OAH Case Nos. 2019080542, 2020040245, 2020010465

BEFORE THE

OFFICE OF ADMINISTRATIVE HEARINGS STATE OF CALIFORNIA

CASE NO. 2019080542

CASE NO. 2020040245

CASE NO. 2020010465

THE CONSOLIDATED MATTERS INVOLVING

PARENT ON BEHALF OF STUDENT, AND

UPLAND UNIFIED SCHOOL DISTRICT.

DECISION

NOVEMBER 24, 2020

On August 13, 2019, Student filed with the Office of Administrative Hearings, referred to as OAH, a Request for Due Process Hearing in OAH Case No. 2019080542, Student’s First Case, naming Upland Unified School District. OAH granted Student’s request to amend the complaint in Student’s First Case on December 4, 2019.

On January 14, 2020, Upland filed a Request for Due Process Hearing in

OAH Case No. 2020010465, Upland’s Case, naming Student. On January 16, 2020, OAH granted Upland’s Motion to Consolidate Upland’s Case with Student’s First Case and to continue the due process hearing dates in the consolidated matters, Consolidated Case, to the dates set in Upland’s Case.

On February 3, 2020, OAH continued the hearing to April 21, 2020, and on April 8, 2020 OAH continued the hearing to May 12, 2020.

On April 2, 2020, Student filed with OAH a Request for Due Process Hearing in OAH Case No. 2020040245, Student’s Second Case, naming Upland. On April 30, 2020, Upland filed a Motion to Consolidate Student’s Second Case and the Consolidated Case.

On May 1, 2020, Student filed a second motion to amend the complaint in Student’s First Case. OAH granted Student’s second request to amend the complaint in Student’s First Case on May 4, 2020. OAH rescheduled the due process hearing in the Consolidated Case to begin on June 23, 2020.

On May 4, 2020, OAH granted Upland’s Motion to Consolidate Student’s Second Case with the Consolidated Case.

On June 17, June 26, July 24, and July 31, 2020, OAH granted Student’s requests for continuance.

Administrative Law Judge Kara Hatfield heard this matter by video conference on August 25, 26, and 27, and September 1, 2, 3, 15, 17, 22, 24, and 25, 2020.

Attorney Tania Whiteleather represented Student. Mother attended all hearing days on Student’s behalf. Student did not attend except while she testified. Attorneys Christopher Fernandes and Joshua Walton represented Upland. Anthony Farenga, Upland’s Director of Special Education, attended all hearing days on Upland’s behalf. Dr. Royal Lord, Program Manager of the West End Special Education Local Plan Area, also attended.

At the parties’ request, OAH continued the matter to October 26, 2020, for written closing argument. OAH granted Student’s two additional requests for continuance and ordered the parties to submit written closing arguments by November 9, 2020. The record was closed, and the matter was submitted on November 9, 2020.

ISSUES

STUDENT’S ISSUES

1. Did Upland significantly impede Parent’s opportunity to participate in the educational decisionmaking process by failing to explain to Parent why Upland wanted to do additional assessments under an October 19, 2016 assessment plan after having conducted a triennial reassessment in 201

2. Did Upland deny Student a free appropriate public education, called a FAPE, by failing to provide Parent prior written notice in response to Parent’s October 19, 2016 request for independent educational evaluations?

3. Did Upland deny Student a FAPE in the October 31, 2016 individualized education program, called an IEP, by:

4. Failing to consider areas of need in which Student had not been assessed, specifically post-secondary transition, central auditory processing, attention, and the need for assistive technology;

5. Failing to include present levels of performance in all areas of unique need;

6. Failing to develop appropriate goals based on present levels of performance;

7. Significantly impeding Parent’s opportunity to participate in the educational decision-making process by failing to discuss or consider private services Student was receiving from Lindamood-Bell, tutoring, and speech therapy;

8. Failing to place Student in the appropriate grade level;

9. Failing to offer appropriate placement, the least restrictive environment, for the 2016-2017 regular school year and 2017 extended school year; and

10. Failing to develop an appropriate post-secondary transition plan?

4. Did Upland deny Student a FAPE by failing to provide Parent prior written notice in response to Parent’s October 31, 2016 request for independent educational evaluations?

5. Did Upland deny Student a FAPE by failing to timely respond to Parent’s October 31, 2016 request for independent educational evaluations, either by funding them or filing to establish Upland’s own assessments were appropriate, in the areas of:

1. Neuropsychology;

2. Assistive technology; and

3. Central auditory processing?

6. Did Upland deny Student a FAPE by failing to timely assess Student, after Parent’s October 31, 2016 request, in all areas of suspected disability, specifically:

1. Sensory integration praxis;

2. Visual motor integration;

3. Visual perceptual skills;

4. Magnocellular needs;

5. The need for vision therapy;

6. The need for an interactive metronome; and

7. The need for assistive technology?

7. Did Upland deny Student a FAPE by failing to provide Parent legally compliant prior written notice of Upland’s November 18, 2016 decision not to provide Student Kurzweil as assistive technology after Upland offered it to Student in the October 31, 2016 IEP?

8. Did Upland deny Student a FAPE by failing until January 2020 to file a request for a due process hearing to obtain a determination from OAH that the

October 31, 2016 IEP offered Student a FAPE, after Parent did not consent?

9. Did Upland deny Student a FAPE by failing, before August 21, 2017, and thereafter, to convene an annual meeting to develop an IEP for the 2017-2018 school year and 2018 extended school year?

10. Did Upland deny Student a FAPE by failing to convene an IEP team meeting before August 21, 2017, and thereafter, to review independent assessments by Dr. Stephey and Lindamood-Bell?

11. Did Upland deny Student a FAPE by failing to timely complete assessments to which Parent consented on December 13, 2017?

12. Did Upland deny Student a FAPE by failing to file a request for a due process hearing to obtain OAH authorization to conduct assessments to which Upland contended Parents did not provide consent in December 2017?

13. Did Upland deny Student a FAPE by failing to provide Parent prior written notice in response to Parent’s June 6, 2018 request for independent educational evaluations?

14. Did Upland deny Student a FAPE by failing to provide Parent prior written notice in response to Parent’s July 26, 2018 request for independent educational evaluations?

15. Did Upland deny Student a FAPE by failing to timely assess Student, after Parent’s July 26, 2018 request, in all areas of suspected disability, specifically:

a. Sensory integration praxis;

b. Visual motor integration;

c. Visual perceptual skills;

d. Magnocellular needs;

e. The need for vision therapy;

f. The need for an interactive metronome; and

g. The need for assistive technology?

UPLAND’S ISSUES

16. Was Student a parentally placed private school student for the 2017-2018 and 2018-2019 school years and, therefore, not entitled to a FAPE from Upland?

17. Was Student entitled to a FAPE from Upland during the 2017-2018 and 2018-2019 school years after Parents refused to consent to the September 30, 2016, and October 24, 2016 assessment plans?

18. If Upland was obligated to have an IEP in place for Student during the 2017-2018 and 2018-2019 school years, did the October 31, 2016 IEP constitute a FAPE, and continue to be in effect/available to Student through the final date of Student’s eligibility for special education and related services?

JURISDICTION

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

• all children with disabilities have available to them a 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 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).) In this consolidated matter, Student bore the burden of proof on Student’s claims, and Upland bore the burden of proof on Upland’s claims. The factual statements in this Decision constitute the written findings of fact required by the IDEA and state law. (20 U.S.C. § 1415(h)(4); Ed. Code, § 56505, subd. (e)(5).)

Student was 23 years old at the time of hearing. Student resided within Upland’s geographic boundaries at all relevant times. Student was initially found eligible for special education in 2000, and in approximately 2001 was found eligible under the currently defined categories of intellectual disability and speech or language impairment. As explained in more detail in Issue 1, below, after Student’s last triennial evaluation in 2014 and an IEP team meeting in 2015, she was eligible under the categories of specific learning disability and speech or language impairment.

Student turned 18 years old in March 2015. On July 13, 2015, Mother gave Upland a form Student signed on that date appointing Mother as the holder of Student’s educational rights.

TIMELINESS OF STUDENT’S CLAIMS REGARDING THE 2016-2017 SCHOOL YEAR

Subject to limited exceptions, a request for a due process hearing must be filed within two years from the date the party initiating the request knew or had reason to know of the facts underlying the basis for the request. (20 U.S.C. § 1415(f)(3)(C), (D); Ed. Code, § 56505(l).)

STUDENT’S FIRST CASE

Student’s First Case, as originally filed on August 13, 2019, did not contain any claims regarding the 2016-2017 school year. By her second amended complaint filed on May 4, 2020, Student added claims to Student’s First Case related to the 2016-2017 school year.

STUDENT’S SECOND CASE WAS BASED ON A PRIOR 2018 CASE AND A TOLLING AGREEMENT

On October 30, 2018, Student filed a complaint in OAH Case No. 2018110087, the Prior 2018 Case, naming Upland. On May 6, 2019, the parties entered a tolling agreement in which Upland agreed to allow Student to refile with OAH the claims stated in the Prior 2018 Case within 30 days of the conclusion of a pending case Student filed in the United States District Court. The same day, Student withdrew the Prior 2018 Case without prejudice.

Student’s Second Case, filed on April 2, 2020, pursues claims commencing October 31, 2016, based upon the May 2019 tolling agreement with Upland. The complaint in Student’s Second Case was identical to the complaint in the Prior 2018 Case.

UPLAND’S MOTIONS TO DISMISS

On or about April 24, 2020, Upland moved “to Determine the Relevant Timeframe of the Issues for Due Process Hearing,” effectively a motion to dismiss all claims in Student’s Second Case. Upland asserted the two-year statute of limitations prohibited Student from pursuing in April 2020 claims relating to events in the 2016-2017 school year, including Upland’s offer of placement and services in the October 31, 2016 IEP. Upland argued only that tolling agreements should not be recognized by OAH.

On or about May 8, 2020, Upland moved “to Dismiss [enumerated issues] and Limit the Timeframe of [other enumerated issues]” regarding the claims in the second amended complaint in Student’s First Case concerning the 2016-2017 school year, effectively a motion to dismiss the claims in Student’s First Case regarding the

2016-2017 school year.

On May 18, 2020, OAH denied Upland’s two motions to dismiss, without prejudice to raising the statute of limitations as a defense at the due process hearing on the consolidated cases.

