BEFORE THE
OFFICE OF ADMINISTRATIVE HEARINGS
STATE OF CALIFORNIA
PARENTS ON BEHALF OF STUDENT,
v.
SAN BERNARDINO CITY UNIFIED SCHOOL DISTRICT.
CASE NO. 2023050849
DECISION ON REMEDIES
May 23, 2024
On May 23, 2023, the Office of Administrative Hearings, called OAH, received a due process hearing request from Student, naming San Bernardino City Unified School District, called San Bernardino. On August 15, 2023, OAH granted Student’s motion to file an amended complaint. Administrative Law Judge Robert G. Martin heard this matter by videoconference on October 3, 4, 5, 10, 11, 12, and 13, 2023.
On November 2, 2023, closing arguments were received and the matter was submitted. On November 16, 2023, OAH issued an order on liability finding Student the prevailing party on all issues, and bifurcating the hearing and scheduling a second hearing for the purpose of determining appropriate remedies. OAH ordered an impartial psychoeducational assessment be conducted, to be paid for by OAH and the California Department of Education, to provide information necessary to determine an appropriate compensatory education award for Student. The remedies hearing was continued to select and contract with an assessor, and for the assessor to complete the assessment.
The remedies hearing was held on April 18, 22, and 23, 2024. Attorney Tania Whiteleather represented Student at the remedies hearing. Mother attended all days of the remedies hearing. Attorneys Karen Gilyard and Carlos Gonzalez represented San Bernardino at the remedies hearing. District representative Sean McDuffee attended all days of the remedies hearing.
At the parties’ request, the matter was continued to May 20, 2024, for written closing arguments. The record was closed, and the matter was submitted, on May 20, 2024.
SUMMARY OF PRIOR ORDER FINDING LIABILITY
San Bernardino denied Student a free appropriate public education, called a FAPE, from September 1, 2021, through the filing of Student’s amended due process hearing request on August 15, 2023, by failing to appropriately address Student’s ongoing refusal to attend school in-person at a San Bernardino school site. During this period, despite knowing that Student was refusing to come to a school site, San Bernardino offered to assess Student only at a school site, and offered Student an educational program only at a school site. When Parent refused to consent to San Bernardino’s proposed individualized educational programs for Student, called IEPs, that offered Student placement in a general education classroom on a school site, San Bernardino failed to resolve the impasse by either revising its proposed IEP to offer Student a different placement and/or services to address Student’s school-attendance refusal, or by initiating a due process proceeding seeking a determination its IEPs offered Student a FAPE, and could be implemented by San Bernardino without Parents’ consent. As a result of the impasse, and San Bernardino’s failure to resolve it, Student received no educational program for two years, which would otherwise have been his eighth and ninth grade school years.
San Bernardino also denied Student a FAPE by failing to review a June 2, 2022 assessment of Student’s need for assistive technology completed by augmentative communication specialist Cindy Cottier as an independent educational evaluation, called an IEE. Cottier found Student demonstrated difficulty with writing, spelling, and reading comprehension. She recommended he be provided specific assistive technology software for word prediction, text-tospeech conversion, and speech-to-text dictation. Cottier believed use of this software would allow Student to work more efficiently, effectively, and independently, and increase his motivation and interest in completing academic work.
San Bernardino’s proposed April 13, 2022 IEP indicated Student required assistive technology, but offered him no specific forms of assistive technology. San Bernardino’s procedural violation of failing to have Student’s IEP team review the June 2022 assistive technology IEE denied Student a FAPE by significantly impeding Parents’ opportunity to participate in the decisionmaking process regarding the provision of Student’s FAPE, and by denying Student educational opportunity because there was a “strong likelihood” that assistive technology alternatives for Student “would have been better considered” if Student’s IEP team had reviewed the assessment. (Doug. C. v. Hawaii Depart. of Education (9th Cir. 2013) 720 F.3d 1038, 1047, quoting concurrence in M.L. v. Federal Way School Dist. (9th Cir. 2005) 394 F.3d 634, 657.)
ISSUES
This Decision on remedies addresses no legal issues regarding San Bernardino’s potential liability, if any, for its acts or omissions after the filing of Student’s amended due process hearing request on August 15, 2023. Factual findings regarding Student’s educational program and unique needs after August 15, 2023, are made solely for the purpose of determining:
1. What remedies are appropriate to address San Bernardino’s failure to offer Student a FAPE from September 1, 2021, to the filing of Student’s amended complaint on August 15, 2023?
2. What remedies are appropriate to address San Bernardino’s failure to review the June 2, 2022 assistive technology IEE of Student at an IEP team meeting?
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 free appropriate public education 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 free appropriate public education, referred to as FAPE, to the child. (20 U.S.C. § 1415(b)(6) & (f); 34 C.F.R. § 300.511; Ed. Code, §§ 56501, 56502, and 56505; Cal. Code Regs., tit. 5, § 3082.) The party requesting the hearing is limited to the issues alleged in the complaint, unless the other party consents, and has the burden of proof by a preponderance of the evidence. (20 U.S.C. § 1415(f)(3)(B); Ed. Code, § 56502, subd. (i); Schaffer v. Weast (2005) 546 U.S. 49, 57-58, 62 [126 S.Ct. 528, 163 L.Ed.2d 387]; and see 20 U.S.C. § 1415(i)(2)(C)(iii).) Student had the burden of proof on remedies.
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).) All factual findings in the November 16, 2023 liability Order are incorporated into this Decision on remedies.
Student was 15 years old at the time of the hearing regarding remedies, and resided within San Bernardino’s geographic boundaries at all relevant times. Under his last fully consented-to IEP dated January 22, 2019, Student was eligible for special education under the primary category of autism, the secondary category of speech or language impairment, which corresponded to the statutory eligibility category of language or speech disorder (20 U.S.C. § 1401(3)(A)(i); Ed. Code § 56333, 5 CCR 3030(b)(11).) Student last attended school in June 2021, when he completed seventh grade, but never disenrolled from San Bernardino.
As of the April 2024 remedies hearing, San Bernardino’s proposed IEP dated November 30, 2023, as continued and amended on December 12, 2023, and January 18, January 25, and February 29, 2024, offered Student placement in 10th grade general education classes at Arroyo Valley High School. Parents did not consent to the entire IEP, but did consent on December 8, 2023, to the November 30, 2024 IEP’s offer of in-home related services in the areas of specialized academic instruction, language and speech, individual counseling, occupational therapy, educationally related mental health and transition services, and behavior intervention services.
