BEFORE THE

CALIFORNIA SPECIAL EDUCATION HEARING OFFICE

This matter was heard on October 15, 16, 22, 23, 28, 29 and 30, 2002, in Palos Verdes Estates, California, before Michael B. Arkin, Hearing Officer, California Special Education Hearing, Office, McGeorge School of Law, University of the Pacific.

Petitioner, Haileigh Tenney (herein referred to as Petitioner or Haileigh) was represented by N. Jane DuBovy, Esq. Also present for Haileigh were her parents, Joan and Tom Tenney.¹ Respondent Palos Verdes Peninsula Unified School District (herein District) was represented by Caroline A. Zuk, Esq. of Filarsky and Watt, L.L.P. Also attending for the District was Roni Goodman, program specialist.²

Petitioner called as witnesses the following persons on her behalf: her mother, Joan Tenney; her father, Tom Tenney; Sandra Kaler, Ph.D., consulting educational psychologist; Robin Shipley, applied behavioral analysis specialist; and Janice DeMore, certified speech pathologist.

The District called as witnesses the following persons: Doreen Hata, kindergarten teacher; Sandra Summers, first grade teacher; Roni Goodman, program specialist; Robert Farran, director of Southwest SELPA; Betty Greenberg, speech and language pathologist; and Susan Weber, speech and language pathologist.

¹Mr., Tenney left the hearing, intermittently. Ms. DuBovy's law clerk and an associate attorney, Arlene Goldman, attended the hearing from time to time.

²Shirley Resich, a Palos Verdes Peninsula Unified School District program specialist, attended the hearing in place of Ms. Goodman during the afternoon of October 28, 2002.

Oral testimony and documentary evidence was received. The record remained open pending receipt of written closing arguments. Upon receipt by the Hearing Officer of the written closing arguments on November 18, 2002, the record was closed and the matter was submitted for decision.

ISSUES ³

I. Academic Year 2001‑2002, including Extended School Year (ESY)

1. Did the District fail to provide Haileigh with a free appropriate public education (FAPE):

A. By failing to identify and address Haileigh's unique speech and language deficits and needs;

                        B. By failing to provide Haileigh with an adequate ESY program; and

C. By failing to provide Haileigh a 6‑hour‑per‑day program for a total of 52 weeks per year? ⁴

2. Should Haileigh's parents be reimbursed for the cost of additional speech and language services they provided to Haileigh?

11. Academic Year 2002‑2003

1. Did the District fail to offer Haileigh a free appropriate public education (FAPE):

A. By failing to identify and address Haileigh's unique speech and language deficits and needs;

B. By failing to provide Haileigh with a one‑to‑one aide who is trained and supervised by a professional who specializes in autism and in intensive behavioral intervention (IBI)?

³ The wording and sequence of the issues here stated differ somewhat from the statement of the issues filed by Petitioner. They were once clarified on September 10, 2002, by Hearing Officer Deborah M. Cooke and again by this Hearing Officer following the conclusion of settlement discussions. They were again restated for the purpose of focus on the fourth day of hearing, October 23, 2002. Changes in the language and in the order the issues are discussed were made for clarity and to facilitate analysis in this Decision. No changes in substance have been made.

⁴ One of the issues originally calendared was resolved at the outset of the hearing; specifically, it was agreed that Petitioner should be designated as a first grade student.

2. Should Haileigh's parents be reimbursed by the District for the cost of the independent assessment by Sandra Kaler, R.N., Ph.D.? ⁵

BACKGROUND FACTS

Haileigh is a seven and a half year old child who resides within the boundaries of the District. She is eligible for special education services as a child with autism and currently attends Cornerstone Elementary School (Cornerstone) within the District.

At ten months of age, she was making good eye contact with her parents and had developed some language skills. However, she lost these skills between fourteen and eighteen months of age and did not appear to be regaining them. When she was two years old, her developmental delays became more pronounced. In October 1997, after Haileigh's pediatrician and Susan Schmidt‑Lackner M.D., an assistant clinical professor of pediatric medicine at the U.C.L.A. neuropsychiatric institute, were consulted, she was formally assessed and diagnosed as a child with autistic disorder. Prior to Haileigh's entry into the public school system, her parents sought to address her unique needs by providing a package of early intervention services for her through Harbor Regional Center (Regional Center). That package, an early intervention plan, included a home‑based IBI program, speech and language services, occupational therapy and a half-day program at a nonpublic preschool beginning in January 1998.

An assessment plan was first developed by the District in 1998. In April 1998, at her first IEP meeting conducted within the District, the District agreed that Petitioner would enter a District school at the beginning of the next school year and stated that Haileigh would be eligible for special education services due to significant delays in language, social play skills and cognitive development consistent with the diagnosis of autism, She first attended Sunrise Early Childhood Learning Center (Sunrise), a District preschool, in September 1999. At Sunrise, she received discrete trial training and was placed in a special day class with supplemental services. Following the inception of her program for the 1999‑2000 school year, the IEP team met monthly to review progress. Haileigh's annual IEP was conducted in April 2000. Modified annual goals and benchmarks were proposed and approved. Petitioner's parents were present at and signed the IEP. An ESY program for summer 2000 also was provided by the District. In September 2000, she entered the K‑1 class, remaining at Sunrise. Her goals and objectives had been updated by the IEP team the preceding April, but her primary placement in the SDC with supplemental services remained the same.

Shortly before the annual April 2001 IEP, her triennial assessment had been completed and since her progress was continuing, mainstreaming opportunities were recommended for Haileigh, along with the continuing services discussed previously. In this meeting, it was reported by the District that Haileigh was making progress toward her goals and had met certain,

⁵ In written closing argument Petitioner also asked for reimbursement for assessments conducted by Janice DeMore. Since this issue was not set‑forth in accordance with Cal. Educ. Code section 56505(e)(6), it was not considered by the Hearing Officer.

if not most, of the benchmarks set forth in her last annual IEP. It was recommended by the team that during the next academic year she stay in the special day class with the same level of services as in the past. The team also recommended an ESY program for the summer of 2001 "to maintain progress and prevent substantial regression."