In its written closing argument, Upland renewed its assertion Student’s claims regarding events before August 12, 2019, were barred by the statute of limitations, notwithstanding the May 2019 tolling agreement. Upland argued only the two statutory exceptions to the two-year statute of limitations stated in title 20 United States Code section 1415(f)(3)(D) allow claims beyond the two-year statute of limitations, and Student failed to allege any facts supporting either exception in her complaints, and further, failed to prove that either statutory exception applies.

There is no explicit prohibition on tolling agreements for claims arising under the IDEA or related sections of the California Education Code. Therefore, the hearing proceeded on Student’s claims as agreed to by the parties on or about May 6, 2019, and this Decision addresses Student’s claims regarding the 2016-2017 school year, but only those claims stated in Student’s Second Case. (Student v. Savanna School Dist. (November 16, 2017) OAH Case No. 2017100226 (Order Granting in Part and Denying in Part District’s Partial Motion to Dismiss); but see Student v. Long Beach Unified School Dist. (2019) OAH Case No. 2018050736; orders and decisions rendered in special education due process hearing proceedings may be cited as persuasive but not binding authority in subsequent proceedings (Cal. Code Regs., tit. 5, § 3085).)

Student’s May 2020 second amended complaint added new claims to Student’s First Case. Some of those new claims were duplicative of those stated in Student’s Second Case regarding the 2016-2017 school year, but some of the new claims were entirely different claims regarding the 2016-2017 school year, which Student had never before alleged. Through the second amended complaint in Student’s First Case, Student attempted to smuggle in claims related to the October 31, 2016 IEP and 2016-2017 school year that were not in the Prior 2018 Case, refiled in Student’s Second Case. Specifically, only Issues 1, 3a, 3d, 3f, and 5 were in the Prior 2018 Case, refiled in Student’s Second Case. However, Issues 2, 3b, 3c, 3e, 3g, 4, 6, 7, and 8 were not in the Prior 2018 Case, refiled as Student’s Second Case. Those claims, related to the 2016-2017 school year, were stated for the first time in the second amended complaint in Student’s First Case.

The May 2019 tolling agreement specifically stated “the issues, claims, complaints, contentions, causes of action, remedies, damages, liabilities, and/or rights, of any kind or nature that may be raised in the Re-Filed OAH Complaint are limited to those cited in the original OAH Complaint filed on October 31, 2018 [sic], and which remain unresolved after final resolution of the District Court Complaint.” Student cannot bootstrap onto preserved claims additional claims from generally the same time period that were not previously asserted. Therefore, while OAH will decide the specific claims regarding the 2016-2017 school year Student and Upland contracted to preserve by the May 2019 tolling agreement, Student’s attempt to expand her claims beyond the specific claims stated in Student’s Second Case was improper.

Student’s claims in Issues 2, 3b, 3c, 3e, 3g, 4, 6, 7, and 8 are untimely. They are not covered by the May 2019 tolling agreement, and therefore are barred by the two-year statute of limitations. Although Student’s new claims in the second amended complaint in Student’s First Case might “relate back” to the original filing date of Student’s First Case, August 13, 2019, the new claims concerning the 2016-2017 school year are all based on alleged acts or omissions of which Mother was aware prior to August 13, 2017, and as such, are outside the two-year statute of limitations. (M.M. & E.M. v. Lafayette School Dist. (N.D. Cal., Feb. 7, 2012 Nos. CV 09– 4624, 10–04223 SI) 2012 WL 398773, ** 17–19), affd. in part & revd. in part (9th Cir. 2014) 767 F.3d 842, 858-859; Alexopulous v. San Francisco Unified School Dist. (9th Cir. 1987) 817 F.2d 551, 555.)

Therefore, Student’s Issues 2, 3b, 3c, 3e, 3g, 4, 6, 7, and 8 are dismissed because they are barred by the statute of limitations and unpreserved by the May 2019 tolling agreement.

ISSUE 1: SUFFICIENT INFORMATION PROVIDED TO PARENT REGARDING ADDITIONAL ASSESSMENTS UNDER SEPTEMBER 30, 2016 AND OCTOBER 19, 2016 ASSESSMENT PLAN

Student contends Upland failed to provide Mother sufficient information to consent to Upland’s triennial evaluation assessment plan, thereby significantly impeding her opportunity to participate in the educational decisionmaking process.

Upland contends it did not significantly impede Mother’s opportunity to participate in the educational decisionmaking process because it provided her legally sufficient information regarding the purpose and types of assessments it proposed to conduct.

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

In general, a child eligible for special education must be provided access to specialized instruction and related services which are individually designed to provide educational benefit through an IEP reasonably calculated to enable a child to make progress appropriate 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; Endrew F.

v. Douglas County School Dist. RE-1 (2017) 580 U.S. [137 S.Ct. 988, 1000].)

Assessments are required to determine eligibility for special education, and what type, frequency, and duration of specialized instruction and related services are required. (20 U.S.C. § 1414(a); 34 C.F.R. § 300.303; Ed. Code, §§ 56043(k),

56381, subd. (a).) A local educational agency must conduct a reassessment at least once every three years, called a triennial reassessment, unless the parent and the agency agree that it is unnecessary. (20 U.S.C. § 1414(a)(2)(B)(ii); 34 C.F.R. § 300.303(b)(2);

Ed. Code, §§ 56043, subd. (k), 56381, subd. (a)(2).) The agency must also conduct a reassessment if it determines the educational or related service needs of the child, including improved academic achievement and functional performance, warrant a reassessment. (20 U.S.C. § 1414(a)(2)(A)(i); 34 C.F.R. § 300.303(a)(1); Ed. Code,

§ 56381, subd. (a)(1).)

To assess or reassess a student, a school district must provide proper notice to the student and his or her parents. (20 U.S.C. § 1414(b)(1); Ed. Code, § 56321(a).) Parental consent for an assessment is generally required before a school district can assess a student. (20 U.S.C. § 1414(c)(3); 34 C.F.R. § 300.300(c)(1); Ed. Code, § 56381, subd. (f).) Parental consent is not required before reviewing existing data as part of an assessment or reassessment, or before administering a test or other assessment that is administered to all children, unless before administration of that test or assessment, consent is required of the parent of all the children. (34 C.F.R. § 300.300(d)(1); Ed. Code, § 56321, subd. (e).)

A school district must provide parents with prior written notice when it proposes or refuses to initiate or change the identification, evaluation, or educational placement of a child or the provision of a FAPE to the child. (20 U.S.C. § 1415(b)(3); 34 C.F.R. § 300.503; Ed. Code, § 56500.4.)

When a student is referred for assessment, the school district must provide the student’s parent with a written proposed assessment plan within 15 days of the referral, with limited exceptions not applicable in this case. (Ed. Code, § 56321, subd. (a).) The parent shall have at least 15 days from the receipt of the proposed assessment plan to arrive at a decision, and the assessment may begin immediately upon receipt of the parent’s consent. (Ed. Code, § 56321, subd. (c)(4).)

The school district has 60 days from the date it receives the parent’s written consent for assessment, excluding vacation and days when school is not in session in excess of five schooldays, to complete the assessments and develop an IEP, unless the parent agrees in writing to an extension. (20 U.S.C. § 1414(a)(1)(C); Ed. Code, §§ 56043, subds. (c) & (f), 56302.1, subd. (a), 56381, subd. (a).)

Each public agency must ensure that assessments and other evaluation materials used to assess a child are, among other things, administered by trained and knowledgeable personnel and administered in accordance with any instructions provided by the producer of such assessments. (20 U.S.C. § 1414(b) & (c); 34 C.F.R. § 300.304; Ed. Code, §§ 56320, 56322, 56381, subd. (e).) The personnel who assess the student shall prepare a written report. (Ed. Code, § 56327.)

The assessment must be conducted in a way that:

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

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

• uses technically sound instruments that may assess the relative contribution of cognitive and behavioral factors, in addition to physical or developmental factors.

• (20 U.S.C. § 1414(b)(2)(A)-(C); 34 C.F.R. §300.304(b); see Ed. Code, § 56320.)

• The assessments used must be:

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

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

• used for purposes for which the assessments are valid and reliable;

• administered by trained and knowledgeable personnel; and

• administered in accordance with any instructions provided by the producer of such assessments. (Ed. Code, §§ 56320, subds. (a) & (b), 56381, subd. (e); see 20 U.S.C. § 1414(b) & (c); 34 C.F.R. § 300.304(c).)

The determination of what tests are required is made based on information known at the time. (See Vasheresse v. Laguna Salada Union School Dist. (N.D. Cal. 2001) 211 F.Supp.2d 1150, 1157-1158 [assessment adequate despite not including speech/language testing where the concern prompting the assessment was reading skills deficit].) No single measure, such as a single intelligence quotient, shall be used to determine eligibility or services. (Ed. Code, § 56320, subds. (c) & (e).) Assessors must be knowledgeable about the student’s suspected disability and must pay attention to student’s unique educational needs such as the need for specialized services, materials, and equipment. (Ed. Code, § 56320, subd. (g).)

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 decisionmaking process; or

• caused a deprivation of educational benefits. (20 U.S.C. § 1415(f)(3)(E)(ii); 34 C.F.R. § 300.513(a)(2); Ed. Code, § 56505, subd. (f)(2) and (j); W.G., et al. v. Board of Trustees of Target Range School District (9th Cir. 1992) 960 F.2d 1479, 1484 (Target Range); see N.B. v. Hellgate Elementary School Dist., ex rel. Board of Directors, Missoula County, Mont. (9th Cir. 2008) 541 F.3d 1202, 1208, quoting Amanda J. ex rel. Annette J. v. Clark County School Dist. (9th Cir. 2001) 267 F.3d 877, 892.)

STUDENT’S EDUCATIONAL AND DEVELOPMENTAL HISTORY

Student has a lengthy history of disagreement with Upland regarding Student’s educational needs. However, the last time Student attended an Upland school was during kindergarten in the 2004-2005 school year. For first through sixth grades, Student attended a traditional, independently operated, parochial school called Our Lady of the Assumption School. For the 2010-2011 and 2011-2012 school years, seventh and eighth grades, Student was enrolled at California Virtual Academy, an online charter school. After dissatisfaction with the charter school, Mother created a homeschool program for Student. On October 6, 2011, Mother registered what she named Resurrection Academy as a private religious school through the California Department of Education online Private School Affidavit Form process. Mother renewed the registrations annually from the 2011-2012 through 2018-2019 school years.