Following the liability Order, OAH arranged for Ann Simun, Psy.D. to conduct an impartial psychoeducational assessment of Student. The purpose of this assessment was to inform the Administrative Law Judge and the parties regarding Student’s needs and to make recommendations for compensatory education for Student. This was necessary because San Bernardino had not performed any in-person assessments of Student since December 2019. Student participated fully in the assessment. Dr. Simun sent the assessment to OAH, and OAH uploaded the assessment into the electronic evidence system for the case on February 20, 2024, making it accessible to Student and San Bernardino.
1. APPROPRIATE REMEDIES TO ADDRESS SAN BERNARDINO’S FAILURE TO OFFER STUDENT A FAPE FROM SEPTEMBER 1, 2021, TO THE FILING OF STUDENT’S AMENDED COMPLAINT ON AUGUST 15, 2023
Neither Student nor San Bernardino suggested any specific remedies for San Bernardino’s failure to offer Student a FAPE from September 1, 2021, to the filing of Student’s amended complaint on August 15, 2023. Extensive remedies were recommended by Dr. Ann Simun in the psychoeducational evaluation she prepared at OAH’s request, dated January 29, 2024. These are discussed in the following sections.
School districts may be ordered to provide compensatory education or additional services to a student who has been denied a FAPE. (Parents of Student W. v. Puyallup School Dist. (9th Cir. 1994) 31 F.3d 1489, 1496 (Puyallup).) The authority to order such relief extends to hearing officers. (Forest Grove School Dist. V. T.A. (2009) 557 U.S. 230, 243-244, fn. 11 [129 S.Ct. 2484].)
When a school district denies a child with a disability a FAPE, the student is entitled to relief that is appropriate in light of the purposes of the IDEA. (School Comm. Of the Town of Burlington v. Dept. of Ed. (1985) 471 U.S. 359, 374, [105 S. Ct. 1996, 85 L.Ed.2d 385] (Burlington); 20 U.S.C. § 1415.) Based on the principle set forth in Burlington, federal courts have held that compensatory education is a form of equitable relief that may be granted for the denial of appropriate special education services to help overcome lost educational opportunity. (See Puyallup, supra, 31 F.3d at p. 1496.) The purpose of compensatory education is to “ensure that the student is appropriately educated within the meaning of the IDEA.” (Ibid.)
Compensatory education is an equitable remedy, and must rely on a fact-specific and individualized assessment of a student’s current needs. (Puyallup, supra, 31 F.3d at p. 1496; Reid v. District of Columbia (D.C.Cir. 2005) 401 F.3d 516, 524 (Reid); Shaun M. v. Hamamoto (D.Hawai’i, Oct. 22, 2009 (Civ. No. 09-00075)) 2009 WL 3415308, pp. 8-9; B.T. v. Dept. of Ed. (D.Hawai’i 2009) 676 F.Supp.2d 982, 989-990.)
The compensatory education award must be “reasonably calculated to provide the educational benefits that likely would have accrued from special education services the school district should have supplied in the first place.” (Reid, supra, 401 F.3d at p. 524.) In determining the equitable remedy, the Administrative Law Judge may consider the school district’s failure to update an outdated IEP and refusal to cooperate. (Anchorage School Dist. V. M.P. (9th Cir. 2012) 689 F.3d 1047, 1059-1060; T.B. ex rel. Brenneise v. San Diego Unified School Dist. (S.D.Cal, March 30, 2011, No. 08CV28-MMA (WMc)) 2011 WL 1212711, p. 3.)
STUDENT’S EDUCATIONAL HISTORY AND STATUS
Student’s educational history and status to the time when he last attended school and completed seventh grade in June 2021 are summarized from the November 16, 2023 Order on liability to provide a starting point for determining a remedy based on the educational benefits that likely would have accrued to Student if he had received a FAPE.
San Bernardino found Student eligible for special education at the end of kindergarten in May 2014. Student qualified under the categories of autism and speech or language impairment. Student attended in-person general education classes from kindergarten through most of his sixth-grade, 2019-2020, school year, supported by accommodations and services including pull-out specialized academic instruction, speech and language therapy, and occupational therapy.
Student remained eligible for special education under the categories of autism and speech or language impairment through his last agreed-upon IEP dated January 22, 2019, which was developed during Student’s 2018-2019 fifth-grade year. This IEP offered Student placement in a general education classroom, with specialized academic instruction, speech therapy, and counseling, all to be provided at the school site. San Bernardino IEPs from October 2020 through the filing of Student’s complaint offered Student eligibility under the categories of autism and specific learning disability, but Parents never consented to the proposed eligibility change.
NOVEMBER-DECEMBER 2019: STUDENT’S LAST IN-PERSON DISTRICT ASSESSMENTS BEFORE STUDENT STOPPED ATTENDING SCHOOL
In Student’s sixth grade 2019-2020 school year, San Bernardino conducted a triennial reevaluation of Student in November-December 2019. The reevaluation included in-person, district assessments of Student in the areas of psychoeducation, speech and language, and occupational therapy. Student’s teacher reported he was sociable and cooperative, functioned well in class, and expressed himself well. He interacted normally with classmates and was able to express his needs, concerns, and ideas. Student had difficulty with organizational skills and forgetfulness, and with not taking the initiative to ask for clarification on assignments or tasks. Student struggled academically in all areas. The psychoeducational assessment included results of standardized testing reviewed in 2024 by Dr. Simun that are discussed below in the section about her report.
Student last attended school in person in March 2020, before San Bernardino suspended in-person instruction due to the COVID-19 pandemic.
2020-2021 SEVENTH GRADE SCHOOL YEAR: STUDENT STRUGGLED WITH REMOTE LEARNING
Student entered middle school for seventh grade in the 2020-2021 school year. Complying with State mandates during the COVID-19 pandemic, San Bernardino did not offer in-person instruction or related services for the 2020-2021 school year. Instead, San Bernardino implemented Student’s IEP through a distance learning model, using videoconferencing.
Throughout the 2020-2021 school year, Student struggled with attention and work completion in the online learning environment. He rarely turned on his camera, preferring to participate only by using the chat function of the videoconferencing software. By September 2020, Parents were concerned about Student’s lack of progress on his IEP goals, and an increase in Student’s frustration and anxiety. Parents asked San Bernardino to conduct an educationally related mental health services, or ERMHS, assessment of Student. San Bernardino ultimately agreed to fund an independent ERMHS assessment, which clinical and school psychologist, Jeanette Morgan, Psy.D., completed in April 2021 and presented at Student’s May 21, 2021 IEP team meeting.
