza observed Student in the classroom on April 27, 2023. Student sometimes stood up briefly and clapped. He could follow his teacher’s instruction and independently redirect to his task. Oropeza determined Student qualified for occupational therapy services. She recommended Student receive consultation services by an occupational therapist to support his sensory needs.

Student offered testimony by occupational therapist Michael Kim. Kim held an occupational therapy license and a master’s degree in occupational therapy. Kim provided clinical occupational therapy services for Student beginning in September 2023. Student offered an occupational therapy reevaluation dated January 30, 2024, and prepared by Kim for the purpose of updating the insurance provider of Student’s progress. At the time, Student made progress on clinical goals in improving muscle strength. He achieved a motor planning goal and a bilateral coordination goal of using both hands during a fine motor or gross motor activity. He made significant progress on hand strength and bilateral coordination goals, and in behavior/social emotional goals.

Kim did not challenge the appropriateness of Oropeza’s evaluation. He did not have experience evaluating students’ occupational therapy needs in the educational setting and was not familiar with the IDEA. He had not observed Student in the school setting and was not familiar with Student’s IEPs or goals. Although Kim was a qualified occupational therapist and familiar with Student’s clinical needs, his testimony was not persuasive in challenging the appropriateness of Oropeza’s evaluation or report. Student failed to meet his burden of proving Covina-Valley failed to appropriately assess him in occupational therapy.

Covina-Valley prevailed on Issue 6(d).

ISSUE 6(e): ASSISTIVE TECHNOLOGY

At hearing, Student did not offer any evidence challenging the appropriateness of Covina-Valley’s July 27, 2023 assistive technology report. No witness or documentary evidence was offered by Student challenging the assessment. In his closing brief, Student did not argue the assistive technology assessment was inappropriate. Rather, Student argued the assistive technology assessment was untimely. The issue of whether Covina-Valley denied Student a FAPE by failing to timely assess Student in assistive technology is addressed in Issue 9.

Covina-Valley prevailed on Issue 6(e).

ISSUE 6(g): RECREATION THERAPY

Student contends Covina-Valley’s recreation therapy assessment was invalid because it was not conducted by licensed personnel. Covina-Valley contends its school psychologist and speech-language pathologist were authorized to assess Student’s recreation therapy needs and appropriately considered whether recreation therapy was necessary for Student to receive FAPE.

Student did not meet his burden of proving Covina-Valley failed to appropriately assess Student’s need for recreation therapy. The IDEA does not specify who can assess a student’s needs in recreation therapy. California law provides recreation services “shall be provided only by personnel who possess: (1) a certificate issued by the National Council for Therapeutic Recreation; or (2) a certificate issued by the National Council for Therapeutic Recreation; or (3) the National Recreation and Park Association, authorizing services in recreation or therapeutic recreation.” (Cal. Code Regs., tit. 5, § 3051.15(b)(1)-(3).)

At hearing, Student argued Covina-Valley’s assessors violated Business and Professions Code section 17505.2 by holding themselves out as certified or registered recreation therapists. (Bus. & Profs. Code, § 17505.2(a) & (b).) Student abandoned this argument in his closing brief, and argued the California regulations require recreation therapy assessments be conducted by personnel who are authorized to provide recreation services. (Cal. Code Regs., tit. 5, § 3051.15(b)(1)-(3).)

The United States District Court for the Central District of California recently provided guidance on the issue of which personnel can assess a student’s needs for recreation therapy. In G.G. v. Conejo Valley Unified School District (C.D.Cal. November 2, 2022) 2022 WL 17478600 (G.G.), the court rejected a student’s claim the school district failed to assess the student’s need for recreation therapy. The court stated, “Recreation therapy is just that – therapy. It is not itself a disability, but [sic] potential way to treat disability.” (Id. at p. 10, citing Timothy O. supra, 822 F.3d 1105, 1119.) The school district in G.G. assessed the student’s suspected underlying disability using various measures, including the Autism Spectrum Rating Scales to assess Students social/ communication, self-regulation, and peer socialization, and the Behavior Assessment Scale for Children, Third Edition to assess Student’s interpersonal relations and social skills. On appeal, Parents offered a Recreation Therapy Assessment Report by a Certified Recreation Specialist that concluded the student could benefit from recreation therapy services to address his deficits in social functioning and perspective taking. (Ibid.) The court opined recreation therapy is not an underlying therapy that need assessing, but “is a way of treating underlying disabilities, namely, the already suspected and evaluated disabilities related to social functioning.” Here, Covina-Valley extensively evaluated Student’s needs in social skills and social communication through its psychoeducational and speech-language evaluations. Covina-Valley administered the Behavior Assessment System for Children, Third Edition, Autism Spectrum Rating Scales, and the Vineland Adaptive Behavior Scales, Third Edition. The results from these rating scales were reported and analyzed in the May 25, 2023 psychoeducational assessment and report.

Student could interact with his same age peers and adults in the school setting. He engaged in conversations with peers but had difficulty sustaining attention. Student reported he had difficulty making friends. He typically spent lunch and recess alone. Parents were concerned about Student’s ability to read and change his behaviors based on social cues. Parents had moderate concerns about Student’s overall social skills, and his teacher reported Student’s peer socialization fell within the slightly elevated range. Parents and Student’s teacher reported Student’s behaviors were appropriate at school, but he displayed sensory seeking behaviors.

On the Autism Rating Scales, Parents and Teachers did not indicate concerns in self-regulation. Both Parents and teacher reported moderate to significant levels of concern in internalizing problems and anxiety. On the Vineland-3, Parent rated Student low to moderately low in communication, daily living skills and socialization, while teacher rated Student adequate in these areas.