During the time frame relevant to this consolidated case, Mother never disclosed to Upland that Student was a homeschool student. Mother always told Upland Student attended a private school, and referred to Student as attending Resurrection Academy. Student received services at Lindamood-Bell Learning Center in Rancho Cucamonga for some periods of time at Mother’s expense, and immediately before the disputed October 31, 2016 IEP, Student received services at Lindamood-Bell at Upland’s expense under a prior settlement agreement. Upland staff were never aware Resurrection Academy was not an independently operated parochial school, like Our Lady of the Assumption. Upland staff never knew Mother was the director, principal, and custodian of records for the private school Student attended.

Student’s developmental history was marked by difficulty feeding in the first two years, low muscle tone called hypotonia, and gross motor delays. During an assessment by San Bernardino County when she was almost five years old, she had a full scale intelligence quotient of 66 and adaptive behavioral skills composite score of 64, both significantly below average. She was identified as having intellectual disability. In an assessment by the Inland Regional Center when she was six years old, Student had a full scale IQ of 67, and an adaptive behavioral skills composite score of 63, both significantly below average, again in the intellectually disabled range. Upland conducted a psychoeducational assessment when Student was seven years old, and her full scale IQ was 63. Upland conducted another assessment when Student was almost nine years old, and her Language score was 71, and her scores in Attention/Executive Function, Sensorimotor Functions, Visuospatial Processing, and Memory and Learning were all in the 50s and 60s, described as “significantly below average.” Claremont Unified School District conducted a psychoeducational assessment of Student in 2008 when she was 11 years old. Similar to all prior testing, her full scale IQ was 64, and her adaptive behavior skills composite score was 68, significantly below average.

Student had a triennial reassessment in 2011. At that time, Student was eligible for special education and related services under the category of intellectual disability, with a secondary eligibility of speech or language impairment.

2014 UPLAND TRIENNIAL EVALUATION

Upland conducted a triennial evaluation beginning in February 2014, when Student was 16 years and 11 months old. The Revised Psychoeducational Assessment Report bore a grid on the front page with some information that was not consistent with other information on the grid, in the report, or documented during later IEP team meetings, and appeared to reflect the revision process the report had undergone between the time the triennial assessment began or some version of a report was first created, and later revisions. For example, when Upland administered academic achievement testing in April 2014, Student’s standard scores were calculated based on her age of 17 years and one month, and Upland’s estimation that, by her age and the year she should have started school, she was in grade 11.8. However, the report grid stated Student was in 10th grade. The Revised Psychoeducational Assessment Report was dated on the first page September 30, 2014, but was signed by school psychologist Ron Davis on January 29, 2015, and there was evidence some earlier version of the report existed, possibly in June 2014.

MOTHER’S INTERFERENCE WITH THE 2014 TRIENNIAL EVALUATION

Davis reported that during testing, Student demonstrated an adequate attention span and concentration on assessment tasks, and worked well within time constraints on each task. Davis noted the results of the testing and evaluation procedures appeared valid for the purpose of determining if Student continued to qualify for special education and related services and the appropriate placement to meet her educational needs in the least restrictive environment. However, Davis remarked the test results were not properly standardized because Mother was in the testing room during evaluation and the tests were normed without a parent in the room.

Beyond any uncertain effect of Mother’s presence in the testing room based on standardization norms, Mother’s presence during testing directly and adversely affected the Woodcock-Johnson Tests of Achievement, Third Edition. Credentialed special education teacher Adam Stites administered that instrument on April 28, 2014. The areas the Woodcock-Johnson Tests of Achievement assessed included reading, mathematics, written language, and academic knowledge. Stites could not administer the Letter-Word Identification subtest because Mother stopped the testing before that subtest was administered. Therefore, there were no scores for that subtest. The absence of that subtest also meant there were no broad scores for the areas of Reading, Academic Skills, or Total Achievement, which all depended on and included the Letter-Word Identification subtest Mother prevented Upland from administering. For all the areas of achievement that could be reported, Student’s scores were reported as in the “significantly below average range” and below the first percentile.

At hearing, Upland school psychologist Christy Bock testified regarding the 2014 psychoeducational assessment report and the consequences of Mother preventing Stites from administering the Letter-Word Identification subtest. Letter-Word Identification is involved in reading, which was a known area of need for Student.

Mother stopping the testing prevented Upland from assessing Student in a known area of need. After Bock, Mother was the next witness. Student’s attorney called Mother’s attention to the part of the 2014 triennial psychoeducational assessment report that said Mother was present in the room during the academic achievement testing and interfered. Student’s attorney asked Mother to explain what happened. Mother’s response was evasive and not about the special education teacher and the Letter-Word Identification subtest documented in the report. Mother attempted to shift blame for her conduct to Upland and did not answer the question Student’s attorney asked.

Mother’s response was intended to suggest that her presence and interference in testing was somehow justified and even required. Rather than explain why she interrupted the testing done by the special education teacher, Mother responded that when the speech-language pathologist was assessing Student, Mother observed the assessor using the wrong pictures for the questions and she spoke up to tell the assessor there was a problem so the assessor would correct it and Student would not score a zero. This testimony established Mother had, by her presence in the testing room, twice interfered with Upland’s assessment, preventing full administration of not only the academic achievement evaluation, but also disrupting the language development/communication evaluation.

QUESTIONS ABOUT INTELLECTUAL DISABILITY ELIGIBILITY

In 2014, based upon Student’s performance on the Weschler Intelligence Scale for Children, Fourth Edition, Student had a full scale IQ of 57, with a 90 percent chance her true IQ was somewhere between 54 and 62, all within the significantly below average range, below the first percentile. Overall her cognitive ability was commensurate with her previous assessment results.

However, in determining Student’s category of eligibility for special education and related services, school psychologist Davis stated in the psychoeducational assessment report that it was unclear whether or not Student continued to meet special education eligibility criteria as a student with intellectual disability. Davis stated there were inconsistencies in her cognitive and academic scores. He concluded her disability was not the result of environmental disadvantage, economic disadvantage, cultural differences, motor disability, visual impairment, or hearing impairment. However, Davis stated intellectual disability, limited school experience, and poor school attendance could not be ruled out as possible contributing factors. Davis’ caveats meant, in other words, the clandestine homeschool program Mother provided Student for the three years before the triennial assessment might have been a cause of Student’s poor scores on standardized testing. In the 2014 triennial psychoeducational assessment report, Davis recommended a comprehensive re-assessment of Student’s overall cognitive and academic functioning as well as other areas of suspected disability.

The 2014 triennial psychoeducational assessment report noted there was no doubt Student’s significant deficits in her receptive and expressive language as well as difficulty with specific areas of language continued to qualify her for special education and related services in the category of speech or language impairment.

HEALTH ASSESSMENT

The 2014 triennial reassessment included a health assessment by a school nurse. Some information in the Health Update report was obtained in March 2014, and other health and medical information from Mother dribbled in over the next year. The school nurse, who was a registered nurse, reported the information in a final document reflecting it had been revised March 16, 2015. Mother did not make Student available for any hearing or vision screenings, and all information to prepare the report was through health assessments/reports of other medical providers “provided by mother of student and a completed parent questionnaire.”

2014 INDEPENDENT EDUCATIONAL EVALUATION

Mother disagreed with Upland’s 2014 psychoeducational assessment and requested an independent educational evaluation by clinical neuropsychologist Nancy Ellen Markel, Ph.D. Upland funded the independent evaluation and Dr. Markel evaluated Student on October 6 and 7, 2014. Dr. Markel’s Neuropsychological Evaluation Report included some information Dr. Markel reported she received from Mother on January 15, 2015.

Dr. Markel defined the purpose of her evaluation as “to have an understanding of [Student’s] neurocognitive status.” Dr. Markel related several events evidencing Student’s low level of functioning despite being 17 years old and having “attended Resurrection Academy where she receive[d] 1:1 individualized instruction” since she was 14 years old. Dr. Markel asked Student her date of birth and Student responded, “I don’t know.” Student could only state how old she was. The next day, Dr. Markel gave Student a form to complete as part of the Behavior Assessment Scales for Children, Second Edition, Self-Report. Where the form called for “birth date,” Student wrote 1997.

Dr. Markel reported, “The examiner had to explain [to Student] she had put the year of her birth and it became clear that she did not understand what ‘Birth Date’ meant.” When completing the forms, Student announced she was done after completing only page 1, and had to be instructed to go on to pages 2, 3, and 4. Student was not able to read and understand the instructions for the behavior assessment rating scale and Dr. Markel had to explain them to her.

Dr. Markel’s summary of standardized instruments she administered reported Student’s full scale IQ score on the Wechsler Adult Intelligence Scale, Third Edition, was 66, at “an extremely low level (1st Percentile).” Her General Ability Index, an optional composite summary score that was less sensitive to the influence of working memory and processing speed, was 68, in the second percentile. Due to Student’s known language and motor problems, Dr. Markel also administered the Comprehensive Test of Nonverbal Intelligence, Second Edition, a non-verbal measure of intelligence that has no speeded tests and very little motor requirements. Student’s Full Scale Composite was 71, in the third percentile.

Despite these low overall scores, Student had scores in some areas that were in the average or low average ranges, among other areas that were in the severely impaired range.

In terms of academic functioning, Dr. Markel reported Student’s relative strength was in decoding, with scores in Word Reading and Pseudoword Reading of 84 and

89 respectively, described as at the below average level. Despite Student’s relative strength in pronouncing aloud words displayed on a page or screen, her comprehension was severely impaired. Student’s scores in reading comprehension were in the first and second percentiles, and below the first percentile, on three different standardized tests to assess reading comprehension. In written expression, Student performed at a very

low level with her strength in Spelling at a score of 72, in the third percentile, and her Sentence Composition score at 59, at the 0.3 percentile.

Student also showed a relative mathematical strength in Math Fluency-Addition, in which she scored 81, in the 10th percentile. In contrast, in both Math

Fluency-Subtraction and Multiplication, she scored 66, in the first percentile. Her Math Problem Solving score of 61 was in the 0.5 percentile, and her Numerical Operations score of 62 was in the first percentile.

Many tests of Student’s executive functioning were notable for poor performance on the basic, fundamental skills measured. Her executive functioning on these tasks fell at the same low level as the fundamental skills or sometimes a bit higher.