Additionally for the ensuing academic year, the IEP team recommended placement at Cornerstone. Consequently, she was scheduled to enter the new elementary school in September 2001 with a primary placement in the special day class (70%) and mainstreaming opportunities in the general education class (30%). She continued to receive supplementary speech and language (S&L), intensive behavioral intervention (IBI),occupational therapy (OT) and adaptive physical education (APE) services.

Parents signed the April 21, 2001 IEP but indicated to the District that they agreed only in part to the recommendations, goals and objectives. They formalized this by incorporating the following language into the IEP:

Parents do not agree to the Program Recommendations for Speech and Language Goals and Objectives 8 through 11.⁶.... Parents are requesting additional days for Extended School Year. She currently receives 20 days. Parents are requesting 35 days more than the 20 days offered.⁷

The concern expressed by the parents related to the correct identification, diagnosis and treatment of Petitioner's speech disorder. Petitioner's parents also disagreed with the conclusions of the triennial assessment conducted by the District in 2001. They provided expert reports to the District and provided contact between Haileigh's private pathologist and school district personnel. Moreover, parents contended that the private speech and language services should more accurately be focused upon Haileigh's precise speech and language disability, apraxia.⁸ Additionally, parents disclosed during the discussion at the April 2001 annual IEP that during the previous years Harbor Regional Center had been providing funding for a portion of the cost of the private speech and language and OT services and that the Regional Center was no longer willing to underwrite those costs.

The parents met again with the IEP team in September 2001. At that time, despite the fundamental disagreement over the diagnosis and treatment of the speech and language deficiency, the District offered to increase the services provided by its speech pathologist by thirty minutes, two times per week. In response, Haileigh's parents decided to "sign off' on the

⁶ The goals and objectives with which the parents expressed disagreement in April 2001 were in the following areas: Speech Production, Receptive Language, Pragmatics (use of verbal language for social interaction), and Expressive Language. Because the parents consented to this IEP, the April 2001 IEP, as amended September 10, 2001, is the operative IEP for 2001‑2002.

⁷This is set forth exactly as it appears in the IEP (Respondent's Exhibit 9, page 3A).

⁸ Apraxia is discussed in more detail, infra.

2001‑2002 IEP as amended September 10, 2001. However, to meet what they perceived to be Haileigh's unmet needs, they supplemented treatment for Haileigh's speech and language deficits by providing private therapy for apraxia during the 2001‑2002 school year, including ESY.⁹

During the summer of the 2001‑2002 academic year (June‑July 2002), the District continued to provide services to Haileigh through its ESY program. In summer 2002, the ESY session was four weeks six hours per day, ending the first week of August. In addition, as stated above, during that period Haileigh's parents provided supplemental services from the private speech pathologist. These services continued after the District summer session and concluded one week before the commencement of the fall 2002‑2003 school year.

During that summer, and in response to the parents' statements that the Regional Center was no longer willing to provide services to Haileigh as it had determined that District should provide them,¹⁰ the SELPA director offered to attempt to resolve these issues between Petitioner, the school district and the Regional Center. Unfortunately, there was no resolution. Thus the issues of the nature and extent of speech and language services throughout the year, including ESY, remained unresolved. The District offered substantially the same program as it had during 2001‑2002. Since apraxia therapy, directed to Haileigh's unique need, was not offered, Haileigh's parents rejected the offer and did not sign the April 2002 IEP.¹¹ The parents' request for due process hearing was received by the Hearing Office May 17, 2002.

Subsequently, personnel changes in the District found Haileigh assigned to a classroom in September 2002 with a new aide unfamiliar to Haileigh. Parents objected to the assignment of this aide for the reason that in addition to being a person who was not known to Haileigh, as of the beginning, of the school year, the aide had received no specific training providing IBI services or otherwise assisting children diagnosed with autistic disorder.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

1. Academic Year 2001‑2002 (Including ESY)

A. Did the District fail to provide Haileigh a free appropriate public education (FAPE) by: (A) failing to identify and address Haileigh's unique speech and language deficits and needs; (B) failing to provide Haileigh with an adequate ESY program; and (C) failing to provide Haileigh a 6‑hour‑per‑day program for a total of 52 weeks per year?

⁹ Despite initial resistance, these services continued to be funded by Harbor Regional Center in part.

¹⁰ The determination by Harbor Regional Center does not affect SEHO's decision in this matter. It is mentioned for contextual purposes and to explain why the present controversy between Haileigh and District did not materialize with respect to earlier school years.

¹¹ Because parents rejected the District's offer, the program set forth in the 2001‑2002 IEP continued in effect as Haileigh's "stayput. " 20 U.S.C. § 1415(j); Cal. Educ. Code § 56505(d).

Under both federal and State law, students with disabilities have the right to a free appropriate public education. 20 U.S.C. § § 1400 et seq. Cal. Educ. Code § § 56000 et seq. The purpose of the Individuals with Disabilities Education Act (IDEA) and California's conforming statutes is to provide handicapped students with access to public education. Board of Education v. Rowley, 45 8 U.S. 176 (1982). A free appropriate public education in this context consists of special education and related services that are available to the child, at no charge to the parent or guardian, which meet the State educational standards and conform to the child's individualized education program (IEP). 20 U.S.C. § 1401(8).