Student had a good sense of humor and a desire to learn. Student participated in board games and other leisure activities in the general education classroom and during specialized academic instruction. He made jokes and typically appeared to be in a good mood. During structured activities, Student’s comments generally were on topic. Student displayed sensory seeking behaviors across all settings. At home, Student sometimes cried and shut down while completing homework. At school, Student fidgeted or put his head down when tasks were too difficult.

Based on observations, reports, and rating scales, Foster determined Student did not require additional supports aimed at assisting independence in social and leisure activities. At school, Student’s teachers did not have concerns with Student’s independence during structured leisure activities within the classroom or on the playground. Covina-Valley’s recreation assessment was reviewed at the June 1, 2023 IEP team meeting.

Other than challenge the qualifications of Covina-Valley’s assessors, Student did not offer testimony challenging the appropriateness of Covina-Valley’s consideration of Student’s needs for recreation therapy. No expert opined additional assessments or tools should have been evaluated. Student failed to meet his burden of proving Covina-Valley failed to appropriately assess him in recreation therapy. Covina-Valley prevailed on Issue 6(g).

ISSUES 6(f) AND (h): FUNCTIONAL BEHAVIOR AND ADAPTED PHYSICAL EDUCATION

Student offered no evidence that Covina-Valley was obligated to assess Student in the areas of functional behavior or adapted physical education during the 2022-2023 school year. Student offered no testimony or documentary evidence that a parent or teacher had requested a functional behavior assessment during the 2022-2023 school year. Nor did Student offer evidence that Covina-Valley had information of any needs or that Student exhibited or any displayed impediment to Student’s academic achievement or functional performance, warranting a functional behavior assessment. (20 U.S.C. § 1414(a)(2)(A)(i); Ed. Code, § 56381, subd. (a)(1).) No expert or other witness testified Student needed a functional behavior assessment in addition to that completed by independent assessor Hsu in September of 2021.

Similarly, Student offered no evidence that Covina-Valley was obligated to complete an adapted physical education assessment. Student offered no expert or other testimony indicating a need, and there was no evidence a parent or teacher requested an adapted physical education assessment. There was also no evidence that Covina-Valley had information that an adapted physical education assessment was warranted. (20 U.S.C. § 1414(a)(2)(A)(i); Ed. Code, § 56381, subd. (a)(1).)

Student argued the December 8, 2021 IEP team meeting notes indicated an adapted physical education assessment would be included in Student’s three-year evaluation. However, Covina-Valley did not a determine Student required an adapted physical education assessment and did not include it in the February 15, 2022 assessment plan, which Parents agreed included all areas of need. An assessment in adapted physical education also was not included in the October 1, 2022 assessment plan, to which Parents consented on March 14, 2023.

Student failed to meet his burden of proving Covina-Valley was obligated to conduct either a functional behavior assessment or an adapted physical education assessment during the 2022-2023 school year.

Covina-Valley prevailed on Issue 6(f) and (h).

ISSUE 7

DID COVINA-VALLEY DENY STUDENT A FAPE DURING THE 2022-2023 REGULAR AND EXTENDED SCHOOL YEAR BY FAILING TO PROVIDE STUDENT A SCHOOL ENVIRONMENT FREE FROM HARASSMENT AND BULLYING, SPECIFICALLY REGARDING EVENTS OCCURING ON SEPTEMBER 12, 2022, AND OCTOBER 5, 2022?

Student contends Covina-Valley denied him a FAPE by failing to address bullying of Student during the 2022-2023 school year, resulting in lost educational benefit. Student asserts he was bullied on October 5, 2022 when a student spat on his face during lunch and on another occasion when a peer called him a bad name. Student contends these incidents resulted in Student’s withdrawal and fear of going to school. Covina-Valley contends bullying did not occur and Student suffered no loss in educational benefit.

Bullying of a student with a disability that results in the student not receiving meaningful educational benefit constitutes a denial of FAPE under the IDEA that must be remedied. (United States Office of Special Education and Rehabilitative Services, called OSERS, and the Office of Special Education Programs, called OSEP, Dear Colleague Letter (August 20, 2013).) In its guidance, OSERS and OSEP described bullying as the use of real or perceived power over a target where the aggression is repeated, or has the potential to be repeated, over time. Acts of bullying include physical, verbal, emotional, or social behaviors ranging from blatant aggression to subtle and covert behaviors. (Ibid.)

California has its own definition of bullying. The Education Code defines bullying as any severe or pervasive physical or verbal act or conduct by a pupil or group of pupils directed toward one or more pupils that causes or is reasonably predicted to cause a reasonable student to experience one or more of the following:

• Fear of harm to his or her person or property;

• A substantially detrimental effect on his or her physical or mental health;

• A substantial interference with his or her academic performance; or

• A substantial interference with his or her ability to participate in or benefit from the services, activities, or privileges provided by a school. (Ed. Code, § 48900, subd. (r).)

A reasonable student is a student, including an exceptional-needs student, who exercises average care, skill, and judgment in conduct for a person of his or age, and with his or her special needs. (Ed. Code, § 48900, subd. (r)(3).) The bullying of a student with a disability that results in the student not receiving meaningful educational benefit may constitute a denial of FAPE under the IDEA. (Dear Colleague, 2013, supra, at p. 2.)

Student did not prove that he was bullied at Covina-Valley. Student’s peer spit on him during lunch in early October 2022. Student offered evidence of only this one-time occurrence. At hearing, Mother testified that other acts of bullying had occurred, but she could not recall the dates or general description of any of the incidents. This testimony lacked credibility.