Dr. Markel did not include any conclusions or diagnoses in her report. She only opined Student required “intensive educational and language therapy.” She stated it was essential that Student have a transition plan with “an emphasis on functional goals that will help determine if [Student] will be able to be independent as a young adult or will require structured assistance [S]he will need to be monitored to determine her ability to use good judgment and to recognize how to function safely in the community. Whether [Student] will be able to be competitively employable or will required [sic] supportive employment is yet to be determined.” Dr. Markel’s summary and recommendations indicated she did not believe Student was cognitively capable of pursuing a regular high school diploma, college, and an independent career, but instead required a functional curriculum to assure her safety in the community. Dr. Markel doubted Student’s ability to be employed outside of a supervised, supported position designed to enable a disabled person to work.

CONTINUATION TRIENNIAL IEP TEAM MEETINGS AND ADDITIONAL ASSESSMENT PLAN PROVIDED TO MOTHER

Based on its 2014 triennial assessment, Upland identified attention as an area that warranted additional assessment to give insight whether attention issues adversely impacted Student’s processing speed. Upland recommended administration of the Test of Variables of Attention and gave Mother an assessment plan in March 2015 for further testing in the areas of attention and social-emotional functioning. Upland gave Mother a second copy of the assessment plan in April 2015.

The IEP team met to review Dr. Markel’s independent neuropsychological evaluation on July 13 and 27, 2015. The July 2015 IEP team meetings were a continuation of a triennial IEP team meeting in early April 2015. Dr. Markel could not attend the July 13, 2015 IEP team meeting, which was convened at very short notice due to Mother’s scheduling difficulties. Therefore, Upland school psychologist Bock presented the first 13 pages of the results of the independent evaluation for the IEP team’s review and consideration. There was not enough time to review the whole report. Bock noted areas of similarity and difference between the results of the independent evaluation and Upland’s triennial assessment. One significant difference was in the area of math problem solving, on which Student scored 61 on the instrument Dr. Markel used and 36 on the instrument Upland used.

At the July 13, 2015 IEP team meeting, Bock stated Dr. Markel’s evaluation did not provide the IEP team additional insight into Student’s attention. Upland therefore continued to recommend administration of the Test of Variables of Attention. Mother verbally consented for Upland to administer the Test of Variables of Attention, and Upland stated it would provide Mother a written assessment plan to obtain her written consent.

At a further continuation of the triennial IEP team meeting on July 27, 2015, Dr. Markel attended and reviewed, from the beginning, her entire report. Dr. Markel agreed some variability in Student’s test scores could not be explained aside from the nature of the tests or Student’s “attentional capacity.” Upland then gave Mother a revised written assessment plan to obtain her consent to administer the Test of Variables of Attention. Despite Mother’s prior verbal consent, Mother never signed written consent to Upland administering the Test of Variables of Attention.

Mother later complained to the California Department of Education that Upland had not timely held an IEP team meeting to review results of the Test of Variables of Attention, which it had never administered due to lack of written parental consent.

Mother asserted it was unnecessary to sign the assessment plan because she had verbally consented to the assessment during an IEP team meeting. The California Department of Education concluded, and informed Mother, Upland was in compliance because “the student’s parent never provided the requisite written consent to assess.”

MOTHER’S DISAGREEMENT WITH INTELLECTUAL DISABILITY ELIGIBILITY

A preponderance of the evidence established that in 2015, Mother objected to Student’s eligibility category continuing to be intellectual disability. Mother rejected the conclusion that Student’s low IQ coupled with low adaptive functioning skills meant she met the criteria for being intellectually disabled. Upland’s 2014 triennial reassessment report fueled Mother’s denial by questioning Student’s continuing eligibility under the category of intellectual disability and pointing to the possibility of a specific learning disability due to inconsistency in Student’s broad range of cognitive and academic scores. Significantly, Davis recommended Upland conduct a comprehensive reassessment of Student’s overall cognitive and academic functioning to determine whether intellectual disability, limited school experience, or poor school attendance contributed to the variable scores obtained.

As low as Student’s cognitive ability scores were, her academic achievement scores were, in some areas, so much lower as to appear to possibly be a significant discrepancy between ability and achievement, one definition of the eligibility category of specific learning disability. This unusual result was caused by Upland calculating results on the Woodcock-Johnson Tests of Achievement in the available areas of academic achievement based on the estimate, related to Student’s age of just over 17 years when Upland administered the Tests of Achievement, that Student was in grade 11.8. The ability to characterize Student’s disability as relating to a substantial gap between ability and achievement seemed to serve Mother’s desire to not describe Student as having intellectual disability. But curiously, Mother also resisted accepting Student’s extremely low academic achievement standard scores by claiming they were erroneously low because they were calculated by comparing her against neurotypical students in the 11th grade. In July 2015, Mother asserted that at the time of testing late in the 2013-2014 school year, Student was only in 8th grade. Mother believed if Student’s performance had been compared to other 8th graders, her standard scores would have been higher. Mother’s argument undermined her own preference for Student’s eligibility category to be something other than intellectual disability, because an increase in Student’s standard scores in academic achievement due to reducing the level of the peer group against which her performance was compared would have closed the gap between ability and achievement and removed the specific learning disability eligibility category from consideration. This episode was another example of Mother’s unreasonable conduct. In response to Mother’s concerns, Upland agreed to report Student’s academic achievement scores based on an age equivalency and grade level equivalency for reported areas. For example, in the area of the area of applied problems, specifically with money calculations as identified by her performance on questions specific to money, Student had a grade equivalency of 1.2.

In the face of Mother’s rejection of the eligibility category of intellectual disability and Upland’s questioning of it, the IEP team agreed to change Student’s primary eligibility category to specific learning disability, and her secondary eligibility category remained speech or language impairment. The designation was changed before the July 13, 2015 IEP team meeting and reflected on the cover page of the IEP of that date. But full explanation of the manner in which Student’s supposed visual and auditory processing deficits adversely impacted the speed with which she processed information did not get documented on the cover page of Student’s IEP until July 27, 2015. The July 27, 2015 IEP noted Student’s weaknesses in memory made her recall and retrieval slow, her cognitive abilities in conceptualization and expression were areas of weakness that adversely impacted her ability to comprehend, generalize, and express herself, and she had mild to moderate receptive language deficits and moderate to severe expressive language deficits.

Based on Upland’s calculation that Student would have been in the 10th grade during the 2013-2014 school year, when it had begun Student’s 2014 triennial reassessment, Upland documented on the July 13, 2015 IEP that Student was in 12th grade for the 2015-2016 school year. However, at the July 27, 2015 IEP team meeting, Mother stated Student was in 10th grade for the 2015-2016 school year. Not having any other information on the topic from Student’s private school, Upland took Mother’s word for it and changed the July 27, 2015 IEP document to indicate Student was in 10th grade. The July 27, 2015 IEP also identified Student’s last triennial evaluation date as June 30, 2014, and stated Student was due for her next triennial evaluation by June 30, 2017.

SEPTEMBER 30 AND OCTOBER 19, 2016 ASSESSMENT PLAN

On September 30, 2016, Upland sent Mother an Assessment Plan for Student’s triennial evaluation. Upland proposed:

• to have a special education teacher assess Student’s academic achievement, measuring her reading, spelling, arithmetic, oral and written language skills, and/or general knowledge;

• to have a school nurse gather health information and testing to determine how Student’s health affected school performance;

• to have a school psychologist assess Student’s intellectual development, by measuring how well Student thought, remembered, and solved problems;

• to have a speech-language pathologist assess Student’s language/speech communication development, measuring Student’s ability to understand and use language to speak clearly and appropriately;

• to have an occupational therapist and a school psychologist assess Student’s motor development, measuring how well Student coordinated body movements in small and large muscle activities, and possibly also measuring perceptual skills;

• to have a school psychologist assess Student’s social/emotional functioning, indicating how Student felt about herself, got along with others, took care of personal needs at home, school, and in the community;

• to have a school psychologist assess Student’s adaptive/behavior functioning, also indicating how Student took care of personal needs at home, school, and in the community; and

• to have a special education teacher assess Student’s needs in the area of post-secondary transition, related to training, education, employment, and where appropriate, independent living skills.

The assessment plan informed Mother that the tests and procedures conducted for the assessments could include but were not limited to classroom observations, rating scales, interviews, record review, one-on-one testing, or some other types or combination of tests.

The assessment plan informed Mother she would be invited to an IEP team meeting to discuss the results of the assessments, and in fact included invitations to an IEP team meeting to be held on either October 21 or 31, 2016, whichever Mother would confirm. Along with the September 30, 2016 assessment plan and IEP team meeting invitations for October 21 and 31, 2016, Upland sent Mother a form to sign to authorize the release of

information between Upland and Student’s private school. Mother did not respond or return the assessment plan and release.

Upland followed up with Mother by email on the morning of October 19, 2016, regarding the assessment plan, IEP team meeting invitations, and release of information form. Upland included a Prior Written Notice form regarding the proposal to initiate the evaluation of Student, which explained that Upland would conduct the triennial evaluation by reviewing records, administering standardized testing, conducting interviews, and through observations. Upland explained additional data was needed to determine whether Student continued to meet eligibility criteria and continued to need special education and related services, her present levels of performance, and whether any modifications to special education and related services were needed to enable Student to meet the annual goals in her IEP and to participate, as appropriate, in the general curriculum. Upland stated a records review alone could not provide information about her current functioning. Upland included another triennial assessment plan, identical to the one sent to Mother on September 30, 2016, but dated October 19, 2016.

On the afternoon of October 20, 2016, Mother wrote to Upland that she disagreed with Upland’s assessments and requested independent evaluations for the Test of Variables of Attention by Dr. Timothy Gunn, an assistive technology evaluation by Cynthia Cottier, and a central auditory processing assessment.

On October 27, 2016, Upland sent Mother a written response to her request for independent evaluations. Upland explained it was denying Mother’s request for independent evaluations at public expense because Upland was not obligated to fund independent evaluations unless and until a parent disagreed with an assessment the school district had done. Mother had not signed the triennial assessment plan and Upland had not performed any assessments. Upland had not assessed Student with the Test of Variables of Attention because Mother had not signed consent to the March 2015, April 2015, or July 27, 2015 assessment plans that would have authorized Upland to administer that instrument. There was no evidence Upland had assessed Student’s central auditory processing or purported need for assistive technology as part of the 2014 triennial reassessment, or that Parent requested Upland to assess Student in these areas in 2014. Therefore, Student had no right to independent evaluations at public expense until Upland had the opportunity to assess Student in these areas Mother requested.