The package of instruction and services mandated as "special education" is defined as specially designed instruction which meets the unique needs of the child. 20 U.S.C. § 1401(25); Cal. Educ. Code § 5603 1. Under IDEA, the student's unique needs to be met are those that result from the student's disability. The special education program is also designed to enable the student to be involved in and progress in the general curriculum and as the Supreme Court stated in Board of Education v. Rowley, supra, it must be reasonably calculated to provide the pupil with educational benefit.¹² The Act does not require that the benefits conferred pen‑nit the student to reach the highest attainable level. Lenn v. Portland Sch. Comm. 998 F.2d 1083 (1st. Cir. 1993). What is required is entry to a "basic floor of opportunity" through access to specialized instruction and related services which are individually designed to provide educational benefit to the student. Board of Education v. Rowley, supra, at 201. That education is to be provided in the least restrictive environment and prepare the student for employment and independent living. 20 U.S.C. § 1412; 34 C.F.R. § 300.550; Cal. Educ. Code § 56345.¹³

A school district is required to provide a special education student with an ESY program when the student requires special education and related services in excess of the regular academic year, if the student's handicap is likely to continue for a prolonged period and the interruption in service of the pupil's educational programming may cause regression. 5 C.C.R § 3043. Regression is deemed significant if the student has limited recoupment capacity. Morton Sch. Dist. V. Washington State E.A., 92001) 3 5 IDELR 103; Etowah County Bd. Of Educ. (2001) 34 IDELR 302. The term "extended school year" usually refers to a summer program, the duration of which shall be a minimum of 20 and a maximum of 55 days, depending on the unique needs of the student. 5 C.C.R.3043(c) and (d).¹⁴ Thus, the determination with respect to ESY services

¹² Cal. Educ. Code section 56345 describes the required content of an IEP. Section 56345(a)(2)(A‑B) provides that an IEP shall contain measurable annual goals, including benchmarks or short‑term objectives, related to "meeting the pupil's needs that result from the pupil's disability to enable the pupil to be involved in and progress in the general curriculum, " and "meeting each of the pupil's other educational needs that result from the pupil’s disability.”

¹³ The parties agree that the program offered conformed to the student's IEP and there is agreement that the program provided to Haileigh is in the least restrictive environment. The principal issue is whether the District identified Haileigh's unique needs and provided a program to meet them.

¹⁴ Compare the federal regulations at 34 C.F.R. section 300.313 which provide that the school district is to ensure ESY services are available to the student "as necessary " to provide a FAPE.

for each student must be based on the level of program services that will fit the student's unique needs and prevent regression in the educational skill or knowledge levels of the student.(See for example, MM v. Sch. Dist. Of Greenville Co., 303 F.3d 523 (4^th Cir. 2002);Cordrey v. Euckert, 917 F.2d 1460 (6^th Cir. 1990).

In this case, the parties agree that Haileigh is eligible for special education services, and that in order to help overcome her deficits, she requires speech and language (S & L), intensive behavioral intervention (IBI), adaptive physical education (APE), and occupational therapy (OT) services. The parties agree that services were provided by the District in conformity with the IEP in the appropriate amounts and frequency, with the exception of speech and language services and the length of the educational program.

                        (A) Speech and Language

During the 2001‑2002 school year, Haileigh's greatest deficits were in the areas of her receptive and expressive language skills. As of the April 2001 IEP, she was performing at the two and a half year old level in language production, occasionally producing spontaneous two‑to‑three‑word sentences with prompts or direction by the teacher. She was unable to decode phonetically and thus could only recognize words by memory. She was found to have normal intellectual capacity, but was making limited educational progress due to these language deficits. The disagreement in this case focuses on the appropriate diagnosis, the specific therapy required for this student, the correct hours of service per week and the proper number of weeks of delivery per year of those services.

The Petitioner contends that the District failed to investigate adequately the speech disorder that the parents suspected. Specifically, Petitioner contends that the District failed to identify and treat the speech disorder, apraxia. Instead, parents contend, the District responded by increasing treatment for another speech disorder, dysarthria. Petitioner contends that she also required, and the parents provided, two weekly forty‑five minute sessions of speech and language therapy that focused on the treatment of apraxia.

The District contends that Haileigh's speech disorder was dysarthria, for which she was being, treated correctly by the district speech pathologist.

The expert testimony revealed the difference between the two disorders and the difference in treatment regimens. The testimony established that apraxia is a speech production disorder. Persons afflicted are unable to produce combinations of syllables and words. As Petitioner's experts testified, apraxia reflects an impairment in the student's ability to produce a desired sequence of sounds. The brain is unable to signal correctly to speech production centers; thus the brain is unable to produce the sequence of words, syllables or sounds as intended. Treatment usually focuses on practicing sounds in combinations. The focus is on building neuron pathways in the brain that will support the pupil's directions to the brain for sound and word sequencing. Apraxic speakers "grope" for words, making several attempts before achieving success. Thereafter, they practice the sound sequence in an effort to build on the neural connections in the brain. Treatment focuses on transitions from one sound to another and

repetitive drills to reinforce the process. Apraxia is different from dysarthria in that muscle weakness is not a characteristic of apraxia. In dysarthria, the tongue and jaw muscles are weak, similar to that which is experienced by a person with multiple sclerosis. Dysarthria is an articulation disorder. The treatment is on strengthening the muscles by exercise, physical manipulation and practice. Persons who have dysarthric speech make the same errors over and over because dysarthric speech derives from physical causes which are corrected slowly by increasing muscle tone and control

Janice DeMore, M.A., C.S.P., a private speech pathologist, was requested by Haileigh's parents in March 2001 to conduct a speech and language study to assist in determining the correct program for Haileigh. Ms. DeMore's diagnosis was apraxia. This diagnosis was reached using several tools specifically designed to diagnose apraxia. Among them was a "language sample" taken by Haileigh's mother after being instructed by Ms. DeMore.¹⁵ The language sample was computer‑analyzed using a program known as "S.A.L.T." Haileigh was also administered the Verbal Motor Production Assessment for Children, the Peabody Picture Vocabulary Test, the Expressive Vocabulary Test, the Oral and Written Language Scales, the Hayden System Analysis Observation Test and the Quick Screen of Phonology, each of which was a test designed to identify apraxic students and, in this case, led to the apraxia diagnosis. Ms. DeMore began a treatment regimen provided by the Regional Center in March 2001 and has been providing Haileigh private speech therapy for apraxia on a regular basis ever since. Pathologist DeMore indicated that during the eighteen‑month period she has been providing services to Haileigh, she has continued to believe that her diagnosis of the speech disorder is correct and that it is because of the specific apraxia therapy she has provided that Haileigh is making progress. Ms. DeMore also observed that Haileigh does have some dystharthria symptoms as well and suggested that the treatment for both disorders is warranted.

