Parent on Behalf of Student v. San Diego Unified School District

BEFORE THE

OFFICE OF ADMINISTRATIVE HEARINGS

STATE OF CALIFORNIA

DECISION

July 6, 2026

On May 9, 2025, the Office of Administrative Hearings, called OAH, received a due process request from San Diego Unified School District, called San Diego, naming Student in OAH case number 2025050402, called District’s Case. On May 21, 2025, OAH granted a hearing continuance to September 16, 2025 based on good cause.

On September 3, 2025, OAH received a due process hearing request from Student, naming San Diego in OAH case number 2025090144, called Student’s Case. On September 8, 2025, OAH consolidated both cases, and identified Student’s Case as the primary case and District’s Case as the secondary case. On October 9, 2025, and January 6, 2026, OAH continued the due process hearing on the consolidated matter based on good cause.

Administrative Law Judge, called ALJ, Christine Arden, heard this matter on February 24, 25, 26, March 17, 18, 19, April 7, 8, 9, and 14, 2026.

Attorneys Meagan Nunez and Peter Cuevas represented Student on all hearing days, except Nunez was not present at the hearing on February 26, 2026. Attorney Byanca Hutchins, along with Cuevas, represented Student at the hearing on February 26, 2026. Parents attended all hearing days on Student’s behalf.

Attorneys Jonathan Read and Valeria Ortega represented San Diego on all hearing days. Jessica Coleman, San Diego’s Due Process and Mediation Program Specialist attended all hearing days on San Diego’s behalf.

At the parties’ request the matter was continued to May 13, 2026, for written closing briefs. The record was closed, and the matter submitted on May 13, 2026. The parties agreed to a further continuance to July 8, 2026.

ISSUES

STUDENT’S ISSUES

ISSUE 1

Did San Diego deny Student a free appropriate public education, called a FAPE, regarding the March 11, 2025 individualized education plan, called an IEP, by:

ISSUE 1(A)

failing to provide a clear and specific offer of FAPE?

ISSUE 1(B)

failing to offer Student appropriate goals in the areas of:

ISSUE 1(B)(i)

academics?

ISSUE 1(B)(ii)

communication?

ISSUE 1(B)(iii)

adaptive and daily living skills?

ISSUE 1(B)(iv)

physical therapy?

ISSUE 1(B)(v)

occupational therapy?

ISSUE 1(B)(vi)

assistive technology?

ISSUE 1(B)(vii)

social-emotional?

ISSUE 1(C)

denying parental participation by failing to consider parental concerns?

ISSUE 1(D)

failing to offer Student appropriate services and supports in:

ISSUE 1(D)(i)

specialized academic instruction?

ISSUE 1(D)(ii)

language and speech services?

ISSUE 1(D)(iii)

health and nursing?

ISSUE 1(D)(iv)

occupational therapy?

ISSUE 1(D)(v)

physical therapy?

ISSUE 1(D)(vi)

assistive technology?

ISSUE 1(D)(vii)

low incidence services?

ISSUE 1(E)

failing to offer appropriate extended school year for Summer 2025?

ISSUE 1(F)

failing to offer Student an appropriate placement?

DISTRICT’S ISSUE

ISSUE 1

Was San Diego’s multidisciplinary assessment legally sufficient such that Student is not entitled to publicly funded independent educational evaluations in psychoeducation, physical therapy and occupational therapy?

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 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).) Therefore, Student had the burden of proof on the issues she brought against San Diego, and San Diego had the burden of proof on the issue it brought against Student. 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).) This Decision does not cite to the administrative record because it was not available to the undersigned ALJ before the issuance of this Decision. Furthermore, OAH policy is that its decisions do not include citations to the record. OAH Decisions are written in an accessible font and format as required by state and federal law.

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.) Special education and related services are provided in conformity with the IEP. (20 U.S.C. §§ 1401(9)(D) & 1414(d)(1)(A)(IV).)

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 in light of the child’s circumstances. (Board of Education of the Hendrick Hudson Central School Dist. v. Rowley (1982) 458 U.S. 176, 201-204;[102 S.Ct. 3034, 3048-3050]; Endrew F. v. Douglas County School Dist. RE-1 (2017) 580 U.S. 386, 402 [137 S.Ct. 988, 1000].)

At the time of hearing Student was 13 years old, and in eighth grade. Student resided within San Diego’s geographic boundaries at all relevant times. Student was eligible for special education under the primary category of multiple disabilities, and the secondary category of orthopedic impairment.

STUDENT’S BACKGROUND AND EDUCATIONAL NEEDS

Student was born prematurely with complex medical conditions severely impacting her life and her educational access. At three months old, Student had not reached expected milestones. She had hypotonia, weak muscle tone, dystonia, and involuntary muscle contractions and spasms. Student was diagnosed with Hemophagocytic Lymphohistiocytosis, referred to as HLH, in May 2015, shortly before her third birthday. HLH, a severe inflammatory disorder, impaired the functions of Student’s organs and undermined her respiratory system. She was also diagnosed with epilepsy and Hypogammaglobulinemia, a condition where her body produces insufficient antibodies to keep her healthy. Student also had severe global developmental delays, and midaortic syndrome. Student had hearing loss in her right ear. Student’s respiratory system was severely compromised.

Student was not able to independently speak, walk, or alter her body’s position. She required special supportive equipment and significant adult assistance. For structural support of her body Student used a stander, wheelchair, bath chair, ankle-foot orthoses, hand splints, and other equipment. To communicate verbally Student used an augmentative and alternative communication device called the Accent 1000, 45 icon.

Until July 2024, Student lived on the east coast of the United States with her Parents. She was initially found eligible for special education by the Boston Public School system, called BPS, when she was three years old. Prior to July 2019, Student attended Cotting School, a small private non-profit school in Lexington, Massachusetts, serving children with special needs, in person. BPS paid for Student’s placement at Cotting School. A number of children enrolled in Cotting School used augmentative and alternative communication devices, and some used “eye-gaze” detection devices.

In July 2019 she became extremely ill and was hospitalized. After she recovered from that life-threatening illness, Student’s physician did not permit her to return to in person school attendance. Student’s doctor determined Student could not safely return to in-person attendance at Cotting School, or any school facility, until such time an improved COVID-19 vaccine was developed and available to Student, which had not yet occurred at the time of hearing in this case. Therefore, since July 2019, Student’s education was delivered to her virtually at home. According to Parents, Student made educational progress in that virtual program.

In 2022, Student had an aneurism. Following that incident, Student had brain surgery. Thereafter, she recuperated from that surgery.

Student’s doctor forbade her from her from interacting with people in-person, other than her Parents, when she was indoors because of her compromised immune system and fragile health. Student was allowed to interact with others when she was outside because it was unlikely Student would contract contagious illness outdoors. Student and her Parents relocated from Boston, Massachusetts to San Diego, California in July 2024. Parents moved their family to San Diego because the milder climate there allowed Student to be outdoors more frequently, and have more opportunities for varied experiences and social interactions than was possible in Massachusetts.

Due to Student’s compromised immune system, a portion of San Diego’s 2025 assessments of Student were conducted virtually, and a portion were conducted outside in Student’s backyard in San Diego. Student’s health conditions did not prevent her from receiving related services in-person, outdoors, from a service provider.

Parents were Student’s full-time caretakers attending to Student’s numerous medical needs, including feeding, clearing Student’s airways, gastronomy tube, and bladder catheter, and changing diapers because Student was stool incontinent. Student was able to consume only mashed or pureed foods by mouth. Student consumed all liquids, including water, and medications, through a gastronomy tube. Mother personally assisted Student throughout all specialized academic instruction and related services.

With adult assistance and the proper supportive equipment, Student could stand, and take some steps. She had limited use of her arms and hands, but by the time of hearing was gaining strength in her arms, which allowed increased use of her hands. For example, by the 2025-2026 school year, Student was able to touch items on her iPad screen, and stack blocks during math instruction. However, her manual dexterity remained extremely limited rendering her unable to hold a pencil for long. Parents hoped Student would continue to strengthen muscles through stretching and exercises intended to expand her use of arms and hands.

Student required specialized equipment to access her education. Because Student was unable to speak, she communicated solely by using the Accent 1000 device. The Accent 1000 detected Student’s eye movements to communicate on her behalf through a simulated mechanical voice. This type of device is often referred to as an “eye gaze” device. During instruction Student also required an iPad, a wheelchair, a stander, ankle braces and additional braces to secure educational materials to either a table, or a tray attached to her wheelchair or stander. Student required additional equipment during the times she was in the prone position, leaning on her elbows, which occurred during a portion of each school day. Student also required braces to support her arms, and a vibrating vest that broke up accumulated mucus in her lungs.

Student’s teachers verbally communicated with her in virtual meetings, and by showing her written material or messages on her iPad, which was equipped with Touch Chat software. Student typically responded to her teachers verbally through her Accent 1000. At the time of hearing, Student’s vocabulary consisted of about 2,000 words, which were uploaded to her Accent 1000 device. Student was able to learn only words uploaded to her Accent 1000 device.

Starting in the first half of March 2026, Student received specialized academic instruction delivered to her virtually in her home from two San Diego special education teachers, John Baer and Jessica Hoffman, for an aggregate of 10 hours per week, pursuant to the March 11, 2025 IEP. Student also received instruction from two private tutors, Robert Beaupre and Paula Brassil, hired by Parents. Beaupre and Brassil were familiar with Student’s needs and had worked with Student for over five years. Beaupre continued to work at Cotting School as a teaching assistant at the time of hearing in this case. Beaupre was previously certified as a teacher in New Hampshire.

Beaupre and Brassil had provided specialized academic instruction virtually to Student when she was enrolled at BPS. Parent also hired Brassil, and another educator, Kenneth Bippy, to develop curriculum for Student. Since around October 2024, Beaupre and Brassil delivered their specialized academic instruction virtually to Student at her home in San Diego for 10 hours per week.

Since Student enrolled in San Diego at the beginning of the 2024-2025 school year, she received all her academic instruction and special education related services virtually at home. The virtual delivery of instruction to Student is not in dispute. On February 26, 2026, the parties jointly stipulated,

“[Student] is immunocompromised and must receive instruction in her home until such time as she can safely receive either a more potent COVID-19 vaccine which provides sterilizing immunity or prophylactic immunoglobulin infusion demonstrated to neutralize coronavirus.”

Therefore, during the time period relevant to this case, Student was medically required to receive educational instruction virtually. However, Mother testified Student’s health would permit her to receive therapeutic related services in person from a provider if the sessions were conducted outdoors with masks. Mother also testified San Diego did not at any time offer to provide related service sessions to Student outdoors.

STUDENT ENROLLED IN SAN DIEGO IN FALL 2024

Student enrolled in San Diego’s Marston Middle School on or about August 13, 2024. Mother completed and signed a San Diego enrollment form dated September 2, 2024. On August 14, 2024, Mother applied to San Diego’s Home Hospital and Transition Support School, called Home Hospital School, on Student’s behalf.

San Diego offered Student an interim IEP in September, 2024, which San Diego developed based on Student’s last implemented IEP from BPS. That 2024 interim IEP is not at issue in this case. Student participated in San Diego’s virtual specialized academic instruction for about five weeks from approximately the beginning of September 2024, through the first week of October 2024. Student was taught by Karen Farrell, a San Diego special education teacher with the Home Hospital School. Farrell informed Mother in September 2024 that San Diego did not have an appropriate curriculum for Student, and it was unlikely San Diego would acquire an appropriate curriculum on Student’s behalf. At the beginning of October 2024, Parents determined Student had regressed academically over the past five weeks, particularly in reading comprehension and money counting skills. Parents also noticed Student had forgotten some academic concepts she had previously mastered. Consequently, around the end of the first week of October 2024, Parents rescinded their consent to implementation of San Diego’s September 26, 2024 IEP.

Mother credibly testified that, even though Farrell was very pleasant to work with, Farrell did not understand how to communicate with Student through the Accent 1000 device. Mother also opined Farrell did not understand how Student learned. For example, Farrell attempted to use vocabulary words not uploaded into Student’s Accent 1000 device. Mother’s opinions were credible because they were consistent with, and corroborated by, Farrell’s testimony. San Diego provided Farrell with only minimal training on the Accent 1000 before she commenced her teaching assignment with Student in September 2024. It was clear Farrell had only negligible understanding of the Accent 1000 device, the language system used by it, and how Student communicated and learned by using the Accent 1000.

In October 2024, Parents gave San Diego notice they planned to hire Student’s two former tutors from the east coast, Beaupre and Brassil, to instruct Student virtually, and seek reimbursement from it for the educational expenses they incurred. Parents then hired Brassil and Beaupre to provide Student with specialized academic instruction to be delivered virtually. Farrell discontinued teaching Student virtually around the end of the first week of October 2024.

THE ACCENT 1000 DEVICE AND UNITY LANGUAGE

Student depended on the Accent 1000 alternative augmentative communication eye gaze tracking device manufactured by the PRC-Saltillo company to speak on her behalf. Student first obtained the Accent 1000 through her health insurance when she was five years old. This device was locked, meaning it could be used only by Student to communicate. If the device were unlocked, it could also be used to access the internet. The Accent 1000 detected Student’s eye movements, and applied them to the Unity language software. Unity is a specific language utilized by the Accent 1000. Unity applies a language organization method referred to as “minspeak” or the “semantic compaction method.” The Unity language was designed specifically for people who communicate through an alternative augmentative communication device.

Student’s first Accent 1000 device had 36 icons. As of the time of hearing Student’s Accent 1000 device had 45 icons on its initial screen. The Accent 1000 had a 10-inch screen that supported the eye-gaze tracking system. PRC-Saltillo also made an Accent 1400, which had a larger display screen than the Accent 1000. Some Accent 1000 and Accent 14000 models had 60 icons on the initial screen, which allowed the user to access more words on the initial screen than on a device with 45 icons on its opening screen.

Before Student was able to learn new words, they first had to be uploaded into her Accent 1000 device. Once a new word was uploaded into Student’s Accent 1000, then Student was taught the meaning of the new word and how to use it by either Brassil or Beaupre. Student communicated by focusing on a specific icon on the initial screen on her Accent 1000. The device detected and responded to Student’s eye movements by opening up further screens with additional icons. The Accent 1000 then applied an electronically simulated voice of a girl about Student’s age speaking English to Student’s eye movements. Because this was a multi-step process Student required significant time to process questions and information presented to her, and to respond to questions.

PRIOR SETTLEMENT AGREEMENT BETWEEN THE PARTIES

Student and San Diego entered into a Settlement Agreement on March 4, 2025. Pursuant to that agreement, Student waived all educational claims she had against San Diego from the time she initially enrolled in San Diego through March 4, 2025, except for certain claims expressly excepted from the waiver. There was no evidence that any of the issues pending in this consolidated matter, or any remedies requested by Student in this case, were subject to Student’s liability waivers against San Diego in the March 4, 2025 Settlement Agreement.

