Parent on Behalf of Student v. Washington Unified School District

On November 4, 2024, Student filed with the Office of Administrative Hearings, called OAH, a due process hearing request, naming Washington Unified School District, called Washington. OAH granted the parties’ joint request to continue the matter on December 5, 2024. Administrative Law Judge Robert G. Martin heard the matter by videoconference on January 23, 29, 30, and 31, 2025, and February 4 and 5, 2025.

Attorneys Tamiel Holloway, Sarah Javaheri, Matthew Kimberlin, Zoe Hamilton, and Sara Keane represented Student. Parent attended all hearing days on Student’s behalf. Attorney Nicole Mirkazemi represented Washington. Special Education Director Karla Salvo attended all hearing days on Washington’s behalf. OAH provided a Spanish interpreter for Parent on all hearing days.

At the parties’ request, OAH continued the matter to February 26, 2025, for written closing briefs. The record was closed, and the matter was submitted on February 26, 2025.

ISSUES

In this Decision, a free appropriate public education is called a FAPE, an individualized education program is called an IEP, and an educationally-related mental health services assessment is called an ERMHS assessment. This Decision addresses the following issues:

1. Did Washington deny Student a FAPE, from November 4, 2022, through August 19, 2024, by failing to fulfill its child find duties?

2. Did Washington deny Student a FAPE, from November 4, 2022, through November 4, 2024, by failing to assess Student in all areas of suspected disability, specifically, by failing to conduct an ERMHS assessment?

3. Did Washington deny Student a FAPE by failing to timely provide complete educational records in response to Parent’s requests dated July 15, 2024, September 11, 2024, October 11, 2024, October 23, 2024, and October 31, 2024?

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.) 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 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 in this matter. 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 17 years old and in 12th grade at the time of hearing. Student resided with Parent and his stepfather within Washington’s geographic boundaries at all relevant times. Student was born in Guatemala and moved to the United States in 2016 with his mother and father when he was nine years old. He attended Washington schools since December 2016, except for March through May 2017, when Student was placed in foster care. Student spoke Spanish, his native language, and enrolled in Washington as an English Language Learner.

Student’s claims arise from Washington’s alleged acts or omissions from November 4, 2022, through August 19, 2024, while Student was in high school for 10th, 11th, and 12th grade. Student had never been found eligible for special education.

ISSUE 1

DID WASHINGTON FAIL TO FULFILL ITS CHILD FIND DUTIES?

Student argues Washington failed its child find obligation to Student by failing to assess Student for special education from two years before the filing of Student’s due process hearing request until August 20, 2024, when Washington provided Parent an assessment plan to determine eligibility for special education. Student contends Washington should have suspected Student had a disability requiring special education based on Student’s years of poor attendance, behavioral issues, and poor grades, and would have referred Student for assessment if it had not failed to follow its own child find policies and procedures.

Washington argues it had no reason to suspect Student had a disability. It contends Student’s teachers and others working with Student correctly concluded that his poor attendance and behavior were not related to a disability, and that his poor grades were caused by his poor attendance, lack of motivation, and difficulties understanding English.

Washington further contends it had an obligation to utilize regular education resources before referring Student for assessment. Washington argues it successfully used general education interventions to address Student’s attendance and disciplinary issues, which improved Student’s grades during the 2022-2023 and 2024-2025 school years, and confirmed he did not require special education. Finally, Washington argues that Student was not eligible for special education and therefore IDEA protections were not available to Student.

The IDEA's overall purpose is “to ensure that all children with disabilities have available to them a free appropriate public education.” (20 U.S.C. § 1400(d)(1)(A); Cedar Rapids Community School Dist. v. Charlene F., 526 U.S. 66, 73, 119 S.Ct. 992, 143 L.Ed.2d 154 (1999).) The IDEA therefore places an affirmative, ongoing duty on the state and school districts to identify, locate, and evaluate all children with disabilities residing in the state who are in need of special education and related services. (McIntyre v. Eugene School Dist. 4J, 976 F.3d 902, 910 (9th Cir. 2020) (citing 20 U.S.C. §§ 1412(a)(3), (7), 1414(a)-(c)); 34 C.F.R. § 300.111(a); Ed. Code, § 56301, subd. (a).) This duty is commonly referred to as “child find.” To ensure that children with disabilities receive an appropriate education tailored to their unique needs, the IDEA requires that when a school district has reason to suspect that a child has a disability, it must conduct a full and individual initial evaluation that ensures the child is assessed for all areas of suspected disability, using a variety of reliable and technically sound instruments. (Timothy O. v. Paso Robles Unified School Dist. (9th Cir. 2016) 822 F.3d 1105, 1109, cert. denied, 137 S. Ct. 1578

(2017) (Timothy O.); 20 U.S.C. §§ 1414(a)(1), (b)(2)-(3).) Either a parent or school district may initiate a request for an initial evaluation. (20 U.S.C. §§ 1414(a)(1)(B); 34 C.F.R. § 300.301(b).)

A district’s duty to assess a child for a possible disability is broader than its duty to provide special education, and more easily triggered. A school district’s child find obligation toward a specific child is triggered when there is reason to suspect the child may have a disability, and may need special education and related services. (Ed. Code, § 56301, subd. (a).) The obligation to assess applies even if the child is advancing from grade to grade. (Ed. Code, § 56301, subd (b)(1).)

A disability becomes suspected when the district has notice that the child has displayed symptoms of that disability. (Timothy O., supra, 822 F.3d at pp. 1119-20.) A district may be put on notice through concerns expressed by parents about a child’s symptoms, opinions expressed by informed professionals, or by other less formal indicators, such as the child’s behavior at school. (Id. at pp. 1119-1121 [citing Pasatiempo v. Aizawa (9th Cir. 1996) 103 F.3d 796, and N.B. v. Hellgate Elementary School Dist. (9th Cir. 2008) 541 F.3d 1202].)

Once a school district is on notice that a child may have a disability, it has a duty to propose an assessment. (D.O. By and Through Walker v. Escondido Union School District (9th Cir. 2023) 59 F.4th 394, 408 (D.O. v. Escondido).) This is so regardless of the subjective views of its staff members concerning the likely outcome of such an assessment, because the identification and assessment of children who have disabilities should be a cooperative and consultative process, and parents are entitled to notification of, and the opportunity to contest, conclusions regarding their children. (Timothy O., supra, 822 F.3d at 1121.) The obligation to assess must be fulfilled within a reasonable time after school officials are placed on notice that the child may have a qualifying disability. (D.R. ex rel. Courtney R. v. Antelope Valley Union High School Dist., 746 F. Supp. 2d 1132, 1144 (C.D. Cal. 2010).)

A district may not delay its assessment of a student with a suspected disability on the basis that it is waiting to determine the effectiveness of a response to intervention process to accommodate the student in the regular education program. (Office of Special Education Programs (OSEP) Memorandum 11-07 to State Directors of Special Education, A Response to Intervention Process Cannot Be Used to Delay-Deny an Evaluation for Eligibility under the IDEA (January 21, 2011) 56 IDELR 50.) Similarly, a district cannot delay assessing a student while waiting to see whether a 504 Plan can address the student’s needs. In N.N. v. Mountain View-Los Altos Union High School District (N.D. Cal., Aug. 4, 2022, No. 20-CV-08010-VKD) 2022 WL 3109588 (N.N. v. Mountain View), the court rejected the contention that Education Code section 56303’s requirement that districts consider, and where appropriate utilize, resources of the regular education program before referring a pupil for special educational instruction and services, applied to referring students for assessments. (Id. at *27.) The court further noted that such an interpretation would be unenforceable in any event, because state law cannot override the IDEA's requirements regarding the child find obligation. (Ibid., citing J.L. v. Mercer Island School Dist. (9th Cir. 2010) 592 F.3d 938, 947; see also, D.O. v. Escondido, supra, 59 F.4th 394, 409 [State standards that are not inconsistent with federal standards under the IDEA are also enforceable in federal court].)