Upon learning of the spitting incident, fifth-grade general education teacher Brenda Seliskar spoke to Student about the incident, and informally investigated the occurrence. None of Covina-Valley’s staff observed the incident, however Seliskar notified the playground and lunch supervisors to prohibit the peer accused from sitting with Student. Seliskar spoke with Student and told him to notify her or the playground attendants of any future occurrence. Seliskar also emailed Parents to advise them of the action taken.

Father testified that on another occasion Student’s peer called him a bad name. Father’s testimony was vague and lacked details about when this occurred or what was said. Father unpersuasively testified that he thinks Parents informed Covina-Valley of this event through an email. However, Student did not introduce any such email into evidence at hearing. Father’s testimony was generally unpersuasive on this issue.

Student did not prove there was a sufficiently severe or pervasive pattern of aggression towards Student to constitute bullying as required by either state or federal law. (Ed. Code § 48900, subd. (r)(1) and § 48900.4; 2013 Dear Colleague Letter.) Other than the two incidents described, Student offered no evidence of any additional bullying conduct towards Student. Student failed to prove, by a preponderance of the evidence, that Student was bullied during the 2022-2023 school year.

Covina-Valley prevailed on Issue 7.

ISSUE 8(a)-(j)

DID COVINA-VALLEY DENY STUDENT A FAPE ARISING FROM THE JUNE 1, 2023 IEP TEAM MEETING AND OFFER?

Student contends Covina-Valley denied Student a FAPE in a June 1, 2023 IEP team meeting and offer by

• Denying parental participation in the IEP process,

• Failing to accurately state Student’s present levels of performance,

• Failing to develop measurable goals, and

• Failing to offer appropriate related services.

Student also contends Covina-Valley should have developed a behavior intervention plan, and offered research-based behavioral and instructional methodologies and extended school year services. Student further asserted Covina-Valley predetermined Student’s placement offer. In his closing brief, Student withdrew Issue 8(b), failing to ensure all necessary IEP team members attending the IEP team meeting, and 8(j), failing to make a clear placement offer.

Covina-Valley contends Student failed to meet his burden of proof on these issues. Covina-Valley maintains Parents and their attorney meaningfully participated in the June 1, 2023 IEP team meeting. Covina-Valley argues its offer of special education and related services was appropriate to meet Student’s needs in light of the information known to the IEP team at the time. Covina-Valley contends Student did not demonstrate behaviors that required behavior interventions, including a behavior intervention plan. Covina-Valley contends Student did not prove Student required behavioral or instructional methodologies other than what was offered in Student’s IEP. Covina-Valley contends it did not predetermine Student’s FAPE offer and that its offer was clear.

Covina-Valley convened Student’s annual IEP team meeting on June 1, 2023. The June 1, 2023 IEP contained Covina-Valley’s FAPE offer for the upcoming 2023-2024 school year. The IEP team included

• Parents and their attorneys Robert Johnston and Abigail Lombardo,

• Program specialist Umana,

• Covina-Valley’s attorney Rogers,

• School psychologist Foster,

• General education teacher Seliskar,

• Education specialist Padilla,

• Occupational therapist Oropeza,

• Speech-language pathologist White,

• School principal Beth Mossman, and

• School psychologist Sarah Mattison.

Covina-Valley gave Parents a copy of procedural safeguards.

ISSUE 8(a), (c)(i)-(vii): PARENTAL PARTICIPATION AND PRESENT

LEVELS OF PERFORMANCE

Student contends Parents were denied meaningful participation in the June 1, 2023 IEP team meeting. Student contends the June 1, 2023 IEP present levels of performance in social-emotional-behavior, preacademic-academic-functional skills, communication development, gross and fine motor development, vocational, adaptive daily living skills, and health are inaccurate. Student asserts that the June 1, 2023 IEP present levels of performance restated data from flawed assessments, lacked detail and accurate analysis and often included incorrect or missing information. Student also asserts the present levels fail to accurately describe Student’s mental health concerns.

Covina-Valley argues the present levels accurately stated Student’s performance in the school setting and progress toward his prior IEP goals. Covina-Valley further contends Parents and their attorney participated in the June 1, 2023 IEP team meeting.

When developing an IEP, the IEP team must consider the strengths of the child, the concerns of the parents, the results of the most recent assessment, and the academic, developmental, and functional needs of the child. (Ed. Code, § 56341.a, subd. (a).)

PRESENT LEVELS OF PERFORMANCE IN ACADEMICS

Student’s overall math ability was at a mid-fifth grade level. Student’s scores on classroom and district-based assessment results fluctuated. The most recent reading diagnostic test showed Student’s overall reading ability was at a third-grade level. A standardized reading assessment administered on May 26, 2023 reflected Student’s reading level was at a fourth-grade, eighth-month level. On the Wechsler Individual Test of Achievement, Student’s overall reading and math skills fell in the average range.

At hearing, Padilla offered persuasive testimony about the disparity between Student’s scores on the i-Ready reading diagnostics and STAR reading assessment and his performance on the Wechsler Individual Test of Achievement. The i-Ready was a computer-based, timed diagnostic assessment targeted at assessing a student’s reading comprehension. The i-Ready diagnostic required Student to read a long passage on the computer and answer comprehension questions. Padilla opined that Student often read quickly, which could have negatively impacted his scores on the i-Ready. The STAR reading assessment also was a timed assessment. In contrast, the Wechsler Individual Test of Achievement was administered in 30-to 40-minute sessions over four or five days. In administering the Wechsler, Student read a passage and Padilla then read questions which Student answered verbally. Student could take breaks when he was fatigued. In addition to considering Student’s results on these assessment measures, Padilla considered Student’s attendance, preparedness, work habits, work samples, and progress towards Student’s IEP goals.