SAN DIEGO’S ISSUE: WAS SAN DIEGO’S MULTIDISCIPLINARY ASSESSMENT

LEGALLY SUFFICIENT SUCH THAT STUDENT IS NOT ENTITLED TO PUBLICLY FUNDED INDEPENDENT EDUCATIONAL EVALUATIONS IN

PSYCHOEDUCATION, PHYSICAL THERAPY, AND OCCUPATIONAL THERAPY?

San Diego contends its assessment of Student in the areas of psychoeducation, physical therapy, and occupational therapy, as memorialized by the Multidisciplinary Team Assessment Report dated March 11, 2025, called the March 11, 2025 Assessment Report, was legally sufficient. San Diego contends it used a variety of appropriate instruments to assess Student both formally and informally. San Diego also contends the selected formal assessment instruments were administered in compliance with publisher protocols, and results accurately depicted Student’s strengths, weaknesses, and special needs. San Diego further contends Student is not entitled to publicly funded independent educational evaluations in the areas of psychoeducation, physical therapy, and occupational therapy.

Student contends San Diego’s assessments of Student in psychoeducation, physical therapy, and occupational therapy, as memorialized by the March 11, 2025 Assessment Report, are not legally sufficient because the tools utilized by San Diego were not standardized and the results failed to establish how Student’s scores compared to those of other children her age. Student further contends the assessments were faulty because the assessors were unfamiliar with how to communicate with Student via her Accent 1000. Student contends the assessments failed to provide an accurate portrayal of Student’s strengths, weaknesses, and special needs. Student also contends that because San Diego’s assessments were legally insufficient, Student is entitled to publicly funded independent educational evaluations in those areas.

ASSESSMENTS MUST BE COMPREHENSIVE AND VALID

In assessing a child with a disability, the assessments must be sufficiently comprehensive to identify all of the child’s special education and related services needs, whether or not commonly linked to the disability category in which the child has been classified. (34 C.F.R. § 300.304(c)(6).) Tests must be selected and administered to produce results that accurately reflect the student’s aptitude, achievement level, or any other factors the test purports to measure. (Ed. Code, § 56320, subd. (d).) School districts are required to use a variety of assessment tools and strategies to gather relevant functional, developmental, and academic information, including information provided by the parent, that would assist in determining the educational needs of a child. (20 U.S.C. § 1414(b)(2)(A); 34 C.F.R. § 300.304(b)(1).)

A failure to properly assess is a procedural violation of the IDEA. (Department of Educ., State of Hawaii v. Cari Rae S. (D. Hawaii 2001) 158 F. Supp. 2d 1190, 1196; Park v. Anaheim Union High School Dist. (9th Cir. 2006) 464 F.3d 1025, 1032 (Park).) In a due process case brought by a school district to defend its assessments as appropriate, a procedural violation results in a denial of a FAPE only if that violation resulted in the loss of an educational opportunity to the pupil, or it interfered with the opportunity of the parents to participate in the IEP formulation process. (Ed. Code, § 56505, subd. (j).); see W.G. v. Board of Trustees of Target Range School Dist. No. 23 (9th Cir. 1992) 960 F.2d 1479, 1484 (Target Range).)

Among the most important procedural safeguards are those that protect the parent’s right to be involved in the development of their child’s educational plan. (Doug C. v. Hawaii Dept. of Educ. (9th Cir. 2013) 720 F.3d 1038, 1043-1044.) The parents of a child with a disability must be afforded an opportunity to participate in meetings with respect to the identification, evaluation, and educational placement of the child, and the provision of a FAPE. (34 C.F.R. § 300.501(b); Ed. Code, § 56304, subd. (a).) The IEP team shall consider the concerns of the parent for enhancing the student’s education and information on the student’s needs provided to or by the parent. (20 U.S.C. §1414(d)(3)(A) & (d)(4)(A)(ii); 34 C.F.R. § 300.324(a)(1)(ii) & (b)(1)(ii)(C); Ed. Code, §56341.1, subds. (a)(2), (d)(3) & (f).)

In this instance San Diego conducted a multidisciplinary assessment of Student in the first quarter of 2025. Parents disagreed with the results of the portions of the assessment conducted in the areas of psychoeducation, physical therapy, and occupational therapy.

The IDEA provides for reevaluations, referred to as reassessments in California, to be conducted not more frequently than once a year, unless the parent and school district agree otherwise, but at least once every three years, unless the parent and school district agree that a reevaluation is not necessary. (20 U.S.C. § 1414(a)(2)(B); 34 C.F.R. § 300.303(b); Ed. Code, §§ 56302.5, 56381, subd. (a)(2).) Any reevaluation of a child already found eligible for special education must conform with the procedures specified in Education Code § 56320. Ed. Code § 56381, subd. (a). Within 60 days of a district receiving parental consent to the assessment plan, the district must provide an assessment report to the parent, and an IEP team meeting must be held to consider the assessment results. (Ed. Code §§ 56302.1, subd. (a), 56329, subd. (a)(3), 56344, subd. (a).)

San Diego provided Parents with a comprehensive assessment plan, which identified each area to be assessed, and the type of assessor selected to conduct each assessment. San Diego received Father’s consent to the assessment plan on December 13, 2024. San Diego timely conducted assessments of Student from January 29, 2025, through March 6, 2025. Once completed, the assessment results were documented in the March 11, 2025 Assessment Report. San Diego timely held IEP team meetings, on March 11, 12, and 13, 2025, to review the assessment results. Parents attended all three of those IEP team meetings.

Education Code section 56327 requires the personnel who assess the pupil to prepare a written report of the assessment results. The report must include:

a. Whether the pupil may need special education and related services.

b. The basis for making the determination.

c. The relevant behavior noted during the observation of the pupil in an appropriate setting.

d. The relationship of that behavior to the pupil's academic and social functioning.

e. The educationally relevant health and development, and medical findings, if any.

f. For pupils with learning disabilities, whether there is such a discrepancy between achievement and ability that it cannot be corrected without special education and related services.

g. A determination concerning the effects of environmental, cultural, or economic disadvantage, where appropriate.

h. The need for specialized services, materials, and equipment for pupils with low incidence disabilities, consistent with guidelines established pursuant to Section 56136.

San Diego developed a sufficient written report of the assessments, as required by Education Code section 56327. For example, the report included a determination of whether Student continued to require special education and related services and the basis for that determination. The report also included relevant behaviors noted during observations of Student, the relationship of Student’s behaviors to academic and social functioning, and relevant health, developmental, and medical findings. The report discussed Student’s need for specialized services, materials and equipment for pupils with low incident disabilities. It also addressed the effects of Student’s home hospital environment.

In assessing a child with a disability, the 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 in which the child has been classified. (34 C.F.R. § 300.304(c)(6).) Tests must be selected and administered to produce results that accurately reflect the student’s aptitude, achievement level, or any other factors the test purports to measure. (Ed. Code, § 56320, subd. (d).) School districts are required to use a variety of assessment tools and strategies to gather relevant functional, developmental, and academic information, including information provided by the parent, that would assist in determining the educational needs of a child. (20 U.S.C. § 1414(b)(2)(A); 34 C.F.R. § 300.304(b)(1).)

Education Code § 56320 (d) applies specifically to reevaluations of a child like Student, who has impaired sensory, manual, and speaking skills. Subdivision (d) requires that tests for such children must be selected and administered to best ensure that tests produce results that accurately reflect the pupil's aptitude, achievement level, or any other factors the test purports to measure, and not the pupil's impaired sensory, manual, or speaking skills, unless those skills are the factors the test purports to measure. Furthermore, Education Code § 56320 (g) requires the assessment of a child with a suspected low incidence disability, such as Student, be conducted by persons knowledgeable of that disability and that special attention be given to the unique educational needs, including, but not limited to, skills and the need for specialized services, materials, and equipment consistent with guidelines established pursuant to Education Code § 56136. The local educational agency is required to administer such assessments and other evaluation measures as may be needed to produce the data identified by the IEP team. (20 U.S.C. § 1414(c)(2); 34 C.F.R. § 300.305(c); Ed. Code, § 56381, subd. (c).) The determination of what tests are required is based on information known at the time. (See Adams v. State of Oregon, (Ninth Cir., 1999) 195 F.3d 1141,1149.)

In interpreting evaluation data, each public agency must draw upon information from a variety of sources, and ensure that information obtained from all of these sources is documented and carefully considered. (34 C.F.R. § 300.306(c)(1).)

San Diego’s assessment team consisted of:

• Jessica Hoffman, education specialist;

• Kristin Johnson, school psychologist;

• Lisa Lakritz, occupational therapist;

• Jenise Corcoran, speech language pathologist;

• Joyce Zimmerman, physical therapist;

• Ireem Alam, school nurse; and

• Jamie Jenkins, assistant technology specialist and speech language pathologist.

The assessments were completed both in Student’s back yard and virtually. All of San Diego’s assessors were trained and knowledgeable in the assessment areas they administered, except Jenkins was not sufficiently familiar with the Accent 1000 assistive technology device. Jenkins testimony revealed she had neither the expertise, nor the experience with Accent 1000, needed to use the device effectively, or to train others in how to use it. The instruments selected to be administered were chosen based on Student’s developmental level and language ability. In addition to standardized and non-standardized tests, San Diego’s assessments of Student also included a record review, Parents’ input, and assessors’ observations of Student.

Mother convincingly testified that San Diego’s assessments conducted in the first quarter of 2025 were inaccurate and failed to discern Student’s present levels of performance because the assessors were unfamiliar with the Accent 1000 device, Student’s sole method of communication. Without sufficient knowledge or training, San Diego’s assessors did not know how to communicate, or work with Student through the Accent 1000 device. On April 1, 2025, Parents requested independent educational evaluations in psychoeducation, physical therapy, and occupational therapy. Since Parents did not request independent educational evaluations in any other areas, only San Diego’s assessments in psychoeducation, physical therapy, and occupational therapy memorialized in the March 11, 2025 Assessment Report are analyzed herein.

PSYCHOEDUCATIONAL ASSESSMENT

San Diego’s School psychologist, Johnson, and special education teacher, Hoffman, conducted the psychoeducational assessment of Student over multiple sessions during February and March, 2025. Hoffman administered the academic achievement portion of that assessment, whereas Johnson, administered the social-emotional, and cognitive portions.

The assessors reviewed Student’s records provided by BPS, Cotting School and Parents. The psychoeducational assessors noted Student’s complex medical, developmental, and educational needs. School psychologist Johnson interviewed Parents twice in February 2025. Parents informed Johnson about Student’s daily routine on school days, which started around 5:00 AM and ended around 4:20 PM. Parents reported Student received three hours of academic instruction every school day from her two private tutors during the first quarter of 2025. This instruction provided Student with an ongoing education and prevented her academic regression. In February 2025, Student was not receiving occupational therapy or physical therapy services because Parents had not yet located appropriate private service providers. However, Student was receiving private speech and language therapy services for 30 minutes per week. In February 2025, Student was not yet receiving any specialized academic instruction or services from San Diego.

Special education teacher, Hoffman, observed Student virtually during two, one-hour Zoom instructional sessions provided to Student by tutors Beaupre and Brassil during February 2025. Hoffman observed Student during an additional instructional session in Student’s backyard. Hoffman observed Student during assessments administered by San Diego school psychologist, Johnson. Hoffman interviewed Parents and reviewed Parents’ responses to a questionnaire about Student. Parents described Student as very hardworking, curious, and social, and stated she loved attending her online classes. Student did not participate in any activities with peers. She played video games, listened to music, and watched You Tube videos on her iPad for recreation.

Mother informed Hoffman Student was motivated by praise and treats, and she enjoyed interacting with people through her Accent 1000 device whenever possible. Regarding Student’s daily living skills, Mother also mentioned Student helped get herself ready each day by practicing brushing her teeth and applying lip balm. Student wanted to become more independent and to be able to communicate and be heard and understood by others. Parents wanted Student to reach her full potential. Parents also hoped Student’s reading comprehension would improve and that she would eventually be able to independently read books.

All of Student’s past and current teachers, service providers, and assessors who testified at hearing, consistently found Student to be a hardworking, personable child, who was curious about people, and eager to learn. Many of those witnesses also testified Student had a good sense of humor.

In assessing Student in English language arts Hoffman conducted a variety of informal reading assessments to evaluate Student’s abilities in the areas of print concepts, phonological awareness, phonics, and word recognition, fluency, and comprehension. Student used her Accent 1000 to respond to assessment questions. Student understood the basic organization and features of printed materials. Student understood that spoken words were represented by written language comprised of letters and words. Student also understood that spoken words and sounds were represented by letters. She was able to sound out and spell words via the spelling page on her Accent 1000.

Student was able to decode words on the Accent 1000 device. Student scored well on phonics queries and word recognition. Student read and recognized a variety of sight words she had memorized. Student recognized and correctly used many, but not all, words on lists of common words, called Dolch Sight word lists, on the pre-kindergarten through third grade levels. Student read with sufficient accuracy to support her comprehension. Student often required visual prompts from Mother to keep track of the next word Student was to read in a text. Student was able to answer some comprehension questions regarding a story told through pictures. Hoffman noted Student’s tutor used a multi-sensory learning approach to lessons addressing phonics, vocabulary, and reading comprehension.

Hoffman noted Student was skilled at using her eye-gaze device to express herself verbally through the machine generated voice. She often communicated with one-word responses. Student used both her hands to access a keyboard while playing a computer game on her iPad. While lying prone and positioned on her elbows, Student could reach her iPad screen to play cartoons and music videos on you Tube, which she enjoyed.

Hoffman also assessed Student informally in mathematical concepts. Student knew number names and how to count in sequence. Student counted objects with prompting and support. Student understood the concept of greater and lesser numbers. Student understood addition and subtraction concepts. She was able to answer certain simple computation questions through her Accent 1000 device. Student had some time-telling skills. She was able to understand the concept of today and tomorrow. She generally was familiar with her daily schedule. Student was able to identify coins and their values. Student could identify the shapes of some objects in her environment. Student had scattered skills in describing the relative positions of objects using prepositions, such as above, below, beside, and behind.

Hoffman estimated Student was reading at the first to second grade level. Student needed extra time to process and respond to questions. Hoffman concluded Student required a highly individualized educational program with intensive teaching on academic content, and daily living skills, including fine and gross motor and communication skills. Hoffman opined Student required a significantly modified curriculum and multisensory instruction. Hoffman used only informal assessments to evaluate Student in the areas of English language arts and mathematics because Hoffman suspected Student’s performance levels were too low to use standardized assessments.