The actions of a school district with respect to whether it had knowledge of, or reason to suspect, a disability, must be evaluated in light of information that the district knew, or had reason to know, at the relevant time. It is not based upon hindsight. (See Adams v. State of Oregon (9th Cir. 1999) 195 F.3d 1141, 1149 (citing Fuhrmann v. East Hanover Bd. of Educ. (3rd Cir. 1993) 993 F.2d 1031, 1041).) However, some consideration of subsequent events may be permissible if the additional data “provide[s] significant insight into the child’s condition, and the reasonableness of the school district’s action, at the earlier date.” (E.M. v. Pajaro Valley Unified School Dist., 652 F.3d 999, 1006 (9th Cir. 2011) (quoting Adams, 195 F.3d at 1149) (E.M. v. Pajaro).)

STUDENT’S RELEVANT EDUCATIONAL HISTORY 2016-2022

Student’s previous educational history known to Washington as of November 4, 2022, is relevant to whether and when Washington had notice that Student displayed symptoms of a disability.

STUDENT’S ISSUES IN FOURTH GRADE THROUGH SEVENTH GRADE

Student’s behavior, attendance, grades and other information was documented by district staff in Washington’s Aeries Student Information System database. From the database, in addition to attendance records and grade transcripts, Washington generated overlapping but different reports documenting the history of Student’s behavior: (1) a Student Discipline Record describing incidents of inappropriate behavior that did not result in suspension; (2) a Student Assertive Discipline Record describing behavior incidents resulting in formal discipline such as suspension; and (3) an Interventions Report summarizing actions by staff to address issues with behavior, attendance, grades and other matters.

FOURTH GRADE 2016-2017

Student exhibited no significant behavioral or attendance issues during the four months he attended fourth grade at Stonegate in the spring of 2017. Academically, Student exhibited strength in fourth-grade math, with his teacher grading him as proficient. This was despite his having had only two years of education before enrolling in Washington. However, in reading and writing, Student made minimal progress.

FIFTH GRADE 2017-2018

Student began exhibiting significant behavior issues at age 10 in fifth grade, the 2017-2018 school year. Within the first month of school, his fifth-grade teacher called Parent regarding three incidents where Student poked, shoved or threatened girls in his class, telling one of them, "Don't mess with me, I'll break you like a pencil, because men are stronger than women." Student’s teacher met with him, and spoke with Parent about the incidents. Student’s behavior did not improve. At the end of September, following several other incidents, Student was kept from recess for a week for hitting classmates in the stomach, kicking kids while in line, and saying bad words to them. In October, he was counseled in a meeting with Parent about his bringing cellphones and sharp objects to school, and was defiant and disrespectful towards to school staff.

In November 2017, Student met with the school social worker to discuss an incident with a peer the day before. The social worker’s intervention note stated she and Student “talked about the violence he witnessed in Guatemala through a picture he drew in class.” The note did not state what Student said or what his drawing showed, or whether Washington would take any further action as a result of the conversation. Student presented no evidence that there was any further communication with Washington of the violence he had seen until after the period at issue in this case. However, in December 2024, Parent gave Washington an independently-obtained clinical mental health evaluation that included accounts by Parent and Student of Student witnessing the murder of a neighbor who was a close family friend in Guatemala, and domestic violence directed against his mother by his father.

In the spring semester of the 2017-2018 school year, Student

• Began using profanity,

• Getting into fights, and

• Bullying classmates, driving one girl to tears by calling her names, and making fun of her race and poverty. Student continued to be counseled by his teacher and meet with the school social worker regarding his behavior, but the nature and frequency of his inappropriate behavior did not improve. In May 2018, Student received his first suspension, for one day, for attempting to steal a staff member’s cellphone from the cafeteria. Over the course of the year, Student was disciplined 20 times for behavioral incidents, including six incidents involving physical aggression or bullying towards female peers, four involving fighting or other physical aggression towards male peers, and three instances of defying or disrespecting adult staff.

Student’s grades declined at the beginning of fifth grade from what they had been in fourth grade, and did not improve. Despite teacher comments that Student was responsible in class and wanted to do well, he was graded as making minimal progress in reading, writing and math in all three reporting periods of the year. Teacher goals for Student were for him to focus on reading programs to learn English, and try to complete more assignments. Student did not have any significant attendance problems in fifth grade.

Student’s behavior in fifth grade strongly suggested the possibility of a disability related to his social-emotional functioning. In W.H. ex rel. B.H. v. Clovis Unified School Dist. (E.D. Cal., June 8, 2009, No. CV F 08-0374 LJO DLB) 2009 WL 1605356, similar behaviors were held to trigger a child find duty to conduct a social emotional assessment:

“In the classroom, Student was constantly in motion, had difficulty staying on task, and had rapidly fluctuating moods. Student would have tantrums in the classroom, harmed other students, had trouble with transitions, and failed to complete his work. In October 2005, Student's behavior escalated. Student exhibited aggressive behaviors toward other children and his work completion was minimal. Student refused to do his work, and he began hitting, tripping, and throwing things at other children in the classroom and on the playground. These behaviors triggered District's child find obligation by the end of 2005.” (Id. at *19.)

Although Student’s behaviors changed over time, they did not go away, and he continued to make poor academic progress.

SIXTH GRADE 2018-2019

Student’s aggressive behaviors improved in sixth grade. Student received no suspensions or formal discipline. Although he had ongoing issues with peer relationships, disrupting class, and behavioral outbursts, he received only a few interventions by the school social worker through the year for mild incidents of bullying, aggressive conduct, and disrespect towards female peers. However, Student developed other behaviors. He began avoiding class, regularly arriving 10 minutes late and leaving during class. He also began copying other students’ work in multiple classes. Academically, Student’s grades continued to be poor. In the first semester, he received F’s in English and science, and a D minus in math.

In March 2019, Parent requested a meeting with Student’s teachers to discuss whether Student’s behaviors were causing his bad grades. To address Parent’s concerns, Stonegate held a Student Study Team meeting with Parent, Student’s teachers, and the school’s principal, assistant principal, and Student Study Team coordinator.

Student Study Team meetings were part of Washington’s process for identifying students who might have a disability. For struggling students, that process generally began with interventions in the general education classroom. If a student continued to struggle despite the classroom interventions, the teacher could refer the student to the school’s Multi-Tiered System of Supports team, called the Support team, which would design and implement targeted general education interventions to support the student. The Support team would monitor the effectiveness of the interventions for four to six weeks, then adjust the interventions. The Support team usually employed three cycles of general education interventions before referring a student to a Student Study Team to consider whether the student might have a disability requiring special education. If a parent raised concerns about a potential disability, the school would schedule a Student Study Team meeting like the one held for Student in March 2019.

At the March 2019 meeting, the team discussed concerns regarding Student’s

• Low grades,

• Resistance to reading and writing,

• Copying of classmates’ work,

• Lack of improvement in English language skills,

• Task avoidance leading him to arrive late to class and leave during class,

• History of frequent significant behavior and discipline issues, and

• Current issues involving behavioral outbursts and class disruption. The team also considered Student’s overall academic progress, as measured by statewide tests of proficiency. On the California Assessment of Student Performance and Progress, Smarter Balanced Assessment Consortium, a test of student mastery of expected grade-level skills in English language arts/literacy and mathematics, Student scored in the lowest category of Standard Not Met in both areas. On the English Language Proficiency Assessments for California, a test of proficiency in listening, speaking, reading, and writing English, Student also scored at the lowest of four levels, Level 1, a score described as Beginning to Develop, that indicated he might know some English words and phrases.