Padilla opined it was important to consider multiple measures when evaluating Student’s progress. At the time of the June 1, 2023 IEP, Student made progress towards the general education curriculum and towards his IEP goals with the combination of specialized academic instruction and IEP accommodations. The evidence established the IEP team had sufficient information about Student’s present levels of performance in academics to develop Student’s educational program.

PRESENT LEVELS OF PERFORMANCE IN SPEECH AND LANGUAGE

Uribe reported on Student’s present levels of performance in speech and language and testified at hearing. Based on the results of Uribe’s speech and language assessment and report dated June 1, 2023, clinical observations and teacher reports, Student had deficits in expressive and receptive language specifically in syntax-morphology and supra-linguistic skills. Student’s expressive and receptive vocabulary skills fell within the average range. His pragmatic language skills fell in the below average to average range.

Seliskar persuasively described Student’s increased ability to participate in class and work independently. At hearing, she described a recent presentation Student made independently to a packed room of his peers and parents.

Student’s argument that the present levels of performance were not accurate was unpersuasive. Student relied on testimony by speech-language pathologist Villagran. During the 2023-2024 schoolyear, Villagran provided 30 minutes weekly individual and 30 minutes weekly group speech and language services to Student at Frostig. Villagran opined that she worked with Student two times per month during lunch and recess. She encouraged Student to initiate interactions with his peers. According to Villagran, Student “just recently” starting to join groups to play. She also observed Student in the classroom once or twice weekly. Villagran did not see him interact with his peers.

Villagran’s observations were in stark contrast to the behavioral progress reported by Student’s June 1, 2023 IEP team. Although Student had pragmatic and social skills deficits, he could interact with his peers in the classroom and during recess. He did not require adult prompting to speak with his peers. He could initiate interactions, play games, and take turns.

At hearing, Villagran opined Student could not interact with his same aged peers or engage in conversations with his peers. This information was based on her observations of Student working with one other student and Villagran in a small group, in a separate setting. Villagran did not observe Student the prior school year when he attended Covina-Valley. The testimony by Covina-Valley’s witnesses, including Foster, Uribe, Padilla, and Seliskar, was more persuasive in establishing Student’s present levels of performance in communication at the time of the June 1, 2023 IEP. The preponderance of the evidence established the June 1, 2023 IEP accurately described Student’s present levels of performance in speech and language at the time and was sufficient for Student’s IEP team to develop Student’s educational program.

PRESENT LEVELS OF PERFORMANCE IN FINE AND GROSS MOTOR SKILLS

The June 1, 2023 IEP described Student’s fine motor skills as in average range compared to his same aged peers. Oropeza credibly testified at hearing about Student’s present levels of performance at the time of the June 1, 2023 IEP team meeting. He could manage classroom materials and write legibly. Student’s gross motor skills were sufficient to access his educational environment and participate in physical education.

Student argues the present levels of performance were inaccurate but did not offer testimony by an expert or any witness as to any specific fine or gross motor deficits that were not captured in the present levels of performance. Student also did not offer persuasive evidence about what areas of deficit were not included in the present levels of performance.

PRESENT LEVELS OF PERFORMANCE IN SOCIAL-EMOTIONAL-BEHAVIOR

The June 1, 2023 IEP described Student’s present levels of performance in social-emotional-behavior based on observations, teacher reporting, and rating scales. Student could organize and complete his work. He had average study skills. He did not have attention and executive functioning skills deficits at the time. Behaviorally, Student could interact with his peers and adults appropriately. He had difficulties sustaining conversations with his peers and making friends. At school, he displayed sensory seeking behaviors, but these did not impede his learning or that of others. At home, Student shut down and cried when completing homework. In the school setting, Student sometimes displayed frustration, but he could self-regulate using copying skills. He attended to his classroom lessons and followed directions. When speaking with his peers during a structured game or a recess activity, Student could stay on topic. Student could take care of his personal needs at school independently.

Student argues the present levels of performance were inaccurate because they did not address Parent’s concerns about Student’s difficulties in academic perseverance and behaviors of crying and shutting down at home and at school. The IEP noted Parents’ concerns, which were also reported by Foster in her psychoeducational evaluation. As discussed below, the June 1, 2023 IEP developed a social emotional goal to specifically target Student’s struggles with persevering through academic obstacles.

Student also argues Covina-Valley ignored Student’s teacher’s rating on the Behavior Assessment as clinically significant in anxiety, depression, and internalizing problems. However, Foster noted this rating in her May 25, 2023 psychoeducational report, and as well as considered a variety of behaviors that were noted by Parents and teacher on the Behavior Assessment.

The updates on Student’s academic, speech and language, fine and gross motor, social-emotional-behavior, coupled with Parents’ and attorneys’ reports, provided the information mandated by the IDEA and needed by the IEP team to develop an educational program for Student. Student failed to meet his burden of proof on this issue.

Covina-Valley prevailed on Issue 8(c).

ISSUE 8(d): MEASURABLE GOALS

Student contends Covina-Valley failed to offer measurable goals in mathematics, receptive-expressive language, and social-emotional. Covina-Valley contends the goals were measurable.

The June 1, 2023 IEP team reviewed Student’s progress on goals. Student met his prior goals in reading, writing, and math. Student met his goals in commenting or asking questions, social inference, and social-emotional. Student did not meet his social skills goal of consistently initiating interaction with his classmates. The IEP team identified Student’s areas of educational need as reading, math, communication, and social-emotional. The June 1, 2023 IEP developed and offered goals in each of these areas.

Student did not prove Covina-Valley denied him a FAPE by failing to develop measurable goals in reading comprehension, mathematics, receptive-expressive language, and social-emotional. Goal A was a reading comprehension goal. The goal aimed for Student to cite one piece of evidence in writing to support an inference after reading an instructional level text and give one inference about a detail from the text. To achieve this goal, Student had to cite three of four inferences in three out of four monitoring assessments. The education specialist and general education teacher were responsible for implementing the goal.