Parents completed the Adaptive Behavior Assessment System, 3, in connection with the assessment of Student’s adaptive behavior and functioning. Based on Parents’ responses, Student scored in the extremely low range on all nine adaptive behavior areas addressed (communication, functional academics, self-direction, leisure, social, community use, home living, health and safety, and self-care).

COGNITIVE ABILITIES

The assessors acknowledged in their report that the results of Student’s cognitive evaluation may be an underrepresentation of Student’s actual cognitive abilities due to Student’s limited motor skills and testing fatigue. Johnson administered portions of the Kaufman Assessment battery for Children, Second Edition, to Student in Student’s backyard. The Kaufman is a standardized instrument which compares a child’s cognitive abilities and functioning to those of her same age, neurotypical peers. Student’s overall general knowledge abilities fell in the significantly below-average range.

Student’s auditory memory was assessed through the “number-recall” subtest. Student’s scores fell in the below-average range, even though auditory memory was a relative strength for her. On the face recognition subtest Student’s visual memory fell in the significantly below-average range.

Parents completed the Developmental Profile-4 questionnaire. This instrument measured Student’s development compared to other same aged peers in the areas of physical, adaptive behavior, social-emotional, cognitive abilities, and communication. Student’s scores fell within the delayed range in the home setting across all areas of development. This indicated Student had significant difficulty in independent functioning. Student’s scores fell in the delayed range in the home setting on the cognitive scale of the Developmental Profile, which measured perception, concept development, number relations, reasoning, memory classification, time concepts, and related mental acuity tasks. Student’s scores also fell in the delayed range in the home setting on the communication scale of the Developmental Profile, which measured her ability to understand spoken and written language, and her verbal and nonverbal communication skills. Student’s scores also fell in the delayed range in the home setting on the physical scale of the Developmental Profile, which measured gross and fine motor skills, coordination, strength, stamina and flexibility. Student’s scores fell in the delayed range in the home setting on the social-emotional scale of the Developmental Profile, which measured skills related to interpersonal behaviors and social and emotional competence.

School psychologist Johnson observed Student once for 65 minutes during a tutoring session in February 2025. Johnson also interviewed both of Student’s private tutors, Beaupre and Brassil. Johnson did not use a standardized test to evaluate Student’s social-emotional skills and functioning. Johnson concluded Student was a happy child who enjoyed participating in learning activities. Student expressed her emotions by communicating through her Accent 1000 device. However, her communication was limited only to content programmed into her Accent 1000 device.

PHYSICAL THERAPY ASSESSMENT

Joyce Zimmerman, San Diego’s physical therapist, conducted a physical therapy assessment of Student in February 2025. The assessment was conducted in Student’s backyard with Lakritz, the San Diego occupational therapy assessor and Parents present. It took 90 minutes to administer the physical therapy assessment, which was conducted simultaneously with the occupational therapy assessment. All of the data collected on this assessment was collected via observations and Parents interview.

Zimmerman administered the ````M.O.V.E. Top-Down Motor Milestones assessment tool to measure Student’s functional skills in the categories of sitting, standing transition, and transfers and ambulation. ````M.O.V.E. is an informal evaluation tool. Zimmerman did not use any standardized assessments because 99 percent of Student’s peers had better gross motor skills than Student. The M.O.V.E. results were divided into four levels (Grad Level, Level III, Level II, and Level 1), with Grad Level indicating the child completed the task with the least amount of adult assistance. Student scored at Level II on 15 physical movement tasks. This was an extremely limited assessment based solely on the assessor’s observation of Student. Due to the extremely limited nature of the M.O.V.E. assessment conducted, the validity of the results was questionable.

Zimmerman also administered the PT Pass instrument to evaluate Student’s gross motor skills in the areas of functional mobility and educational accessibility, including classroom and campus navigation and maneuverability. Zimmerman noted Student used a manual wheelchair for mobility and depended upon an adult to push it. Zimmerman further noted Student could take steps forward if Father held her. Student was able to stand from a sitting position with minimal to moderate adult assistance.

Zimmerman did not test Student’s classroom mobility because Student was receiving her educational instruction virtually. Zimmerman did not test either Student’s gross motor skills on a playground, or her ball skills, which would normally occur in a physical therapy assessment.

Zimmerman observed Student in various physical tasks and concluded Student’s strength in her upper and lower extremities fell in the poor range. Zimmerman observed Student lying prone on a mat. Zimmerman observed that Student required maximum assistance to roll from prone to supine and from supine to prone. Student was able to independently move her head and required moderate adult assistance to maintain a sitting position on the floor. Zimmerman did not administer any formal muscle testing instruments. However, Zimmerman observed Student in various physical tasks and concluded that Student’s strength in her upper and lower extremities fell in the poor range.

Zimmerman used only criterion-based assessments to address Student’s gross motor abilities and levels, rather than standardized assessments. Criterion referenced assessments merely evaluate if a child can or cannot perform a skill. The assessment report merely noted that no formal assessments were used to due to Student’s physical impairment. This was an extremely weak and oversimplified explanation for why no formal assessments instruments were administered during the physical therapy assessment. San Diego did not offer persuasive evidence that there were no appropriate standardized physical therapy assessments available to evaluate Student, even though she had serious physical impairments.

Zimmerman noted in her report that Student nodded yes and no to questions and responded to questions via eye gaze when she was positioned both in and out of her wheelchair. Zimmerman indicated Student could not maintain sitting position in a chair independently, and that it was up to the IEP team to determine if Student needed to develop those skills. This statement is curious, in that Student’s access to her education clearly required her to maintain a sitting position many times during academic instruction. Zimmerman also conducted a records review. Zimmerman did not ask if Student used manipulatives during instruction. Zimmerman did not speak to either Student’s former physical therapist from BPS, or Student’s then current private physical therapist. Zimmerman did not interview Student’s orthopedic specialist because she thought it was unnecessary to do so.

Zimmerman only assessed whether Student could access her education from a sitting position. Student’s ability to independently handle activities of daily living were not addressed in the physical therapy assessment. During Zimmerman’s testimony she stated that physical therapy services were normally provided during instruction with the teacher present.

OCCUPATIONAL THERAPY ASSESSMENT

San Diego occupational therapist Lakritz conducted an occupational therapy assessment of Student on February 11, 2025, in Student’s backyard. Lakritz relied upon information she obtained about Student when she observed Student in September and October 2024, while Student received virtual instruction from San Diego special education teacher, Farrel. Lakritz administered the Progressive Assessment of Student Skills, called PASS, as a tool to organize information regarding Student’s fine motor functioning at school. Various tasks were adapted to be suitable for Student’s ability, current academic environment and curriculum, equipment, positioning, and medical status. Student opened and closed both hands and fully flexed and extended her fingers. She was able to pick up a lightweight poker chip with a pincer grasping tool. She was also able to partially erase a drawing on a whiteboard.

Lakritz observed Student in her stander with her elbows stabilized on a tray during a virtual class. Student wore soft hand splints but did not use her hands to access any instructional materials or device. When evaluating Student’s visual motor skills, the assessor noted Student needed verbal prompts from Mother to consistently “use your eyes” to visually explore materials presented to her.

In addressing Student’s sensory processing and emotional regulation, Lakrtiz noted Student was more alert to conversations and activities that occurred on her left side, than those that emanated from her right side. Lakritz assumed this was due to Student’s hearing loss in her right ear. Student did not demonstrate any emotional dysregulation, but she showed signs of fatigue during the assessment.

Student required full assistance with all self-care tasks, including feeding, hygiene, dressing, and toileting. Student used to feed herself but no longer does so. There was no evidence to explain why that specific skill regression occurred. When Student was positioned in the stander to access her eye-gaze device and iPad, she did not have to use her hands. Student was able to access her education for 45 to 60 minute intervals before requiring a break. However, the assessors did not allow Student to take breaks during testing, which was hard on Student, and, according to Mother, undermined the validity of assessments. Mother noted that if Lakritz had been able to communicate with Student through the Accent 1000, Student could have asked for breaks, and Lakritz could have inquired as to whether Student needed breaks during the assessment process.

Lakritz concluded Student continued to require school based occupational therapy. Student needed to use assistive technology that gave Student the opportunity to use her hands. Lakritz concluded Student needed to use equipment to position her arms and hands to access educational activities. Lakritz recommended consultation between Student’s teachers with the occupational therapist regarding the impact of environmental variables that could reduce Student’s strain and fatigue. Lakrtiz also recommended educators consult with Student’s outside private occupational therapist to monitor changes in strength in Student’s arms and hands.

SAN DIEGO’S ASSESSMENTS OF STUDENT IN PSYCHOEDUCATION, PHYSICAL THERAPY AND OCCUPATIONAL THERAPY WERE NOT

APPROPRIATE BECAUSE NONE OF THE ASSESSORS WERE FAMILIAR STUDENT’S ACCENT 1000 DEVICE AND WERE UNABLE TO

COMMUNICATE EFFECTIVELY WITH HER

Despite San Diego’s awareness that Student had significantly impaired sensory skills, manual skills, and speaking skills, it failed to select assessors familiar with the Accent 1000 so they could communicate with Student while assessing her. The law mandates that, during an assessment of a child like Student, who has impaired sensory, manual and speaking skills, the child must be assessed by assessors who can effectively communicate with her. It is also essential that only instruments be selected that actually reflect Student’s aptitude and achievement levels, and do not instead reflect the child’s impaired sensory, manual or speaking skills. (34 C.F.R. §300.304(c)(3); Ed. Code, §56320(d).) Neither of those requisites were met.

A failure to properly assess is a procedural violation of the IDEA. (Department of Educ., State of Hawaii v. Cari Rae S. (D. Hawaii 2001) 158 F. Supp. 2d 1190, 1196; Park v. Anaheim Union High School Dist. (9th Cir. 2006) 464 F.3d 1025, 1032 (Park).) In a due process case brought by a school district to defend its assessments as appropriate, a procedural violation results in a denial of a FAPE only if that violation resulted in the loss of an educational opportunity to the pupil or it interfered with the opportunity of the parents to participate in the formulation process of the IEP. (Ed. Code, § 56505, subd. (j).); see Target Range, supra., 960 F.2d 1479, 1484.) In this case Parents’ opportunity to participate in the decision-making process regarding FAPE for Student was significantly impeded because the validity of the assessment results were questionable, primarily because the assessors were unable to communicate effectively with Student during the evaluations. This failure to provide Parents with valid assessment results clearly significantly impeded their participation in the IEP formulation process.

The law requires that assessments used must be provided in a language and form most likely to yield accurate information on what the child knows and can do academically, developmentally, and functionally. (20 U.S.C. § 1414(b) & (c)(5); Ed. Code, §§ 56320, subds. (a) & (b), 56381, subd. (h).) The assessors’ inability to communicate with Student using the Accent 1000 device was tantamount to having assessors who were unable to speak the same language as Student, assess her.

Staff members assigned to assess Student should have received meaningful training on how to use the Accent 1000 device before they undertook the assessment of Student. Alternatively, the assessors should have been assisted by a person who was knowledgeable about the operation of the Accent 1000. However, San Diego did not offer convincing evidence that any of the four assessors received meaningful training on how to use the Accent 1000. Nor did San Diego provide a staff member to assist in the assessments, who could help the assessors communicate appropriately with Student. Therefore, Mother’s testimony that none of the assessors in March 2025 knew how to effectively communicate, or work with Student through her Accent 1000 device, was extremely persuasive and believable. An inability for an assessor to communicate with the child being assessed is a fatal error undermining the credibility of an assessment.

Moreover, Student’s assistive technology expert, Cynthia Hyeranto, persuasively opined that the use of the Accent 1000 device and Unity language were not intuitive. Hyeranto, who had extensive training and professional experience working with “eye gaze” assistive technology devices, testified convincingly at hearing that significant training on the Accent 1000 was required by its manufacturer, PRC-Saltillo, before professionals could effectively work with a child who depended on that device to communicate. None of the four assessors, Hoffman, Johnson, Lakritz, and Zimmerman, were sufficiently familiar with the Accent 1000, Student’s only mode of communication, when they assessed Student.

The San Diego assessors did not understand how Student communicated, responded to questions, or learned. Therefore, they were unable to communicate with Student directly or effectively, which was necessary to the administration of assessments. At a minimum, San Diego should have had a staff member very familiar with the operation of the Accent 1000 accompany and assist the assessors during the assessment process. This situation was analogous to one where a foreign language interpreter was needed to communicate with the child being assessed in her native language during testing. The evidence did not support a finding that this occurred. The testimony of San Diego assistive technology consultant, Jamie Jenkins, established Jenkins was not sufficiently familiar with the operation of the Accent 1000 to effectively assist the assessors in communicating with Student during the assessments.

The inability of the assessors to communicate with Student undermined the validity and appropriateness of the three assessments at issue here. Therefore, San Diego’s March 2025 assessments of Student in the areas of psychoeducation, occupational therapy, and physical therapy assessments were each not legally appropriate.

A student may be entitled to an independent educational evaluation if she disagrees with an evaluation obtained by a public agency and requests an independent evaluation at public expense. (20 U.S.C. § 1415(b)(1); 34 C.F.R. § 300.502 (a)(1), (b)(1) & (2); Ed. Code, § 56329, subd. (b) [incorporating 34 C.F.R. § 300.502 by reference]; Ed. Code, § 56506, subd. (c) [parent has the right to an independent evaluation as set forth in Ed. Code, § 56329]; see also 20 U.S.C. § 1415(d)(2) [requiring procedural safeguards notice to parents to include information about obtaining an independent evaluation].) An independent educational evaluation means an evaluation conducted by a qualified examiner who is not employed by the public agency responsible for the education of the child in question. (34 C.F.R. § 300.502(a)(3)(i).) A parent may be entitled to one independent educational assessment at public expense each time the public education agency conducts an assessment with which the parent disagrees. (34 C.F.R. § 300.502(b)(5); Ed. Code, § 56329, subd. (b).)

Based on the evidence and reasons discussed above, San Diego failed to meet its burden of proof on its sole issue in this case. Student prevailed on San Diego’s issue.

DEVELOPMENT OF STUDENT’S MARCH 11, 2025 IEP

Student’s IEP team met on March 11, 12, & 13, 2025, to review San Diego’s multidisciplinary assessment of Student, and to develop an IEP. The March 11, 2025 IEP offered Student:

• Placement in home setting to receive instruction and services virtually

• Specialized academic instruction for 10 hours per week

• Health and nursing services for four hours yearly

• Direct language and speech services for 10 hours yearly, plus two hours per year of language and speech consultation services, anticipated to be delivered in 30 minute sessions once per quarter

• Physical therapy services for eight hours yearly

• Occupational therapy services for eight hours yearly

The above program was for the regular school year, beginning on March 11, 2025.