The Student Study Team developed supports for Student. To address his academic struggles and behavioral outbursts, which the team thought might be a response to his academic issues, the team recommended academic supports including

• Use of a visual cheat sheet of academic vocabulary,

• A reward system such as grading for effort instead of accuracy for trying things independently instead of copying others’ work,

• Test previews to clarify questions and language, and

• Modifying tests with fill-in-the-blank sentence frames. The team agreed to meet again in May 2019.

The Student Study Team met at the end of May 2019 to review Student’s progress. Student was working better with classmates, but still sometimes provoking them to negative interactions. He was working with the school social worker on personal feelings and conflict resolution. Being graded on effort instead of accuracy allowed him to raise his math grade from an F to a C, but he had also earned a B on a recent math test based on accuracy instead of effort. As new supports for a second round of intervention for the next school year, the Student Study Team recommended that Student’s teachers continue the existing supports. They additionally recommended that Student’s teachers should use the standards from Student’s English Language Development class to guide their expectations of Student’s work, and should encourage him to ask for a break when work was hard for him then get help after taking a break.

In his core academic subjects, Student ended sixth grade with F’s in English and science, and a C in math, which was graded for effort instead of accuracy.

SEVENTH GRADE, 2019-2020, AND EIGHTH GRADE, 2020-2021

Washington’s last Student Study Team meeting for Student convened just before the end of sixth grade. Although Student continued struggling academically and behaviorally, the Student Study Team did not meet at the start of seventh grade or thereafter, and did not monitor Student’s response to the recommended interventions. Dr. Jay Berns, Washington’s Director of Special Programs and Student Services, was a member of Student’s 2019 Student Study Team in his previous position of principal of Stonegate. At hearing, he could not recall the Student Study Team meetings or why the May 2019 meeting was the last, but theorized that since there had been no referral of Student for a special education assessment, the interventions must have been successful.

However, the evidence showed only a minor, temporary improvement. Student began the school year with two incidents involving aggression with sexual overtones towards a female peer, and inappropriate written sexual comments given to his sister. Student’s behavior improved after that, to the degree that he had no further suspensions or formal discipline. His grades also improved. In the first semester, he received D minuses in English and math, a C minus in life science, and a B plus in world history. In the third quarter of the year, the last before school ended for the year due to COVID-19, Student received C’s in English, life sciences, and world history, but an F in math. However, Student’s academic improvements did not continue during virtual instruction in eighth grade. Student began the year with F’s in all his core academic subjects, and after some mid-year improvement, his grades in English, math, science, and history all fell back to F’s.

Student had no behavioral incidents during distance learning.

NINTH GRADE 2021-2022

In the fall of 2021, Student resumed in-person learning and entered high school at Washington’s River City High School. He began using hall passes to avoid class with increasing frequency, sometimes skipping class entirely. He frequently failed to complete assignments and was disciplined several times for using his cellphone in class. Near the end of the year, Student was suspended five days for fighting. He continued to earn poor grades, failing half of his classes and ending the year in the bottom 10 percent of his class, with a 0.81 grade point average. On the English Language Proficiency Assessments for California in the spring of 2022, Student scored at Level 2, one level higher than he had score three years previously in sixth grade. Student’s Level 2 score indicated Student had somewhat developed English skills, often used English for simple communication, but usually needed help using English to learn new things in school and to interact in social situations.

WASHINGTON’S DUTY TO PROPOSE AN ASSESSMENT ON

NOVEMBER 4, 2022 The relevant time period for Student’s child find claim began during Student’s 10th grade school year, on November 4, 2022. At that point in the school year, Student’s world history teacher was already concerned about Student’s struggle to focus in class. Although Student was bright, he often missed directions, completed assignments incorrectly, or didn’t know when to turn them in. The teacher spoke with Student multiple times about taking 20- to 30-minute bathroom breaks and interrupting class to speak with others during instruction, but Student continued to skip class. Student was disciplined four times, for skipping class, leaving the school campus, and for bullying. Academically, Student received poor grades. The school contacted Parent multiple times to discuss his skipping class, lack of focus, missing work, and poor grades, as well as credit recovery options, including summer school. He would end the first of the school year’s four quarters with two F’s, a D plus, and a C minus.

The evidence from Student’s educational history established Washington had reason to suspect Student might have a disability, and may need special education and related services, as of November 4, 2022. By November 2017, during fifth grade, Washington knew Student had witnessed violence at an impressionable age before he arrived at Stonegate elementary school for the end of fourth grade, which should have alerted Washington to the possibility of a post-traumatic stress disorder. Student by then was displaying maladaptive, aggressive behaviors in fifth grade towards peers, especially female peers. These aggressive behaviors continued throughout fifth grade, and expanded to include fighting, bullying, disrespect, defiance and profanity directed at staff. Despite his intelligence, and a desire to do well, Student struggled academically, had trouble completing schoolwork, and made minimal progress in reading, writing and math.

As noted previously, Student’s history of trauma, maladaptive behaviors and academic performance in fifth grade should have triggered an assessment for social emotional issues related to potential disabilities, including emotional disturbance or other health impairment. Emotional disturbance means a condition exhibiting one or more of five specified characteristics over a long period of time, and to a marked degree, that adversely affects a child's educational performance. (34 C.F.R. § 300.8(c)(4); Cal. Code Regs., tit. 5, § 3030, subd. (b)(4).) These include an inability to learn that cannot be explained by intellectual, sensory, or health factors, and inappropriate types of behavior or feelings under normal circumstances. (Ibid.) Student was displaying both learning difficulties and inappropriate behaviors.

Student’s history of trauma and poor educational performance was also suggestive of a possible disability of other health impairment, based on limited alertness with respect to the educational environment due to chronic or acute health problems such as attention-deficit hyperactivity disorder, and other conditions adversely affecting educational performance. (34 C.F.R. § 300.8(c)(9); Cal. Code Regs., tit. 5, § 3030, subd. (b)(9).)

As Student continued to struggle behaviorally and academically over a long period of time through subsequent school years, other symptoms of possible disabilities became evident. Student’s sixth grade Student Study Team noted his difficulty focusing in class, following directions and completing assignments, all of which suggested the possibility of other health impairment based on attention-deficit hyperactivity disorder. Student’s 10th-grade teachers in 2022 were also concerned about these issues.

As important as it was for Washington to understand the reasons for Student’s ongoing behaviors, it was equally important to consider possible reasons for Student’s ongoing learning difficulties that might not be the result of his behavior. For example, the Student Study Team believed Student’s disruptive behavioral outbursts in class, and his leaving class to avoid tasks involving reading and writing, might be a result of Student’s academic difficulties, rather than a cause. Although Student was smart, wanted to do well, and was consistently given general education academic support, he was still struggling both to learn English, and to learn in his academic classes. These learning difficulties were symptoms of a possible language or speech impairment, or a specific learning disability.

A language or speech impairment is difficulty understanding or using language, under specified criteria, and to such an extent that it adversely affects the student’s educational performance, and which cannot be corrected without special education. (34 C.F.R. § 300.8(c)(11); Ed. Code, § 56333; Cal. Code Regs., tit. 5, § 3030, subd. (b)(11).) These criteria include an expressive or receptive language disorder in specified areas of language development. (Cal. Code Regs., tit. 5, § 3030, subd. (b)(11).) Student’s difficulty understanding instructions in class was symptomatic of a receptive language disorder, and should have been formally evaluated, even if such an evaluation could alternatively attribute his comprehension difficulties to something else.