Goal B was a math goal. The goal aimed for Student to solve for a variable using visual or arithmetic strategies when given a one-step equation with whole numbers. To achieve this goal, Student had to obtain 80 percent accuracy in three out of four assignments. The education specialist and general education teacher were responsible for implementing the goal.

Goal C was a receptive-expressive language goal. This goal aimed for Student to identify and interpret non-literal language (such as double meanings, figurative language, and idioms) with 80 percent accuracy given cues as needed as measured by notes and data. The speech-language pathologist was responsible for implementing the goal.

Student’s argument the goals in social skills, reading, and math were insufficiently measurable because they did not specify a time frame for tracking Student’s progress and how frequently his opportunities would be tracked was unpersuasive. Goals can be measured ordinally, quantitatively, or in some other way. (Capistrano, supra, 21 F.4th at p. 1134.) Covina-Valley’s witnesses, including Padilla, Uribe, and White, convincingly opined that the goals targeted Student’s areas of educational need, were measurable, and were reasonably calculated to be achievable within a 12-month period.

Parents and their attorney were equal participants in the development of goals at the June 1, 2023 team meeting. Parents and their attorney were given the opportunity to provide input on Student’s goals but declined to do so. At hearing, no persuasive evidence was offered that the goals were not measurable, or that Parents did not understand them. Student did not meet his burden of proving Covina-Valley failed to develop measurable goals.

Covina-Valley prevailed on 8(d).

ISSUE 8(e)(i)-(ix): RELATED SERVICES

An IEP must contain a statement of the related services, supplementary aides and services, program modifications, and supports that will allow the student to advance toward his goals, access and make progress in his curriculum, participate in activities, and to be educated with other disabled and nondisabled children. (20 U.S.C. § 1414(d)(1)(A)(i)(IV); 34 C.F.R. § 300.34 (2006); Ed. Code, § 56345, subd. (a)(4).)

The June 1, 2023 IEP offered Student:

• 90 minutes daily specialized academic instruction in a group setting in the general education classroom, allocated 30 minutes for mathematics and 60 minutes for English language arts;

• 425 minutes yearly group speech and language services delivered in two, 25-minute sessions monthly, in a separate setting;

• 100 minutes yearly occupational therapy consultation between Student’s general education and special education teachers to address Student’s sensory based needs;

• 50 minutes monthly individual counseling services delivered in two, 25-minute sessions;

• And daily transportation to and from Las Palmas Middle School, which was not Student’s school of residence.

Student would spend 99 percent of his time in the regular class and nonacademic activities, and one percent of time outside the regular class and nonacademic activities. To support Student at school, the IEP team proposed accommodations, including

• An agenda,

• Preferential seating,

• Redirection,

• Verbal and visual cues,

• Periodic checks for comprehension,

• Frontloading information,

• Breaks,

• Positive rewards,

• Scaffolding of instruction,

• Shortened homework assignments, and

• Access to noise cancelling headphones.

Covina-Valley offered Student placement in a co-taught classroom at Las Palmas Middle School. The class was co-taught by general education and special education teachers.

Sarah Mattison testified at hearing. Sarah Mattison was a school psychologist at Las Palmas Middle School for 10 years. Mattison held a master’s degree in educational psychology and a California Pupil Personnel Services Credential. Mattison had substantial experience conducting psychoeducational assessments, attending IEP team meetings, and providing counseling services to students with IEPs.

Mattison attended Student’s June 1, 2023 IEP team meeting since Student was transitioning into middle school. Mattison described Las Palmas Middle School’s co-taught program to the IEP team, and at hearing. The class was a general education class taught by a general education and a special education teacher. The special education teacher scaffolded the instruction and implemented students’ IEP accommodations and supports detailed in their IEPs.

The June 1, 2023 IEP offered supports for Student’s transition to middle school. Student’s special education teacher would provide the sixth-grade special education staff at Las Palmas Middle School an updated summary of Student’s current functioning levels, strengths, and weaknesses. Further, Manzanita’s staff and special education staff would engage in an internal exchange of information with Las Palmas Middle School. The information exchanged would include Student’s portfolio and special education file, issues relating to Student’s scheduling needs, and other related concerns.

Student argued that Student remained below grade level and did not meet state standards in reading, writing, and language and that Parents were concerned about Student’s anxiety and school refusal behaviors at home. Student argued he require full-time specialized academic instruction with a cohort of peers with similar learning differences.

Jennifer Tucker Mottes testified on Student’s behalf of hearing. Mottes was the Head of School at The Frostig School. Mottes was familiar with Student from observing him at The Frostig School during the 2023-2024 school year. Parents provided Covina-Valley a 10-day notice of their intention to place Student at The Frostig School on July 21, 2023. Mottes opined Frostig was academically appropriate for Student. Mottes did not believe Student required a program with additional behavioral supports or a behavior intervention plan. Mottes agreed Student could make progress in a less restrictive program with supports. Although Mottes believed The Frostig School was appropriate for Student and that he made academic progress, her testimony did not support a determination Student required a more restrictive placement as argued by Student.

At hearing, no witness opined Student required full-time specialized academic instruction to meet his IEP goals. Covina-Valley’s witnesses, including Foster, Padilla, Uribe, and Seliskar opined Student could make progress in the general education setting with specialized academic instruction, speech and language and occupational therapy, and counseling. Student offered no new or additional evidence establishing Student required trained and qualified aide support, speech and language services, occupational therapy services, behavioral supports, assistive technology, recreation therapy, or counseling at the time of the June 1, 2023 IEP. Student relied on the prior recommendations of his independent evaluators, as discussed at length throughout the Decision.