The March 11, 2025 IEP offered Student the following FAPE for the 2025 extended school year:

• Placement in home setting to receive instruction and services virtually

• Specialized academic instruction for 24 hours

• Language and speech services for one hour

• Physical therapy services for one hour

• Occupational therapy services for one hour

• Health and nursing services for 30 minutes

The Special Factors page of the March 11, 2025 IEP acknowledged Student needed “…access to a dynamic display communication devices organized through semantic compaction and accessed via icon sequencing, with Minspeak symbols. She requires 45+access to a portable touch screen device for computer access.” There was no explicit offer to provide Student with either an Accent 1000 or an iPad, or any of the other equipment Student needed, such as ankle and arm braces, trays, wheelchair, and a stander.

San Diego’s March 11, 2025 IEP offered Student significantly less specialized academic instruction and related services than BPS had offered Student in her last several IEPs. Student was on a virtually delivered program for the last five years she was enrolled in BPS. However, even though BPS offered Student 17 hours per week of specialized academic instruction, Student was only able to receive 12 hours per week of specialized academic instruction in Boston due to contractual parameters in the teachers union’s contract with BPS, and further unavailability of special educators from either the Cotting School or BPS. Parents’ and Beaupre’s testimony established Student had the energy, concentration, and need for 17 hours a week of specialized academic instruction. That information was before the IEP team in March 2025.

On February 16, 2024, Parents consented to implementation of only the specialized academic instruction offered in the March 11, 2025 IEP. Mother stated she did not consent to the related services at that time because the proposed service providers had not yet received any training on the Accent 1000. Once Parents consented to implementation of the specialized academic instruction, San Diego then assigned special education teachers John Baer and Jessica Hoffman to provide Student with specialized academic instruction for an aggregate of 10 hours per week.

Neither Baer, nor Hoffman, knew how to use the Accent 1000. They both received only about one hour of training on the Accent 1000 from San Diego speech language pathologist and assistive technology consultant, Jenkins. However, it was clear from Jenkin’s testimony that Jenkins was insufficiently familiar with the operation of the Accent 1000 device to effectively train anyone regarding its use. Jenkins did not have the expertise or experience with Accent 1000 necessary to train teachers Baer and Hoffman to effectively communicate with, and teach a child, using an Accent 1000 device. For example, at the start of San Diego’s assessment of Student in the first quarter of 2025, Jenkins altered the number of icons on Student’s opening screen from 45 to 60 icons. This error confused Student and caused her stress because Student had memorized the location of each of the 45 icons appearing on the opening screen of her Accent 1000. Anyone who understood how the Accent 1000 worked would have known that such a change in the configuration of the opening screen would be disorienting for Student, particularly during an assessment.

Moreover, based on Hyeranto’s informed and convincing testimony, Baer and Hoffman would definitely require significantly more than one hour of training from a person conversant with the Accent 1000 before they would be prepared to teach and communicate with Student effectively. Hyeranto had extensive training and professional experience with various assistive technology devices. Additionally, Hyeranto had even been employed by PRC-Saltillo, the manufacturer of the Accent 1000, at one time.

STUDENT’S ISSUE 1A:

DID SAN DIEGO DENY STUDENT A FAPE IN THE MARCH 11, 2025 IEP BY FAILING TO PROVIDE A CLEAR AND SPECIFIC OFFER OF FAPE?

Student contends San Diego failed to provide a clear specific offer of a FAPE in the March 11, 2025 IEP, by not specifying the duration and frequency of direct and consultation services regarding specialized academic instruction and related services. Student further contends, because the March 11, 2025 IEP offer of a FAPE was not sufficiently clear and specific, Parents were unable to understand material details regarding the proposed program San Diego offered Student.

San Diego contends the March 11, 2025 IEP offer was sufficiently clear and specific to enable Parents to understand material details about the program offered to Student.

A WRITTEN OFFER OF A FAPE MUST BE SUFFICIENTLY CLEAR

The IEP is a “formal, written offer [that] creates a clear record that will do much to eliminate troublesome factual disputes . . . about when placements were offered, what placements were offered, and what additional education assistance was offered to supplement a placement, if any.” (Union School District v. Smith (9th Cir. 1994) 15 F.3d 1519, 1526.) The IEP must specify “the anticipated frequency, location, and duration of [education] services … .” (20 U.S.C. § 1414(d)(1)(A)(i)(VII).) Such “a formal, specific offer from a school district will greatly assist parents in ‘present[ing] complaints with respect to any matter relating to the . . . educational placement of the child.’” (Union School District v. Smith, supra, 15 F.3d 1519, 1526.)

The IDEA requires an IEP to include a statement of the special education and related services that will be provided to the student. (20 U.S.C. § 1414(d)(1)(A)(i)(IV); 34 C.F.R. § 300.320(a)(4); Ed. Code, § 56345, subd. (a)(4).) The IDEA also requires that an IEP contain a projected date for the beginning of special education services and modifications, and “the anticipated frequency, location, and duration of those services and modifications.” (20 U.S.C. § 1414(d)(1)(A)(VII); see also 34 C.F.R. § 300.320(a)(7); Ed. Code, § 56345, subd. (a)(7).) This requirement ensures the level of the school district's commitment of resources is clear to all members of the IEP team.

A confusing or unclear offer of a FAPE constitutes a procedural error under the IDEA, but a school district’s procedural error does not automatically require a finding that a FAPE was denied. While a student is entitled to both the procedural and substantive protections of the IDEA, not every procedural violation is sufficient to support a finding that a student was denied a FAPE. (Amanda J. v. Clark County School Dist. (9th Cir. 2001) 267 F.3d 877, 892.) A due process hearing decision shall be made on substantive grounds based on a determination of whether the child received a free appropriate public education. A procedural violation results in a 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, or caused a deprivation of educational benefits. (20 U.S.C. §1415(f)(3)(E)(ii); 34 C.F.R. § 300.513(a); Ed. Code, § 56505, subd. (f)(2)(A-C); W.G., et al. v. Target Range, supra., 960 F.2d 1479, 1484, superseded in part by statute on other grounds [“. . . procedural inadequacies that result in the loss of educational opportunity, [citation], or seriously infringe the parents’ opportunity to participate in the IEP formulation process, [citations], clearly result in the denial of a FAPE.”].)

SPECIALIZED ACADEMIC INSTRUCTION AND CONSULTATION SERVICES WERE NOT DEFINED WITH CLARITY AND SPECIFICITY

The March 11, 2025 IEP stated the frequency of specialized academic instruction offered to Student was “Weekly (one or more times a week).” Elsewhere, the IEP stated the duration of specialized academic instruction was 10 hours, zero minutes. Neither the frequency, nor the duration, of the offered specialized academic instruction sessions were identified with reasonable requisite clarity.

The evidence was clear Student did not have the stamina to receive 10 hours of virtual instruction during one day. Due to Student’s complicated physical condition and daily medical needs, it was particularly important that the offer of a FAPE include specific information about the duration and frequency of specialized academic instruction sessions offered. This vague offer regarding the frequency and duration of offered specialized academic instruction sessions was not sufficiently clear to allow Parents to make an informed decision about whether the offer of a FAPE could meet Student’s needs.

The IEP should have set forth clearly how many sessions each week Student would receive for her virtual specialized academic instruction, the duration of each session, and how the 10 hours per week of instruction would be implemented. The vague description of the frequency and duration of specialized academic instruction proposed was insufficient. Given Student’s material physical deficits and extensive daily medical needs, it was particularly important that the frequency and duration of specialized academic instruction sessions be identified with specificity. These details were necessary for Parents to determine how the specialized academic instruction would be addressed, along with Student’s other significant needs. These specific details were also necessary for Parents to determine if the March 11, 2025 IEP offer of a FAPE was appropriate to provide Student with the educational access she required.

Also, the delivery of specialized academic instruction was vaguely addressed in the grid within the IEP titled “Special Education Service Delivery” under the column labeled “[d]escribe what services will look like.” That description stated: “Specialized Academic Instruction delivered in-home and/or virtual as determined by doctor’s orders, as direct service with student. Consultation and collaboration with all related service providers and parents.” Father persuasively testified he was confused when reading this portion of the IEP about how much time San Diego offered for direct specialized academic instruction, versus consultative services with all related service providers and Parents.

The frequency and duration of the consultation services to be provided to Parents and Student’s teachers in connection with the specialized academic instruction, was not addressed in this grid, leaving the offer of a FAPE vague. Further, the IEP was not specific about the type of consultation services referred to in the grid entry. This left Parents to speculate when, and for how long, consultation and collaboration services would be provided, and by whom. The descriptions in the IEP addressed above regarding the delivery of the offered consultation and collaboration services were not stated with required clarity and specificity.

For the reasons addressed above, the offer of a FAPE in the March 11, 2025 IEP lacked the requisite specificity and clarity regarding the offered specialized academic instruction and consultation services. This vague offer undermined Parents’ efforts to make an informed decision about whether the offered program would meet Student’s needs. The testimony of both Parents confirmed they were unclear about the specifics of the specialized academic instruction and consultation services offered in the March 11, 2025 IEP. Their confusion was reasonable. Because the March 11, 2025 IEP was vague as to material elements regarding the specialized academic instruction and consultation services offered, it significantly impeded Parents’ opportunity to participate in the decision-making process regarding a provision of a FAPE to Student. Therefore, the March 11, 2025 IEP denied Student a FAPE.

ASSISTIVE TECHNOLOGY HARDWARE AND SOFTWARE STUDENT REQUIRED WERE NOT IDENTIFIED WITH REQUISITE SPECIFICITY, OR

CLEARLY OFFERED TO BE PROVIDED TO STUDENT, IN THE MARCH 11,2025 IEP

Education Code section 56341.1(c) states if a pupil needs a particular device or service to receive a FAPE, that must be stated in the IEP. The Ninth Circuit Court of Appeals acknowledged the necessity for a school district to specifically identify the assistive technology device a child needs for a FAPE. (See M.C. by & through M.N. v. Antelope Valley Union High Sch. Dist. (9th Cir. 2017) 858 F.3d 1189, 1198–99.) The evidence established Student needed to use the specific device known as the Accent 1000, with 45 icons, manufactured by PRC-Saltillo, as well as an iPad, for a FAPE. At hearing, Hyeranto, Student’s assistive technology expert, convincingly opined Student required a specific brand and model of the Accent 1000, along with the iPad, for communication. It was insufficient to describe Student’s assistive technology device with only general characteristics. The express specific identification of the Accent 1000 device, with 45 icons, was essential in Student’s IEP because each model of eye-gaze device operated uniquely. Also, whoever was assigned to teach Student would have to be trained on the precise model of Accent 1000 used by Student.

However, the Special Factors page of the March 11, 2025 IEP indicated only that Student “… requires access to a dynamic display communication devices organized through semantic compaction and accessed via icon sequencing, with Minspeak symbols. She requires 45+access to a portable touch screen device for computer access.” Jessica Coleman, San Diego’s Due Process and Mediation Specialist, testified that if a child needed a specific device, the district was required to specifically identify that device in the IEP. However, the IEP failed to clearly identify the device Student required. San Diego’s general description of a communication device in the IEP was not sufficiently specific for Parents to know if San Diego offered to provide Student with the assistive devices and technologies she required for communication and access to her education.

Mother testified that a number of different assistive devices, in addition to the Accent 1000, use minspeak. However, Student required the precise brand and model of the PRC-Saltillo Accent 1000, with 45 icons. It would have been impossible for Student to effectively communicate if she were provided with a device, other than the PRC-Saltillo Accent 1000, with 45 icons. A different brand or model of assistive technology device would be inappropriate and significantly disrupt Student’s learning and communication. Therefore, it was essential the IEP identify the PRC-Saltillo Accent 1000, with 45 icons, and iPad specifically.

Also, Mother testified convincingly that the March 11, 2025 IEP failed to identify additional assistive technology equipment Student required during her instruction and services. For example, Student regularly used a floor standing mount for the times she was positioned lying prone, which occurred every day during a portion of her instruction. A required wheelchair stand was also not identified with specificity in the Special Factors section of the March 11, 2025 IEP. Moreover, according to Mother, there were other important pieces of equipment Student required during her specialized academic instruction and related services, such as various specific mounts and supportive equipment, that were also not identified with requisite clarity in the March 11, 2025 IEP.

Essential software Student required for her Accent 1000 and iPad were also not either identified or offered to Student in the March 11, 2025 IEP. Also, a mat and other equipment needed for physical therapy services were not identified in the portion of the IEP listing necessary equipment. The paragraph on the Special Factors page of the subject IEP should have been far more specific and thorough regarding identification of specific equipment, hardware, and software Student required to access her education.

Coleman, San Diego’s Due Process and Mediation Specialist, testified that if a child needed a specific device, the district was required to offer to provide it to the child in the IEP. However, the IEP failed to clearly offer to provide Student with an Accent 1000, or any other devices, hardware, or software. Mother stated the only device San Diego ever offered to give Student was either an iPad or laptop. Mother rejected that offer because Student used her family’s iPad during instruction. The March 11, 2025 IEP failed to clearly offer Student an Accent 1000 device, and an iPad, or indicate it was not necessary to provide Student with those devices because she had them already. The March 11, 2025 IEP is fatally vague in that regard. At hearing, even Coleman was not able to determine from the March 11, 2025 IEP whether Student had been offered the provision of any devices, equipment, or software. .Additiionally, Mother convincingly testified that no one from San Diego offered to provide any devices, or equipment, other than an iPad or laptop, or software to Student. Therefore, the devices and equipment Student required were not identified with sufficient clarity and specificity, and it was unclear in the March 11, 2025 IEP if San Diego offered to provide Student with necessary equipment and software.

For the reasons addressed above the offer of FAPE in the March 11, 2025 IEP lacked the requisite specificity and clarity regarding assistive technology devices, equipment, hardware and software Student required during instruction and services to access her education. Parents needed far more specific information regarding this offer to make an informed decision about the March 11, 2025 offer of FAPE. Therefore, Student proved the March 11, 2025 offer of a FAPE significantly impeded Parents’ opportunity to participate in the decision-making process regarding the provision of a FAPE to Student and denied Student a FAPE.