Haileigh's parents again consulted Susan Schmidt‑Lackner, M.D.¹⁶ who made the 1997 diagnosis of autism. She also provided a consultation report for the April 2001 IEP meeting. In her report Dr. Schmidt‑Lackner made the following statement: "Although...[Haileigh's] ... receptive language has improved, she continues to have apraxia. Most of her utterances are single words with occasional combinations of words.¹⁷

The District's witnesses had a different view of Haileigh's disorder. At the hearing, the District's speech pathologists testified that Haileigh's speech disorder is dysarthria, the disorder characterized by weakness of jaw, tongue and other muscles related to speech. They testified that this articulation disorder is correctly treated with a variety of jaw and muscle exercises and

¹⁵ Ms. DeMore had considerable experience teaching previously untrained persons to take proper language samples when she was doing research projects at Cal. State, Long Beach as well as subsequently in her private practice.

¹⁶ Assistant clinical professor of pediatric medicine, U. C.L.A. Neuropsychiatric Institute.

¹⁷ Single word utterances are common in persons with apraxia. It is the combinations of sounds, syllables and words in a sentence which are difficult.

is primarily a matter of muscle control. In dysarthria, the brain sends correct signals to the mouth, throat and tongue, but because the muscles are weak they do not position correctly so that clarity is present in the sounds made. The District is currently treating Haileigh for dysarthria. Since September 2001, the District has provided three hours of S&L services per week, with the time divided between individual therapy and small group settings.

Betty Greenberg, M.A., a 2000 graduate of the University of California (Long Beach) speech pathology master's program, was the District speech pathologist who served Haileigh in that capacity during the 2001­2002 school year. Ms. Greenberg stated that when she began working with Haileigh, she had command of several single words. Ms. Greenberg's goal was to encourage Haileigh to put the words together into a single sentence. Consequently, she testified, she gave her oral/motor exercises and articulation practice, "working on ... [individual] sounds." Her primary thrust was working toward functional communication in the school setting. Her treatment regimen was based upon the diagnosis of dysarthria. Ms. Greenberg admitted on cross-examination that Haileigh may not have met certain of the IEP goals and objectives set for her in the area of speech and language.

Susan Weber, M.A., the other District speech pathologist, was Haileigh's District provider at Sunrise and is presently her provider at Cornerstone. Ms. Weber, a Kent State University graduate, observed progress in Haileigh over the course of her work with Haileigh at Sunrise. She observed that throughout the period Haileigh has been working on developing functional communication skills. Ms. Weber also testified that apraxia is an incorrect diagnosis. She stated that developmental dysarthria would be the accurate diagnosis and that with dysarthria treatment Haileigh has made progress. However, on cross‑examination she acknowledged that the District Triennial Assessment of April 2001 made reference to Haileigh's symptoms as deficits in speech production due to oral motor deficits. On close questioning, she acknowledged that the term "speech production" is descriptive of apraxia, while the term "oral motor deficits" would be more descriptive of dysarthria. Thus, when asked if that language in the District IEP was identifying apraxia in Haileigh, she equivocated, stating that this did not necessarily mean "apraxia" and could mean "several other things" (emphasis supplied). Moreover, on cross-examination Ms. Weber, the District's most experienced pathologist, acknowledged her own observation of symptoms that could be classified as apraxia.¹⁸

For the April 2001 triennial assessment and IEP meeting, the parents provided the District with the reports identifying apraxia as the primary speech defect. Speech pathologist Greenberg acknowledged that she spoke "at least twice" by telephone with the private pathologist relative to her apraxia diagnosis and treatment service levels. Thus, the school district had knowledge of the area of suspected need identified by Haileigh's parents and professionals in the field. The District's triennial assessment included twelve diagnostic test protocols, including

            ¹⁸ It is noted that Ms. Greenberg testified that apraxia is primarily an adult speech defect and that while once she observed it in a child, the incidence in children is rare. None of the other experts confirmed that statement

when questioned. The Hearing Officer therefore finds Ms. Greenberg's testimony less persuasive. Ms. Weber stated on cross‑examination that she "assessed" for apraxia. However, no documentation of any relevant testing or reference to any analysis was produced.

the Fisher‑Logemann Test of Articulation Competence (an instrument designed to identify symptoms of dysarthria). Yet the District pathologists failed to take a formal language sample, undertake a S.A.L.T. analysis, administer the Quick Screen of Phonology, or the Verbal Motor Production Assessment for Children (VMPAC)‑tests the Petitioner's experts testified were designed to identify the presence or absence of apraxia‑‑or any other tests designed to identify apraxia. Contrary to California Education Code section 56320(f), the District failed to consider an area of suspected need which had been clearly identified by the parents and credible professionals. The District's response to the Petitioner's request that the apraxia diagnosis be addressed was to offer to increase the dysarthria therapy by 1/2 hour per week.

As indicated above, Haileigh's private speech pathologist acknowledged that in addition to the apraxic speech problems there were symptoms of dysarthria in Haileigh for which she should continue to receive treatment. Thus, the evidence establishes that Petitioner requires the combination of the two types of speech and language services provided by both parties to meet her unique needs. In short, what worked for Haileigh during the 2001‑2002 school year was the treatment she received for both apraxia and dysarthria. Treatment for dysarthria was provided by the District, while Haileigh's parents were required to fill the gap and provide apraxia treatment privately to assure her access to the curriculum.