The ERMHS assessment focused on concerns with Student’s inattention, work completion, emotional regulation, and self-advocacy. Dr. Morgan diagnosed Student with social anxiety disorder and adjustment disorder with mixed anxiety and depressed mood. Dr. Morgan also identified school attendance as a potential future issue for Student. When Dr. Morgan interviewed Student in April 2021, Student said he disliked school and often did not want to go. He said he had become used to attending school from home and did not want to return to in-person instruction. Dr. Morgan was concerned that a year of participating in distance learning in which Student avoided interacting with others by turning off his camera and microphone had likely made his social anxiety disorder worse, and might lead to attendance issues when San Bernardino returned to in-person instruction for the 2021-2022 school year. Dr. Morgan recommended San Bernardino assess Student’s functional behavior and develop a behavior intervention plan for him to address inattention and work completion, “with a plan to address attendance if it proves to be necessary.”
During seventh grade, despite his difficulties, Student received passing grades in all but one of his twelve academic classes. During the first semester, Student received B’s in science and art, and C’s in world history, English language arts, math, and math support. In the second semester, Student received an A in world history, B’s in English language arts, design, and science, a C in math, and an F in math support, based on his failure to complete assignments.
MAY 21, 2021 IEP OFFER OF IN-PERSON INSTRUCTION FOR EIGHTH GRADE 2021-2022
At Student’s May 21, 2021 IEP team meeting, near the end of Student’s seventh grade, 2020-2021 school year, the IEP team reviewed Dr. Morgan’s ERMHS assessment. The assessment put San Bernardino on notice that Student was diagnosed with a social anxiety disorder, and was at risk for refusing to attend school when in-person instruction resumed in fall 2021. Based on Dr. Morgan’s evaluation, San Bernardino’s May 21, 2021 Addendum IEP revised Student’s IEP offer by adding three new social-emotional goals, supported by individual ERMHS counseling, to develop Student’s skills in engaging in classroom activities, recognizing, and expressing his feelings, and using coping strategies to manage stress, frustration, or sadness.
The May 21, 2021 IEP offered Student placement in an in-person, eighth-grade general education class at Chavez Middle School for the 2021-2022 school year, with specialized academic instruction, occupational therapy, language and speech therapy, and counseling also offered in the school setting. The May 21, 2021 IEP, and all subsequent IEPs, also offered Student extended school year services.
2021-2022 AND 2022-2023 SCHOOL YEARS: STUDENT REFUSES TO COME TO SCHOOL, AND SAN BERNARDINO OFFERS STUDENT INSTRUCTION OR ASSESSMENTS ONLY AT A SCHOOL SITE
Student did not participate in extended school year services in 2021, which were provided virtually. When in-person instruction resumed for the regular school year on August 2, 2021, Student refused to return to school. When his Mother asked him to get ready for school, Student sometimes would refuse to get out of bed, complaining of poor sleep and body aches. Other times, his Mother got him dressed and to the door of their home, but he would refuse to leave, saying he was scared to go to school. He would get upset if his Mother kept trying to get him to leave for school, start yelling, and go back to his room.
Starting on the first day of classes, Parents and Student’s advocate sought a virtual instruction option for Student. On August 13, 2021, San Bernardino held an IEP team meeting to explain the available option, called Virtual Academy, a distance learning platform San Bernadino was offering all students as an option for the 2021-2022 school year. Instruction would be provided by Virtual Academy instructors instead of teachers from Chavez. Student’s classmates would be other students enrolled in Virtual Academy, rather than his former classmates at Chavez. The district members of Student’s IEP team would change from teachers and staff at Chavez to teachers and staff from the Virtual Academy program. Parents would need to consent to a revised IEP changing Student’s service delivery from in-person instruction at his school of residence to virtual instruction through Virtual Academy.
At a follow-up IEP on September 1, 2021, four of Student’s teachers from the prior school year advised, in person or in writing, that distance learning was not a good option for Student. Student had struggled with virtual learning in their classes, and they believed he needed to physically be in a classroom to receive the structure and support he required to be successful. Parents agreed that Virtual Academy was not an appropriate option for Student. However, Parents did not agree that Student should return to in-person learning at Chavez. Instead, they requested that Student should be allowed to participate in a Chavez classroom virtually from home, assisted by a one-to-one in-home aide, access a camera and microphone in the live classroom.
San Bernardino ultimately denied Parents’ proposed virtual learning program for Student, based in part on concerns about violating privacy laws if it used cameras and microphones to live stream the students and staff in all the classrooms attended by Student throughout his school day.
San Bernardino’s rejection of Parents’ proposed virtual learning program was appropriate. However, San Bernardino made no revisions to its pending May 21, 2021 IEP to offer Student an alternative to returning to school at Chavez, nor did it file a due process hearing request seeking a determination that that IEP offered Student a FAPE. Student did not consent to the May 21, 2021 IEP offer, and Student’s operative IEP remained the January 22, 2019 IEP.
Student did not attend any classes in the 2021-2022 regular school year, the 2022 extended school year, the 2022-2023 regular school year, the 2023 extended school year, or the 2023-2024 school year through the filing of Student’s amended complaint on August 15, 2023.
During that time, San Bernardino’s IEPs offered Student instruction only in person at a school site, and in-person administration of assessment tools only at a school site. The November 16, 2023 Order on liability found San Bernardino denied Student a FAPE from the September 1, 2021 IEP team meeting, when San Bernardino failed to take appropriate steps to address Student’s refusal to come to school, through the filing of the complaint on August 15, 2023. This corresponds to 349 regular school days, plus 40 extended-school-year days, totaling 389 days, or 78 weeks, of school.
STUDENT’S AT-HOME ROUTINE
When interviewed by Dr. Simun in January 2024, Mother explained that Student had no routine at home, other than to be “on his phone all the time,” mostly looking at videos or looking up current events and the news. Student had no regular chores, no enforced bedtime, no limit on his use of electronics, and no outside responsibilities or appointments. Regarding chores, Mother tried to get Student to help with laundry, cooking, and cleaning, but he “won’t” and got “frustrated” when she asked, refusing to talk to her and retreating to his bedroom. Student avoided coming to the table during mealtimes and “resisted” eating with the family. Student was a picky eater, and his habit was to eat a limited variety of preferred foods during the day whenever he wanted. These included chicken nuggets, rice, ramen soup, eggs, sausage, bacon, water, apple juice, watermelon, hamburgers, chicken, pizza, hot dogs, and spam. He would not eat fruits or vegetables. Mother worried about Student’s diet. Student no longer regularly showered, brushed his teeth, or changed his clothes, sometimes going four or five days without showering or changing clothes. Student was socially withdrawn. He engaged in no community-based activities. Student had friends he interacted with online, but saw friends in person only a few times per year.