The June 1, 2023 IEP team considered Student’s need for transportation. The co-taught program by general and special education teachers was not available at Student’s school of residence. Thus, Covina-Valley offered daily transportation to and from Las Palmas Middle School. Student did not offer evidence to challenge the transportation offer at hearing or explain in his closing brief why the offer was inappropriate.

Student failed to meet his burden of proving Covina-Valley failed to offer appropriate services in

• Specialized academic instruction,

• Speech and language services,

• Occupational therapy,

• Counseling, and

• Transportation.

Student also failed to prove Covina-Valley should have offered one-to-one aide support, other behavior supports, assistive technology, and recreational therapy.

Covina-Valley prevailed on Issue 8(e)(i) through (ix).

ISSUE 8(f), (g), AND (h): BEHAVIOR INTERVENTION PLAN, RESEARCH-BASED BEHAVIORAL AND INSTRUCTIONAL METHODOLGIES, AND EXTENDED SCHOOL YEAR SERVICES

Student contends Covina-Valley denied him a FAPE by failing to offer a behavior intervention plan, research-based behavioral and instructional methodologies, and extended school year and related services. Covina-Valley contends Student did not meet his burden of proving he required a behavior intervention plan, research-based behavioral and instructional methodologies, and extended school year services.

As discussed throughout this Decision, Student offered no evidence of Student’s need for a behavior intervention plan, research-based behavioral and instructional methodologies, and extended school year and related service. No expert witness testimony or documentary evidence established Student’s behavioral needs had changed nor that Student required extended school year services.

At the time, Student could interact with his peers, but had difficulty sustaining conversations. He was respectful to adults and peers, followed directions, and transitioned between the classroom and school settings. He displayed sensory behaviors, like stimming, but it did not impede his learning or that of others. He could shut down when faced with academic challenges. This behavior was mild in intensity and Student required minimal teacher support to de-escalate and use coping strategies.

Student met his IEP goals of reading and summarizing a grade-level literary text, planning and writing two paragraphs, identify and solve a multi-step word problem by using visual or tactile supports, and using two strategies before asking a teacher for help, and responding to peers or a teacher with no more than one prompt within 15 seconds, and answering basic inferential questions about common hypothetical or real-life social scenarios. He did not meet his goal of initiating and engaging in a back-and forth conversations with his peers but made progress towards it.

The IEP team discussed Student’s need for extended school year and services. The IEP team did not determine Student would likely experience significant regression over the summer break. The June 1, 2023 IEP did not offer extended school year and related services. At hearing, Student offered no evidence Student required extended school year and related services.

Student failed to meet his burden of proving Covina-Valley failed to develop a behavior intervention plan or offer research-based behavioral and instructional methodologies and extended school year and related services. Covina-Valley prevailed on Issue 8(f), (g), and (h).

ISSUE 8(i): PREDETERMINATION

A school district is required to conduct not just an IEP team meeting, but a meaningful IEP team meeting. (Target Range, supra, 960 F.2d 1479, 1485.) An IEP is not predetermined simply by meeting to discuss a child’s programming in advance of an IEP team meeting. (Knox, supra, 315 F.3d 688., 693, fn. 3.) Although school district personnel may bring a draft IEP to the meeting, parents are entitled to a full discussion of their questions, concerns, and recommendations before an IEP is finalized. (Fuhrmann, supra, 993 F.2d 1031, 1036.) Although school district personnel may bring a draft of the IEP to the meeting, the parents are entitled to ask questions, concerns, and recommendations as part of a full discussion of a child’s needs and the services to be provided to meet those needs before the IEP is finalized. (Assistance to States for the Education of Children with Disabilities (March 12, 1999) 64 Fed. Reg. 12478-12479.) School official may permissibly form opinions prior to IEP team meetings.

Student failed to prove the June 1, 2023 IEP’s placement offer was predetermined. Other than arguing that Covina-Valley discussed Student’s program before the meeting, Student did not offer facts the IEP placement offer was made with a “take it or leave it” offer. At hearing, Padilla testified she met with the school psychologist prior to the IEP team meeting to discuss the co-taught program at Las Palmas Middle School. She explained this was for the purpose of developing a placement offer for Student for the upcoming year and Student’s placement would be discussed and determined by Student’s IEP team. Contrary to Student’s argument, this did not constitute predetermination of Covina-Valley’s placement offer. Covina-Valley did not ignore Parents concerns. The IEP team meeting notes and participants’ testimony demonstrated robust conversations involving Parents and their attorney. Student did not offer evidence that the FAPE offer was unclear or establish that Parents did not understand the offer.

Student did not prove by a preponderance of the evidence that Covina-Valley predetermined its FAPE offer by independently developing the June 1, 2023 IEP, without meaningful parental participation, and then presented the IEP to Parents for ratification. (Target Range, supra, 960 F.2d at p. 1484.)

Covina-Valley prevailed on Issue 8(i).

ISSUE 9

DID COVINA-VALLEY DENY STUDENT A FAPE DURING THE 2023-2024 REGULAR AND EXTENDED SCHOOL YEAR BY FAILING TO TIMELY REVIEW AN ASSISTIVE TECHNOLOGY ASSESSMENT DATED JULY 17, 2023?

Student contends Covina-Valley denied him a FAPE by failing to complete an assistive technology assessment and review it in an IEP team meeting within 60 days of receipt of Parents’ March 14, 2023 consent to assess, which Covina-Valley received on March 20, 2023. Covina-Valley concedes the assistive technology assessment was not completed according to statutory deadlines but argues the failure to timely assess did not impede Parents’ participation in Student’s educational program or deny Student educational benefit.