A specific learning disability is a disorder in one or more of the basic psychological processes involved in understanding or using written or spoken language, which may manifest itself in the imperfect ability to

• Listen,

• Think,

• Speak,

• Read,

• Write,

• Spell, or

• Perform mathematical calculations. (20 U.S.C. § 1401 (30)(A); 34 C.F.R. § 300.8(c)(10); Ed. Code, § 56337, subd. (a); Cal. Code Regs., tit.

5, § 3030, subd. (b)(10).) One method for evaluating a student for a specific learning disability is the response to intervention method, which looks at whether a student made sufficient progress to meet age or State-approved grade-level standards in one or more specified areas of academic achievement when provided a program of scientific, research-based interventions. (See Cal. Code Regs., tit. 5, § 3030at subd. (b)(10)(C)2(ii).) Washington had previously employed the highest level of its multi-tiered system of supports for Student, other than special education, when it convened the 2019 Student Study Team to consider Student’s

• Low grades,

• Resistance to reading and writing,

• Copying of classmates’ work,

• Lack of improvement in English language skills,

• Task avoidance leading him to arrive late to class and leave during class,

• History of frequent significant behavior and discipline issues

• Issues involving behavioral outbursts and class disruption, and

• Student’s lack of overall academic progress. If Student responded to the general education supports recommended by the Student Study Team, the effect was temporary, as Student was still struggling as of November 2022 with academic underachievement relative to his estimated intelligence, and was not making sufficient progress to meet age or grade-level standards. The California Assessment of Student Performance and Progress, Smarter Balanced Assessment Consortium was not administered to students in ninth or 10th grade. But Student’s scores in 11th grade underlined his lack of progress towards meeting state standards. In the spring of 2024, Student scored in the lowest category of Standard Not Met in all seven areas of 11th-grade academic progress measured in English language arts, mathematics, and science.

Although some of Student’s teachers attributed his lack of academic progress to a lack of motivation, none thought he lacked motivation to learn English. Student was eager by all accounts to learn to communicate in English, and received general education instruction for English language learners during all his years in Washington. Despite this, his progress was very slow, and on the English Language Proficiency Assessments for California he continued to score at the second of four levels, with only somewhat developed English skills, each year from ninth grade through 11th grade. Student’s lack of progress in an area of learning in which he was highly motivated was also symptomatic of possible specific learning disability.

Washington’s contentions regarding its child find obligations were not persuasive. Washington acknowledged academic concerns arising from Student’s failure to attend full class periods, but argued it had an obligation to utilize the resources of the regular education program to address concerns before referring Student for a special education assessment. This is a misreading of the language of Education Code section 56303’s requirement that districts consider, and where appropriate utilize, resources of the regular education program before referring a pupil for special education instruction and services. (See, N.N. v Mountain View, supra, 2022 WL 3109588 at *27.)

Washington’s contention that it had to first determine if Student’s academic challenges were related to his lack of proficiency in English as an English language learner, before referring the student for a special education assessment, is similarly unpersuasive. Although some delay in complying with IDEA's procedural requirements is permissible (D.O. v. Escondido, supra, 59 F.4th 394 at p. 410), Student as of November 2022 had attended Washington schools for over five years, giving Washington ample time to make its determination. Also, the determination process for special education assessment referrals described in the 2019 English Learner Master Plan cited by Washington could have been completed quickly. It required a Student Study Team to review Student Study Team referral forms, modifications, interventions, and the student’s records, verify current vision and hearing testing, and interview the parent and student. Washington did not do any of these things.

Most of Washington’s arguments relating to its child find obligation as of November 4, 2022, were based on subsequent events in Student’s 11th- and 12th-grade school years. When considered in hindsight for the insight it might provide into Student’s condition and the reasonableness of Washington’s actions (E.M. v. Pajaro, supra, 652 F.3d at p. 1006), Student’s subsequent history after November 4, 2022, does not alter the conclusion that Washington, as of that date, had notice of suspected disabilities and should have assessed Student.

Student failed math and world history in both the first and second terms of 10th grade, during the 2022-2023 school year. Student’s grade in English, which he took in terms two and four, improved to a B in term two, then declined to a D minus in term four. He continued to have attendance and behavioral problems throughout 10th grade. Student was disciplined six additional times after November 2, 2022, for skipping class, vaping, bullying, and profanity and defiance towards a teacher. Student enrolled in summer school in 2023 to make up a failed biology grade, but dropped out “to get his vacation in,” and received an F.

In 11th grade, during the 2023-2024 school year, Student continued to have behavior problems. On the first day of school, he was disciplined for fighting with another student. He was further disciplined over the course of the year for vaping and physical aggression towards his girlfriend, and suspended four times for a total of 13 days between December 2023 and May 2024. Student was suspended for

• Fighting with a male peer,

• Battery on a male peer,

• Trying to start a fight and tearing a toilet paper dispenser off the wall because he was angry at being disciplined, and

• Pushing a female peer in her face and yelling at her, then defying and cursing a staff member who told him to stop and return to class.

Student also continued to have attendance problems. Within the first month of school, Student was spending excessive time outside of class, and Parent was contacted for the first of seven interventions regarding Student’s attendance. He was marked tardy in 69 class periods during the year, and truant for 38 days for missing all or part of one or more class periods. In March 2024, Student and Parent signed a contract with Washington’s School Attendance Review Team that outlined conditions Student agreed to follow to improve his irregular attendance.

In April 2024, Staff called Parent to suggest transferring Student to a continuation/opportunity school if his behaviors and attendance did not improve, so that he could receive special behavioral and educational services.

Student finished the year earning two F’s in English, two D minuses in math, a C followed by an F in biology, a D and a C minus in world history, and a D minus and a C in U.S. history. As previously noted, Student scored in the lowest level in all areas of the statewide California Assessment of Student Performance and Progress. The State describes these tests as “one measure of how well students mastered California's challenging academic standards. The skills called for by these standards – the ability to write clearly, think critically, and solve problems – are essential for preparing students for college and a 21st-century career.” Student’s inability to raise his long-standing low scores in the English Language Proficiency Assessments after more than six years of English language development instruction classified him as Limited English Proficient - Long-Term English Learner.

In July 2024, Parent filed a due process hearing request naming Washington. In August 2024, Washington proposed an initial evaluation of Student’s eligibility for special education, and Parent agreed. Washington conducted psychoeducational, academic, speech and language, and health assessments of Student to evaluate him for potential eligibility for special education under the categories of Speech or Language Impairment, Specific Learning Disability, Other Health Impairment based on attention-deficit hyperactivity disorder, and Emotional Disability. Washington scheduled a November 4, 2024 IEP team meeting to review the evaluation.

Before the IEP team meeting, on Saturday, November 2, 2024, Student filed the complaint in this action. It was deemed filed on the next business day, November 4, 2024, which was the day of the IEP team meeting. At the meeting, Washington presented an Eligibility Review and Psychoeducational Evaluation, also dated November 4, 2024, that documented its initial evaluation of Student.

Based on its Eligibility Review, Student’s initial IEP team found him ineligible for special education under any of the categories considered. Parent did not agree with this determination and filed a subsequent due process hearing request challenging the assessment and the IEP team’s determination. Student dismissed that case in February 2025.