Upland’s October 27, 2016 correspondence to Mother included another copy of the September 30, 2016 triennial assessment plan. In response to Mother’s request for assessments for central auditory processing disorder and assistive technology needs, Upland also sent Mother a separate assessment plan dated October 27, 2016, for “CAPD and AT assessment,” offering to have an audiologist assess Student for central auditory processing disorder, and to have a speech-language pathologist assess Student’s need for assistive technology. Upland requested Mother sign the two assessment plans, and also sign the release of information authorization form to allow exchange information with the private school Student attended.

Upland convened an annual IEP team meeting for Student on October 31, 2016. Mother had not consented to the September 30 and October 19, 2016 triennial reassessment plan, the supplemental October 27, 2016 assessment plan, or the release and exchange of information between Upland and the private school Student attended. Mother continued to conceal the fact that Resurrection Academy was a homeschool operated by Mother and that she was the director, principal, and custodian of records who could provide all information and records Upland sought.

During the IEP team meeting, Upland attempted to obtain Mother’s written consent to the triennial reassessment and additional assessments Mother requested. Upland gave Mother a fourth copy of the assessment plan for the triennial reassessment due by June 30, 2017, a second copy of the supplemental assessment plan for the central auditory processing disorder and assistive technology assessments Mother requested, and a third copy of the release of information form for Mother to consent to Upland communicating with the private school. Mother did not consent to any of these.

During the following months, Mother and Upland had many more communications in which Upland unsuccessfully attempted to obtain Mother’s consent to the triennial reassessment proposed in the September 30 and October 19, 2016 assessment plan. In the remainder of the 2016-2017 school year, Mother never inquired, as stated in Student’s Issue 1, “why Upland wanted to do additional assessments” after the 2014 triennial reassessment.

The reasons for Upland proposing a triennial evaluation were quite obvious.

Most importantly, Upland was required to comprehensively reassess Student by

June 30, 2017, for a statutorily mandated triennial evaluation. Upland prudently began pursuing consent for that mandatory reassessment in fall 2016. Mother had previously been difficult to work with to obtain consent, and Upland needed information to determine Student’s continuing eligibility for special education and related services by June 30, 2017. Student’s characterization of the last triennial as having been completed in 2015 does not change the prior history in which Student had triennial evaluations in 2011 and 2014.

Additionally, the results of the last triennial evaluation were debated and, in part because Mother interfered with the administration of some instruments, did not provide a complete picture of Student’s abilities and deficits when they were administered. Even at the time Upland conducted the 2014 psychoeducational assessment, it recommended a comprehensive reevaluation. Upland attempted to acquire additional information in areas of suspected disability such as attention and social-emotional functioning as it related to attention, but Mother did not provide written consent to further assessment.

And finally, in fall 2016, Upland required information regarding Student’s present levels of performance to develop an appropriate offer of goals, placement, and related services for Student. Student was 19 years old and had not attended an Upland school

since kindergarten. Upland did not have the daily opportunity to observe Student to document her performance and track her progress. Upland required current information to fulfill its obligation to offer Student a FAPE for the 2016-2017 school year.

All the uncertainty and confusion Mother alleged in Student’s multiple complaints and feigned at hearing were not credible. The evidence established that rather than being confused as to the reasons why Upland wanted to the assessments, Mother simply did not want Upland to assess Student. The evidence established Mother’s claimed confusion was merely an after-the-fact attempt justify her prior refusal to consent to the assessments sought by Upland. At hearing, Mother claimed her background gave her a strong distrust of government, including the school district.

However, she concocted implausible fears about the health assessment by a school nurse devolving into a strip search, or a pelvic exam by a doctor who specialized in obstetrics and gynecology. Whether her testimony on this point was honest or only invented to rationalize her supposed uncertainty about the need for a triennial evaluation and her failure to consent, Mother’s conduct was unreasonable.

Student attempted to characterize the 2014 triennial evaluation, which Upland began in February 2014, as not being complete until August 2015 and alleged the triennial assessment Upland proposed on September 30, 2016, “would have been a second triennial assessment, as one had already been conducted.” The extensive and explicit history made clear Student’s self-serving miscalculation of the 2014 triennial evaluation, and the several appropriate reasons Upland sought to timely reassess Student before June 30, 2017. The evidence established that Mother did not lack adequate information about in what areas of suspected disability Upland proposed to assess Student and why Upland sought to conduct those assessments. Rather, she only lacked a willingness to allow Upland to conduct a comprehensive triennial evaluation.

The information Upland provided on the September 30 and October 19, 2016 assessment plans itself was sufficient to inform Mother of the areas of suspected disability Upland intended to assess, the methods it would use to assess Student, and the category of personnel who would assess each area. Upland also provided Mother a prior written notice explaining that Upland would conduct the triennial evaluation by reviewing records, administering standardized testing, conducting interviews, and through observations. Upland explained additional data was needed to determine whether Student continued to meet eligibility criteria and continued to need special education and related services, her present levels of performance, and whether Student needed any modifications to special education and related services to meet the annual goals in her IEP and to participate, as appropriate, in the general curriculum. Mother had received the 2014 triennial psychoeducational assessment report, which immediately recommended a comprehensive reevaluation because the results were not clear. Mother was familiar with testing procedures and types. Student had been repeatedly assessed by Upland, and others, in

2001, 2003, 2004, 2005, 2008, 2011, and 2014. Also, Student’s older sibling had undergone repeated psychoeducational evaluations as part of determining eligibility for special education and related services and developing appropriate programs for that sibling.

Mother was very familiar with the process. Therefore, Mother was adequately informed, and Student did not establish Mother required any additional information to decide whether or not to sign the triennial reassessment plan.

Upland did not fail to provide Mother any information regarding assessments to which she was entitled. And information Mother wanted but either did not request or obtain did not significantly impede Parent’s opportunity to participate in the educational decisionmaking process. Mother had sufficient information to consent to the triennial reassessment Upland proposed to conduct pursuant to the September 30 and October 19, 2016 assessment plan.

Student did not meet her burden of proof with respect to Issue 1.

ISSUE 2: PRIOR WRITTEN NOTICE IN RESPONSE TO PARENT’S OCTOBER 19, 2016 REQUEST FOR INDEPENDENT EDUCATIONAL EVALUATIONS

Student contends Upland failed to provide Mother prior written notice and Mother had no information as to the basis of Upland’s denial of Mother’s October 19, 2016 request for independent educational evaluations in the areas of the Test of Variables of Attention by Dr. Gunn, assistive technology by Cottier, and central auditory processing disorder.

Upland contends Student’s Issue 2 is barred by the applicable statute of limitations, and further, on October 27, 2016, Upland provided legally sufficient prior written notice of its decision to deny Mother’s request for independent educational evaluations.

As discussed above, Student failed to timely state her claim in Issue 2. This claim was not stated in the Prior 2018 Case, refiled as Student’s Second Case. The claim was first stated in the second amended complaint in Student’s First Case, filed on

May 4, 2020. Even if the claim relates back to the original filing date of Student’s First Case, August 13, 2019, Student’s claim is untimely.

The documentary evidence established Mother emailed a request for independent evaluations to Upland on the afternoon of October 20, 2016. On October 27, 2016, Upland replied to Mother’s email requesting independent evaluations. Upland’s letter expressly stated it was provided under title 34 Code of Federal Regulations part 300.503 as a notice of Upland’s “proposed and/or refused actions . . . as it relates to” Mother’s request for independent educational evaluations.

Any challenge to the adequacy of Upland’s response, denying Mother’s request, was required to be filed within two years of Upland’s response, October 27, 2018.

Student failed to timely file a claim regarding the sufficiency of Upland’s response to Mother’s October 20, 2016 request for independent educational evaluations. Therefore, as stated above, Issue 2 is dismissed as outside the statute of limitations and not preserved by the parties’ May 2019 tolling agreement.

ISSUE 3: OCTOBER 31, 2016 IEP

Student contends the October 31, 2016 IEP did not offer her a FAPE for a variety of specific reasons, stated and addressed below. Upland contends the October 31, 2016 IEP was reasonably calculated to confer educational benefit based on the information available to Upland at the time of the IEP team meeting.

In developing the IEP, the IEP team must consider the strengths of the child, the concerns of the parents for enhancing the child’s education, the results of the most recent evaluations of the child, and the academic, developmental, and functional needs of the child. (20 U.S.C. § 1414(d)(3)(A); 34 C.F.R. § 300.324(a).)

THE OCTOBER 31, 2016 IEP

PRESENT LEVELS OF PERFORMANCE

At the IEP team meeting on October 31, 2016, Upland attempted to obtain from Mother information about Student’s present levels of performance because Mother had not consented to Upland learning that information through a triennial reassessment or directly from Resurrection Academy. The most recent information Upland had after the 2014 triennial evaluation was based on Mother’s reports from August 12, 2015.

In October 2016, Mother reported Student received instruction at Lindamood-Bell and some speech therapy. The IEP team reviewed existing data and considered additional information Mother provided, and documented what little information it had available.

In the area of communication development, Upland reviewed information from 2014 assessments by both Upland and independent evaluator Abby Rozenberg.

Student’s oral-peripheral structures were within functional limits, and fluency, voice, articulation, and phonology were normal. However, Student had lower than average receptive and expressive language abilities, as well as pragmatic language difficulties. In the past, Upland had recommended Student receive services in both pull-out and push-in models to best benefit her language development in the least restrictive environment. In October 2016, Mother only reported that with speech therapy and Lindamood-Bell services, Student had “made great progress.” Mother did not provide details of Student’s present levels of performance in her previously known areas of need in pragmatics, inferences, oral expression, non-literal language, listening comprehension, and idiomatic language.

In gross and fine motor development, Upland reviewed information from 2014 assessments reflecting below average fine manual control and motor coordination except for upper limb coordination. Student held a writing tool in a lateral tripod grasp, and although she had some difficulties with letter size and spacing between words when writing a sentence, her handwriting overall was legible and her scissors skills were good. She had some sensory processing difficulties, specifically low registration. She exhibited functional mobility skills for accessing the high school environment. In October 2016, Mother, through her advocate, reported Student “made progress” in these areas by participating in martial arts, vision therapy, and reflex integration therapy. Mother did not provide details of Student’s present levels of performance in her previously known area of need in sensory processing.