Special education assessments must be completed, and an IEP team meeting held, within 60 days of receiving consent, excluding school vacations in excess of five school days and other specified days. (20 U.S.C. § 1414(a)(1)(C); 34 C.F.R. § 300.301(c); Ed. Code, § 56043, subd. (f)(1); 56302.1, subd (a); 56344, subd. (a).)

Covina-Valley received Parents’ consent to its October 1, 2022 assessment plan on March 20, 2023. Based on school calendars for the 2022-2023 school, Covina-Valley was required to hold an IEP team to discuss the assistive technology assessment within 60 days; or May 19, 2023. (20 U.S.C. § 1414(a)(1)(C); 34 C.F.R. § 300.301(c); Ed. Code, § 56043, subd. (f)(1); 56302.1, subd (a); 56344, subd. (a).) Covina-Valley did not convene an IEP team meeting to review the assistive technology assessment until November 28,

2023, which was four months after the statutory deadline, excluding the summer break. The IEP team meeting to review the assistive technology assessment was held after the filing of Student’s process complaint. The appropriateness of the assistive technology assessment, therefore, was not at issue in this proceeding.

Covina-Valley was responsible for timely completing Student’s assistive technology assessment. Student proved Covina-Valley committed a procedural violation by failing to timely complete this assessment. (Park, supra, 464 F.3d 1025, 1032-1033.) However, Student did not prove the procedural violation of untimely completing Student’s assistive technology assessment impeded Student’s right to a FAPE, significantly impeded Parents’ opportunity to participate in the decision-making process regarding the provision of FAPE to Student or caused a deprivation of educational benefits to Student. (20 U.S.C. § 1415(f)(3)(E)(ii); Ed. Code, § 56505, subd. (f)(2); see Target Range, supra, 960 F.2d 1479, 1484.)

Parents actions demonstrated they were not waiting for the results of the assistive technology assessment before making a decision to privately place Student at a non-public school. Parents applied to Frostig around May 2023. By July 3, 2023, Parents paid a deposit to Frostig school to hold a spot for Student. Parents paid Frostig’s 2023-2024 tuition costs in full on July 20, 2023, which was prior to Student’s IEP team meeting to review the assistive technology assessment. Parents’ actions showed an intent to place Student in a non-public school. This did not relieve Covina-Valley of its obligation to timely assess Student. (Bellflower Unified School Dist. v. Lua (9th Cir.

2020) 832 Fed.Appx. 493, 495-496,, cert. den. Bellflower Unified School Dist. v. Lua (June 1, 2021) 141 S.Ct. 2704.) However, it demonstrates Parents were unlikely to consent to the June 1, 2023 IEP because Parents had paid Frostig’s tuition in full for the 2023-2024 school year. Further, Student offered no evidence at hearing that their response to the June 1, 2023 IEP would have differed if the assistive technology assessment had been completed. Therefore, there was no impediment to parental participation as a result of the four-month delay in completing the assistive technology assessment.

Further, Student did not offer any evidence that the failure to timely assess Student’s needs in assistive technology impeded his right to a FAPE or caused a deprivation of educational benefit. “A loss of educational opportunity occurs, for example, when there is a ‘strong likelihood’ that, but for the procedural error, an alternative placement ‘would have been considered.’” (Timothy O., supra, 822 F.3d 1105, 1124.) Parents did not offer proof that absent the procedural error, there is a strong likelihood that alternative educational opportunities for Student would have been considered, as was their burden. They did not explain what information in the assistive technology assessment, if presented earlier, would have materially altered the services Student was receiving, or what alternative education possibilities would have been better considered. (Doug C. v. Hawaii Dept. of Educ. (9th Cir. 2013) 720 F.3d 1038, 1047, citing M.L. v. Federal Way School Dist. (9th Cir. 2005) 394 F.3d 634, 657).) Accordingly, Parents failed to meet their burden of proving the failure to timely assess Student in assistive technology constituted a substantive FAPE denial.

Covina-Valley prevailed on Issue 9.

CONCLUSIONS AND PREVAILING PARTY

As required by 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.

ISSUE 1(a) AND (b):

Covina-Valley did not deny Student a FAPE by failing to provide Student’s IEP documents after IEP team meetings held on December 8, 2021, and May 20, 2022.

Covina-Valley prevailed on Issue 1(a) and (b).

ISSUE 2(a) THROUGH (e):

Covina-Valley did not deny Student a FAPE during the 2021-2022 regular and extended school year, beginning November 28, 2021, by failing to timely assess Student in preparation for Student’s three-year evaluation, specifically in speech and language, occupational therapy, functional behavior, assistive technology, and recreation therapy.

Covina-Valley prevailed on Issue 2 (a), (b), (c), (d) and (e).

ISSUE 3(a) THROUGH (h):

Covina-Valley did not deny Student a FAPE in a December 8, 2021 IEP by

• Denying Parents full and effective participation in the IEP process;

• Failing to consider the recommendations from an October 25, 2021 independent educational evaluation in occupational therapy;

• Failing to consider the recommendations from a September 2021 independent educational evaluation in occupational therapy;

• Failing to offer appropriate services in

○ specialized academic instruction,

○ trained and qualified aide support,

○ speech and language,

○ occupational therapy,

○ behavioral support,

○ assistive technology,

○ recreational therapy,

○ counseling and

○ transportation;

• Failing to develop a behavior intervention plan;

• Failing to offer Student research-based behavioral and instructional methodologies;

• Predetermining Student’s placement offer; and

• Failing to make a clear placement offer.

Covina Valley prevailed on Issue 3(a), (b), (c), (d)(i)-(ix), (e), (f), (g), and (h).