SAN BERNARDINO’S RECENT ATTEMPTS TO IMPLEMENT AN EDUCATIONAL PROGRAM FOR STUDENT
Testimony at the October 2023 hearing on liability indicated that San Bernardino was in the process of conducting its own educationally related mental health services and functional behavior assessments of Student to develop an IEP offering Student a plan for transitioning back to instruction with an in-person, on-campus educational program. District completed those assessments, and a psychoeducational assessment, in October and November 2023, and reviewed them with Parents at a November 8, 2023 IEP team meeting.
The November 8, 2023 IEP proposed autism as Student’s primary eligibility category, with emotional disturbance replacing the previously proposed specific learning disability as a secondary eligibility category. It offered Student placement in 10th-grade general education classes at Arroyo Valley High School, but Student’s entire educational program was to be implemented through related services provided one-to-one, in-person, at Student’s home. These related services included two hours daily of specialized academic instruction on core academic subjects, language and speech therapy, individual counseling, and occupational therapy, all to be provided by a nonpublic agency, and behavior intervention services and social work services, to be provided by San Bernardino personnel. Parents consented to the in-home services on December 8, 2023.
On January 4, 2024, San Bernardino completed a contract with Professional Tutors of America to be the nonpublic agency provider of in-home services. However, for reasons not clear, Professional Tutors withdrew from the contract in mid-February 2024, without providing Student any services. San Bernardino board-certified behavior analyst Keisha Muhammad began providing in-home behavior services to Student at the end of January 2024. Muhammad met with Student twice each week for one-hour sessions devoted to Student’s IEP behavior goal to use systematic desensitization, a type of behavioral therapy that can be used to help a child or adult with autism to overcome phobias and other anxiety disorders, to increase his attendance to school across four consecutive weeks. Student told Muhammad he wanted to return to school. As of the remedies hearing, Student had visited Arroyo High School with Muhammad five times at the end of the school day, spending a total of about two hours in seventh-period piano class, and 10 minutes in sixth-period English class. Although the November 30, 2023 IEP contemplated that Student would transition back to a full day of on-campus classes by March 15, 2024, that did not happen Muhammad estimated at hearing that Student would be able to attend a full day of instruction at Arroyo by October 2024.
DR. SIMUN’S PSYCHOEDUCATIONAL ASSESSMENT AND RECOMMENDATIONS
OAH made its November 16, 2023 Order directing a bifurcated hearing on remedies, to be informed by an impartial assessment paid for by OAH and the Department of Education, pursuant to Education Code section 56505.1, subdivision (e). This provision authorizes a hearing officer to order that an impartial assessment, including an independent educational assessment, of a pupil be conducted for purposes of the hearing, and continue the hearing until the assessment is completed. Pursuant to the November 16, 2023 Order, Student suggested three possible assessors, from whom San Bernardino ultimately agreed to Dr. Simun.
As stated in the November 16, 2023 Order, the purpose of Dr. Simun’s comprehensive psychoeducational assessment was to arrive at a remedy that would effectively coordinate large amounts of compensatory education with Student’s district education program, to ensure that the compensatory education would help Student, and not overwhelm him. It was expected that Dr. Simun would be able to observe Student in his district education program as part of her assessment of his unique educational needs, and to help make specific recommendations for coordinating compensatory services. Unfortunately, that was not possible. The uncertainty regarding what Student’s regular education program would be, and how Student would perform in it, along with other factors, introduced variables requiring an adaptable compensatory education program.
Dr. Simun had a bachelor’s degree in psychology, a master’s degree in school psychology, and a Ph.D. in neuropsychology. She began her practice as a school psychologist in 1989, and practiced as a neuropsychologist since 2005, working extensively with children and adolescents. She operated her own neuropsychological practice since 2018, focused on evaluations of teens and young adults, and providing consultation related to transition from high school and coordination and consultation with outside agencies beyond high school. Dr. Simun has conducted thousands of psychoeducational assessments of students.
Dr. Simun’s 63-page psychoeducational evaluation report of Student was comprehensive. Dr. Simun reviewed Student’s educational records, interviewed and observed Student, administered standardized tests to Student, interviewed Mother, and administered rating scales to Mother. Dr. Simun’s testimony was clear and informative. She responded fully, non-evasively, and persuasively to questions asked by the Administrative Law Judge and Student’s attorney. San Bernardino did not examine Dr. Simun. Student and San Bernardino did not ask any questions challenging Dr. Simun’s choice of assessment tools, the way she administered them, her findings, her opinions, or her recommendations. Dr. Simun was credible, and her testimony and report were given substantial weight.
Dr. Simun assessed Student in January 2024. Her assessment for diagnostic and educational planning purposes evaluated Student’s eligibility for special education, present levels of performance in academics, cognitive ability, social-emotional functioning, behavior, processing, and prevocational and adaptive skills, and made recommendations for educational supports and services.
ELIGIBILITY
Dr. Simun recommended Student’s primary eligibility category should be speech and language impairment. Past assessments, including the February 2, 2021 independent speech and language evaluation by Susan Hollar, found disorders in Student’s receptive and expressive language, pragmatic language, and speech fluency. Student’s language scores were dramatically lower than his other skills, with Student scoring below the seventh percentile across numerous evaluations. Hollar recommended tripling the IEP’s Student’s speech and language offer to 90 minutes per week to address Student’s substantial deficits in this area.
Dr. Simun recommended specific learning disability as a secondary eligibility. San Bernardino had previously proposed eligibility under that category. Student’s test scores over time showed consistent math deficits and listening comprehension deficits, and processing disorders were found previously in auditory processing.