The Hearing Officer is persuaded by the testimony of the experts that the diagnosis of apraxia was correct. Petitioner's experts were experienced in treating apraxia and employed specific testing protocols. The testimony of the parents and teachers provided credible evidence of a speech production problem.¹⁹ And as is stated above, even Ms. Weber, the District's most experienced expert witness, admitted that symptoms of apraxia could be found in the District's reports and observations of Haileigh. The Hearing Officer concludes that the reason the District did not make the apraxia diagnosis was that it failed to make a proper assessment of all areas of suspected disability.

The Hearing Officer therefore finds that the District failed to provide Haileigh with a FAPE for the 2001‑2002 school year (including ESY) by failing to identify and address Haileigh's apraxia. The extent of the need of apraxia therapy for Haileigh is discussed below in Section (B) Extended School Year.

(B) Extended School Year

The 2001 IEP team in this case recommended an ESY program for Haileigh "to maintain skills and help prevent regression." The program offered included all of the services provided by the District, including mainstreaming opportunities. Parents agreed in concept with that statement in the April 2001 IEP. However, they did not agree that the length of the District's

¹⁹ The testimony of parents and teachers is discussed more thoroughly below.

ESY program was adequate to meet Haileigh's needs .²⁰ Haileigh's parents contended that Haileigh's tendency to regress during the summer hiatus required that her full program continue without interruption until the beginning of the fall session. In short, the contention was that a full ESY program consisting of twelve weeks of continuous service throughout the entire summer recess period was mandated for Haileigh by her unique needs.

Both of Haileigh's parents testified that Haileigh suffered regression as a result of the hiatus between the District's ESY program and the beginning of the next school year. Haileigh's father testified that during the period Haileigh is not receiving services, she "can't function socially ... isn't attentive ... isn't responsive ... is disoriented and can't focus on academics." He also stated: "She loses what she has gained [during the prior year] Haileigh's mother testified that she believed the District should offer the level of services to Haileigh which enables her to progress in the system and that the summer hiatus interfered with that progress. In particular,

Haileigh's mother testified that when the ESY program ends, Haileigh reacts to the lack of structure within a few days. Haileigh becomes noncompliant, withdrawn and in general begins to shut down. Her regression, which begins emotionally, becomes more pervasive as time passes and results in reduction in her educational skill levels. Bringing her back to the level of performance she enjoyed before the hiatus is difficult, Mrs. Tenney stated. Thus at the beginning of the new school year in September, much time is devoted to re‑teaching and recoupment.

The parents retained Sandra Kaler, R.N., Ph.D. to evaluate Haileigh. Dr. Kaler, whose qualifications were multifaceted, in nursing, developmental psychology, developmental disability and developmental psychopathology, is an assistant professor and consultant to the University of California (Los Angeles) Neuropsychiatric Institute. Dr. Kaler reviewed Haileigh's educational records, including IEPs, interviewed Haileigh's mother and provided diagnostic testing of Haileigh. She administered the Wechsler Individual Achievement Test, the Mullen Scale of Early Learning, the Vineland Adaptive Behavior Scale, the Achenbach Child Behavioral Checklist, and the Beery‑Butenica Developmental Test of Visual Motor Integration. In sum, Dr. Kaler concluded that Haileigh has normal intelligence but that she is functioning entirely on nonverbal intelligence due to her significant language delays. On the basis of a comparison of her testing of Haileigh in August with the statements in the April IEP describing Haileigh's progress in meeting speech and language benchmarks and goals, she found significant regression in skill levels.

Janice DeMore provides forty‑five-minute speech therapy sessions to Haileigh approximately twice each week. She has been providing those services regularly since March 2001. Ms. DeMore testified that the most clear example of Haileigh's regression she could provide would be that which had just taken place in August 2002, shortly before the commencement of this hearing. She stated that in her opinion Haileigh had made significant

²⁰ The District contended that its ESY recommendation in the IEP meant that the program was to be made available during the District's regular summer school session. As the program included individual and group activities as well as interaction with typical peers, the District asserted that its ESY program could not be extended after its regular summer session ended. Haileigh 's parents contended that the IEP was ambiguous as it did not specify the duration of the ESY program

progress from the prior year, specifically the time of her March 2001 testing. But after the ESY session was concluded in August 2002, Ms. DeMore stated that she lost ground. "I see regression first in her behavior which affects her ability to think and act and that is reflected in her speech," she stated. "I lose her," she said. And then when school resumed in September, "it took three or four sessions to get [Haileigh] back on track. If I had taken a three month hiatus she would have regressed several months ‑ a five week hiatus, perhaps a month's regression," she stated. In her opinion, the regression at the end of ESY 2001 had been comparable.

Doreen Hata, a special education teacher with 15 years' experience in the field, was Haileigh's SDC teacher at Sunrise during the 2000‑2001 school year. She pointed out that Haileigh met her IEP goals and objectives for that year, including those for the summer 2001 ESY. In Ms. Hata's opinion, Haileigh made progress during the summer 2001 ESY. She testified further: "The extended school year in 2001 was appropriate for [Haileigh]. She made progress. We worked hard together as a team." Ms. Hata acknowledged, however, that Haileigh "needed some time to readjust in September [after the summer hiatus]...," but she suggested that all of her students need readjustment in September and opined that this doesn't necessarily signify that their skill levels have dropped. Ms. Hata testified that Haileigh "has the ability to learn" and that her capacity is not limited. (Ms. Hata stated that she had never recommended a 52 week program for any special education student.)