ISSUE 4(a) THROUGH (h):

Covina-Valley did not deny Student a FAPE in a May 20, 2022 IEP by

• Denying Parents full and effective participation in the IEP process;

• Failing to ensure all necessary IEP team members attended the IEP team meeting;

• Failing to consider findings from an independent educational evaluation in psychoeducation dated April 7, 2022;

• Failing to offer appropriate services in

○ specialized academic instruction,

○ trained and qualified aide support,

○ speech and language,

○ occupational therapy,

○ behavioral support,

○ assistive technology,

○ recreational therapy,

○ counseling, and

○ transportation;

• Failing to develop a behavior intervention plan;

• Failing to offer Student research-based behavioral and instructional methodologies;

• Predetermining Student’s placement offer; and

• Failing to make a clear placement offer.

Covina Valley prevailed on Issue 4(a), (b), (c), (d)(i)-(ix), (e), (f), (g), and (h).

ISSUE 5(a)-(k):

Covina-Valley did not deny Student a FAPE in a June 1, 2022 IEP by

• Denying Parents full and effective participation in the IEP process;

• Failing to ensure all necessary IEP team members attended the IEP team meeting;

• Failing to consider findings from an independent educational evaluation in psychoeducation dated April 7, 2022;

• Failing to accurately state Student’s present levels of performance in

○ social-emotional-behavior,

○ fine and visual motor skills,

○ communication development, and

○ gross motor skills;

• Failing to development measurable goals in

○ prevocational/commenting or asking questions,

○ attention,

○ auditory filtering,

○ executive functioning,

○ fine motor skills,

○ gross motor skills,

○ social skills, and

○ pragmatics/social inference;

• Failing to offer appropriate services in

○ specialized academic instruction,

○ trained and qualified aide support,

○ speech and language,

○ occupational therapy,

○ behavioral support,

○ assistive technology,

○ recreation therapy,

○ counseling, and

○ transportation;

• Failing to develop a behavior intervention plan;

• Failing to offer Student research-based behavioral and instructional methodologies;

• Failing to offer extended school year services for the 2021-2022 extended school year, specifically in

○ specialized academic instruction,

○ trained and qualified aide support,

○ speech and language services,

○ occupational therapy,

○ behavioral support, including a behavior intervention plan,

○ assistive technology,

○ recreational therapy,

○ counseling and transportation;

• Predetermining Student’s placement offer; and

• Failing to make a clear placement offer.

Covina-Valley prevailed on Issue 5(a), (b), (c), (d)(i)-(iv), (e)(i)-(viii), (f)(i)-(ix), (g), (h), (i)(i)-(ix), (j) and (k).

ISSUE 6(a)-(h):

Covina-Valley did not deny Student a FAPE during the 2022-2023 regular and extended school year, continuing through November 21, 2023, by failing to appropriately assess Student in all areas of suspected disability, specifically in

• Psychoeducation,

• Academics,

• Speech and language,

• Occupational therapy,

• Assistive technology,

• Functional behavior,

• Recreation therapy, and

• Adapted physical education.

Covina-Valley prevailed on Issue 6(a), (b), (c), (d), (e), (f), (g), and (h).

ISSUE 7(a) AND (b):

Covina-Valley did not deny Student a FAPE during the 2022-2023 regular and extended school year by failing to provide Student a school environment free from harassment and bullying, specifically regarding events on or around September 12, 2022, and October 5, 2022.

Covina-Valley prevailed on Issue 7(a) and(b).

ISSUE 8(a), (c), (d), (e), (f), (g) (h) (i):

Covina-Valley did not deny Student a FAPE in a June 1, 2023 IEP by

• Denying Parents full and effective participation in the IEP process;

• Failing to accurately state Student’s present levels of performance

○ in social-emotional-behavior,

○ preacademic-academic-functional skills,

○ communication development,

○ gross-fine motor development,

○ vocational,

○ adaptive-daily living skills, and

○ health;

• Failing to develop measurable goals in

○ reading comprehension,

○ mathematics,

○ receptive-express language, and

○ social-emotional;

• Failing to make an appropriate offer of services, specifically in

○ specialized academic instruction,

○ trained and qualified aide support,

○ speech and language,

○ occupational therapy,

○ behavioral support,

○ assistive technology,

○ recreational therapy,

○ counseling and

○ transportation;

• Failing to develop a behavior intervention plan;

• Failing to offer Student research-based behavioral and instructional methodologies,

• Failing to offer extended school year services for the 2022-2023 extended school year, specifically in

○ specialized academic instruction,

○ trained and qualified aide support,

○ speech and language services,

○ occupational therapy,

○ behavioral support, including a behavior intervention plan,

○ assistive technology,

○ recreational therapy,

○ counseling and

○ transportation, and

• Predetermining Student’s placement offer.

Student withdrew Issue 8(b) and (j).

Covina Valley prevailed on Issue 8(a), (c)(i)-(vii), (d)(i)-(iv), (e)(i)-(ix), (f), (g), (h)(i)-(ix), and (i).

Neither party prevailed on Issue 8(b) or (j).

ISSUE 9:

Covina-Valley did not deny Student a FAPE during the 2023-2023 regular and extended school year by failing to timely review an assistive technology assessment dated July 17, 2023.

Covina-Valley prevailed on Issue 9.

ORDER

All Student’s claims for relief are denied.

RIGHT TO APPEAL THIS DECISION

This is a final administrative decision, and all parties are bound by it. Pursuant to Education Code section 56505, subdivision (k), any party may appeal this Decision to a court of competent jurisdiction within 90 days of receipt.

Jennifer Kelly

Administrative Law Judge

Office of Administrative Hearings