Dr. Simun found Student did not qualify for special education under the eligibility category of autism. Student had never been medically diagnosed with autism. He did not present with restricted, repetitive interests and/or behaviors, and his patterns of behavior were inconsistent with autism spectrum disorder. Only one assessor, San Bernardino’s school psychologist in 2014, had assessed Student for autism and found him eligible, based on parent and teacher rating scales that did not support the finding. Later IEPs and assessments referring to a prior medical diagnosis of autism did so based on Parents’ mistaken representation that the 2014 finding of autism was a medical diagnosis. The earliest formal assessment of Student, a private psychological evaluation in September 2013, found Student exhibited mostly normal development in communication and social skills, with no behaviors or patterns suggesting autism. In 2019, San Bernardino’s school psychologist conducting Student’s triennial psychoeducational assessment initially recommended that Student’s autism eligibility be removed because the results of autism rating scales received from Mother and two teachers were not consistent with a finding of autism. Mother’s scores showed an elevated concern for behaviors associated with autism spectrum disorder, while the two teachers’ scores indicated only average concern. The assessor concluded that if Student was on the autism spectrum it was “a very borderline case” and that a primary eligibility of specific learning disability would be more appropriate. The assessor withdrew his recommendations when Mother objected.
ACADEMIC ACHIEVEMENT
Between 2019 and 2024, Student’s academic skills declined markedly relative to those of peers his age. By administering the Woodcock-Johnson IV Tests of Achievement – the same test used by San Bernardino in its 2019 triennial evaluation of Student in sixth grade – Dr. Simun was able to directly compare Student’s performance relative to peers his age before and after he stopped attending school.
No area showed improvement. Only two – sentence reading fluency and applied math problems – were nearly the same. Most dropped significantly, including overall reading comprehension and passage comprehension, oral reading, reading recall, math facts fluency, overall written expression, writing samples, sentence writing fluency, and academic applications and fluency, which measured Student’s ability to apply his Area Tested
12/2019
Scaled Score
1/2024
Scaled Sore
1/2024 Grade Equivalent
BROAD READING
84
79
4.9
BASIC READING
--
85
5.4
READING COMPREHENSION
98
83
5.2
READING FLUENCY
79
75
4.1
Letter-Word Identification
92
89
6.7
Passage Comprehension
94
80
4.8
Word Attack
--
81
3.6
Sentence Reading Fluency
78
77
4.3
Oral Reading
88
77
3.8
Reading Recall
105
94
6.6
BROAD MATH
--
50
2.6
Applied Problems
73
72
3.4
Calculation
--
45
1.9
Math Facts Fluency
78
58
2.8
MATH CALCULATION SKILLS
--
50
2.3
BROAD WRITTEN LANGUAGE
--
59
3.0
WRITTEN EXPRESSION
87
66
3.0
Spelling
--
62
2.9
Writing Samples
96
74
3.2
Sentence Writing Fluency
77
63
2.9
ACADEMIC SKILLS
--
62
3.3
ACADEMIC APPLICATIONS
84
70
3.7
ACADEMIC FLUENCY
75
64
3.5
skills to solve academic problems, and to quickly read short sentences, do simple math calculations, and write simple sentences.
Student’s January 2024 grade-equivalent scores were even more concerning in their implications for Student’s future education. The grade equivalent represents the most common, or median, grade level and month of the pupils who earned the same test score as Student. For example, Student’s broad reading score of 79 was most commonly earned by pupils in the ninth month of fourth grade, and indicated that his broad reading ability was also at approximately that grade level.
Student’s grade-equivalent scores indicated that he was generally reading at a fourth-to-fifth-grade level, writing at a third-grade level, and doing math at a second-to-third grade level. Combined measures of Student’s overall academic were at the third-grade level. These included a 3.3 grade equivalent score in Academic Skills of letter and word reading, math calculation, and spelling skills; a 3.7 score in Academic Applications, which measured Student’s ability to apply his skills to solve academic problems; and a 3.5 score in Academic Fluency, measuring Student’s ability to quickly read short sentences, do simple math calculations, and write simple sentences.
Dr. Simun explained that high school students reading below a fifth or sixth-grade level often find it difficult or impossible to catch up enough to be able to participate in a high school general education curriculum. Dr. Simun believed Student’s cognitive ability was theoretically high enough for him to catch up if strong supports were provided, but she also believed that Student’s IEP team should be prepared to decide whether Student should proceed with a general education curriculum, or switch to an alternative, non-diploma curriculum, six months or so after Student resumed consistent full-time attendance at a formal educational program using the general education curriculum.
Dr. Simun thought Student’s IEP team should consider retaining Student to reduce the amount of missed instruction he would have to cover to catch up on to participate in his grade level when he re-entered school. Dr. Simun also though the IEP team should consider extending Student’s graduation date to give him more time to catch up. Although retention is generally associated with higher dropout rates in high school, Student was aware that he had missed a substantial amount of school, and might be open to one year of retention. Dr. Simun also thought Student might have the best chance of succeeding if he were placed in a nonpublic school with a high adult-to-student ratio, focused on teaching students with learning disabilities and/or language disorders. Dr. Simun was not familiar with nonpublic schools in San Bernardino County, and had no specific recommendations.
STUDENT’S REFUSAL TO ATTEND SCHOOL
San Bernardino’s behavior intervention plan to transition Student back to on-campus learning was predicated on Dr. Morgan’s 2021 diagnosis of social anxiety disorder. However, Dr. Simun’s assessment results, including parent reporting, did not meet the criteria for that disorder, or for school phobia, separation anxiety, generalized anxiety disorder, or adjustment disorder. These disorders involve a physical flight-or-fight response and a high level of anxiety, triggered by a specific stressor or trauma. Treatment includes teaching anxiety-coping techniques to control the physical response. Student’s scores for anxiety were below the required levels, and Dr. Morgan did not identify any triggering trauma or stressor. Dr. Simun thought Student’s avoidance of school was better attributed to school refusal disorder, a learned behavior where each successful attempt to avoid school reinforces and encourages the negative behavior. This disorder is treated by gradual unconditioning the student, consistently reinforcing the positive behavior of going to school, and does not involve teaching anxiety coping techniques.
DR. SIMUN’S PARTICIPATION IN DEVELOPING A NEW IEP FOR STUDENT
San Bernardino and Dr. Simun largely agreed on Student’s areas of need.
• Student is probably not autistic. Or, if he is on the autism spectrum, it involves, in the words of San Bernardino’s 2019 psychoeducational assessment, “a very borderline case” that does not significantly impact Student’s access to education.
• Student is significantly impacted by language impairments in the areas of expressive language, pragmatic language, and speech fluency, and by specific learning disabilities in the areas of math and listening comprehension.
• Student requires in-person instruction for academics, and access to peers for his social-emotional development. He belongs in a classroom.