Sandra Summers has been Haileigh's SDC teacher since the beginning of the 2001‑2002 school year. She is in her third year of teaching with the District and sixth year of special education teaching". On direct testimony, she noted that of Haileigh's eight goals and objectives adopted in the April 2001 IEP for which she was directly responsible, six were met by April 2002. In June 2002, she instructed the ESY instructor to work on Haileigh's goals and objectives as set forth in the new IEP. She testified that she didn't observe regression in Haileigh when school resumed in September. There was a problem, she stated, with setting and working with the new goals and objectives proposed in April 2002. Ms. Summers indicated that she felt her hands were "tied," figuratively speaking, because of the lack of cooperation of the parents who had declined to sign the 2002‑2003 IEP. Therefore she had no choice but to start the year by working on the prior year's goals and objectives contained in the 2001‑2002 IEP. She also stated on cross‑examination that she has never recommended an autistic child have an ESY program for the entire summer.²¹

Betty Greenberg testified that Haileigh did not demonstrate the need for an extended full summer (June to September) ESY program and that therefore she did not recommend it. This witness also stated that she had never recommended services for a child beyond the District's usual ESY program, but she stated that she would do so "for a child who would grossly forget what he learned."(emphasis added)

             ²¹ Although Ms. Hata and Ms. Summers have not recommended a 52 week program for any student, such a program is authorized by the law and the unique facts of an appropriate case may require it. 34 C. FR. § 300.313.

The Hearing Officer notes that District speech pathologist Susan Weber testified with respect to ESY 2001, "1 do not think that services beyond the regular summer program were necessary." In support of that conclusion, she testified that she observed "impressive" improvement in Haileigh's skills when she was reassigned as Haileigh's therapist in September 2002. Since Ms. Weber was not Petitioner's therapist during the entire period from June 2001 until September 2002, she did not know until the hearing that a significant part of Haileigh's speech and language treatment during that period was the supplemental treatment privately provided by Janice DeMore for apraxia. It follows, therefore, that Ms. Weber's approval of Haileigh's improved skill levels is an unknowing endorsement of the apraxia therapy as an integral component of Haileigh's eleven week summer treatment plan, the service provided by Ms. DeMore during the summer recess.

The evidence establishes that the program which Haileigh presently receives, together with the forty‑eight week (annual) supplemental services of speech pathologist DeMore, provides a FAPE. Ms. DeMore's speech and language services are provided during the regular school year, with a one week break at the Thanksgiving, Christmas and spring school holidays and continue through the District's ESY program and beyond, to the week before the beginning of the succeeding academic year, a total of forty‑eight weeks. Ms. DeMore recommended that apraxia therapy continue twice weekly for individual forty‑five minute sessions, that it be administered by a qualified pathologist who is competent in apraxia therapy and that dysarthria therapy remain in Haileigh's program. The Hearing Officer finds Ms. DeMore's recommendation persuasive.

The District asserts that the length of its summer ESY program is sufficient. While Petitioner does experience some regression between the end of ESY and the beginning of the succeeding academic year, the regression is minimal and the evidence establishes that Haileigh is able to recoup within a short period of time. Thus, while the Hearing Officer finds that the ESY program provided by the District together with the supplemental services Ms. DeMore provides for eleven weeks during the summer recess is necessary, the evidence does not establish that a longer full ESY program is required.

Therefore the Hearing Officer finds that the ESY program provided by the District together with the private supplemental speech and language services provided by Ms. DeMore is adequate and that a FAPE has not been denied Haileigh by virtue of the length of the ESY program. However, by failing to provide the apraxia therapy, the District did deny Petitioner a FAPE.

(C) The requested 52 week 6 hour per day program

The Hearing Officer has found, as discussed above, that Haileigh is entitled to the District's regular ESY program. This program provides educational benefit to the student and is adequate to prevent regression so long as it is supplemented by the forty‑eight week speech and language program provided by Ms. DeMore throughout the year (eleven weeks during the summer recess). It follows, therefore, that the six hour per day, fifty‑two week per year program

requested, consisting of OT, IBI, APE, S&L and mainstreaming opportunities, would not be necessary to meet the unique needs of this student.²²

The Hearing Officer finds that as to the 2001‑2002 school year, Haileigh's special education needs were met by the District pursuant to the April 2001 IEP as amended September 10, 2001, together with the apraxia therapy which was provided by her parents, and that a six hour fifty‑two week per year program as requested by the parents is not required.

2. Should the cost of additional speech and language services provided by Haileigh's parents be reimbursed?

            The parents of disabled children may be entitled to retroactive reimbursement for expenses they incur for private services which they obtain to meet their child's special education needs. Such reimbursement is an appropriate remedy where the school district has failed to provide their child with a free appropriate education and the private services are found to be reasonably calculated to provide educational benefit to the child. School Committee of the Town of Burlington v. Department of Education, 471 U.S. 358, (1985); Haileigh W. v. Puyallup School District (9th Cir. 1994) 31 F.2d 1489; See also Florence County School District Four, et.al. v.

Carter, 5 10 U.S. 7 (1993).

As has been discussed above,‑, the Hearing, Officer has found the District failed to identify and address Petitioner's unique speech and language needs in the area of apraxia. Further, the Hearing Officer has found that the speech and language services provided privately by Ms. DeMore were necessary to meet Haileigh's unique needs and to support her access to and progress in the academic curriculum as well as in order to prevent significant regression after the regular summer ESY session. The services were therefore reasonably calculated to provide educational benefit to the Petitioner and the criteria for reimbursement have been met.

Parents presented testimonial and documentary evidence that of the total cost of the private speech and language services provided by Ms. DeMore, the Regional Center paid a portion throughout the 2001‑2002 academic year .²³ Thus, the amount of the District reimbursement will be determined upon submission of proof of payment by the parents of the portion they paid, which shall be submitted to the District.