Washington cited its November 4, 2024 Evaluation, and the IEP’s determination based on it that Student did not have a disability, as evidence Student was not displaying symptoms of any disability as of November 4, 2022. Although the appropriateness of Washington’s November 4, 2024 Evaluation and the IEP team’s determination are not at issue in this case, the Evaluation is not persuasive evidence of Student’s alleged failure to display any symptoms of a disability, for many reasons.

The first is the question of the effect of Student’s limited proficiency in English on the validity of assessment results, and whether the lack of proficiency was itself a symptom of a potential disability. Student’s teachers uniformly characterized him as intelligent and eager to communicate. However, although smart and motivated, Student was unable to become proficient in English after seven years of targeted instruction. The Evaluation itself noted that Long-Term English Learners like Student are "usually orally bilingual, but often with limited literacy skills in their first language," and "more likely than other students to be identified as having learning disabilities." It also noted that their “academic literacy development may be impacted due to receiving weak English language development services, experiencing a narrowed curriculum, interrupted formal education, and being enrolled in inappropriate courses and programs due to unidentified or misidentified learning disabilities." There is no evidence that Student received weak English language development services, experienced a narrow curriculum, or had his education interrupted after arriving at Washington, which suggests that his difficulty learning English itself was a symptom of a possible disability.

Washington’s Evaluation looked no further than Student’s lack of English proficiency before determining Student did not have a specific learning disability. The Evaluation stated, “[Student] has ‘limited English proficiency’ and therefore cannot have a ‘specific learning disability’.” This is a mischaracterization of the law, which only excludes specific learning disability as a basis of eligibility if an assessment determined limited English proficiency was the primary cause of an assessed pattern of strengths and weaknesses, or failure to achieve academically or respond to intervention, which would otherwise qualify the student. (34 C.F.R. § 300.309(a)(3); Cal. Code Regs., tit. 5, § 3030, subd. (b)(10)(C)(3).)

The assessor found Student did not have other health impairment based on attention-deficit hyperactivity disorder based on interviews, rating scales, observation, and medical history that indicated Student did not exhibit clinically significant levels of inattention. However, in his observations of Student while administering assessments, the assessor found “the characteristics of ADHD did clearly appear to be present.” Again, for purposes of evaluating Washington’s child find obligation, the Evaluation supports a conclusion Student was displaying symptoms that should have triggered an assessment. Washington staff had reported and intervened to address Student’s difficulty focusing and sustaining attention for several years prior to November 2022 and continued through the time of the 2024 initial assessment.

Finally, the assessment found Student did not have an emotional disability because he did not exhibit, among other factors, an inability to learn which could not be explained by intellectual, sensory or other health factors, instead, pointing to Student’s limited English proficiency. Neither did the assessor find inappropriate types of behavior or feelings under normal circumstances. Also, the assessor found Student’s behavior did not meet limiting conditions of existing over a long period of time, to a marked degree. Finally, the assessor did not find that Student’s behavior adversely affected his educational performance, noting that Student was on track to graduate.

These findings were not consistent with the observations of Student’s teachers Tejinder Ghag, Ashleigh Pane, Angela Schubot, and Adrian Vidales, who testified at hearing. Vidales, who taught Student sculpting in the spring of 2023, believed Student had anger management issues, and displayed threatening conduct towards his girlfriend that made Vidales concerned about the possibility of domestic violence.

Ghag, who taught Student world history in 2023-2024, said Student would "see red" and quickly anger, and would disrupt the class arguing with her. When she subsequently completed rating scales for Washington’s initial Evaluation, her responses placed Student in the clinically significant range, suggesting a high level of maladjustment, with respect to his abilities to self-monitor or inhibit his behavior, or control his emotions. Her responses also rated Student as clinically significant in working memory and overall executive functioning, and she thought his behavior was consistent with attention-deficit hyperactivity disorder.

Schubot, who taught Student English in the spring of 2023 and in 11th grade, found Student sometimes defiant, and sometimes hard to deescalate when he became agitated. She was also concerned about his ability to comprehend spoken language but attributed that issue to his difficulty learning English.

Student’s teachers also offered opinions that his behaviors and academic struggles could be attributed to factors other than a disability. However, their opinions did not dispel the weight of evidence that Washington had notice that Student displayed symptoms of one or more potential disabilities, triggering its duty to assess by November 2022.

The evidence established that Washington should have referred Student for an initial evaluation for special education as of November 4, 2022. Washington therefore failed its child find obligation to Student by failing to present an assessment plan to Parent by that date to start the assessment process.

Violations of a district's child find duties, and of the obligation to assess a student, are procedural violations of the IDEA and the Education Code. (Cari Rae S., supra, 158 F.Supp. 2d 1190 at p.1196; Park v. Anaheim, supra, 464 F.3d 1025 at p. 1031.) In Board of Education of the Hendrick Hudson Central School District v. Rowley (1982) 458 U.S. 176 [102 S.Ct. 3034, 73 L.Ed.2d 690], the Court recognized the importance of adherence to the procedural requirements of the IDEA. (Id. at p. 205-06.) However, a procedural violation does not automatically require a finding that a FAPE was denied. A procedural violation results in liability for denial of a FAPE only if the violation: impeded the child’s right to a FAPE, significantly impeded the parent’s opportunity to participate in the decision-making process regarding the provision of a FAPE to the child, or caused a deprivation of educational benefits. (20 U.S.C. § 1415(f)(3)(E)(ii); Ed. Code, § 56505, subd. (f)(2) & (j); R.B., ex rel. F.B. v. Napa Valley Unified School Dist. (9th Cir. 2007) 496 F.3d 932, 938 (R.B. v. Napa Valley)[“A child is denied a FAPE only when the procedural violation ‘results in the loss of educational opportunity or seriously infringe[s] the parents' opportunity to participate in the IEP formation process.’”(quoting W.G. v. Board of Trustees of Target Range School Dist. No. 23 (9th Cir. 1992) 960 F.2d 1479, 1484, superseded in part by statute on other grounds)].)

Washington’s failure to assess Student unquestionably seriously infringed Parent’s opportunity to participate in the IEP formation process. Assessments are the initiator and the cornerstone of that process. A full and individual evaluation of a student for an IEP team’s review is the prerequisite and basis for any initial provision of special education and related services to a child with a disability. (20 U.S.C.A. § 1414(a)(1)(A).) (See, e.g., Timothy O., supra, 822 F.3d at 1111 (“The results of the initial evaluation are critical to the next step of the process: the creation of an individualized education program or ‘IEP.’”) That such evaluations are done early, thoroughly, and reliably is of extreme importance to the education of children, so that disabilities do not go undiagnosed, neglected, or improperly treated in the classroom. (Id. at p. 1110.) When a district fails to conduct an evaluation, it does not merely interfere with the opportunity of a parent to participate in the formulation process of the IEP, but precludes it. A procedural error results in the denial of an educational opportunity where, absent the error, there is a “strong likelihood” that alternative educational possibilities for the student “would have been better considered.” (Doug C. v. Hawaii Dept. of Ed. (9th Cir. 2013) 720 F.3d 1038, 1047.) When a district fails its independent child find obligation, or refuses a parent’s request to conduct an initial evaluation, it is a certainty that the alternative educational possibility of special education will not be considered.

Washington argued that its procedural violation could not result in a denial of FAPE because Student was not already eligible for special education, and Student did not attempt to prove eligibility as part of this proceeding. Washington did not offer authority for this argument, but the authority usually cited for the proposition that a Student must prove eligibility to receive relief for a FAPE is R.B. v. Napa Valley, supra, 496 F.3d 932., 938.