• Student’s greatest immediate need is to transition back to in-person learning in a classroom. San Bernardino’s current behavior intervention plan to achieve this is predicated on a previous assessor’s diagnosis of social anxiety disorder that Dr. Simun believes may be incorrect. The transition is also progressing much more slowly than San Bernardino anticipated.
The principal driver of Student’s future educational success is going to be his Individualized Education Program offered by San Bernardino, not the compensatory education awarded in this decision. Appropriately, many of Dr. Simun’s recommendations concerned placement, goals, services, and accommodations to be determined, offered, and implemented through Student’s IEP team and IEP.
San Bernardino needs to develop a new IEP for Student, with Dr. Simun’s participation. San Bernardino will be ordered to hold an IEP team meeting as soon as possible to review Dr. Simun’s psychoeducational evaluation, consider Dr. Simun’s findings and recommendations , and develop a new IEP offer for Student. San Bernardino will be ordered to pay for Dr. Simun’s participation. The IEP team will specifically consider and discuss, among other things:
• Changing Student’s eligibility to language or speech disorder and specific learning disability.
• Retaining Student one grade to reduce the gap he would need to make up between his current academic skills and those required for his ongoing educational program.
• Extending Student’s time to graduate.
• Offering Student placement in a nonpublic school focused on students with language or speech disorders and specific learning disabilities, offering in-person instruction in small classes with a low student-to-teacher ratio and a high level of individual instruction.
San Bernardino will hold the IEP team meeting within 30 calendar days of the date of this order, not counting days between the pupil’s regular school sessions, terms, or days of school vacation in excess of five school days. (Ed. Code, §§ 56343.5; 56043, subd. (l).) If Dr. Simun is unavailable to participate with that time, the IEP team meeting will be held on Dr. Simun’s earliest date available.
COMPENSATORY EDUCATION BASED ON DR. SIMUN’S RECOMMENDATIONS
Dr. Simun recommended compensatory education for San Bernardino’s failure to provide Student any services to address his unique needs in the areas of general education and specialized academic instruction, speech and language therapy, occupational therapy, individual counseling and parent counseling and training, and educationally related mental health services, and behavioral support services. Consistent with her general agreement with San Bernardino on Student’s areas of need, Dr. Simun based her recommendations primarily on levels of service offered in these areas in Student’s IEPs from May 2021 through November 2023, times the duration of Student’s absence from school. Dr. Simun recommended increasing the base amount of Student’s compensatory speech and language therapy from 30 minutes per week to the 90 minutes per week recommended in the Hollar speech and language IEE, to address his needs in what Simun believed should be Student’s primary eligibility category.
For compensatory education in the regular curriculum, Dr. Simun recommended general education and specialized academic instruction in the form of individual specialized academic instruction, calculated at two hours per day five days per week, times the 78 weeks San Bernardino denied Student a FAPE, for a total of 780 hours of specialized academic instruction.
For compensatory education in speech and language services, Dr. Simun recommended individual speech and language services, calculated at 90 minutes per week, times the 78 weeks San Bernardino denied Student a FAPE, for a total of 117 hours.
For compensatory education in occupational therapy, Dr. Simun recommended individual occupational therapy services, calculated at 60 minutes per month, times the 19 months San Bernardino denied Student a FAPE. A total of 19 hours.
For compensatory education in individual counseling, Dr. Simun recommended individual Student cognitive behavioral therapy counseling services to address anxiety or other mental health issues, calculated at 50 minutes per week times the 78 weeks San Bernardino denied Student a FAPE, for a total of 65 hours.
For compensatory education in parent counseling and training, Dr. Simun recommended individual counseling and training for Parents, calculated at one hour per week times the 78 weeks San Bernardino denied Student a FAPE, for a total of 78 hours.
For compensatory education in educationally related mental health services, Dr. Simun recommended individual ERMHS for Student, calculated at 30 minutes per month times the 19 months San Bernardino denied Student a FAPE, for a total of nine and a half hours.
Dr. Simun also recommended compensatory education in behavioral support services, including applied behavior analysis, to address Student’s behaviors affecting his transition back to in-person instruction at school. Dr. Simun recommended one to two hours per week consultation with a board-certified behavior analyst, to be phased out over an unspecified time, and an unspecified amount of individual behavior support services.
Dr. Simun’s compensatory education recommendations were reasonable considering Student had no educational program for two years. Although calculated based on the duration of missed instruction, the recommended services focus on Student’s agreed areas of need, coordinate with comparable services proposed by San Bernardino, and are designed to help Student achieve “the educational benefits that likely would have accrued from special education services the school district should have supplied in the first place.” (Reid, supra, 401 F.3d at p. 524.)
With respect to the unspecified amount of compensatory behavioral support services Dr. Simun recommended to address Student’s transition back to in-person instruction at school, Student will be awarded compensatory education based on the estimate of San Bernardino board-certified behavior analyst Muhammad that Student will require approximately a 36-week transition period working with a board-certified behavior analyst, without an additional behaviorist, from February through October 2024. Calculating compensatory board-certified behavior analyst consultation services of one hour per week for that time results in an award of 36 hours of such services.
Several practical considerations and concerns shape the terms for use of the hours to be provided. First, Student’s district educational program is not yet in place, and it is uncertain whether Student will be educated at school or in the home, what his curriculum will be, and what changes to his unique needs may occur once he re-engages in an educational program. Second, San Bernardino’s difficulty locating providers for Student’s in-home services suggests that such providers may be hard to come by, and the evidence did not show whether more providers would be available to provide individual services to Student at a location other than his home, or if and when Student would be able to leave home to receive services. Third, the effort required in coordinating the goals to be worked on, and the schedules and logistics for the delivery of services, might cause Parents to not use the available services for long periods of time. Dr. Simun expressed concern, for example, that Student had never had private mental health or behavioral treatment, no dental care in the last four years because he refused to go, and had no treating physician since 2016 despite health issues including insomnia, joint pain, gastrointestinal pain and distress, auditory processing problems, and eating issues.
To increase the flexibility and opportunities to use the compensatory award, while increasing the likelihood that the services will be accessed and not overlooked completely, or accessed in a rush near their expiration date, Student will be given six years from his 16th birthday to use the services, and one-sixth of the total amount of each service will expire annually on Student’s birthday if that minimum amount of each service has not been used.