In social-emotional and behavioral functioning, Upland reviewed information from 2014 assessments reflecting Student’s self-report that she felt she often did not get things correct. Dr. Markel had noted Student’s perseverance with tasks. In August 2015, Mother reported Student had anxiety when presented with new tasks or new people, transitions, and being in large groups with which she was not familiar.

Mother reported Student followed directions, was compliant, hard-working, well-behaved at home and at school, and said teachers reported Student had a cooperative spirit. In October 2016, Mother reported Student’s anxiety level had decreased. Student was more social at school and home. Student also was more independent, in that Mother could drop her off at Lindamood-Bell for her session and pick her up when she was finished.

In the area of adaptive and daily living skills, Upland reviewed information from August 2015 reflecting Mother reported Student was independent in taking care of her personal needs. In October 2016, Mother reported Student improved her independence by feeding the pets and being able to stay home alone.

In the area of health, Upland reviewed information from the 2014 triennial evaluation, and Mother provided a review and update of Student’s health history. Mother reported Student was managing her health concerns well. Due to a diagnosis of mild scoliosis in 2014, Student continued to follow up with physical therapy every two to three months, did exercises at home, and did not require a back brace. Mother reported after an evaluation by optometrist Dr. Douglas Stephey in April 2015, Student received reflex integration therapy from him.

While Student had a hearing screening by her primary care provider in 2015 and was within normal limits, on October 20, 2016, Mother had requested an independent evaluation by an audiologist for auditory processing disorder. The health information Mother provided did not suggest Student had school-based medical needs and Mother did not request Upland provide services to address any educational impact of Student’s health or medical conditions.

In the area of academic and functional skills, in mathematics, Upland learned in April 2014 Student’s scores on the Woodcock Johnson Tests of Achievement reflected she performed at the 3.5 grade level on Math Calculations, adding and subtracting single- and multiple-digit numbers independently. On August 12, 2015, Mother reported Student completed one-digit-by-three-digits and two-digits-by-two-digits multiplication math problems independently with 90 percent accuracy, and took what appeared to Mother to be an appropriate amount of time to complete these tasks. In October 2016, Mother reported Student was working on the Cloud Nine mathematics program at Lindamood-Bell, and working on two-digits-by-three-digits multiplication, long division, and word problems. Mother did not provide details of Student’s present levels of performance in her previously known areas of need in math reasoning and math calculation.

In English language arts, Upland learned in April 2014 Student’s scores on the Woodcock Johnson Tests of Achievement reflected she performed at the 3.4 grade level on Passage Comprehension, able to comprehend and fill in the blank to a question after reading one to two sentences. On the Writing Samples subtest, Student was able to produce written work in the form of a sentence with a noun and verb with appropriate simple grammar and syntax. In July 2015, Mother reported that Lindamood-Bell thought Student was not yet at the point to participate in writing instruction and therefore no writing samples were available. In October 2016, Mother claimed Student’s comprehension was at 10th grade level by a Lindamood-Bell progress report. Mother did not provide details of Student’s present levels of performance in her previously known areas of need in reading decoding, reading comprehension, and written expression.

In vocational skills, the IEP team reviewed that as Mother reported in 2015, her goal was for Student “to be college bound after graduating high school with a diploma.” In October 2016, Mother did not provide any additional information.

The IEP team determined for Student to receive educational benefit, she needed goals in the following areas of need: written expression, reading decoding, reading comprehension, math reasoning, math calculation, sensory processing, pragmatics/social communication, inferences, oral expression/narration, non-literal language, listening comprehension, and idiomatic language.

Mother had reported at the July 27, 2015 IEP team meeting that Student had been in ninth grade for the 2014-2015 school year. Upland accepted Mother’s representation and documented Student would be in 10th grade for the 2015-2016 school year. At the October 31, 2016 IEP team meeting, Mother reported that based on information provided by Lindamood-Bell, Student was in 10th grade. Upland informed Mother that the school district determined a student’s grade level in high school based on the number of credits the student has earned. Upland suggested an Upland High School counselor meet with Student’s current teacher to update Student’s transcript.

Mother responded she would provide Upland with the data they required because she did not feel comfortable signing an authorization for release of information. Mother asked Upland what specific information staff needed, and Upland requested a copy of Student’s most updated transcript. Mother never provided Upland with a copy of Student’s transcript.

The problem, and what Mother continued to conceal from Upland, was Student had no transcript because she did not attend an independently operated private school and Mother did not create a transcript until, at the earliest, August 2019 when Mother, as the principal of Resurrection Academy, gave Student a high school diploma. Quite possibly, the so-called transcript introduced into evidence at hearing was not even created until Upland subpoenaed documents from Parents for the August 2020 due process hearing. The document Mother produced in response to the subpoena bore no months, years, semesters, trimesters, or other indicia of when Student allegedly completed the listed courses, or when the document itself was created, modified, or finalized. Not until September 2020 did Mother provide to Upland a copy of the transcript Upland requested in October 2016 to enable it to determine Student’s progress toward completing a regular high school diploma.

GOALS

In the absence of current assessment data and information from Student’s private school due to Mother’s failure to consent to the triennial reassessment and exchange of information, the IEP team reviewed existing data and listened to input from Mother to estimate baselines in each of Student’s goal areas.

In the area of need of written expression in paragraph writing, the last data Upland had was based on the 2014 administration of the Woodcock-Johnson Tests of Achievement. Student had a grade equivalence of 1.6 on the writing sample subtest, and 2.8 in written expression, significantly below average. Sample work showed she was able to write a sentence with a subject and predicate, in the form of a noun and a verb, with appropriate simple grammar and syntax. Mother did not allow Upland to obtain, and Mother did not provide, concrete information to determine Student’s present level of performance in writing as of October 2016. Although the last information Upland had suggested Student was functioning in the elementary school range for writing, Mother insisted Student was in 10th grade and making progress in the general education curriculum toward earning a regular high school diploma with a goal of attending college.

Upland proposed a goal for Student to produce written work at a much higher level than her last-documented baseline. The goal was for Student to be provided with targeted vocabulary familiar to her by vocabulary review and student mastery, and for Student to incorporate the learned vocabulary into a narrative with a minimum of five sentences containing a simple but identifiable beginning, middle, and end with an identifiable subject, basic supportive details, and an end with proper capitalization and punctuation, with 80 percent accuracy and minimal assistance, supported by a graphic organizer.

Although reading decoding remained on the list of areas in which Student would have a goal, none was included in the October 31, 2016 IEP. Dr. Markel’s neuropsychological evaluation in October 2014 identified decoding as a relative strength for Student, with standard scores on the Wechsler Individual Achievement Test in Word Reading at 84, Pseudoword Reading at 89, and Basic Reading at 86, far above her Reading Comprehension standard score of 66. Student was able to read words aloud, but failed to understand their meaning.

In the area of need of reading comprehension, the last data Upland had was based on the 2014 administration of the Woodcock-Johnson Tests of Achievement. Student had a grade equivalence of 3.4 in passage comprehension. She could fill in the blank for a question after reading one or two sentences. Mother did not allow Upland to obtain, and Mother did not provide, concrete information to determine Student’s present level of performance in reading comprehension as of October 2016. Mother asserted Lindamood-Bell reported Student’s reading comprehension level was at the 10th grade. Although the last information Upland had suggested Student was functioning in the elementary school range for reading comprehension, Mother insisted Student was in 10th grade and making progress in the general education curriculum toward earning a regular high school diploma with a goal of attending college.

Upland proposed a goal for Student to demonstrate reading comprehension by teaching Student strategies to aid in reading comprehension such as using graphic organizers, the “5W-how model,” outlining reading passages, and identifying context clues, and for Student to apply the learned strategies to aid in reading comprehension so she could answer who, what, when, where, why, and how questions about a five-sentence paragraph with 80 percent accuracy, supported by minimal prompting.

In the area of need of math reasoning, the last data Upland had was based on the 2014 administration of the Woodcock-Johnson Tests of Achievement. Student had a grade equivalence of 1.2 on the Applied Problems subtest. She could call some coins by their names. Mother did not allow Upland to obtain, and Mother did not provide, concrete information to determine Student’s present level of performance in math reasoning as of October 2016. Although the last information Upland had suggested Student was functioning in the elementary school range for math reasoning, Mother insisted Student was in 10th grade and making progress in the general education curriculum toward earning a regular high school diploma with a goal of attending college.

Upland proposed an applied problems in math goal for Student to be presented with classroom scenarios of real-life situations where money is used, such as shopping and budgeting, and for Student to use previously modeled strategies like touching money, coin combinations, a number line, and manipulatives, to show combinations of coins up to 99 cents with 80 percent accuracy.

In the area of need of math calculation, the last data Upland had was based on the 2014 administration of the Woodcock-Johnson Tests of Achievement. Student had a grade equivalence of 3.8 in Math Calculations Skills. She was able to add and subtract single digits, and could add and subtract double digits with minimal success. She struggled with math calculations when the calculation tasks were mixed on an assignment, such as single-digit addition and subtraction with single-digit multiplication, and double-digit addition and subtraction and double-digit multiplication all on one page of calculation. Mother did not allow Upland to obtain, and Mother did not provide, concrete information to determine Student’s present level of performance in math calculation as of October 2016. Mother asserted Student was

performing multi-digit multiplication with 90 percent accuracy, and long division and word problems. Although the last information Upland had suggested Student was functioning in the elementary school range for math calculation, Mother insisted Student was in 10th grade and making progress in the general education curriculum toward earning a regular high school diploma with a goal of attending college.

Upland proposed a goal for Student to perform calculations using multiplication by teaching her the steps in multiple-digit problem solving for addition, subtraction, and multiplication, carrying and borrowing in multiple-digit problems, how to use a multiplication chart, and how to multiply using double digits, then having Student demonstrate the ability to use a multiplication chart as a visual aid when given 15 multiplication problems of single-by-multiple-digit numbers and compute correct answers with 80 percent accuracy.

In the area of need of sensory processing, the last data Upland had was based on the 2014 triennial evaluation. Student exhibited some sensory processing difficulties, specifically with low registration, which interfered with her ability to complete classroom work and activities. Mother did not allow Upland to obtain, and Mother did not provide, concrete information to determine Student’s present level of performance in sensory processing as of October 2016. Mother asserted participation in martial arts and integrated reflex therapy prescribed by an optometrist helped Student improve.