In R.B. v Napa Valley, the procedural violation was a failure of the district to include any special education teacher or provider who had worked with the student as part of the initial IEP team that found the student ineligible for special education. (496 F.3d at p. 940.) The student claimed that the procedural violation denied student a FAPE, solely on grounds that it resulted in the loss of educational opportunity for the student. (Id. at p.938, fn. 3.) The Court specifically noted it was not considering any claim that the procedural violation had infringed the parent’s opportunity to participate in the IEP formation process, and stated, “[t]he sole question is whether the procedural violations resulted in a loss of educational opportunity for R.B.” (Ibid.)

The Court applied an analysis based on Ford ex rel. Ford v. Long Beach Unified School. Dist., 291 F.3d 1086, 1089 (9th Cir.2002) to consider the testimony at the administrative hearing from two special education teachers who had worked with the student. It found their testimony supplied the hearing officer, district court, and Court of Appeal the information not available to the IEP team as a result of the procedural error, and thereby allowed each tribunal to decide the IEP team had correctly concluded the student was ineligible for special education. (Id. at pp. 941-942.)

After affirmatively deciding the student was not eligible for special education, the Court found the student could not prove a FAPE denial based on the student’s loss of educational opportunity, because “a child ineligible for IDEA opportunities in the first instance cannot lose those opportunities merely because a procedural violation takes place …. In other words, a procedural violation cannot qualify an otherwise ineligible student for IDEA relief.” (Id. at p. 942.)

A reasonable argument may be made that the decision in R.B. v. Napa Valley did not consider, and should not bar, relief for a procedural violation that seriously infringes a parent’s opportunity to participate in the IEP formation process by precluding an initial IEP team meeting to consider their child’s eligibility, where the court has not found the student ineligible.

First, R.B. v. Napa Valley expressly did not consider whether relief from a failure to conduct an initial evaluation of a student could be based on a claim that the procedural violation had infringed the parent’s opportunity to participate in the IEP formation process. (R.B. v. Napa Valley, 496 F.3d at p. 938, fn. 3.) Second, the holding that a child ineligible for IDEA opportunities in the first instance cannot lose those opportunities because of a procedural violation, was predicated on the Court’s legal conclusion that the evidence showed the student was ineligible for special education. (Id. at pp. 941-942.) Absent a party’s concession, an affirmative legal conclusion regarding eligibility can only be reached if either the school district, or a private assessor, has conducted an initial evaluation for a hearing officer or court to consider. In some cases, there may be no initial evaluation by any assessor. In other cases, like this one, an IEP team may have considered a district assessment after the student filed a complaint, but the appropriateness of the assessment and the IEP team’s conclusion regarding eligibility, while disputed, is not an issue for hearing. In either case, the question of eligibility would remain open, and the student would not be legally ineligible for IDEA opportunities.

In The Consolidated Matters Involving Student and Lompoc Unified School District, OAH Case Numbers 2019041183 and 2019060788, the ALJ found the district denied the student a FAPE by failing to conduct an initial evaluation of the student, which impeded the parent’s participation in developing Student’s educational program. The ALJ was not asked to decide, and did not decide, whether the student was deprived of educational benefit, or if the procedural violation impeded the student’s right to a FAPE. The district argued that R.B. v. Napa Valley barred the student from any relief, because the student had failed to prove eligibility. The ALJ disagreed, distinguishing R.B. v. Napa Valley on grounds that it involved a situation where eligibility was a substantive issue decided by the hearing officer, while eligibility was not an issue decided in the present case. The ALJ found the appropriate equitable remedy for the school district’s failure to assess was an order compelling it to assess Student in all areas of suspected need.

Additionally, the objectives of the IDEA strongly favor a right of parents and students to obtain an initial evaluation and IEP that consider the student’s eligibility for special education, without having to first prove eligibility themselves. The IDEA “provides for a cooperative process between parents and schools that culminates in the creation of an IEP for every disabled student.” (M.M. v. Lafayette School Dist. (9th Cir. 2014) 767 F.3d 842, 851 (citing 20 U.S.C. § 1414).) It contains numerous procedural safeguards designed to protect the rights of disabled children and their parents. (M.C. v. Antelope Valley Union High School Dist. (9th Cir. 2017) 858 F.3d 1189, 1195 (citing 20 U.S.C. § 1415) (M.C. v. Antelope Valley).) These procedural safeguards include the parent’s right to request an initial evaluation of their child for special education eligibility (20 U.S.C. § 1414(a)(1)(B)), and the right to participate in meetings with respect to the identification and evaluation of their child. (20 U.S.C. § 1415(b)(1).) Compliance with these procedural safeguards “is essential to ensuring that every eligible child receives a FAPE, and those procedures which provide for meaningful parent participation are particularly important.… Procedural violations that interfere with parental participation in the IEP formulation process undermine the very essence of the IDEA.” (M.C. v. Antelope Valley, supra, at p. 1195, citing Amanda J. v. Clark City School Dist. (9th Cir. 2001) 267 F.3d 877, 891-892.)

Requiring proof of a child’s eligibility for special education as a condition to enforcing the right to an initial evaluation and IEP arguably puts an undue burden on parents. When a student exhibits symptoms of a disability and the district conducts an initial evaluation and reviews the student’s potential eligibility at an IEP team meeting, three outcomes are possible:

1. The evaluation may show the student is not eligible for special education because the student does not have a disability.

2. The evaluation may show the student is not eligible for special education because the student has a disability, but does not require special education.

3. The evaluation may show the student is eligible for special education because the student has a disability, and requires special education.

If the student is found eligible, the formulation process of the student’s IEP continues. If the student is found ineligible, the parent then can consider the initial evaluation, and the IEP team’s discussion of it, before deciding whether to disagree and request an independent educational evaluation at public expense. Alternatively, even if an independent educational evaluation were found to be unavailable without proof of eligibility under R.B. v. Napa Valley, the parent could still make an informed decision whether to obtain a private evaluation to challenge a determination that the student was not eligible for special education. If the parent subsequently proved at a due process hearing that the student was eligible for special education, they could seek reimbursement for the private evaluation.

However, when a student exhibits symptoms of a disability and the district fails or refuses to conduct an initial evaluation, the formulation process of the IEP never starts. If a district cannot be required to conduct an initial evaluation without proof of the student’s eligibility, the parent’s only way to proceed with the IEP process would be to obtain their own private initial evaluation. Many parents may be unable to afford such an evaluation. If the parent did obtain a private initial evaluation, the evaluation might find that despite showing symptoms, the student is not eligible because they do not have a disability, or have a disability but do not require special education. If proof of eligibility is necessary to obtain relief, the parent will have no way to recover the cost of an initial evaluation that the IDEA required the district to provide at no cost to the parent.

Notwithstanding the preceding arguments, only a few cases including The Consolidated Matters Involving Student and Lompoc Unified School District, supra, OAH Case Numbers 2019041183 and 2019060788, have awarded relief for a district’s failure to conduct an initial assessment when the student had not proved eligibility for special education. (See, e.g., Simmons v. Pittsburg Unified School District (N.D. Cal., June 11, 2014, No. 4:13-CV-04446-KAW) 2014 WL 2738214, at *11 (ordering the district to arrange a comprehensive psychoeducational assessment at no cost to the parents); JZ

v. Catalina Foothills School District (D. Ariz., May 5, 2023, No. CV-20-00490-TUC-RCC) 2023 WL 3275759 (ordering the district to reimburse parents for the cost of a private evaluation).)