Student and San Bernardino are permitted and encouraged to agree to re-allocate the amount of time available for each of the compensatory services to align with Student’s future needs as they become apparent. Any such future agreements will become effective only upon execution of a written agreement signed on behalf of both parties.
STAFF TRAINING ON ASSESSMENT OF SPECIAL EDUCATION STUDENTS UNABLE TO ATTEND SCHOOL
San Bernardino has failed to offer or conduct in-person assessments of Student since September 2021, except for four in-home observations by Student’s functional behavior assessor in fall 2023. Student’s other assessments contained language like that in the district’s ERMHS assessment of Student, dated October 4, 2023: “Throughout the evaluation process, [Student] was not physically present at the school for the purpose of completing behavioral observations.” The inability of San Bernardino’s assessors to observe Student or conduct standardized assessments designed to be administered in person made it difficult or impossible to provide an appropriate assessment of Student’s present levels of performance or areas of need.
Testimony at the remedies hearing provided an explanation for this puzzling, ongoing conduct by San Bernardino. Most of San Bernardino’s assessors are associated with one or more school sites, and generally conduct their assessments of Student at school. They are not barred by San Bernardino from conducting in-home assessments of students if they think it appropriate to do so, but they are not required to conduct such assessments, and are free to decline to do so. San Bernardino has a smaller group of assessors for special education students with in-home placements for individualized instruction, which witnesses referred to as home hospital. (34 C.F.R. 300.115(b)(1); Cal. Code Regs., tit. 5, § 3051.4(d).) Such placements require the student’s IEP team to have a medical report from a physician or psychologist stating a diagnosed condition and certifying that the severity of the condition prevents the pupil from attending a less restrictive placement. (34 C.F.R. 300.115(d).)
San Bernardino never placed Student in-home. Instead, it offered Student only placement in a general education class at a school site, with in-home services ultimately offered in 2023. Although the lack of in-home placement on Student’s IEP was apparently the reason Student was not provided in-home assessments, services, or instruction, there is no evidence that Student’s IEP team considered offering him such a placement so that he could be assessed, or receive services and instruction. There is also no evidence that San Bernardino considered contracting with a nonpublic agency to conduct in-home assessments of Student when its own school-based assessors declined to do so.
Staff training is an appropriate compensatory remedy under these facts. The IDEA does not require compensatory education services to be awarded directly to a student. Staff training can be an appropriate compensatory remedy. (Park v. Anaheim Union High School Dist. (9th Cir. 2006) 464 F.3d 1025,1034 [student, who was denied a FAPE due to failure to properly implement his IEP, could most benefit by having his teacher appropriately trained to do so].) Appropriate relief considering the purposes of the IDEA may include an award that school staff be trained concerning areas in which violations were found, to benefit the specific pupil involved, or to remedy procedural violations that may benefit other pupils. (Ibid.)
San Bernardino will be ordered to provide no less than two hours of training for all district special education administrators, assessors, teachers, and service providers in methods for providing assessments, instruction, and services to special education students unable to come to a school site. This training shall not be provided by a San Bernardino employee or by an employee of the attorneys’ office representing San Bernardino. It must be provided by an independent expert in state and federal special education laws. This training shall be arranged and completed by September 30, 2024.
2. APPROPRIATE REMEDIES TO ADDRESS SAN BERNARDINO’S FAILURE TO REVIEW THE JUNE 2, 2022 INDEPENDENT ASSISTIVE TECHNOLOGY EVALUATION AT AN IEP TEAM MEETING
Potential remedies for San Bernadino’s failure to review the June 2, 2022 independent assistive technology assessment completed by augmentative communication specialist Cindy Cottier are limited. Student presented no evidence that a failure to provide Student assistive technology added to Student’s loss of educational caused by Student not being able to attend school. Monetary damages such as general, special, and punitive damages are not relief available under the IDEA. (C.O. v. Portland Public Schools (9th Cir. 2012) 679 F.3d 1162, 1166.)
At the remedies hearing, questioning of Parent by San Bernadino’s attorney elicited responses that Parent requested, and San Bernardino was considering agreeing to, IEE’s of Student in several areas, including assistive technology. The June 2, 2022 assistive technology assessment was out of date. As a remedy, San Bernardino is ordered to fund an independent assistive technology assessment of Student by Cindy Cottier, or another qualified assessor of Parents’ choosing, if it has not already done so.
ORDER
1. San Bernardino will hold an IEP team meeting to review Dr. Simun’s psychoeducational evaluation, consider Dr. Simun’s findings and recommendations, and develop a new IEP offer for Student.
2. San Bernardino will hold the IEP team meeting within 30 calendar days of the date of this order, not counting days between the pupil’s regular school sessions, terms, or days of school vacation exceeding five school days. If Dr. Simun is unavailable to participate with that time, the IEP team meeting will be held on Dr. Simun’s earliest date available.
3. San Bernardino will contract with Dr. Simun to pay for her participation in the IEP team meeting.
4. The IEP team will specifically consider and discuss, among other things:
• Changing Student’s eligibility to language or speech disorder and specific learning disability.
• Retaining Student one grade to reduce the gap he would need to make up between his current academic skills and those required for his ongoing educational program.
• Extending Student’s time to graduate.
• Offering Student placement in a nonpublic school focused on students with language or speech disorders and specific learning disabilities, offering in-person instruction in small classes with a low student-to-teacher ratio and a high level of individual instruction.
5. San Bernardino will fund compensatory education for Student for a period of six years starting June 4, 2024, and ending June 4, 2030, unless extended for reasons stated below.
6. The services to be provided are:
a. 780 hours of one-to-one specialized academic instruction, to be provided by an individual or individuals selected by Parents, and qualified under San Bernadino’s guidelines for providers of such services.
b. 117 hours of individual speech and language services, to be provided by an individual or individuals selected by Parents, and qualified under San Bernadino’s guidelines for providers of such services.
c. 39 hours of individual occupational therapy services, to be provided by an individual or individuals selected by Parents, and qualified under San Bernadino’s guidelines for providers of such services.
d. 65 hours of individual Student counseling, to be provided by an individual or individuals selected by Parents, and qualified under San Bernadino’s guidelines for providers of such services.
e. 78 total hours of individual parent counseling and training, whether used by either Parent alone or by both Parents at the same time, to be provided
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by an individual or individuals selected by Parents, and qualified under San Bernadino’s guidelines for providers of such services.
f. Nine and a half hours of individual Educationally related mental health services for Student, to be provided by an individual or individuals selected by Parents, and qualified under San Bernadino’s guidelines for providers of such services.
g. 36 hours of board-certified behavior analyst consultation services, to be provided by an individual or individuals selected by Parents, and qualified under San Bernadino’s guidelines for providers of such services.