THE IEP FAILED TO IDENTIFY MATERIAL DETAILS REGARDING RELATED SERVICES OFFERED IN SPEECH AND LANGUAGE,

OCCUPATIONAL THERAPY, AND PHYSICAL THERAPY

The March 11, 2025 IEP failed to clearly identify material details about the related services offered in speech and language, occupational therapy, and physical therapy. Student’s school of attendance since she enrolled in San Diego was the Home Hospital School. Sylvia Echeverria, Associate Principal of San Diego’s Home Hospital School, testified related services were typically provided simultaneously with educational instruction. However, this simultaneous delivery of services and specialized academic instruction was not clearly explained in the March 11, 2025 IEP. Based on Echeverria’s testimony the IEP team apparently intended all speech and language, occupational therapy, and physical therapy services offered in the March 15, 2025 IEP would be delivered to Student during her specialized academic instruction while Student’s special education teacher was working with her. Parents did not understand that material element regarding when and how related services would be delivered until they heard the service providers testify at hearing.

The only language in the March 11, 2025 IEP that even hinted at a simultaneous delivery of specialized academic instruction and related services was in the grid labelled “Special Education Service Delivery,” under the Location (Environment) column. Across from Specialized Academic Instruction, was the following written statement: “[c]onsultation and collaboration with all related service providers and parents.” There is no language in the March 11, 2025 IEP stating related services would be provided to Student simultaneously with implementation of her specialized academic instruction. If this was San Diego’s intention about delivery of the speech and language, occupational therapy, and physical therapy services, it was not described in writing in the March 11, 2025 IEP in a manner that would reasonably allow Parents to understand and determine if San Diego’s offer of related services was appropriate. Even Echeverria conceded the proposed delivery of related services was unclear in the March 11, 2025 IEP. Echeverria testified she was unsure how the related services would be implemented after reading the service grid in the March 11, 2025 IEP.

Student’s closing brief stated Parents did not realize until Echeverria and several of San Diego’s related service providers testified at hearing that San Diego intended to deliver all related services to Student simultaneously with implementation of her specialized academic instruction. This was a material omission regarding the description of the offer of related services in the March 11, 2025 IEP. Evidence was not introduced to explain how that simultaneous implementation of instruction and related services would work. Mother testified honestly and credibly that simultaneous implementation of Student’s specialized academic instruction and related services would be ineffective due to Student’s distractibility.

Moreover, the amount of time offered for related services described in the March 11, 2025 IEP was inaccurately described in multiple places within the related services grid. For example, the service grid stated Student would be provided eight hours of occupational therapy services per year, in 30 minute sessions every other week. However, according to San Diego’s calendar for the 2025-2026 school year, there were 36 weeks in that regular school year. If 30 minutes of occupational therapy services were implemented every other week, that would equal 540 minutes, or nine hours of occupational therapy services provided per year, not eight hours.

There is a similar lack of clarity in the description of speech and language services offered. The service grid stated Student was offered 10 hours of direct speech and language services per year to be provided in a 30-minute session every other week. However, 30 minutes every other week over 36 weeks equaled nine hours, not 10 hours of speech and language services per regular school year. These errors regarding the amount of related services offered rendered the offer of a FAPE in the March 11, 2026 IEP unclear and insufficient. This vague offer failed to sufficiently inform Parents of material details regarding the offer of a FAPE and significantly impeded their opportunity to participate in the decision-making process regarding provision of a FAPE to Student.

The offer of a FAPE in the March 11, 2025 IEP lacked the requisite specificity and clarity regarding multiple material details, addressed above, about the related services offered in speech and language, occupational therapy, and physical therapy. Parents needed a far more detailed description regarding the offer of those related services before they could make an informed decision about the March 11, 2025 offer of a FAPE. Therefore, Student proved the lack of clarity and specificity regarding offered specialized academic instruction and related services in the March 11, 2025 IEP significantly impeded Parents’ opportunity to participate in the decision-making process regarding the provision of a FAPE to Student, and denied Student a FAPE. Student proved

Student’s Issue 1A.

STUDENT’S ISSUE 1B:

DID SAN DIEGO DENY STUDENT A FAPE IN THE MARCH 11, 2025 IEP BY FAILING TO OFFER APPROPRIATE GOALS IN THE AREAS OF: (I) ACADEMICS; (II) COMMUNICATION; (III) ADAPTIVE AND DAILY LIVING SKILLS; (IV) PHYSICAL THERAPY; (V) OCCUPATIONAL THERAPY; (VI) ASSISTIVE TECHNOLOGY; AND (VII) SOCIAL-EMOTIONAL?

Student contends San Diego denied Student a FAPE in the March 11, 2025 IEP by failing to offer Student appropriate goals in academics, communication, adaptive and daily living skills, physical therapy, occupational therapy, assistive technology, and low incidence services. Student also contends that the goals offered in the March 11, 2025 IEP were inappropriate, and that Student also needed goals in the areas of assistive technology and social emotional.

San Diego contends it offered Student eight appropriate goals in the IEP dated March 11, 2025 IEP. San Diego also contends Student did not require any goals, other than the eight goals it offered in the March 11, 2025 IEP.

REQUIREMENTS FOR GOALS

An annual IEP must contain a statement of measurable annual goals related to meeting the child’s needs that result from the child’s disability to enable the child to be involved in and progress in the general curriculum and meeting each of the child’s other educational needs that result from the child’s disability. (20 U.S.C. § 1414(d)(1)(A)(II); 34 C.F.R. § 300.320(a)(2); Ed. Code, § 56345, subd. (a)(2).) The IEP must also contain a statement of how the goals will be measured. (20 U.S.C. § 1414(d)(1)(A)(III); 34 C.F.R. § 300.320(a)(3); Ed. Code, § 56345, subd. (a)(3).). The IEP must show a direct relationship between the present levels of performance, the goals, and the educational services to be provided. (Cal. Code Regs, tit. 5, § 3040, subd. (b).) Annual goals are statements that describe what a child with a disability can reasonably be expected to accomplish within a 12-month period in the child’s special education program. (Letter to Butler, U.S. Dept. of Education, Office of Special Education and Rehabilitative Services, March 25, 1988.) However, an IEP team is not required to draft IEP goals in a manner that the parents find optimal, as long as the goals are objectively measurable. (Bridges ex rel. F.B. v. Spartanburg County School Dist. Two (D.S.C., Sept. 2, 2011, No. 7:10-cv-01873-JMC) 2011 WL 3882850, at p. 6.). The offer of an inappropriate goal constitutes a procedural violation under the IDEA and California law.

In this case, Mother was the most credible witness regarding Student’s present levels of performance and skills and deficits on specific tasks because Mother had spent each entire school day since summer 2019 personally assisting Student with her education. Therefore, Mother was the best witness, by far, on the topic of the areas in which Student needed annual goals, and whether the goals offered in the March 11, 2025 IEP were appropriate for Student at that time.

SAN DIEGO OFFERED EIGHT INAPPROPRIATE GOALS IN THE MARCH 11, 2025 IEP

The IEP offered eight inappropriate goals in the areas of reading, language arts, writing, math, communication development, and adaptive/daily living skills. Further, Student contended she also needed goals in the areas of assistive technology, and social-emotional. Mother testified persuasively that Parents informed the IEP team at the three IEP meetings held in connection with the March 11, 2025 IEP, that all the offered goals, as addressed specifically below, were inappropriate for Student.

READING GOAL NUMBER ONE

Student’s reading goal number expected Student, given supported standing equipment and given explicit instruction and practice in phonics and word analysis, and access to her voice output device activated via eye gaze, to independently decode one and two syllable words with vowel and consonant digraphs or diphthongs with 80-percent accuracy by March 10, 2026.

Mother persuasively testified that, as of March, 2025, Student had already met proposed reading goal number one. Mother informed the IEP team at an IEP meeting in March 2025, that this goal was not appropriate for Student. San Diego failed to offer persuasive evidence effectively countering Mother’s convincing opinion that this goal was inappropriate in March 2025 because Student had already mastered the applicable skills. Rather, San Diego merely offered an unsupported conclusion that the goal was appropriate for Student. Therefore, the offered reading goal number one was inappropriate for Student. Student prevailed on Issue1B(i).

LANGUAGE ARTS GOAL NUMBER TWO

The language arts goal number two expected Student, given appropriate adapted seating, access to her device activated via eye gaze, and following a story read-aloud and completion or review of a narrative map orgraphic organizer, to demonstrate her comprehension by retelling a narrative or personal experience containing a beginning, middle, and end, given no more than three prompts.

Father testified credibly that this goal was inappropriate for Student because Student could not learn by having more than 10 sentences read aloud to her. Similarly, Mother persuasively opined that the goal was inappropriate as Student was not able to follow a story read aloud to her. Mother also persuasively noted this goal was inappropriate because Student may not have had access to the words needed to retell a story because the required words may not have been uploaded into Student’s Accent 1000 device. It is clear this condition should have been incorporated into this proposed goal. San Diego failed to offer any convincing evidence, other than a mere unsupported conclusion that the goal was appropriate for Student, that effectively countered both Parents’ convincing testimony regarding why this goal was inappropriate for Student in March 2025. Therefore, the offered language arts goal number two was inappropriate for Student. Student prevailed on Issues 1B(ii).

WRITING GOAL NUMBER THREE

Writing goal number three stated that Student, when given a writing prompt of a previously introduced and familiar theme and access to her voice output device activated via eye gaze, shall compose three clear and cohesive complete sentences using one of a variety of grammatical forms (e.g., past tense -ed, possessive-s) without error in three out of four trial days.

Mother opined this goal was partially inappropriate because Student did not know how to use the past tense form in March 2025. San Diego failed to offer persuasive evidence to overcome Mother’s convincing testimony regarding the inappropriateness of this goal for Student in March 2025. Rather, San Diego merely offered an unsupported and unpersuasive conclusion that the goal was appropriate for Student. Therefore, the offered writing goal number three was inappropriate for Student. Student prevailed on Issue 1B(i).

WRITING GOAL NUMBER FOUR

Writing goal number four stated that Student, when given access to a simulated telephone interface, or phone application on a computer, shall accurately manually dial (using her hands) a phone number in order to make a phone call with 100 percent accuracy in dialing over three of four attempts.

Mother convincingly testified this goal was inappropriate for Student because she did not have the fine motor skills to reach it within one year. Mother further testified she had observed Student’s previous unsuccessful attempts to use a simulated telephone touch pad on her iPad. Mother also persuasively opined that the purpose of this goal was unclear. San Diego offered no convincing evidence that this goal intended to develop a skill Student needed to master in March 2025. There was also no evidence Student ever made any telephone calls or could even communicate verbally through her Accent 1000 while on a telephone call. San Diego only offered an unsupported conclusion that this goal was appropriate for Student, which was not persuasive. Additionally, this proposed goal did not address any skills Student needed to develop or improve her writing composition skills.

Moreover, this goal incorrectly stated two short term objectives to be met at the end of the 2024-2025 school year, instead of providing a short term goal for the end of the first semester of the 2025-2026 school year, as was the case with the other seven offered goals. This constitutd an error in the IEP. San Diego failed to offer convincing evidence effectively countering Mother’s believable testimony that this goal was inappropriate for Student in March 2025 because she did not have the fine motor skills to reach it. Therefore, the offered writing goal number four was inappropriate for Student in the areas of academics and occupational therapy. Student prevailed on Issues 1B(i) and (v).

MATH GOAL NUMBER FIVE

The offered math goal number five required Student, when given use of visual and tactile supports and access to her eye gaze device activated via eye gaze, to demonstrate her knowledge of value understanding and properties of operations to add and subtract to solve word problems within 10, with no more than three prompts and at least 80-percent accuracy.

Mother testified Student had met this goal one year before it was offered. If the team members who proposed this goal had spoken with Beaupre, Student’s tutor, they would have known this goal was not appropriate for Student in March 2025. San Diego failed to offer persuasive evidence to overcome Mother’s convincing testimony regarding the inappropriateness of this goal for Student in March 2025. Therefore, the offered math goal number five was inappropriate for Student. Student prevailed on

Issue 1B(i).

MATH GOAL NUMBER SIX

The offered math goal number six required Student, when given access to her augmentative and assistive communication device activated via eye gaze, to compare two amounts of money to determine if she had enough to make a purchase with minimal prompting and 80-percent accuracy.

Mother and Beaupre both persuasively testified that math goal number six was inappropriate for Student because it was far too advanced for her. Therefore, it was unlikely Student could meet it within one year. San Diego failed to offer persuasive evidence, other than an unsupported conclusion that the goal was appropriate for Student, effectively countering Mother’s and Beaupre’s convincing testimony that this goal was inappropriate for Student in March 2025. Therefore, the offered math goal number six was inappropriate for Student. Student prevailed on Issue 1B(i).

COMMUNICATION DEVELOPMENT GOAL NUMBER SIX

The offered communication development goal, the second goal numbered six, required Student, during a structured conversation with an agreed upon topic and access to her voice output device activated via eye gaze, to remain on topic through three conversational turns by asking follow-up questions or commenting to a partner, given no more than two reminders to refer to a conversation strategies sheet.

Mother testified the offered communication development goal number six was inappropriate because by March 2025 Student had already mastered the skills required therein. If the team members who proposed this goal had spoken with Student’s tutors or Mother about Student’s conversational skills, they would have known this goal was not appropriate for Student in March 2025. San Diego failed to offer evidence, other than an unsupported conclusion that this goal was appropriate for Student, that persuasively overcame Mother’s convincing testimony regarding the inappropriateness of this goal for Student. Therefore, the offered communication development goal numbered six was inappropriate for Student. Student prevailed on Issue 1B(ii).

ADAPTIVE AND DAILY LIVING SKILLS GOAL NUMBER SEVEN

The offered goal number seven in adaptive and daily living skills required Student, while in supported seating or stander, when presented with lip balm, to grasp and uncap the lip balm and accurately distribute the balm on her upper and lower lips as determined by teacher or occupational therapist observation and documentation.

Mother testified credibly this goal was inappropriate because it was far too advanced for Student in March 2025. Mother noted Student did not have the fine motor skills necessary to work on this goal or reach it. Mother persuasively opined Student could not reasonably be expected to meet this goal within one year. The weight of the evidence demonstrated extreme deficits in Student’s fine motor skills, supporting Mother’s opinion that Student could not reasonably be expected to master the tasks of grasping and uncapping an object as small as a tube of lip balm within one year. Because this goal was not tied to Student’s then current needs in adaptive or daily living skills, it was not designed to benefit Student’s education and denied her a FAPE.

San Diego failed to offer persuasive evidence, and instead offered an unsupported conclusion that the goal was appropriate for Student. San Diego failed to persuasively counter Mother’s convincing testimony regarding why this goal was inappropriate for Student. Therefore, the offered adaptive or daily living skills goal number seven was inappropriate for Student and denied her a FAPE. Student prevailed on Issue 1B(iii).