Upland proposed a goal for Student’s sensory motor processing to train Student in sensory processing strategies designed to assist low registration such as enhancing task and context features, brighter contrast in materials, increased tactile stimulation, movement exercises, strong flavor oral motor experience, and alternating passive and active learning. Then, when Student demonstrated symptoms of low registration such as missing directions, being slow to respond, or having difficulty organizing work and/or supplies, for staff to cue Student with visual prompting to a list of strategies and for Student to use sensory processing strategies designed to assist low registration to actively participate in class activities such as written work.

In the area of need of pragmatics/social communication, the last data Upland had was based on the 2014 triennial assessment and independent speech and language evaluation by Rozenberg. Student demonstrated decreased turn-taking during informal conversation. She was cooperative and provided answers when asked, but rarely initiated a topic of conversation or provided additional information to an existing topic to continue a conversation. During informal observation by Upland, Student only participated in one-turn communication, meaning one comment by the speaker followed by one comment by the listener. Mother did not allow Upland to obtain, and Mother did not provide, concrete information to determine Student’s present level of performance in pragmatic/social communication as of October 2016. Mother asserted Student received speech therapy one hour per week.

Upland proposed a goal to teach Student social rules of group conversation, and for Student to demonstrate the ability to orally express herself by commenting or asking questions during a structured three-turn conversation, with one to two minimal indirect or direct verbal prompts, in eight out of ten opportunities.

In the area of need of inferences, the last data Upland had was based on the 2014 triennial evaluation administration of the Comprehensive Assessment of Spoken Language by Upland’s speech-language pathologist. Student had a standard score of 62 on the Inferences subtest, significantly below average. Mother did not allow Upland to obtain, and Mother did not provide, concrete information to determine Student’s present level of performance in inferences as of October 2016. Mother asserted Student received speech therapy one hour per week.

Upland proposed a goal to present Student with hypothetical situations in either written or verbal form, and for Student to demonstrate the ability to answer inference questions such as the feelings of others, predictions, or cause and effect, with 80 percent accuracy, supported by visual aids and one to two minimal indirect or direct verbal prompts.

In the area of need of oral expression in narration, the last data Upland had was based on the 2014 independent speech and language evaluation by Rozenberg, who administered the Test of Narrative Language. In oral narration, Student achieved a total raw score of 35, the age equivalent of 6.7 years. Mother did not allow Upland to obtain, and Mother did not provide, concrete information to determine Student’s present level of performance in oral expression in narration as of October 2016.

Upland proposed a goal to provide Student five sequential pictures and for Student to demonstrate the ability to orally present one grammatically and syntactically correct sentence per picture, using associated vocabulary, creating a simple yet cohesive story with one to two minimal indirect or direct verbal prompts.

In the area of need of non-literal language, the last data Upland had was based on the 2014 triennial evaluation and independent speech and language evaluation by Rozenberg, each assessment including the Comprehensive Assessment of Spoken Language. Student scored 50 and 40, respectively, on the non-literal portion of the test. Both scores, which addressed Student’s ability to answer questions based on non-literal information, were in the severely below average range. Mother did not allow Upland to obtain, and Mother did not provide, concrete information to determine Student’s present level of performance in non-literal language as of October 2016.

Upland proposed a goal to present Student with hypothetical situations in oral or written format that contained non-literal language, such as simile, metaphor, and sarcasm, and for Student to identify the correct message being communicated with 80 percent accuracy with one to two minimal indirect or direct verbal prompts.

In the area of need of listening comprehension, the last data Upland had was based on the 2014 triennial evaluation administration of the Test of Auditory Processing Skills. Student had a scaled score of 2 in Auditory Comprehension, which was significantly below average. Mother did not allow Upland to obtain, and Mother did not provide, concrete information to determine Student’s present level of performance in listening comprehension as of October 2016.

Upland proposed a goal to teach Student strategies for improved listening comprehension such as listening for a main idea and specific details, summarizing, and recognizing word-order patterns, and for Student to demonstrate appropriate listening skills during classroom discussions by waiting her turn to talk and using sentences that were linked to what was previously stated in the discussion or writing down answers that drew upon information provided in the discussion, supported with minimal verbal prompting, in eight out of ten opportunities.

In the area of need of idiomatic language, the last data Upland had was based on the 2014 triennial evaluation administration of the Comprehensive Assessment of Spoken Language by Upland’s speech-language pathologist. Student had a standard score of 75 on the Idiomatic Language subtest, in the significantly below average range. Mother did not allow Upland to obtain, and Mother did not provide, concrete information to determine Student’s present level of performance in idiomatic language as of October 2016. Mother asserted Student received speech therapy one hour per week.

Upland proposed a goal to present Student with idiomatic phrases with associated visual aids, and for Student to identify the meaning of 25 therapy-targeted idioms with 80 percent accuracy, with one to two minimal indirect or direct verbal cues.

TRANSITION PLAN

The IEP team also developed an individualized transition plan that included post-secondary goals in training/education, employment, and independent living, specifying activities and community experiences supported by the related service of transition service involving Student’s special education case carrier.

OFFER OF SPECIAL EDUCATION AND RELATED SERVICES

Upland was aware of Student’s low cognitive and adaptive skills profile, and prior academic testing indicating Student functioned in the early elementary school grade range. Upland considered the information Mother provided, asserting Student was in 10th grade following the general education high school curriculum, and was successfully completing the requirements for a regular high school diploma at a private school.

Based on Mother’s representations that were subject to confirmation by the private school transcript Mother agreed to obtain and provide to Upland, the IEP team considered the statutory continuum of placement options and determined the least restrictive environment in which Student was reasonably likely to make progress on the eleven IEP goals and three individualized transition plan goals. The least restrictive environment was a blend of general education classes, collaboratively taught general education classes with specialized academic instruction, and special day program classes with specialized academic instruction.

Upland offered specialized academic instruction in a separate classroom at Upland High School, a public integrated facility, for three class periods a day for math intervention, reading intervention, and a skills enhancement course. The skills enhancement course was to focus on access to the core curriculum in the general education classes, through pre-teaching, re-teaching, and support with classwork completion from general education and collaboratively taught courses, but also to work on IEP goals and transition plan activities. Upland offered specialized academic instruction in a regular general education classroom at Upland High co-taught by a general education teacher and a special education teacher, with a classroom aide, two periods a day for English and for science. Upland offered the remainder of Student’s classes, which could have included physical education, social science, and elective courses, in a general education classroom at Upland High.

Upland could not inform Mother on October 31, 2016, specifically which courses Student would be placed into because Upland needed to see Student’s private school transcript to know which courses she had already completed. For example, if Student had already taken Algebra, Student could be placed in Geometry. But if she had not taken Algebra, she would have required that course before being placed into a course typical 10th graders take. Also, if Student had already taken Biology, she could be placed in Chemistry. But if she had not yet taken Biology, she would have required that course before being placed into other sciences. Because Mother did not inform Upland what courses she provided Student at her homeschool and pretended she would obtain a transcript from Resurrection Academy, Upland did the best it could on October 31, 2016, to describe the placement environment it proposed for Student while still needing additional information Mother refused to share. Had Upland been able to administer academic achievement tests to Student as part of the required triennial reassessment, or had Upland received truthful information of which Mother was personally aware, Upland could have developed a more specific course schedule proposal.

Upland offered related services to support Student obtaining educational benefit from her special education. Upland offered Student 60 one-hour sessions of individual, pull-out speech therapy for the year, and 30 one-hour sessions of speech therapy in her classrooms for the year. Upland offered 30 ten-minute occupational therapy consultation sessions with Student’s classroom and school staff for the year. Upland offered Student one 30-minute session of transition service on an individual basis.

Upland also offered transportation for Student, and Mother requested Upland reimburse her for transporting Student to school.

ISSUE 3A: CONSIDERATION OF AREAS OF NEED IN WHICH STUDENT HAD NOT BEEN ASSESSED, SPECIFICALLY POST-SECONDARY TRANSITION, CENTRAL AUDITORY PROCESSING, ATTENTION, AND THE NEED FOR ASSISTIVE TECHNOLOGY

Student complains Upland did not consider areas of need in which Student had not been assessed, specifically post-secondary transition, central auditory processing, attention, and assistive technology. Upland denies it denied Student a FAPE.

The lack of assessment in each of these areas was due to Mother’s conduct. On September 30 and October 19, 2016, Upland provided Mother a triennial assessment plan that included post-secondary transition needs as an area for evaluation, but Mother had not consented. Therefore, Upland had been unable to assess Student’s current needs in post-secondary transition. Upland developed a reasonable individual transition plan based on the information available to it as of October 31, 2016.

Upland attempted since March 2015 to obtain Mother’s consent to assess Student’s attention using the Test of Variables of Attention, and Mother repeatedly failed to sign written consent to Upland administering that assessment. Had Mother signed the September 30 or October 19, 2016 triennial evaluation assessment plan, Upland could have assessed Student’s attention during its triennial reassessment. Instead, on October 20, 2016, Mother claimed she disagreed with unspecified assessments by Upland and requested an independent evaluation for the Test of Variables of Attention by Dr. Timothy Gunn. The fact that attention as a suspected area of disability had not been assessed by Upland was due to Mother’s lack of written consent on assessment plans Upland gave her in March, April, and July 2015, as well as the September 30 and October 19, 2016 triennial evaluation assessment plan.

Therefore, Upland was unable to assess Student’s attention.

Mother requested assessment for central auditory processing disorder and evaluation of Student’s need for assistive technology on October 20, 2016. She requested independent evaluations, but Upland had not previously assessed Student in these areas. Accordingly, there was no assessment Mother disagreed with as the basis for obtaining independent evaluations at public expense. (T.P. v. Bryan County School Dist. (11th Cir. 2015) 792 F.3d 1284, 1293 [“The parental right to an IEE is not an end in itself; rather it serves the purpose of furnishing parents with the independent expertise and information they need to confirm or disagree with an extant, school-district- conducted evaluation.”]; see also Schaffer v. Weast, supra, 546 U.S. at p. 61 [stating that an IEE following parental disagreement with the school’s evaluation is necessary to ensure that parents have a “realistic opportunity to access the necessary evidence” and are not left “without an expert with the firepower to match the opposition”].)

Upland immediately offered to have an audiologist assess Student for central auditory processing disorder and to have a speech-language pathologist assess Student’s need for assistive technology. Upland sent Mother an assessment plan for these two evaluations on October 27, 2016. Mother did not consent to these assessments, and even if she had, there was not enough time before the October 31, 2016 IEP team meeting to conduct the assessments Mother requested 11 days before the IEP team meeting.

