FOR IMMEDIATE RELEASE

A2Z Educational Advocates Make a difference

Last month, A2Z Educational Advocates and the law offices of N Jane DuBovy made a difference in the life of a young adult with specific learning disabilities (SLD) and attention deficit disorder (ADD), when their client, JA, prevailed in a 12-day Due Process Hearing against Huntington Beach Union High School District (the District; HBUHSD) and West Orange County Consortium for Special Education (WOCCSE). The following are excerpts from the decision:

BACKGROUND FACTS

JA is an eighteen-year-old student eligible to attend a fifth year of high school during the 2001-2002 school year. He has medical diagnoses of neurofibromatosis (NFT; a congenital neurological condition), and attention deficit disorder (ADD). His special educational eligibility is SLD and Other Health Impaired (OHI; ADD). Josh's disability is primarily evidenced by decreased processing speed and difficulties with his "working" memory. Thus, he cannot readily retrieve information, and he is unable to successfully access what he has learned. JA also has ADD with organizational problems, diminished social skills, hand tremors of an undetermined source, and handwriting that is slow and laborious. His cognitive ability scores have remained relatively consistent over the years. The recent standardized intelligence score obtained by his private psychologist on the Wechsler Adult Intelligence Scale (WAIS-III) was a full-scale score of 91.

Historically, JA was identified as a special education student by the Los Angeles Unified School District (LAUSD) soon after beginning elementary school. He was initially placed in a special day class (SDC) by LAUSD, but was removed at his parents' request. In the fourth grade, JA began attending the Huntington Beach Elementary School District. He continued in this school district for the remainder of his elementary and middle school years, when he transitioned to high school. JA entered Edison High School (Edison), within the Huntington Beach High Union School District (HBUSD), as a ninth-grader and remained at that school until he was removed by his parents and placed in a nonpublic school (NPS) during the latter portion of his senior year.

In elementary and middle school, JA was placed in general education classes with accommodations, modifications and RSP support. At various times, he received DIS services that included adaptive physical education (APE), counseling, and speech therapy. Woodcock-Johnson (WJ) standardized test scores were relatively consistent for the fifth, sixth, seventh and eighth grades, and did not significantly change throughout four years of high school.

At the annual IEP meeting held in April 1997 during JA's eighth grade year, the team agreed that an appropriate program for JA's first year of high school would be five general education classes with accommodations and RSP support, one period of RSP English, and weekly counseling. A transition plan also was developed containing goals for education, employment, recreation, independent living. and financial skills.

JA matriculated to high school and began ninth grade in September 1997. The District implemented the April 1997 IEP drafted at the end of eighth grade. It added a reading skills class. At the District high schools, an RSP teacher is appointed as a special education case carrier/manager. The duties of a case carrier are to ensure that the special education student's IEP is implemented to monitor the student's progress, and to respond to any problems that may arise. During the middle of JA's ninth grade, Parents requested that JA's case carrier be changed from the individual initially assigned to another teacher. The District agreed to assign Mr. Creighton, JA's RSP English teacher, in place of the initial case carrier. Mr. Creighton continued as JA's case carrier until JA left Edison during his senior year. In the ninth grade, a few students made racially offensive remarks to JA, then physically attacked him on his way home from school. An IEP meeting was convened to address JA's consequent fears and discuss ways to maximize his safety on campus. A plan was agreed upon by the IEP team, under which JA would be observed at all times by a staff member during breaks between classes and at lunchtime. A school psychologist was to explain the situation to JA's general education teachers. Sometime thereafter, the student who was the "ring leader" of the verbal harassment and assault on JA, left Edison.

During JA's senior year, the student who had assaulted him when he was a freshmen returned to Edison and was placed in JA's ceramics class. JA stated that he felt apprehensive and anxious because this student was back at Edison and in one of his classes. JA's parents did not advise the District that the student with whom JA had an altercation as a freshman was enrolled in his ceramics class. The District personnel who arranged the schedule for the offending student were unaware, or did not recall, that there had been a conflict between JA and the other student three years prior.

JA struggled academically throughout high school, but completed all of his classes with final grades of "D" or above. He had problems each year with interactive skills and had few, if any, friends at school. Based upon the District's requirements, JA was "on-track" to graduate from high school at the end of the 2000-2001 school year.

JA's parents did not agree that JA was prepared to exit high school, maintaining that his entire high school education had been inadequate. They obtained an educational assessment from Leah Ellenberg, Ph.D., a private neuropsychologist, in mid-December 2001 (report dated January 7, 2001). At the IEP meeting of January 11, 2001, the Petitioner's parents requested reimbursement for the evaluation by Dr. Ellenberg, private placement at Summit View School (hereinafter Summit), an NPS, an additional year of high school at Summit, and District assessments. At the same meeting, the Parents and their advocate acting in conjunction with their attorney, demanded that the District pay for JA's college education at Landmark College in Vermont as remuneration for his alleged lack of progress in high school. The Petitioner represented that Landmark specializes in teaching students with learning disabilities. When the District did not agree with the Petitioner's position at the January 11, 2001 IEP meeting, his parents unilaterally transferred him to Summit, and filed for this due process hearing.