GOALS NOT OFFERED IN ASSISTIVE TECHNOLOGY, SOCIAL EMOTIONAL, AND PHYSICAL THERAPY

Since Student communicated solely through her Accent 1000, the evidence was clear that the IEP team should have also offered Student at least one goal intended to expand her proficiency in using her Accent 1000 device and the Unity language. Student knew how to use the Accent 1000 and the Unity language, but the evidence established she would obtain educational benefit by improving and growing those skills because it would improve her ability to access her education. For example, Student took significant time to respond to inquiries posed to her by teachers. Student’s improved proficiency in using her assistive technology device would allow her to communicate faster and more effectively. Therefore, the IEP team should have offered at least one proposed goal in assistive technology so that Student could further hone and expand skills she needed to use her Accent 1000 device during instruction effectively. Student prevailed on Issue 1B(vi).

Student’s closing brief stated Student should have also been offered goals in other areas, including social-emotional development. Student’s Issue 1B(iv) alleges Student should have been offered an appropriate goal in the area of physical therapy. However, Student failed to offer persuasive evidence regarding what specific goals, if any, Student needed in the areas of physical therapy and social-emotional development to receive a FAPE. The law is clear that an IEP is not required to contain a goal in every area in which a student might benefit. (Capistrano Unified Sch. Dist. v. S.W. (9th Cir. 2021) 21 F.4th 1125, 1133. San Diego prevailed on Issues 1B(iv) and (vii).

Student prevailed on Issues 1B(i), (ii), (iii), (v), and (vi). Student failed to meet her burden of proof, and did not prevail on Issues 1B(iv) and (vii).

STUDENT’S ISSUE 1C:

DID SAN DIEGO DENY STUDENT A FAPE IN THE MARCH 11, 2025 IEP BY SIGNIFICANTLY IMPEDING PARENTS’ OPPORTUNITY TO PARTICIPATE IN THE DECISION-MAKING PROCESS REGARDING PROVISION OF A FAPE TO STUDENT BY FAILING TO CONSIDER PARENTS’ CONCERNS?

Student contends San Diego denied Student a FAPE in the March 11, 2025 IEP by significantly impeding Parents’ opportunity to participate in the IEP process by failing to consider Parents’ concerns expressed at the IEP team meetings held on March 11, 12, and 13, 2025.

San Diego contends it did not significantly impede Parents’ opportunity to participate in the three IEP team meetings held to develop the March 11, 2025 IEP because the IEP team considered all of Parents’ concerns expressed during the IEP team meetings held on March 11, 12, and 13, 2025. San Diego further contends Parents meaningfully participated in all three IEP team meetings held on March 11, 12, and 13, 2025.

PARENTAL PARTICIPATION IS ESSENTIAL

Procedurally, the parents of a child with a disability must be afforded an opportunity to participate in meetings with respect to the identification, evaluation, and educational placement of the child; and the provision of FAPE to the child. (34 C.F.R. § 300.501(a); Ed. Code, § 56500.4.) The IEP team shall consider the concerns of the parent for enhancing the student’s education and information on the student’s needs provided to or by the parent. (20 U.S.C. §1414(d)(3)(A) & (d)(4)(A)(ii)(III); Ed. Code, §56341.1, subds. (a)(2), (d)(3) & (f).) Among the most important procedural safeguards are those that protect the parent’s right to be involved in the development of their child’s educational plan. (Doug C. v. Hawaii Dept. of Education (9th Cir. 2013) 720 F.3d 1038, 1043-1044.)

A parent has meaningfully participated in the development of an IEP when he or she is informed of the child’s problems, attends the IEP team meeting, expresses disagreement regarding the IEP team’s conclusions, and requests revisions in the IEP. (N.L. v. Knox County Schools (6th Cir. 2003) 315 F.3d 688, 693-5 (N.L.) [holding an organizational meeting without parent before IEP team meeting did not deny parental participation at the IEP team meeting]; Fuhrmann v. East Hanover Board of Education (3rd Cir. 1993) 993 F.2d 1031, 1036)( [parent who has an opportunity to discuss a proposed IEP and whose concerns are considered by the IEP team has participated in the IEP process in a meaningful way].) Participation must be more than a mere form; it must be meaningful. (Target Range, supra, 960 F.2d at 1485.)

THE IEP TEAM CONSIDERED PARENTS’ CONCERNS AT THE THREE IEP TEAM MEETINGS HELD TO DEVELOP THE MARCH 11, 2025 IEP

Both Parents attended all three IEP team meetings held on March 11, 12, and 13, 2025, to review San Diego’s assessments of Student and develop the March 11, 2025 IEP. Parents requested the meetings be limited to 90-minutes per day to accommodate their responsibilities to assist Student, and San Diego accommodated that request. Parents expressed their concerns regarding the following during the IEP team meeting held on March 11, 2025:

• acquisition and delivery of skilled one-to-one health services for Student at a comprehensive district school site in the future, if and when Student was later healthy enough to return to in-person school attendance;

• Student’s need for prompts to redirect her attention to academic tasks;

• Student’s need to develop independence from frequent prompts; and

• Parents’ disagreement with the results of the assessments administered in assistive technology, and language and speech, which they perceived as biased and unreliable because more standardized instruments should have been administered.

The team addressed each of the concerns Parents expressed at the March 11, 2025 IEP team meeting. The team informed Parents that if Student’s doctor approved her return to in-person school attendance, the team would then hold a transition IEP team meeting to address the one-to-one health services Student needed at that time. The team also discussed and acknowledged Student’s need to be prompted to redirect her attention and acknowledged it was important to eventually decrease prompts to facilitate Student’s eventual increased independence. The team responded to Parents’ concern about the validity of the informal assessments administered by stating standardized assessments were not always appropriate. The team noted the informal assessments administered were appropriate because they allowed for a variety of responses from Student, permitted assessors to repeat questions to Student, and allowed the assessors to understand the level of prompting Student needed to successfully complete tasks. While discussing Parents’ concerns the team noted Student sometimes responded to questions impulsively. The team also discussed the benefits of allowing Student more time to respond so she could formulate more thoughtful answers. The IEP team considered each of the concerns Parents raised at the March 11, 2025 IEP team meeting.

During the second IEP team meeting held on March 12, 2025, Parents expressed their following concerns:

• The assessment report noted Student had difficulty locating certain items on the screen of her Accent 1000 device, which Parents explained was caused by Jenkins’ alteration of Student’s Accent 1000 device opening screen to display 60 icons, when Student was accustomed to a 45-icon display on the opening screen of her device;

• the assessment team’s lack of familiarity with operation of Student’s Accent 1000 “eye gaze” device;

• the extent of Student’s word knowledge;

• Student’s doctor’s recommendation to use applied behavior analysis strategies during her instruction;

• Parents disagreement with a statement in the report that Student was fatigued during assessments; and

• Delivery of related services in-person, rather than virtually.

The notes to the March 11, 2025 IEP evidence that IEP team considered each of Parents’ expressed concerns at the IEP team meeting held on March 12, 2025. The team recognized Student’s word knowledge was well beyond the core 40 icons on her Accent 1000. The team also noted Student was able to decipher longer words by decoding them. The team acknowledged Student’s physician recommended using applied behavior analysis strategies with her, particularly during instruction in math and English language arts. The team clarified to Parents that the reference in the assessment report to Student’s fatigue was merely intended to note that Student occasionally moved her body, looked away, and looked at Mother, during testing. The team also discussed the differences between the purposes of school based related services delivered in person, in contrast to the purposes of related services provided to a child virtually.

During the third IEP team meeting held on March 13, 2025, Parents expressed their concerns that Student needed more minutes of specialized academic instruction, and related services in occupational therapy, physical therapy, and speech and language, than the team decided to offer in the March 11, 2025 IEP. The team advised Parents that other IEP team members disagreed because they believed the amount of specialized academic instruction and related services offered in the March 11, 2025 IEP was appropriate for Student while she was placed in the Home Hospital School. The team explained to Parents that the offered specialized academic instruction and related services were intended to give Student access to her education, not to medically rehabilitate her.

The evidence established the IEP team considered each of the numerous concerns expressed by Parents during the IEP team meetings held on March 11, 12, and 13, 2025. Student failed to offer persuasive evidence that Parents’ concerns articulated at those three IEP team meetings were not considered by the rest of the IEP team. Even though the IEP team members affiliated with San Diego disagreed with Parents about some of the concerns Parents raised, it was clear the team considered and discussed those concerns. The law requires only that the IEP team consider parental concerns, not that district affiliated team members agree with them.

A preponderance of the evidence established San Diego did not significantly impede Parents’ opportunity to participate in the decision-making process regarding provision of a FAPE to Student by failing to consider concerns raised by Parents at the three IEP team meetings held to develop the March 11, 2025 IEP. Student failed to meet her burden of persuasion that San Diego denied her a FAPE by significantly impeding Parents’ opportunity to participate in the decision-making process regarding provision of a FAPE to Student. The weight of the evidence established San Diego reasonably considered Parents’ concerns at each of the three IEP team meetings held in March 2025. Therefore, Student did not prevail on Student’s Issue 1C.

STUDENT’S ISSUE 1D:

DID SAN DIEGO DENY STUDENT A FAPE IN THE MARCH 11, 2025 IEP BY FAILING TO OFFER STUDENT APPROPRIATE SERVICES AND SUPPORTS?

Student contends San Diego denied Student a FAPE in the March 11, 2025 IEP by failing to offer appropriate specialized academic instruction and supports, and related services and necessary supports in language and speech, health and nursing, occupational therapy, physical therapy, and assistive technology. Student also alleged, in her issue 1D(vii), that San Diego failed to offer appropriate low incidence services. However, when testimony concluded at hearing Student’s attorney conceded Student had not offered any evidence regarding low incidence services.

San Diego contends it offered Student appropriate specialized academic instruction. San Diego also contends it offered appropriate services and supports in language and speech, health and nursing, occupational therapy, physical therapy, assistive technology, and low incidence services, that Student needed to access her education while placed in the Home Hospital School in the March 11, 2025 IEP.

The term “related services” means transportation, and such developmental, corrective, and other supportive services, including speech and language therapy, physical and occupational therapy, and school nurse services, designed to enable an individual with exceptional needs to receive a FAPE as described in the IEP of the child. (20 U.S.C.§ 1401(26)(A)). Related services also include specialized services for low incidence disabilities and instruction in the home and hospital. (Ed. Code, § 56363,subd. (b).) Specialized academic instruction is a direct instructional service. The phrase supplementary aids and services means aids, services, and other supports that are provided in regular education classes or other education-related settings to enable children with disabilities to be educated with nondisabled children to the maximum extent appropriate. (20 U.S.C.§ 1401(33).

ISSUE 1D(I): SPECIALIZED ACADEMIC INSTRUCTION

San Diego offered Student 10 hours per week of specialized academic instruction in the March 11, 2025 IEP. San Diego asserted that, as long as Student remained in the Home Hospital School placement receiving only virtual instruction, she was only entitled to related services necessary to access her virtual specialized academic instruction, not to progress in the areas of speech and language, occupational therapy, and physical therapy.

Mother convincingly opined Student needed more than 10 hours per week of specialized academic instruction to make academic progress in light of Student’s circumstances. Mother’s opinion was based on the fact that Student required substantial time to respond to questions through her Accent 1000 device. Mother also noted Student required extra time to do math calculations. San Diego failed to offer persuasive evidence that, even in light of Student’s need for substantial time to provide answers and make mathematical calculations, 10 hours per week of specialized academic instruction was sufficient for Student to make progress on her academic goals. Student’s much slower processing speed should have been given more consideration by the IEP team when it determined how many hours of specialized academic instruction per week Student needed to make academic progress.

Sylvia Echeverria, associate principal of San Diego’s Home Hospital School, stated that children enrolled in the Home Hospital School receive their related services at the same time they receive their specialized academic instruction. Echeverria explained related services are delivered simultaneously with instruction because related services are only intended to support a child’s access to her educational instruction, not to facilitate the child’s progress in the area of the service.

San Diego provided Student with 10 hours per week of specialized academic instruction since the last half of February 2026, following its receipt of Parents’ limited consent to implementation of the March 11, 2025 IEP. In addition to that specialized academic instruction from San Diego, Parents wanted Student to receive an additional 10 hours a week of specialized academic instruction from private tutors, Brassil and Beaupre. The evidence demonstrated Student had the stamina to handle 20 hours per week of specialized academic instruction, consisting of 10 hours per week from two private tutors familiar with Student and her Accent 1000, and another 10 hours per week from San Diego special education teachers, Baier and Hoffman. Moreover, Mother persuasively testified the specialized academic instruction sessions with Baier and Hoffman were very hard for Student, mainly because neither of those teachers had a substantial understanding of how the Accent 1000 functions. Therefore, it is believable that working with teachers who were not conversant with operation of the Accent 1000 device constituted a very difficult situation for Student and required more time per week than 10 hours of specialized academic instruction.

Student’s expert witnesses, Dr. Megan Schmittel, school psychologist and Assistant Professor of Psychology at Westminster College, and Student’s private tutor, Beaupre, both credibly opined that 10 hours per week of specialized academic instruction was an insufficient amount for Student to make progress in academics. Schmittel opined convincingly that Student needed at least four hours per day of specialized academic instruction to make progress due to Student’s unique circumstances.

Beaupre knew Student well because he taught her for longer than the last five years. Beaupre’s testimony was very credible and was given significant weight because he was the only witness, other than Parents, who understood how Student learned, communicated, and how the Accent 1000 device functioned. Both Schmittel and Beaupre noted Student was particularly slow in processing academic information presented to her because she usually must first read the question or assignment on her iPad and then develop her responses to questions posed to her through her Accent 1000. This process was very time consuming. Student also needed extra time to process mathematical calculations.

Schmittel persuasively opined 10 hours per week of specialized academic instruction was not adequate to support Student’s continuing academic progress. Schmittel explained that, due to Student’s learning profile, Student required a considerable amount of slow, systematic instruction, including scaffolding, breaking down lessons into small steps, and repetition. Schmittel convincingly opined it would be extremely difficult for Student to learn new skills, adequately maintain her mastered skills, and to make further academic progress, in only 10 hours per week of specialized academic instruction. The evidence clearly demonstrated Student needed more than 10 hours per week of specialized academic instruction to enable her to make reasonable progress academically in light of her circumstances.

San Diego failed to introduce evidence that persuasively countered Mother’s, Beaupre’s, and Schmittel’s testimony, summarized above. San Diego also failed to offer evidence explaining why it believed Student could reasonably be expected to make academic progress with only 10 hours of specialized academic instruction in March 2025, when she had needed 17 hours per week of specialized academic instruction for a least the five years before that. Student’s overall condition had not materially changed from the time she was last enrolled in BPS. The opinions provided by San Diego’s witnesses failed to successfully rebut the opinions of Mother, Beaupre, and Schmittel that, Student had slow information processing speed due to her disabilities, and her reliance on the Accent 1000 device to communicate.