In contrast, R.B. v. Napa Valley has been frequently cited for the broad proposition that a student must prove eligibility for special education in order to obtain relief for a procedural violation. Many of these cases have not involved both a failure to conduct an initial evaluation and a failure to prove eligibility, as opposed to an affirmative judicial finding of ineligibility, but some have. (See, e.g., Burnett v. San Mateo Foster City School Dist. (9th Cir. 2018) 739 Fed.Appx. 870, 872 [designated not appropriate for publication and not precedent except as provided by Ninth Circuit Rule 36-3].) This decision therefore follows the prevailing interpretation of R.B. v. Napa Valley.

Student proved Washington failed to fulfill its child find duties to Student as of November 4, 2022, which seriously infringed Parents’ opportunity to participate in the IEP formation process. However, Student did not claim or prove in this action that Student was eligible for special education. Under the precedent of R.B. v. Napa Valley Unified School Dist., 496 F.3d 932, 942 (9th Cir. 2007) as interpreted by subsequent cases, Student therefore could not prove that Washington’s failure of its child find obligation denied Student a FAPE.

Washington prevailed on this issue.

ISSUE 2

DID WASHINGTON DENY STUDENT A FAPE BY FAILING TO CONDUCT AN ERMHS ASSESSMENT?

Student contends Washington denied Student a FAPE by failing to conduct an ERMHS assessment of Student. Student contends the Social Emotional Functioning Educationally Related Mental Health Services (ERMHS) Assessment Washington conducted and included in its November 4, 2024 Eligibility Review-Psychoeducational Evaluation Report did not qualify as an ERMHS assessment because it failed to utilize narrowband assessment tools to evaluate Student. Student contends Washington therefore failed to assess Student in all areas of suspected disability.

Washington contends its assessment qualified as an ERMHS assessment.

In July 2024, Student filed a due process hearing request naming Washington in OAH Case number 2024070831. Student requested relief included an independent ERMHS evaluation. After receiving Student’s complaint, Washington prepared an assessment plan for an initial evaluation of Student to determine if he qualified for special education services. Parent consented to the assessment plan on August 27, 2024. The assessment plan identified eight evaluation areas, including “Social Emotional/Behavior.” The assessment plan did not use the terms “ERMHS” or “educationally-related mental health services.” Washington’s initial evaluation of Student was subject to the rules of the IDEA and Education Code. These begin with the requirement to conduct an assessment of Student’s educational needs before taking any action with respect to Student’s initial placement. (34 C.F.R. § 300.301(a); Ed. Code, § 56320.) An assessment under California law is equivalent to an evaluation under Federal law. (Ed. Code, § 56303.)

Washington was required to assess Student in all areas related to any suspected disabilities. (20 U.S.C. § 1414(b)(3)(B); Ed. Code § 56320, subd. (f).)

The IDEA and Education Code do not specify the types of assessments that a district must conduct to evaluate a particular suspected disability, or the specific test instruments the assessor must use. As an example, there is no legal requirement that a child suspected of having a disability of emotional disturbance must receive a psychoeducational assessment that includes testing of the student in the area of attention using the Vanderbilt ADHD Diagnostic Rating Scale.

Instead, the IDEA and Education Code require the district to conduct the assessment using individuals who are knowledgeable of the student’s disability and competent to perform the assessment and leave the choice of the testing instruments to the discretion of the qualified assessor. These choices, however, must comply with general legal requirements applicable to all assessments to insure they are appropriate. (Ed. Code, §§ 56320, subd. (g), 56322; see 20 U.S.C. § 1414(b)(3)(A)(iv).)

Tests and assessment materials must be selected and administered so as not to be racially, culturally or sexually discriminatory; and must be provided and administered in the student’s primary language or other mode of communication unless this is clearly not feasible. (20 U.S.C. § 1414(a)(3)(A)(i)-(iii); Ed. Code, § 56320, subd. (a).)

The assessment must be sufficiently comprehensive to identify all of the student's special education and related services needs, whether or not commonly linked to the disability category in which the child is classified. (34 C.F.R. § 300.304(c)(6).)

No single procedure may be used as the sole criterion for determining whether the student has a disability or determining an appropriate educational program for the student. (20 U.S.C. § 1414 (b)(2)(B); Ed. Code, § 56320, subd. (e).) A district must use a variety of assessment tools and strategies to gather relevant functional, developmental, and academic information about the child, including information provided by the parent that may assist in determining whether he is eligible for special education, and what the content of his program should be. (20 U.S.C. § 1414(b)(2)(A); 34 C.F.R. § 300.304(b)(1).) An assessment tool must “provide relevant information that directly assists persons in determining the educational needs of the child.” (34 C.F.R. § 300.304(c)(7).)

In selecting assessment tools, the assessor must do more than pick a generally valid instrument. Tests and other assessment materials must be used “for purposes for which the assessments or measures are valid and reliable.” (20 U.S.C. § 1414(a)(3)(A)(iii); Ed. Code, § 56320, subd. (b)(2).) Assessment tools must be “tailored to assess specific areas of educational need ….” (Ed. Code, § 56320, subd. (c).) “Special attention shall be given to the [child’s] unique educational needs ….” (Id., subd. (g).)

Assessors must 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)(C); 34 C.F.R. § 300.304 (b)(3).) “Technically sound instruments” generally refers to assessments that have been shown through research to be valid and reliable. (Assistance to States for the Education of Children With Disabilities and Preschool Grants for Children With Disabilities, 71 Fed.Reg. 46540-46541, 46642 (Aug.14, 2006).)

A district must ensure that the child is observed in their learning environment (including the regular classroom setting) to document her academic performance and behavior in the areas of difficulty. (34 C.F.R. § 300.310(a).)

School Psychologist David Acke conducted the psychoeducational testing included in Washington’s eligibility review. The assessment plan consented to by Parents provided that Student would be evaluated in the area of Social Emotional/Behavior, using assessments that would measure Student’s behavioral, social, and emotional strengths and needs, and Student’s

• Attention,

• Executive functioning,

• Resiliency,

• Relationships, and

• Mood. Although the assessment plan did not specifically mention an ERMHS assessment, Acke’s testing was included in Washington’s November 4, 2024 Eligibility Review- Psychoeducational Evaluation Report, and was entitled “Social Emotional Functioning/Educationally Related Mental Health Services (ERMHS) Assessment.” It will therefore be referred to as an ERMHS assessment.

As part of the ERMHS assessment, Acke selected various formal assessment tools. These included the Sentence Completion Test completed by Student, the Behavior Assessment System for Children, Third Edition, Parent rating scale, the Aces Aware Adverse Childhood Experiences questionnaire completed by Parent, and Conners 4th Edition Parent and Teacher rating scales used to measure ADHD symptoms and impairments, which were completed by Parent and two of Student’s teachers.

Student’s Issue 2 did not contest Acke’s qualifications to conduct an ERMHS assessment, or to select the specific test instruments he used. Student’s sole contention was that Washington did not conduct an ERMHS assessment because Acke failed to select narrowband assessment tools as part of his ERHMS assessment.

Student’s expert, Licensed Educational Psychologist Pedro Olvera, Psy.D. testified during the hearing. Dr. Olvera had over 20 years’ experience as a school psychologist and was qualified to offer his opinions regarding psychoeducational testing. Therefore, he was found credible and his testimony given due weight. He testified knowledgeably and neutrally, and not as an advocate for Student.