Despite the lack of assessment for assistive technology, Upland offered Student assistive technology in the October 31, 2016 IEP. Mother requested a text-to-speech program called Kurzweil 3000 to read aloud to Student written information. Upland offered Student that program as an aid, service, or support. Upland also offered Student access to a computer, laptop, or iPad at school for written assignments, and the ability to dictate for written assignments. Upland offered to allow Student to use an audio recorder and/or written instructions for information presented verbally. Upland also offered Student a scribe to transfer answers when required, dictation, help with typing, and a speech-to-text program for classroom, district, and statewide testing.

Therefore, Upland considered and addressed Student’s need for assistive technology based upon Mother’s request and the information available to it as of October 31, 2016.

Student did not meet her burden of proving Upland denied Student a FAPE in the October 31, 2016 IEP by failing to consider the specified areas of need in which Student had not been assessed.

ISSUE 3B: INCLUSION OF PRESENT LEVELS OF PERFORMANCE IN ALL AREAS OF UNIQUE NEED

As stated above, Student’s claim that Upland denied her a FAPE in the October 31, 2016 IEP by failing to include present levels of performance in all areas of unique need is untimely and dismissed. Student did not state this claim in the Prior 2018 Case refiled as Student’s Second Case, so it was not preserved by the May 2019 tolling agreement. Student first asserted this claim in the second amended complaint in Student’s First Case in May 2020. Any challenge to the development or content of the October 31, 2016 IEP was required to be filed within two years of the IEP team meeting at which it was developed. Student failed to timely file a claim regarding inclusion of present levels of performance in all areas of unique need in the

October 31, 2016 IEP. Even assuming this issue relates back to the August 13, 2019 original filing date of Student’s First Case, this claim is untimely because it was not filed within the two-year statute of limitations, by October 31, 2018. Therefore, as stated above, Issue 3b is dismissed as outside the statute of limitations and not preserved by the parties’ May 2019 tolling agreement.

ISSUE 3C: DEVELOPMENT OF APPROPRIATE GOALS BASED ON PRESENT LEVELS OF PERFORMANCE

As stated above, Student’s claim that Upland denied her a FAPE in the October 31, 2016 IEP by failing to develop appropriate goals based on present levels of performance is untimely and dismissed. Student did not state this claim in the Prior 2018 Case refiled as Student’s Second Case, so it was not preserved by the May 2019 tolling agreement. Student first asserted this claim in the second amended complaint in Student’s First Case in May 2020. Any challenge to the development or content of the October 31, 2016 IEP was required to be filed within two years of the IEP team meeting at which it was developed, by October 31, 2018. Student failed to timely file a claim regarding development of appropriate goals based on present levels of performance in the October 31, 2016 IEP. Even assuming this issue relates back to the August 13, 2019 original filing date of Student’s First Case, this claim is untimely because it was not filed within the two-year statute of limitations, by October 31, 2018. Therefore, as stated above, Issue 3c is dismissed as outside the statute of limitations and not preserved by the parties’ May 2019 tolling agreement.

ISSUE 3D: DISCUSSION OR CONSIDERATION OF PRIVATE SERVICES STUDENT WAS RECEIVING FROM LINDAMOOD-BELL, TUTORING, AND SPEECH THERAPY

To fulfill the goal of parental participation in the IEP process, the school district is required to conduct a meaningful IEP meeting. (Target Range, supra, 960 F.2d at p. 1485.) 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 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; Fuhrmann v. East Hanover Board of Education (3d 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].)

LINDAMOOD-BELL

At the time of the October 31, 2016 IEP team meeting, Student was receiving services at Lindamood-Bell at Upland’s expense under a prior settlement agreement. During the October 31, 2016 IEP team meeting, Mother told Upland Student was regularly going to Lindamood-Bell. Upland inquired if Student could or would receive a high school diploma from Lindamood-Bell. Mother reported Lindamood-Bell did not confer high school diplomas but some of the work or “classes” Student did at Lindamood-Bell could “transfer out,” meaning Student would get credit for them at the private school. Mother shared that Lindamood-Bell provided Student one-to-one support online when Student was not able to go to the Lindamood-Bell center in person.

Mother merely asserted to the IEP team Student made progress with Lindamood-Bell. She but did not provide any specific information regarding what that progress looked like, how it reflected in Student’s test scores, abilities, or progress in the general education curriculum toward earning a high school diploma. Mother did not provide the IEP team with information that indicated the Lindamood-Bell services in any way raised Student’s present levels of performance other than Mother’s claim Lindamood-Bell said Student’s comprehension was at the 10th grade level.

Mother told the IEP team the remaining funding on the Lindamood-Bell contract under the prior settlement agreement with Upland would provide Student only two more weeks of services. Mother requested Upland offer Student continuing services at Lindamood-Bell. After the IEP team discussed and proposed goals, the least restrictive environment in which Student could work on those goals and make progress toward her overall goal to earn a regular high school diploma, and related services necessary to enable Student to work on her goals and benefit from her special education, Upland determined Student did not require continuing services at Lindamood-Bell to receive educational benefit appropriate in light of her circumstances. Therefore, Upland did not offer Student ongoing services at Lindamood-Bell.

Mother did not want Student to attend a public school program and receive related services from Upland. She rejected Upland’s offer of placement and services and told the IEP team Student would remain enrolled in private school at Mother’s expense. Upland informed Mother of Student’s right as a private school student to receive a proportional share of services through an individual services plan. Mother stated she was not interested in an individual services plan for Student.

There was no evidence to support Student’s assertion Upland failed, refused, or avoided discussion or consideration of Student continuing to receive services at Lindamood-Bell as part of her October 31, 2016 IEP. Mother did not want Student to attend a public school program and receive from public providers any services designed to enable her to access her education. Mother instead preferred Student to receive services from individuals and entities with whom Mother could privately contract. The fact that Mother asked Upland to pay for services to Student by a private business did not require Upland to agree to pay for those private, outside services on top of the comprehensive public school and related services educational program Upland proposed. In not offering what Mother wanted, Upland did not significantly impede Mother’s opportunity to participate in the educational decisionmaking process.

TUTORING

With regard to failing to discuss or consider tutoring, Student’s First Case alleged that during the IEP team meeting on October 31, 2016, Upland did not “hold a discussion” of “other related services [Student] was receiving” “provided by District.” During the June 15, 2020 prehearing conference, Student clarified the related services she meant were tutoring and speech therapy. The evidence did not establish that as of October 31, 2016, Student was receiving “tutoring” from or paid for by Upland, whether directly or on a reimbursement basis.

The preponderance of the evidence established that the person from whom Student received “tutoring,” Sydney Pacheco, was claimed by Mother as a “teacher” at Resurrection Academy in Mother’s filing with the California Department of Education Private School Affidavit for the 2015-2016 and 2016-2017 school years and extended school years. In October 2016, Pacheco was approximately 22 years old and had no teaching credential, training, or experience apart from spending time with Student.

Pacheco never worked in a school in any manner, and never provided services to someone at a school. At the time of hearing, she worked as a cashier at a crafting store and as an enumerator for the Census Bureau. Although Pacheco claimed to have some college education, there was no evidence she had that education when she began tutoring Student or before she stopped tutoring Student in August 2018. Starting in April 2014, Mother paid Pacheco $15.00 per hour to do activities with Student including stretching, worksheets, reading, and incorporating prayer into every topic. Pacheco supervised Student inside Student’s home approximately four hours per day, four to five days per week, sometimes on a weekend day, but averaging a total of 16 hours per week over four days.

At hearing, Pacheco claimed she was trained by Lindamood-Bell in some of their programs by video and in a three-day in-person course, about how to speak to a student, going over grammar, reading, English, and briefly on how to approach it by visualizing. Pacheco used what she learned during her activities with Student to complete academic activities she and Mother agreed to have Student work on. When shown Student’s transcript at hearing, Pacheco had not seen it before. She agreed she had worked with Student on topics listed on the transcript, like English, history, science, and math. However, Pacheco admitted she was not aware of the grades Student received in those subjects, as stated on the transcript, because she did not determine Student’s grades; Mother did. Pacheco generically described specific content she “tutored” Student in, such as history involving the dinosaur era, and the development of the United States started with colonies. The science she taught covered weather, the atmosphere, earth overall, other planets, and the galaxy. She did not know what Integrated Math 9, a course on Student’s transcript, meant. Pacheco claimed she taught Student math tailored to her. She was unable to describe Student’s specific levels of ability or achievement in any topic during any of the years she “tutored” Student, apart from Student’s writing. Pacheco testified Student’s writing expanded from sentences with four words to writing ten words using commas and apostrophes, and turning those into short paragraphs, five sentences long. Pacheco did not think instruction was tailored to any particular grade level, but instead was tailored to Student’s academic level and for her advancement.

Pacheco believed the textbooks she used to work with Student were not tailored to a grade level but to Student. Pacheco said she did not teach religion, listed as a course several times on the transcript, but incorporated it through praying with Student.

The IEP team did not discuss Student receiving or continuing to receive tutoring during the October 31, 2016 IEP team meeting because Mother did not reveal that Student was receiving “tutoring,” or instruction of any type from an individual inside Mother’s home. Mother did not disclose that Student’s instruction at Resurrection Academy was provided by person with no educational qualifications to whom Mother gave some books and materials to use. Upland believed Student attended Resurrection Academy as a traditional, independently operated, private school outside Mother’s home and Mother did not tell Upland Student received any tutoring separate and apart from her private school program. In fact, Mother could not say that, because the “tutoring” itself constituted the private school program.

There was no evidence to support Student’s assertion Upland failed, refused, or avoided discussion of Student continuing to receive tutoring as part of her October 31, 2016 IEP. It was not discussed because Upland was never aware it was a consideration to be discussed. Unlike continued Lindamood-Bell services, Mother did not ask Upland to provide or pay for continued “tutoring.” Only Mother knew about the “tutoring,” and Upland did not significantly impede Mother’s opportunity to participate in the educational decisionmaking process by failing to discuss or consider a support it had no idea Student received, or wanted in addition to the full day of school on a public campus, as Upland offered.

SPEECH THERAPY

With regard to failing to discuss speech therapy, Student’s First Case alleged the related services at issue were being “provided by District.” The evidence did not establish that as of October 31, 2016, Student was receiving speech therapy from or paid for by Upland, whethe