For the above reasons 10 hours per week of specialized academic instruction was an inappropriate amount of specialized academic instruction to support Student in academics. Therefore, San Diego denied Student a FAPE in the March 11, 2025 IEP by failing to offer a sufficient amount of specialized academic instruction. Based on the evidence of progress Student made while she was enrolled in BPS, Student should have been offered at least 17 hours per week of specialized academic instruction. Student persuasively demonstrated that San Diego’s offer of specialized academic instruction was inappropriate. Student prevailed on Issue 1D(i).

ISSUE 1D(II): LANGUAGE AND SPEECH SERVICES

San Diego offered Student 12 hours of direct speech and language therapy services and two hours of speech and language therapy consultation services per year during the regular school year, and one hour of direct speech and language services over the 2025 extended school year. For approximately the last five years Student attended BPS virtually, Student required 90 minutes per week of direct speech and language therapy services to make progress. Since communication development was one of Student’s main areas of need, the amount of speech and language services offered to her in the March 11, 2025 IEP was nominal.

Jennice Corcoran, San Diego’s speech language pathologist, admitted that Student’s communication skills were significantly below grade level. One instrument Corcoran used to assess Student’s communication skills estimated them to be equal to a child from zero to 24 months old. Corcoran also admitted Student’s communication skill deficits were further exacerbated by Student’s slow processing time and hearing loss.

Student’s expert witness, California licensed speech language pathologist, Cynthia Heryanto, who was also an assistive technology expert, testified impressively at hearing. Heryanto had over 15 years’ experience working with children with significant communication disabilities. Heryanto worked with Student for the last six to nine months as a consultant regarding Student’s communication skills and Accent 1000 device.

Heryanto persuasively opined 12 hours per regular school year of speech and language services was insufficient. Heryanto explained Student needed to develop substantial communication skills, and 12 hours per year of direct speech and language therapy and two hours of consultation service in speech and language was not sufficient for Student to make progress. Heryanto persuasively opined Student required at least two or three 45-minute sessions of speech and language therapy services per week. Student received the equivalent of two 45-minute sessions, weekly, when she was enrolled at BPS.

Mother persuasively opined speech and language services could not be effectively delivered to Student simultaneously with delivery of specialized academic instruction because Student had attention deficits. Student’s specialized academic instruction was required to be delivered to her in a simple, scaffolded manner, reinforced with significant repetition. Student required speech and language therapy services delivered to her separately from her specialized academic instruction so she could focus on each area individually. Mother’s opinion that Student could not simultaneously absorb academic instruction while simultaneously working on improving her speech and language skills was reasonable and believable. Heryanto and Mother both persuasively opined San Diego’s offer of speech and language services were insufficient for Student to make progress in communication in light of her circumstances. San Diego failed to introduce evidence to effectively rebut those opinions.

Student established San Diego’s offer of 12 hours of direct speech and language services, and two hours per year of speech and language consultation services during the regular school year, and one hour of direct speech and language services during the extended school year, as offered in the March 11, 2025 IEP, were insufficient to meet Student’s significant communication needs. Therefore, Student prevailed on her Issue 1D(ii).

ISSUE 1D (III): HEALTH AND NURSING

On the last day of hearing testimony, Student conceded she presented no evidence in support of her allegation of Issue 1D(iii) regarding San Diego’s failure to offer appropriate health and nursing services. Student failed to meet her burden of proof and did not prevail on Issue 1D(iii).

ISSUE 1D (IV): OCCUPATIONAL THERAPY

The service grid in the March 11, 2025 IEP stated the purpose of the occupational services offered therein is “to identify environmental, equipment and/or task modifications that give [Student] more opportunities to educational task demands.” That IEP offered Student eight hours per year of occupational therapy services, to be delivered to Student every other week for 30 minutes with the special education teacher virtually present. As addressed above in the analysis of Student’s Issue 1A, the amount of occupational therapy services offered was unclear and confusing. The testimony of various district witnesses indicated the occupational therapy services offered would be delivered during Student’s specialized academic instruction.

Mother testified Student would be distracted if occupational therapy services were delivered to Student simultaneously with delivery of specialized academic instruction. Mother opined that simple fine motor tasks remained very challenging for Student. Student was able to stack blocks during math instruction, but she still needed to improve her fine motor skills. Mother also testified Student used her arms and hands to point and handle manipulatives during instruction.

However, San Diego’s occupational therapist, Lisa Lakritz, persuasively testified that she almost always provided occupational therapy services concurrently with delivery of academic instruction by pushing into students’ classrooms. This meant Lakritz regularly provided occupational therapy services to children in their classrooms during instruction, rather than them out of the classroom to receive services in a separate room. Lakritz opined Student was not distracted by the stimuli around her during San Diego’s 2025 occupational therapy assessment of Student. Schmittel testified Student needed three 30-minute sessions of occupational therapy services per week. However, Schmittel was a school psychologist, and not an occupational therapist, so Schmittel’s opinion on this topic was not persuasive because it exceeded the scope of her professional expertise.

Student’s private physical therapist Melody Stevens, testified at hearing that there was significant crossover between school based physical therapy and occupational therapy services. Stevens provided Student with physical therapy services in Student’s home for about a year. Stevens testified Student could not hold a pencil for a very long time, and Student would need occupational therapy services to address that skill. Stevens also noted Student was able to grip an object for a very short time, and that Student was better able to hold a larger object, like a cup, than a smaller object. However, Stevens’ opinions about occupational therapy services appropriate for Student were also unpersuasive because Stevens was not an occupational therapist.

At hearing, Lakritz explained that the offered occupational therapy services in the March 11, 2025 IEP were for consultation, rather than direct service, because the therapist could not physically be with Student. Lakritz credibly testified that eight hours per year of occupational therapy was a sufficient amount of time to address Student’s needs while she was receiving her education virtually. Lakritz also persuasively opined that one hour of occupational therapy services during the 2025 extended school year was sufficient to enable Student to access her education.

Student did not call an occupational therapist, other than Lakritz, to testify at hearing. Therefore, Lakritz was the only credentialed occupational therapist who offered her opinion at hearing regarding whether eight hours per year of occupational therapy services were sufficient to meet Student’s fine motor needs and access her education. Lakritz was an experienced occupational therapist who testified honestly and in a straight-forward manner. Her testimony was convincing and believable.

`Therefore, Student failed to meet her burden of persuasion that San Diego failed to offer her appropriate occupational therapy services in the March 11, 2025 IEP. Student did not prevail on Issue 1D(iv).

ISSUE 1D(V): PHYSICAL THERAPY

The March 11, 2025 IEP offered eight hours per year of physical therapy services. This constituted a dramatic reduction in physical therapy services from the time Student was enrolled in BPS. The last five years Student was enrolled in BPS she was provided 90-minutes of physical therapy services per week.

Student’s expert witness, physical therapist Stevens, testified Student needed to improve her gross motor skills to access her education. When Stevens started working with Student one year earlier, Student could walk only 10 to 15 feet with assistance. However, Student significantly improved her walking with assistance. Stevens noted Student was now able to walk about 120 to 140 feet with assistance and supportive equipment. Stevens opined Student required one to two hours per week of physical therapy services to make progress in her education. Stevens also opined that San Diego’s offer of only one hour of physical therapy during the extended school year program was not adequate for Student to maintain progress she has made on her gross motor skills over the summer break from school.

Stevens opined Student needed more physical therapy services than San Diego offered because, without adequate physical therapy services, Student was subject to contractures, which are tightened and shortened muscles. Contractures would significantly hinder Student’s ability to access her education. Steven credibly opined Student needed at least two hours a week of physical therapy services in order to access her classroom, which was her home. Stevens further convincingly opined Student needed more physical therapy services than San Diego offered in the March 11, 2025 IEP to reach and interact with the screens on her Accent 1000, iPad, and the trays attached to Student’s wheelchair and stander.

San Diego failed to offer evidence that effectively countered Stevens’ credible and persuasive testimony that San Diego’s offer of eight hours of physical therapy services per regular school year and one hour per extended school year, were not sufficient to serve Student’s needs to enable her to access her education. Therefore, Student prevailed on Issue 1D(v).

ISSUE 1D (VI): ASSISTIVE TECHNOLOGY

The March 11, 2025 IEP did not offer Student any related services in the area of assistive technology. A school district is required to provide any assistive technology device that is necessary to provide a FAPE to a child with a disability. (34 C.F.R. § 300.105; Ed. Code, § 56341.1, subd. (b)(5).) An IEP team must consider whether a child requires assistive technology devices or 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).) An assistive technology device is any piece of equipment used to increase, maintain, or improve the functional capabilities of individuals with disabilities. An assistive technology service is any service that directly assists an individual with a disability in the selection, acquisition, or use of an assistive technology device. (20 U.S.C. §§ 1401(1), (2); Ed. Code, § 56020.5.)

Speech language pathologist and assistive technology expert, Heryanto, testified that because Student communicated and learned solely through her Accent 1000, she required significant assistive technology services. Heryanto convincingly opined Student’s teachers and service providers needed five hours of initial training on the Accent 1000. Heryanto also testified that Student required one hour a month of assistive technology consultation. Heryanto candidly noted various issues regularly arose with an assistive technology device, such as the Accent 1000, and its software, such that ongoing assistive technology consultation was necessary.

Heryanto was a very persuasive witness, with sophisticated knowledge of “eye gaze” devices, including the Accent 1000. For example, Heryanto stated the Accent 14000, a device with a larger screen, may be a better assistive technology device for Student than the Accent 1000 because it would be easier for Student to see. Since Student depended on her assistive technology device to communicate and access her education, the evidence established San Diego should have offered some assistive technology services to Student in the March 11, 2025 IEP.

San Diego failed to offer persuasive evidence countering Heryanto’s convincing testimony that Student needed assistive technology services for a FAPE and to access her education. Therefore, Student prevailed on Issue 1D(vi).

ISSUE 1D (VII): LOW INCIDENCE SERVICES

A low-incidence disability includes a visual or hearing impairment, simultaneous visual and hearing impairments, significant cognitive impairment, and any impairment for which a small number of personnel with highly specialized skills and knowledge are needed in order for children with that impairment to receive early intervention services or a FAPE. (20 U.S.C. § 1462(c)(3).) In California, “low incidence disability” means a severe disabling condition with an expected incidence rate of less than one percent of the total statewide enrollment in kindergarten through 12th grade. Severe disabling conditions consist of hearing impairments, vision impairments, and severe orthopedic impairments, or any combination thereof. (Ed. Code, § 56026.5.)

Student’s attorney conceded, on the last day of testimony, that Student presented no evidence in support of Issue 1D(vii) regarding San Diego’s failure to offer appropriate low incidence services. Student’s closing brief stated San Diego failed to offer low incidence services in the March 11, 2025 IEP, but did not go further to describe what kind of low incidence services Student should have been offered. Student failed to introduce persuasive evidence and failed to meet her burden of proof on this issue. Student did not prevail on Issue 1D(vii).

STUDENT’S ISSUE 1E:

DID SAN DIEGO DENY STUDENT A FAPE IN THE MARCH 11, 2025 IEP BY FAILING TO OFFER APPROPRIATE EXTENDED SCHOOL YEAR FOR SUMMER 2025?

Student contends San Diego denied Student a FAPE in the March `11, 2025 IEP by failing to offer Student an appropriate extended school year program for summer 2025 with sufficient related services to prevent Student from regressing academically during the summer break from school.

San Diego contends it did not deny Student a FAPE in the IEP dated March 11, 2025 because it offered Student an appropriate extended school year program for summer 2025 with sufficient related services to prevent Student from regressing academically during the summer break from school.

Extended school year services are special education and related services provided to a child with a disability beyond the normal school year. (34 C.F.R. § 300.106(b); Cal. Code Regs., tit. 5., § 3043.) For a student to qualify for extended school year services, the student must have disabilities which are likely to continue indefinitely or for a prolonged period, and interruption of the student's educational programming may cause regression, when coupled with limited recoupment capacity, rendering it impossible or unlikely that the student will attain the level of self-sufficiency and independence that would otherwise be expected in view of his or her disabling condition. (Cal. Code Regs., tit. 5, § 3043.) Each public agency must ensure that extended school year services are available as necessary to provide FAPE. (34 C.F.R. § 300.106 (a).) In implementing the requirements of this section, a public agency may not unilaterally limit the type, amount, or duration of these services. (Ibid.)

The March 11, 2025 IEP offered Student the following program for the 2025 extended school year:

• 24 hours of specialized academic instruction

• One hour of speech and language services

• One hour of physical therapy services

• One hour of occupational therapy services

• 30 minutes of health and nursing services

Student’s private tutor Beaupre, physical therapist Stevens, speech language pathologist and assistive technology consultant Heryanto, and school psychologist Schmittel all convincingly testified that 24 hours of specialized academic instruction per extended school year program was not sufficient to keep Student from significantly regressing in academics over the summer break from school. For the reasons addressed in the analysis of Issues 1D(i), (ii), (v), and (vi) of this Decision, the March 11, 2025 IEP offer of a FAPE failed to offer Student a sufficient amount of specialized academic instruction, language and speech services, physical therapy services, and assistive technology services for her extended school year program. San Diego failed to offer persuasive evidence that outweighed the persuasive opinions of Beaupre, Stevens, Heryanto and Schmittel. Therefore, Student is the prevailing party on Issue 1E.

STUDENT’S ISSUE 1F:

DID SAN DIEGO DENY STUDENT A FAPE IN THE MARCH 11, 2025 IEP BY FAILING TO OFFER AN APPROPRIATE PLACEMENT?

Student contends San Diego denied Student a FAPE in the March 11, 2025 IEP by failing to offer an appropriate placement as that term is defined in California as the unique combination of facilities, personnel, location or equipment necessary to provide instructional services to an individual with exceptional needs.

San Diego contends it did not deny Student a FAPE in the March 11, 2025 IEP because it offered Student an appropriate unique combination of facilities, personnel, location, and equipment necessary to provide Student with instructional services that constituted a FAPE.