Dr. Olvera explained that broadband assessments provide a superficial evaluation of a broad range of behaviors or symptoms, while narrowband assessments provide an in-depth look into one area, such as behaviors or symptoms related to depression, anxiety, or trauma. As examples of broadband and narrowband tests for social-emotional/ERMHS issues such as emotional disturbance, Dr. Olvera explained that the Behavior Assessment System for Children used by Acke tested in many areas, and might have seven or eight questions directed to whether a child had anxiety issues. By contrast, a narrowband anxiety scale might use 70 questions to assess many specific aspects of anxiety. Dr. Olvera testified persuasively that Acke used only broadband instruments in his social-emotional/ERMHS evaluation of Student.

However, Dr. Olvera did not testify that Ackes’s failure to use narrowband test instruments amounted to a failure to conduct an ERMHS test. In fact, he readily acknowledged on direct examination, “there’s nothing in the law says that you have to have broad or narrow bands,” and Student offered no contrary evidence. Dr. Olvera’s opinion that the standard of practice would be to include both broadband and narrowband assessments in a comprehensive ERMHS assessment goes to the appropriateness of Acke’s ERMHS assessment, and not whether it qualified as one.

The appropriateness of Washington’s assessments was not at issue in this case, and no determination is made regarding the appropriateness of Washington’s ERMHS assessment or any other assessment. To the extent that evidence was presented at hearing that related to appropriateness, such as evidence regarding whether Student had sufficient proficiency in English to understand and respond to assessments conducted in English, it was admitted for the purpose of providing insight into Student’s condition, and the reasonableness of Washington’s conduct with respect to its child find obligation.

Student failed to prove by a preponderance of the evidence that Washington denied him a FAPE by failing to conduct an ERMHS assessment. Moreover, as found in Issue 1, Student failed to prove he was eligible for special education, so it was not possible to deny Student a FAPE by failing to assess, under the previously-discussed precedent of R.B. v Napa Valley, and subsequent cases interpreting it.

Washington prevailed on this issue.

ISSUE 3

DID WASHINGTON DENY STUDENT A FAPE BY FAILING TO TIMELY PROVIDE PARENT COMPLETE EDUCATIONAL RECORDS?

Student contends Washington significantly impeded Parent's opportunity to participate in the development of Student's IEP, and denied Student a FAPE, by failing to provide Parent all of Student’s educational records after Parent requested them, as required under the IDEA and Education Code section 56504. Washington contends OAH does not have jurisdiction over a claim that it failed to produce educational records. Washington also contends that it produced all of Student’s educational records, and that Student in any event failed to prove that any failure to produce educational records impeded Parent's opportunity to participate in the development of Student's IEP.

To guarantee parents the ability to make informed decisions about their child’s education, the IDEA grants parents of a child with a disability the right to examine all relevant records in relation to their child’s special education identification, evaluation, educational placement, and receipt of a FAPE. (20 U.S.C. §1415(b)(1); 34 C.F.R. § 300.501(a); Ed. Code, §§ 56501(b)(3) & 56504.) While federal regulations require that educational records be provided within 45 days of request, California law gives parents of students with exceptional needs the right to receive copies of all school records of their child within five business days after requesting them, either orally or in writing. (Ed. Code, §§ 56043, subd. (n), 56501, subd. (b)(3), and 56504.) Section 49061 applies to all students and requires school districts to provide copies of pupil records, or the opportunity to inspect and review the records, within five business days following the date of the request. Student argues that Washington violated each of the above referenced laws.

On the preliminary issue of OAH’s jurisdiction over claims arising from an alleged failure to produce educational records, OAH has jurisdiction over “any matter relating to the identification, evaluation, or educational placement of the child, or the provision of a free appropriate public education to such child.” (20 U.S.C.A. § 1415(b)(6); Wyner v. Manhattan Beach Unified School Dist. (9th Cir. 2000) 223 F.3d 1026, 1028-1029.) This includes jurisdiction over a proposal, or a refusal, to initiate or change the identification, assessment, or educational placement of a child or the provision of a free appropriate public education to a child, a refusal of a parent to consent to an assessment of their child, or a disagreement between a parent or guardian and a local educational agency regarding the availability of a program appropriate for the child. (Ed. Code, § 56501, subd. (a).) OAH has jurisdiction over rights falling under the IDEA and corollary state law pertaining to the rights of student with exceptional needs.

Student’s complaint alleges that Washington’s failure to provide Parent a complete set of Student’s educational records interfered with Parent’s ability to obtain an individualized education program for Student. This claim relates to both Washington’s identification, evaluation, or educational placement of Student, and to the provision of FAPE to Student. (20 U.S.C.A. § 1415(b)(6).) The first enumerated procedural safeguard with respect to the provision of a FAPE that is guaranteed to the parent of a child with a disability is the right to examine all records relating to their child. (20 U.S.C.A. § 1415(b)(1).)

Washington’s argument that Education Code section 56501, subd. (a) does not grant OAH jurisdiction over such claims is incorrect, since the claim involves a disagreement between a parent or guardian and a local educational agency regarding the availability of a program appropriate for the child. Additionally, section 56501 states expressly that a parent’s due process hearing rights include the right to examine pupil records pursuant to Education Code section 56504. (Ed. Code, section 56501, subd. (b)(3).)

OAH clearly has jurisdiction to determine whether Washington violated IDEA section 1415(b)(1) and Education Code section 56504 by failing to produce educational records requested by Parent. It did not. The procedural right under the IDEA to examine educational records is granted only to “the parents of a child with a disability.” (20 U.S.C.A. § 1415(b)(1).) As discussed previously, Student has not been found eligible for special education and did not assert a claim or prove in this case that he has a qualifying disability. Absent such proof, Parent was not entitled to examine Student’s educational records based on section 1415(b)(1) or section 56504, and Washington could not have committed a procedural violation of the IDEA or California law implementing the IDEA, by allegedly failing to produce educational records.

While all parents are entitled to obtain their child’s educational records within 45 days of a request under the Family Educational Rights and Privacy Act of 1974, called FERPA (20 U.S.C § 1232g(1)(A)), OAH’s jurisdiction does not extend to claimed violations of FERPA. Additionally, even if Student were to have rights under the IDEA and Education Code to assert claims arising from Washington’s alleged failure to produce educational records, Student did not prove that the failure to produce such records significantly impeded Parent's opportunity to participate in the IEP development process.

The only records Student identified as not having been produced were a March 21, 2024 contract among Parent, Student, and Washington’s School Attendance Review Board outlining conditions to improve Student’s irregular attendance, maintained by Washington’s Director of Special Education Programs and Student Services, Dr. Jay Berns, and unspecified suspension letters and suspension support plans maintained by River City High School assistant principal Kristie Dornan. Each of these documents would have been provided to Parent when they were created. None of these documents were kept in a special education file as Student was not found eligible for services. Even if Student had been eligible for special education, Student did not identify any specific reasons why not having these disciplinary records significantly impeded Parent’s opportunity to participate in the IEP development process.

Student failed to prove by a preponderance of the evidence that Washington denied Student a FAPE by failing to timely provide parent complete educational records. Washington prevailed on this issue.

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

Washington did not deny Student a FAPE, from November 4, 2022, through August 19, 2024, by failing to fulfill its child find duties.

Washington prevailed on Issue 1.

ISSUE 2

Washington did not deny Student a FAPE from November 4, 2022, through November 4, 2024, by failing to assess Student in all areas of suspected disability, specifically, by failing to conduct an ERMHS assessment.

Washington prevailed on Issue 2.

ISSUE 3

Washington did not deny Student a FAPE by failing to timely provide complete educational records in response to Parent’s requests dated July 15, 2024, September 11, 2024, October 11, 2024, October 23, 2024, and October 31, 2024.

Washington prevailed on Issue 3.

ORDER

All Student’s requests 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.

Robert G. Martin

Administrative Law Judge

Office of Administrative Hearings