Pursuant to the parents' request for District assessments, the District provided them with an assessment plan dated January 18, 2001. On February 10, 2001 Parents returned the signed assessment plan to the District. The agreed-upon assessment plan provided for the school nurse to review any significant medical information. In addition to an evaluation of social and emotional status, a school psychologist was to assess JA's general cognitive, academic and motor abilities. A speech therapist was designated to assess the Petitioner's language and to conduct an assistive technology screening.

Portions of the assessments were completed before JA was unilaterally removed from Edison and placed at Summit on February 20, 2001. The psycho-educational assessment was conducted by the District's school psychologist on February 7 and 14, 2001. When the District was attempting to complete the assessments after JA left Edison, JA's mother initially stated that because of her son's schedule, the evaluations must be arranged for a Sunday. School personnel are not available on weekends, so compliance within her parameters was impossible. Instead, the District offered four dates in late March to complete the remaining assessments. Ultimately, the Mother relented and authorized one session to complete the two assessments. After rescheduling the IEP meeting to discuss the results and recommendations of the District's assessors, the IEP was convened on May 7, 2001. Dr. Hayes began the presentation of her psycho-educational report. Before she completed the review of her test results and conclusions, JA's mother became upset and terminated the meeting. The District completed a draft IEP and sent it to the Petitioner's parents with its placement offer. The parents rejected the District's offer. Instead, JA transferred to Summit on a part-time basis. Summit agreed only that JA could retake classes for which he had already received credits at Edison, the equivalent of "auditing" a course.

ISSUES

1. Did the District deny JA a free and appropriate public education (FAPE), from January 11, 1998, through the end of the 1997-98 school year, and during the 1998-99, 1999-2000, and 2000-2001 school years by:

A. Substantively-failing to provide appropriate classroom accommodations and modifications, and/or implement those specified in JA's IEP; inadequately responding to JA's unique needs in the areas of reading, math, social skills, counseling, and organizational skills; refusing to refer JA to the appropriate county mental health agency from January 2001 through the present; and declining to provide services in the areas of occupational therapy, speech and language, and assistive technology; and

B. Procedurally-Excusing JA from participation in the yearly national testing and failing to include a general education teacher as a member of each Individual Education Plan (IEP) meeting during each of the above school years?

2. Are JA's parents entitled to reimbursement for tuition and transportation for that portion of the 2000-2001 during which he was unilaterally placed at Summit, a nonpublic school (NPS)?

3. Are JA's parents entitled to reimbursement for independent assessments?

4. Is JA entitled to compensatory education in the form of: tuition and transportation costs for Summit NPS for the 2001-2002 school year; 360 hours of LindaMood Bell (LMB) therapy; counseling one hour per week until the end of the 2001-2002 school year; one hour a week of speech and language therapy until the end of the 2001-2002 school year; and a computer and appropriate software?

5. Is the Petitioner entitled to an occupational therapy (OT) assessment with the implementation of any recommended services?

CONCLUSION

JA was denied FAPE from January 11, 1998, through the end of the 2000-2001 school year. This denial of FAPE is longstanding. As a result, JA is entitled to reimbursement for that portion of the 2000-2001 school year he attended Summit and to compensatory education in the form of tuition at Summit for the 2001-2002 school year. JA is also entitled to compensatory OT, as determined by the IEP team, counseling services, and a computer software writing program, as well as parent training in that program. The Petitioner is not entitled to reimbursement for the costs of any independent assessments, or compensatory speech therapy sessions. The Petitioner's request for compensatory LMB therapy is also denied.

ORDER

1. Within thirty calendar days of the date proof of payment is received, the District shall reimburse the Petitioner's parents for the cost of tuition at Summit for the relevant portion of the 2000-2001 school year, and for transportation costs at the District's regular mileage reimbursement rate for two home-to-school round trips for each school day the Petitioner attended Summit during the 2000-2001 school year.

2. Within ten calendar days of the date of this decision, the District shall arrange to pay for the Petitioner's tuition and transportation costs at Summit for the 2001 -2002 school year.

3. The District shall conduct an OT assessment, then convene an IEP meeting, within the time prescribed by law, for the IEP team to discuss the assessment and arrange appropriate OT services.

4. Within ten calendar days of the date of this decision, the District shall provide JA with the computer software described in the assistive technology assessment dated April 11, 2001, and arrange for monthly computer parent training as recommended in the same report. The District also shall schedule weekly counseling sessions with a District counselor other than Mr.[Kaplan].

PREVAILING PARTY ON EACH ISSUE

Pursuant to Education Code ¤56507(d), this decision must indicate the extent to which each party has prevailed on each issue heard and decided. The following finding is made in accordance with this requirement: The Petitioner prevailed on the issue of denial of a FAPE, reimbursement for NPS tuition and transportation costs for the 2000-2001 school year, and compensatory education in the form of NPS tuition, counseling, an OT assessment, and assistive technology. The District prevailed on the remaining issues.