School districts are required to provide each special education student with an appropriate program in the least restrictive environment, with removal from the regular education environment occurring only when the nature or severity of the student's disabilities is such that education in regular classes with the use of supplementary aids and services could not be achieved satisfactorily. (20 U.S.C. § 1412(a)(5)(A); 34 C.F.R. § 300.114 (a)(2); Ed. Code, §§ 56031, 56033.5); D.R. v. Redondo Beach Unif. Sch. Dist., supra, 56 F.4th at 643-44 [citing Sacramento City Unif. Sch. Dist. v. Rachel H. (9th Cir. 1994) 14 F.3d 1398, 1404].) The IDEA also requires, to the maximum extent appropriate, that a child with a disability be educated with children who are not disabled. (20 U.S.C. § 1412(a)(5)(A); 34 C.F.R. § 300.114(a)(2); Ed. Code, § 56040.1, subd. (a).) The continuum of placement options includes home hospital. (34 C.F.R. § 300.115; Ed. Code, § 56361.)

California law defines placement as a specific educational placement is that unique combination of facilities, personnel, location, or equipment, necessary to provide instructional services to an individual with exceptional needs. (Cal. Code Regs., tit. 5, §3042 (a).) The parties agreed in a Joint Stipulation to Fact filed with OAH on February 25, 2025, that Student “is immunocompromised and must receive instruction in her home until such time as she can safely receive either a more potent COVID-19 vaccine which provides sterilizing immunity or prophylactic immunoglobulin infusion demonstrated to neutralize coronavirus.” Therefore, the parties agreed that the location of Student’s placement at her home was not a disputed issue in connection with the March 11, 2025 IEP. However, the other elements of the offered placement, as defined under California law, (the combination of facilities, personnel, or equipment, necessary to provide instructional services to an individual with exceptional needs) have been specifically addressed and analyzed in connection with Student’s Issues 1A through 1E above. San Diego failed to offer Student all of the elements of an appropriate placement, as that term is defined under California law, in the March 11, 2025 IEP, as specifically held by the undersigned ALJ in the analysis of Student’s Issues 1A, through 1E above, which are hereby incorporated herein.

Student established by a preponderance of the evidence that San Diego denied Student a FAPE by failing to offer Student an appropriate placement, as that term is defined under California law, in the March 11, 2025 IEP. Therefore, Student is the prevailing party on Student’s Issue 1F.

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.

STUDENT’S ISSUE 1A:

San Diego denied Student a FAPE in the March 11, 2025 IEP by failing to provide a clear and specific offer of FAPE.

Student prevailed on Issue 1A.

STUDENT’S ISSUE 1B(I):

San Diego denied Student a FAPE in the March 11, 2025 IEP by failing to provide appropriate goals in academics.

Student was the prevailing party on Student’s Issue 1B(i).

STUDENT’S ISSUE 1B(II):

San Diego denied Student a FAPE in the March 11, 2025 IEP by failing to provide appropriate goals in communication.

Student was the prevailing party on Student’s Issue 1B(ii).

STUDENT’S ISSUE 1B(III):

San Diego denied Student a FAPE in the March 11, 2025 IEP by failing to provide appropriate goals in adaptive and daily living skills.

Student was the prevailing party on Student’s Issue 1B(iii).

STUDENT’S ISSUE 1B(IV):

San Diego did not deny Student a FAPE in the March 11, 2025 IEP by failing to provide appropriate goals in physical therapy.

San Diego was the prevailing party on Student’s Issue 1B(iv).

STUDENT’S ISSUE 1B(V):

San Diego denied Student a FAPE in the March 11, 2025 IEP by failing to provide appropriate goals in occupational therapy.

Student was the prevailing party on Student’s Issue 1B(v).

STUDENT’S ISSUE 1B(VI):

San Diego denied Student a FAPE in the March 11, 2025 IEP by failing to provide appropriate goals in assistive technology.

Student was the prevailing party on Student’s Issue 1B(vi).

STUDENT’S ISSUE 1B(VII):

San Diego did not deny Student a FAPE in the March 11, 2025 IEP by failing to provide appropriate goals in social-emotional.

San Diego was the prevailing party on Issue 1B(vii).

STUDENT’S ISSUE 1C:

San Diego did not deny Student a FAPE in the March 11, 2025 IEP by denying parental participation by failing to consider parental concerns.

San Diego was the prevailing party on Student’s Issue 1C.

STUDENT’S ISSUE 1D(I):

San Diego denied Student a FAPE in the March 11, 2025 IEP by failing to offer Student appropriate specialized academic instruction.

Student was the prevailing party on Student’s Issue 1D(i).

STUDENT’S ISSUE 1D(II):

San Diego denied Student a FAPE in the March 11, 2025 IEP by failing to offer Student appropriate language and speech services.

Student was the prevailing party on Student’s Issue 1D(ii).

STUDENT’S ISSUE 1D(III):

San Diego did not deny Student a FAPE in the March 11, 2025 IEP by failing to offer Student appropriate health and nursing services.

San Diego was the prevailing party on Student’s Issue 1D(iii).

STUDENT’S ISSUE 1D(IV):

San Diego did not deny Student a FAPE in the March 11, 2025 IEP by failing to offer Student appropriate occupational therapy services.

San Diego was the prevailing party on Student’s Issue 1D(iv).

STUDENT’S ISSUE 1D(V):

San Diego denied Student a FAPE in the March 11, 2025 IEP by failing to offer Student appropriate physical therapy services.

Student prevailed on Student’s Issue 1D(v).

STUDENT’S ISSUE 1D(VI):

San Diego denied Student a FAPE in the March 11, 2025 IEP by failing to offer Student appropriate assistive technology services.

Student was the prevailing party on Student’s Issue 1D(vi).

STUDENT’S ISSUE 1D(VII):

San Diego did not deny Student a FAPE in the March 11, 2025 IEP by failing to offer Student appropriate low incidence services.

San Diego was the prevailing party on Student’s Issue 1D(vii).

STUDENT’S ISSUE 1E:

San Diego denied Student a FAPE in the March 11, 2025 IEP by failing to offer Student appropriate extended school year for summer 2025.

Student was the prevailing party on Student’s Issue 1E.

STUDENT’S ISSUE 1F:

San Diego denied Student a FAPE in the March 11, 2025 IEP by failing to offer Student an appropriate placement as that term is defined in California law.

Student was the prevailing party on Student’s Issue 1F.

SAN DIEGO’S ISSUE:

San Diego’s March 2025 multidisciplinary assessment of Student was not legally sufficient in the areas of psychoeducation, physical therapy, and occupational therapy.

Student was the prevailing party on San Diego’s issue.

REMEDIES

Under federal and state law, courts have broad equitable powers to remedy the failure of a school district to provide a FAPE to a disabled child. (20 U.S.C. §1415(i)(2)(C) (iii); School Committee of Town of Burlington, Mass. v. Department of Educ. of Mass. (1985) 471 U.S. 359, 369 [105 S.Ct. 1996] (Burlington).) This broad equitable authority extends to an ALJ who hears and decides a special education administrative due process matter. (Forest Grove School Dist. v. T.A. (2009) 557 U.S. 230, 244, n. 11(Forest Grove).)

Parents may be entitled to reimbursement for the costs of placement or services they have procured for their child when the school district failed to provide a FAPE, and the private placement or services were appropriate under the IDEA and replaced services that the school district failed to provide. (20 U.S.C. § 1412(a)(10)(C); Burlington, supra, 471 U.S. at 369-371.) When a school district fails to provide a FAPE to a pupil with a disability, the pupil is entitled to relief that is “appropriate” in light of the purposes of the IDEA. ALJs have broad latitude to fashion equitable remedies appropriate for a denial of a FAPE. (Id. at 369-370; Forest Grove, supra, 557 U.S. at 244,

n. 11.)

Courts may still require a district to provide tuition reimbursement even if the child never received public education. The receipt of special education and related services through the public school system is not a prerequisite for reimbursement. As such, the mere failure to make a FAPE available to a student with a disability can expose a district to a claim for tuition reimbursement. However, reimbursement also will depend on whether the private placement was appropriate, and whether there are any equitable considerations, such as a lack of proper notice, that would bar reimbursement. (Forest Grove, supra, 557 U.S. at pp. 233, 238-240.) The parents of a child with a disability need only have requested the provision of special education and related services in order to qualify for tuition reimbursement. (Frank G. v. Board of Educ. of Hyde Park, Cent. School Dist. (2d Cir. 2006) 459 F.3d 356, 376, cert. den., 552 U.S. 985 (2007));Dist. v. State Bd. of Educ. (5th Cir. 1986) 790 F.2d 1153, 1160-1161.) Although the parents’ placement need not be a “state approved” placement, it still must meet certain basic requirements of the IDEA, such as the requirement that the placement address the child’s needs and provide him educational benefit. (Florence County School Dist. Four v. Carter (1993) 510 U.S. 7, 13-16, 50 [114 S.Ct. 361] (Carter).)

Parents may receive reimbursement for the unilateral placement if it is appropriate. (34 C.F.R. § 300.148(c); Ed. Code, § 56175; Carter, supra, 510 U.S. at pp. 15-16.) The appropriateness of the private placement is governed by equitable considerations. (Ibid.) The Ninth Circuit has held that to qualify for reimbursement under the IDEA, parents need not show that a private placement furnishes every special education service necessary to maximize their child’s potential. (C.B. ex rel. Baquerizo v. Garden Grove Unified School Dist. (9th Cir. 2011) 635 F.3d 1155, 1159.) However, reimbursement may be reduced or denied in a variety of circumstances, including whether a parent acted reasonably with respect to the unilateral private placement. (20 U.S.C. § 1412(a)(10)(C)(iii); 34 C.F.R. § 300.148(d); Ed. Code, § 56176.)

In this case Parents acted reasonably by hiring private special educators and service providers at very reasonable rates to deliver virtual specialized academic instruction and related services to Student. Parents gave San Diego proper notice of their intention to hire tutors and service providers to fill the gap of specialized academic education and related services that San Diego should have offered in the March 11, 2025 IEP. The evidence did not justify a reduction of the allowable educational expenses Parents incurred.

SAN DIEGO SHALL REIMBURSE PARENTS FOR EXPENSES THEY INCURRED IN PRIVATELY PLACING STUDENT WITH SPECIAL

EDUCATORS AND SERVICE PROVIDERS

Since Student prevailed on Student’s Issues 1A, 1B, 1D(i),(ii),(v), and (vi), San Diego shall reimburse Student for reasonable educational expenses Parents incurred in providing a placement and services to address the shortfall in FAPE in the March 11, 2025 IEP, as described throughout this decision. The evidence established Parents acted reasonably and cooperatively throughout the IEP process during all relevant times. The parties entered into a settlement agreement settling all Student’s claims through March 4, 2025. For the period starting March 5, 2025, Parents paid the following to provide Student with specialized academic instruction, including necessary curriculum development:

• $20,298.48 to tutor Paula Brassil, special education teacher and board certified behavior analyst in Massachusetts, for teaching and curriculum development;

• $30,452.53 to tutor Robert Beaupre, teaching assistant at Cotting School in Massachusetts, and credentialed teacher in New Hampshire at one time; and

• $1,357.50 to educator Kenneth Bibby to develop curriculum for Student’s specialized academic instruction.

For provision of necessary related services to Student, Parents paid the following since March 5, 2025:

• $1,166.53 to Speech Language Pathology Center - Norwell;

• $3,625 to Luna Physical Therapy; and

• $2,340 to Cynthia Heryanto, assistive technology consultant and speech language pathologist.

Mother credibly testified Parents paid all of the above listed expenses and provided documentary proof of those payments. The hourly rates of each of the above identified payees were reasonable. For example, Brassil, an experienced educator and behavior analyst, charged Student approximately $68 per hour. Beaupre, who was also professionally experienced in education, charged Student approximately $55 per hour. Moreover, the amount of education and services Brassil and Beaupre provided to Student was also reasonable.

Parents also requested reimbursement of their $200.89 payment for a Zoom subscription. However, there was no evidence introduced to establish that a Zoom subscription was necessary for Student to receive delivery of the privately arranged specialized academic instruction and related services. Also, there was no evidence that the family’s Zoom subscription was not used for purposes other than Student’s instruction and related services. Therefore, the costs Parents incurred for a Zoom subscription shall not be reimbursed to Parents by San Diego.

Within 30 days of the issuance of this Decision San Diego shall pay the following sums to Parents:

• for tutoring expenses: $52,108.51;

• for speech and language therapy expenses: $1,166.53;

• for physical therapy expenses: $3,625;

• for assistive technology consultation expenses: $2,340;

• TOTAL REIMBURSEMENT SUM: $59,240.04.

Under the Burlington standard, the costs incurred by Parents for tutoring, curriculum development, specialized academic instruction, speech and language therapy services, physical therapy services, and assistive technology consultation services are reimbursable. All of the providers were well acquainted with Student and her Accent 1000 device. The costs of the private instruction and related services Parents paid for on student’s behalf were reasonable. Because San Diego failed to offer Student a FAPE in the March 11, 2025 IEP, as addressed in the analysis above of Student’s Issues 1A through 1F, Parents were justified in seeking private specialized academic instruction and related services for Student.

In sum, San Diego shall reimburse Parents within 30 days of the issuance of this Decision, the aggregate amount of $59,240.04 for expenses they incurred for specialized academic instruction, curriculum development, and related services.

SAN DIEGO SHALL PROVIDE STUDENT WITH INDEPENDENT EDUCATIONAL EVALUATIONS IN PSYCHOEDUCATION,

OCCUPATIONAL THERAPY, AND PHYSICAL THERAPY

A student may be entitled to an independent educational evaluation if he or she disagrees with an evaluation obtained by the public agency and requests an independent evaluation at public expense. (20 U.S.C. § 1415(b)(1). In this case San Diego’s assessments of Student in the areas of psychoeducation, occupational therapy, and physical therapy, as memorialized in portions of the Multidisciplinary Team Assessment Report dated March 11, 2025, were not legally appropriate. Therefore, Student is hereby awarded independent educational evaluations to be paid for by San Diego in the areas of psychoeducation, occupational therapy, and physical therapy. Those independent educational evaluations shall be conducted by assessors chosen by Student, in accordance with San Diego’s guidelines for independent educational evaluations, at the expense of San Diego.

ORDER

1. San Diego shall reimburse Parents within 30 days of the issuance of this Decision, the aggregate amount of $59,240.04 for expenses they incurred for specialized academic instruction, curriculum development, and related services.

2. San Diego shall fund independent educational assessments of Student in the areas of psychoeducation, physical therapy, and occupational therapy in accordance with San Diego’s applicable guidelines for independent educational evaluations, which San Diego is ordered to provide to Student’s attorney within 10 days of the issuance of this Decision. San Diego shall be obligated to fund the independent educational assessments of Student in the areas of psychoeducation, physical therapy, and occupational therapy for 18 months following the issuance of this Decision. This means San Diego shall fund independent educational assessments in psychoeducation, physical therapy, and occupational therapy that Student requests within 18 months of the date this Decision is issued.

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.

Christine Arden

Administrative Law Judge

Office of Administrative Hearings