7. All hours of compensatory education will be immediately available for use. Board certified behavior analyst services to assist Student’s transition back to in-person instruction at school will expire one year from June 4, 2025, if not used. For the other compensatory services awarded, approximately one-sixth of the total hours will expire every 12 months, if not used, according to the following schedule:
(Schedule deleted.)
8. If Student is unavailable to receive services for medical reasons for more than five consecutive days in any of the six annual periods, the expiration date at the end of that period will be extended by the same number of days, for all services.
9. If both Parents are unavailable to receive their parent counseling and training services for medical reasons for more than five consecutive days in any of the six annual periods, the expiration date for parent counseling and training at the end of that period will be extended by the same number of days.
10. Student and San Bernardino are permitted and encouraged to agree to re-allocate the amount of time available for each of the compensatory services to align with Student’s future needs as they become apparent. Any such future agreements will become effective only upon execution of a written agreement signed on behalf of both parties.
11. San Bernardino will be ordered to provide no less than two hours of training for all district-level special education administrators, and all special education teachers, assessors, and service providers at Chavez Middle School and Arroyo Valley High School, in methods for providing assessments, instruction, and services to special education students who are unable to come to a school site, including both students who have an IEP home hospital placement providing for in-home individualized instruction and services, and students not having such an IEP placement.
12. This training shall not be provided by a San Bernardino employee or by an employee of the attorneys’ office representing San Bernardino. It must be provided by an independent expert in state and federal special education laws.
13. This training shall be completed by September 30, 2024.
14. If San Bernardino has not already agreed to do so within the 30 days prior to this Decision, San Bernardino shall fund an independent assistive technology evaluation of Student. San Bernardino shall also fund the assessor’s attendance at the IEP team meeting to review the results to a maximum of three hours.
15. If Parents want assessor Cindy Cottier to conduct the independent assistive technology evaluation assessment, Parents will provide San Bernardino with Cottier’s contact information within five business days of this Decision, and San Bernardino will send Cottier a contract to perform the independent assessment within 10 business days of receiving the contact information. San Bernardino will not prepare an assessment plan. San Bernardino shall cooperate with all reasonable requests of the assessor.
16. If Parents do not provide San Bernardino Cottier’s contact information within five business days of this Decision, San Bernardino will provide Parents a copy of its criteria for independent evaluations within 10 business days of this Decision. Parents shall then select an assessor who meets the specified criteria and provide San Bernardino with the selected assessor’s contact information within 15 business days of receipt of San Bernardino’s criteria. San Bernardino will not prepare an assessment plan.
17. Within 10 business days of receipt of the contact information for the Parents’ chosen qualified assessor, San Bernardino shall send the assessor a contract to perform the independent assessment. San Bernardino shall cooperate with all reasonable requests of the assessor.
18. The independent assistive technology assessor shall provide the assessment report directly to Parents and San Bernardino. San Bernardino shall convene an IEP team meeting to discuss the assessment report no later than
30 calendar days after it receives the report, not counting days between the pupil’s regular school sessions, terms, or days of school vacation exceeding five school days. The IEP team may meet in person or by videoconference.
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. This was determined in the November 16, 2023 Order on liability:
Issue 1, subsection a: San Bernardino denied Student a FAPE in the 2021-2022 school year by failing to address Student’s attendance issues.
Student prevailed on Issue 1, subsection a.
Issue 1, subsection b: San Bernardino denied Student a FAPE in the 2021-2022 school year by failing to address Student’s lack of progress on his IEP from October 6, 2021.
Student prevailed on Issue 1, subsection b.
Issue 1, subsection c: San Bernardino denied Student a FAPE in the 2021-2022 school year by failing to obtain information on Student’s present levels of performance as part of his April 2022 triennial reevaluation.
Student prevailed on Issue 1, subsection c.
Issue 1, subsection d: San Bernardino denied Student a FAPE in the 2021-2022 school year by failing to offer Student supports and services necessary for Student to access the educational program and related services offered in his IEP.
Student prevailed on Issue 1, subsection d.
Issue 1, subsection e: San Bernardino denied Student a FAPE in the 2021-2022 school year by failing to review Student’s June 2022 independent educational evaluation in assistive technology.
Student prevailed on Issue 1, subsection e.
Issue 1, subsection f: San Bernardino denied Student a FAPE in the 2021-2022 school year by failing to review Student’s June 2022 independent educational evaluation in assistive technology.
Student prevailed on Issue 1, subsection f.
Issue 1, subsection g: San Bernardino denied Student a FAPE in the 2021-2022 school year by failing to file a due process hearing request to establish that its April 2022 IEP offered Student a FAPE after Parents declined to consent to the proposed IEP.
Student prevailed on Issue 1, subsection g.
Issue 2, subsection a: San Bernardino denied Student a FAPE in the 2022-2023 school year by failing to address Student’s attendance issues.
Student prevailed on Issue 2, subsection a.
Issue 2, subsection b: San Bernardino denied Student a FAPE in the 2022-2023 school year by failing to take reasonable steps to determine why Student was not accessing his IEP and related services.
Student prevailed on Issue 2, subsection b.
Issue 2, subsection c: San Bernardino denied Student a FAPE in the 2022-2023 school year by failing to address Student’s lack of progress on his IEP.
Student prevailed on Issue 2, subsection c.
Issue 2, subsection d: San Bernardino denied Student a FAPE in the 2022-2023 school year by failing to offer Student supports and services necessary for Student to access the educational program and related services offered in his IEP.
Student prevailed on Issue 2, subsection d.
Issue 2, subsection e: San Bernardino denied Student a FAPE in the 2022-2023 school year by failing to timely convene an annual IEP for Student in April 2023.
Student prevailed on Issue 2, subsection e.
Issue 2, subsection f: San Bernardino denied Student a FAPE in the 2022-2023 school year by failing to obtain information on Student’s present levels of performance for his May 2023 IEP.
Student prevailed on Issue 2, subsection f.
RIGHT TO APPEAL THIS DECISION
This is a final administrative decision, and all parties are bound by it. Pursuant to Education Code section 56505, subdivision (k), any party may appeal this Decision to a court of competent jurisdiction within 90 days of receipt.
Robert G. Martin
Administrative Law Judge
Office of Administrative Hearings