²² The District presented evidence as to the calculated cost of both Haileigh's overall special education program and the ESY program as a whole and asked that the Hearing Officer consider costs in accordance with Cal. Educ. Code section 56505(h). That section provides for the Hearing Officer to consider costs among other factors "[I]n decisions relating to the placement of individuals with exceptional needs .... .. The Hearing Officer acknowledges that he has considered the cost of additional speech and language services ordered for Haileigh and in this case they are not found to be excessive. However, it should be noted that the costs referred to in Section 56505(h) relate to a "placement" and there may be some question whether that term refers to services such as those discussed in this matter. (See also 5 C. C. R. section 3042 for a broader definition of "placement.')

²³ Although Regional Center gave notice that it was terminating its financial support, it apparently continued throughout the period.

11. Academic Year 2002‑2003

1. Did the District fail to offer Haileigh a free appropriate public education (FAPE) by: (A) failing to identify and address Haileigh's unique speech and language deficits and needs and (B) failing to provide Haileigh with a one‑to‑one who is trained and supervised by professionals specializing in autism and in intensive behavioral intervention ("IBI")?

(A) Haileigh's Unique Speech and Language Deficits and Needs

The IEP of April 2002 offered Haileigh the same panoply of services for the doming academic year as were offered one year earlier, including the ESY program .²⁴ The offer included thirty minutes of one‑on­one speech and language services twice weekly, thirty minutes of small group and thirty minutes of services outside the SLP room once weekly.²⁵ The services offered were those directed to treat what the District had identified as dysarthria. The previous discussion has addressed Haileigh's speech and language deficits and needs. The Hearing Officer has concluded that dysarthria is present in Haileigh and that it requires treatment. The Hearing Officer has found the evidence establishes the additional need for therapy directed to Haileigh's apraxia. The Hearing Officer thus determines that failure to address that need and to offer to Petitioner apraxia therapy by Janice DeMore, or a pathologist comparably qualified, resulted in a denial of FAPE.

Therefore the Hearing Officer finds that the District failed to offer Petitioner a FAPE for academic year 2002‑2003 in that it did not identify and address Haileigh's apraxia.

(B) Training and Supervision of Petitioner's Aide

The IEP of April 2001 was operative the beginning of the 2002‑2003 school year since the April 2002 IEP was in dispute. Haileigh was to be provided a one‑to‑one aide pursuant to that operative IEP.²⁶ The evidence presented at the Hearing disclosed that following the conclusion of the 2001‑2002 school year, the District had selected an aide for Haileigh who was trained and familiar with Haileigh's unique needs. However, immediately before the start of the 2002‑2003 school year, the designated aide reported that she had found employment outside the District and would not be available. The District recruited a person who had taught elementary school outside the country and who was willing to accept employment as an aide to Haileigh. However she was not specifically trained to work with children with autistic disorder, so the school year 2002‑2003 began for Haileigh with an aide untrained in the specifics of Haileigh's disorder. The request for

²⁴ Parents agreed with the offer of the SDC with OT APE, IBI, mainstreaming opportunities and supplementary speech and language therapy addressing dysarthria.

²⁵ The District added a thirty-minute mainstream playground activity as additional speech therapy in response to the parents' demands. However, what was added was directed to articulation/dysarthria.

²⁶ The current Year's IEP also required a one‑to‑one aide for Petitioner. That recommendation was not in dispute.

due process hearing was received by the Hearing Office before the beginning of the 2002‑2003 school year. This issue was designated by Haileigh as an additional issue at the September 10, 2002 conference.

At the hearing, the District presented credible evidence that in October 2002 the aide was provided training specific to autistic disorder by the special day class teacher and by a psychologist retained by the SELPA and the District for the purpose of training District employees as well as other employees within the SELPA. In addition, the aide was trained in place as part of the IBI team by the highly qualified IBI behaviorist retained by the District. The aide's training consisted of in‑class experiential training, independent study, and attendance at lectures and workshops off the school campus. Approximately 13 hours of training consisted of attending formal lectures at workshops specific to autism. An additional 11 hours of specific IBI training were delivered in the class lecture setting. Moreover, a five to seven day training regimen was provided in the classroom at Cornerstone.²⁷

Thus the Hearing Officer finds that the District did not provide Haileigh with a one‑to‑one aide who was appropriately trained to provide service to an autistic child or to provide IBI services until late October 2002 and that, consequently, there was a brief break in service to Haileigh. However once the training began, the aide was supervised by Robin Shipley, a behaviorist, cross‑trained in autism and other related subjects. It was agreed that Ms. Shipley was competent to train and supervise Haileigh's aide.

There was no evidence that the delay in service was harmful to Petitioner and no claim of damage was made. Therefore the Hearing Officer finds that there was no denial of a FAPE by virtue of that delay.

2. Should Haileigh's parents be reimbursed by the District for the cost of assessments by Sandra Kaler, R.N., Ph.D.?

            The law requires school districts to assess students in all areas of suspected disability. 20 U.S.C. §1414(B)(3)(C); Cal. Educ.Code § 563 320. One of the purposes of an assessment is to determine the unique needs of the student by providing relevant information for the development of appropriate individual programs far the student, 20 U.S.C. § 1414(b)(3)(d), Cal. Educ.Code §56321.                                                                                                                                                

The District in this case developed assessment plans and conducted evaluations of Haileigh, beginning in 1998. Based thereon, an individualized educational program was developed and implemented for Haileigh. Annual IEPs followed in April of each succeeding year. Between annual IEPs, the team held interim meetings and prepared progress reports. The District then conducted a triennial assessment in March and April 2001. The parents made a request of the District to assess Haileigh further in the speech and language area, specifically

²⁷ The Hearing Officer notes, however, that except for the I 11‑hour IBI training that was delivered in early October, all of the training was delivered after the commencement of the due process hearing on October 15, 2002.

asking for an assessment of her suspected apraxia. As indicated above, they provided to the District the expert reports of Ms. DeMore and Dr. Schmidt‑Lackner. .;Dr. Schmidt‑Lackner's first report was prepared in 1997 and Ms. DeMore's first report was prepared in 2001. The District declined to assess in that area. Parents questioned the 2001 IEP, because it did not address the apraxia diagnosis. The parents eventually signed the 2001 IEP at the September 10, 2001 meeting. When the subject arose again at the annual IEP for the 2002‑2003 school year, the parents refused to sign the April 2002 IEP and expressed their disagreement. The parents then obtained the evaluation of Dr. Kaler. Dr. Kaler's assessment described Haileigh's deficiencies and made treatment recommendations.²⁸

A parent has the right to obtain an independent educational assessment of the student if the parent disagrees with an assessment obtained by a district. If a request for such an independent assessment is made, a district must either agree to pay for it, or it must establish at a due process hearing that its assessment was "appropriate." The results of an independent educational assessment shall be considered by the school district and may be presented as evidence at a due process hearing pursuant to Cal. Educ.Code § 56329(b); 34 C.F.R.§ 300.502(b).

            In order for the District to prevail, it must show that its assessment has met the statutory requirements set forth in Cal. Educ. Code section 56320. In addition, the tests and other assessment materials must have included "those tailored to assess specific areas of educational need .... [and] assess in all areas related to the suspected disability." Cal. Educ. Code §§ 56320 (c)‑ (0, inclusive. In this case the Petitioner's experts established that the District did not use tests that were designed to identify the presence or absence of apraxia.

Thus the District failed to assess apraxia as an area of suspected disability despite the parents' request and the contacts and reports of Dr. Schmidt‑Lackner, Ms. DeMore and Dr. Kaler. Dr. Kaler and Ms. DeMore testified at the due process hearing and submitted assessment reports that, in the Hearing Officer's view, were credible and complete. The Hearing, Officer has relied upon those assessments and finds them adequate in all respects. No additional assessments are necessary.

The Hearing Officer therefore concludes that the criteria for reimbursement of private assessment costs to Haileigh were met and her claim for reimbursement of the cost of Dr. Kaler's assessment is granted.

ORDER

1. The IEP team shall convene within fifteen calendar days for the purpose of amending the April 2002­2003 IEP to provide two additional weekly individual 45‑minute sessions of speech and language therapy directed to the treatment of apraxia, which shall continue until the week preceding the commencement of the 2003‑2004 academic year. The IEP shall provide:

²⁸ Dr. Kaler's assessment may have overstated Haileigh's deficits, but it pinpointed the areas of concern and demonstrated that more specifically directed work on speech and language communication skills was required.

(A) that the apraxia therapy will be administered by Janice DeMore or a comparably qualified speech pathologist who is competent in apraxia treatment; and

(B) that such therapy shall be administered throughout the calendar year, except for breaks of one week each during the school holidays at Thanksgiving, Christmas, spring break, and immediately preceding the beginning of the academic year.

2. The District shall implement the 2002‑2003 IEP as amended.

3. Within fifteen days of proof of payment by the parents, the District shall reimburse to Haileigh's parents the cost of speech and language therapy provided by Janice DeMore, M.A., C.S.P. from the beginning on the 2001‑2002 academic year to the date of implementation of the April 2002‑2003 IEP amended pursuant to this Order.

4. Within fifteen days of proof of payment by the parents, the District shall reimburse to Haileigh's parents the cost of the August 2002 assessment of Sandra Kaler, R.N., Ph.D.

5. All other requests for relief are denied.

PREVAILING PARTY ON EACH ISSUE.

Pursuant to California Education Code section 56507(d), the hearing decision must indicate the extent to which each party has prevailed on each issue heard and decided. The following findings are made in accordance with that requirement:

I. Academic Year 2001‑2002

1. Did the District fail to provide Haileigh a free appropriate public education (FAPE) pursuant to the Individuals with Disabilities Education Act (IDEA):

A. By failing to identify and address Haileigh's unique speech and language deficits and needs?

Haileigh prevailed on this issue in that the District failed to identify and address apraxia as a unique speech and language deficit.

B. By failing, to provide Haileigh with an adequate extended school year (ESY) program?

The District prevailed on this issue in that Haileigh failed to prove that a full extended school year program longer in duration than that provided by the District was necessary. Haileigh prevailed on this issue to the limited extent that the Hearing Officer found that an additional eleven-week speech and language apraxia program was necessary to provide her with a FAPE.

C. By failing to provide Haileigh a 6 hour per day program for a total of 52 weeks per year?

The District prevailed on this issue to the extent that the Hearing Officer found that Haileigh failed to prove that a six hour per day program for fifty‑two weeks per year was necessary.

Haileigh prevailed on this issue to the limited extent that the Hearing Officer found that an additional forty‑five minute individual speech therapy program twice weekly for forty eight weeks addressing Haileigh's apraxia was necessary to provide a FAPE.

2. Should the cost of additional speech and language services provided by Haileigh's parents be reimbursed?

Haileigh prevailed on this issue to the extent that her parents can provide proof of their payment.

II. Academic Year 2002‑2003

1. Did the District fail to offer Haileigh a free appropriate public education ( FAPE):

A. By failing to identify and address Haileigh's unique speech and language deficits and needs?

Haileigh prevailed on this issue.

B. By failing to provide Haileigh with a one‑to‑one who is trained and supervised by a professional who specializes in autism and in intensive behavioral intervention?

The District prevailed substantially on this issue.

2. Should Haileigh's parents be reimbursed by the District for the cost of the independent assessment by Sandra Kaler, R.N., Ph.D.?

Haileigh prevailed on this issue.

RIGHT TO APPEAL THIS DECISION

The parties to this matter have the right to appeal this Decision to a court of competent jurisdiction. If an appeal is taken, it must be made within ninety (90) days of receipt of this Decision. Cal. Educ. Code Section 56505(i).

Dated: December 13,2002

                                                                                      Michael B. Arkin, Hearing Officer

                                                                                      California Special Education Hearing Office