BEFORE THE

CALIFORNIA SPECIAL EDUCATION HEARING OFFICE

 

 

In the matter of:                                  )

                                                            )

STUDENT,                                        )                                                           Case No. SN03-01451

                                                            )

                           Petitioner,                )                                                           DECISION

vs.                                                       )

                                                            )

BURBANK UNIFIED SCHOOL      )

DISTRICT,                                         )

                                                            )

                           Respondent.             )

                                                            )

This matter was heard before Christian Hurley, Hearing Officer of the California Special Education Hearing Office (Hearing Office), University of the Pacific's McGeorge School of Law. The matter proceeded to hearing in Burbank, California, on August 20, 21, 22, 26, 27, and 29, 2003.

Petitioner STUDENT (Petitioner or STUDENT) was represented by attorney N. Jane Dubovy and advocate Carrie Watts of A2Z Educational Advocates. Also present on STUDENT's behalf was her father, FATHER. STUDENT's mother, MOTHER, also attended a portion of the hearing. Respondent Burbank Unified School District was represented by Linda Rhoads Parks of Parks, Dingwall & Associates. The following individuals were also present on behalf of the District during the hearing: Dr. Sandra Gaynon, director of special education for the District, and Sid Jurman, program specialist for the District.

The Petitioner called the following witnesses: FATHER, STUDENT's father; Chris Davidson, Ed.D.; Donald D. Hoagland, Ph.D.; Pamela Clark, administrator of Village Glen School; and STUDENT. The District called the following witnesses: Dr. Sandra Gaynon, director of special education for the District; Jill Pappas, teacher at Jordan Middle School; Sharon Aponik, school psychologist; Kathy Bremmer, instructional assistant; Sharon Cuseo, assistant principal of Burrough's High School, Greta Binkley, occupational therapist; Renee Norman, school psychologist; Harriet Baltazar, assistant principal of Jordan Middle School; and David Arth, teacher at Burrough's High School.

Oral and documentary evidence was received. The parties submitted written closing briefs. Thereafter, the case was closed and the matter submitted for decision.

 

ISSUES1

1. Did the District fail to make a free and appropriate public education (FAPE) available for the 2003-2004 school year by failing to offer an appropriate placement?

2. Did the District fail to make a FAPE available for the 2002-2003 extended school year by failing to make an appropriate placement?

3. Are Petitioner's parents entitled to reimbursement for private placement at Village Glen for the 2002-2003 extended school year and the 2003-2004 school year?

CONTENTIONS OF THE PARTIES

The Petitioner contends that the District failed to make a free, appropriate, public education (FAPE) available for the 2003-2004 school year by failing to offer an appropriate placement for STUDENT. Specifically, Petitioner argues that the District has not offered a FAPE because its proposed placement: 1) does not address her needs in the areas of social skills, behavior, and sensory sensitivity; and 2) will not appropriately shelter STUDENT from peer harassment or address her anxiety relating to the stress of passing periods and the attendant noise both inside and outside the classroom.2 Petitioner also contends that the District failed to make a FAPE available to STUDENT for the 2002­2003 extended school year (ESY) by failing to make an appropriate placement. Specifically, Petitioner contends that the ESY program offered was not designed to meet her unique needs because it was in a regular classroom setting, did not address her social and behavioral needs, and failed to address STUDENT's weakness in math. In addition, Petitioner argues that STUDENT's parents are entitled to reimbursement for STUDENT's private placement at Village Glen, a nonpublic school for students with Asperger's Syndrome, because: 1) the District failed to make a FAPE available to STUDENT prior to her enrollment at Village Glen and 2) Village Glen is an appropriate placement for STUDENT. Specifically, Petitioner seeks reimbursement for the cost of the 2003 Village Glen ESY program, reimbursement for the cost of Village Glen for 2003-2004 school year, and reimbursement for transportation costs for both the 2003 ESY and the 2003­-2004 school year.

The District contends that its proposed programs for the 2003 ESY and the 2003­2004 school year each constitute an offer of FAPE. Specifically, it contends that its offer for the 2003-2004 school year included appropriate goals and objectives in the areas of math, personal/social, adaptive behavior, written language, self care, organization and fine motor as well as a transition plan for moving from middle to high school and the development of employment options. The District further contends that STUDENT has experienced significant educational benefit while in the Academy program at Jordan and that the continuation of this program at Burrough's will continue to provide educational benefit to STUDENT. Finally, the District argues that Petitioner is not entitled to reimbursement for the 2003 ESY program at Village Glen because it does not meet State standards for extended school year programs. Specifically, the District contends that the Village Glen ESY program failed to meet the minimum standard set by California law for the number of days of instruction provided.

PROCEDURAL MATTERS

The Hearing Office received written closing briefs from Petitioner and Respondent on September 19, 2003. On September 22, 2003, the Hearing Office received a document entitled "Respondent's Opposition to Petitioner's Untimely Submission of Written Closing Arguments, Opposition to Ex Parte Communications and Request for Sanctions."3 By this motion, Respondent seeks to exclude Petitioner's brief from consideration by the Hearing Officer in this matter and to obtain an order of sanctions against Petitioner's attorney. Respondent contends that Petitioner's counsel served her closing brief to Respondent via facsimile without any prior written agreement to do so in violation of California Rules of Court, rule 2008 and that Petitioner did not begin the facsimile to Respondent until 5:20 p.m. on September 19, 2003, the day the briefs were due. Respondent argues that because Petitioner's brief was not received by Respondent until after the close of business on September 19, 2003, the brief is deemed served on the following business day, September 22, 2003, pursuant to the California Rules of Court and the California Code of Civil Procedure. Respondent contends that because Petitioner's service of its brief on Respondent was ineffective by law, any consideration by the Hearing Office of Petitioner's closing arguments would consist of ex parte communications in violation of section 3084 of the California Code of Regulations. Finally, Respondent objects to the length of Petitioner's brief. Respondent requests that Petitioner's closing brief not be considered when determining the outcome of this case and that sanctions be ordered against Petitioner's law firm, pursuant to section 3088 of the California Code of Regulations, for the costs incurred by Respondent in drafting closing arguments and responding to Petitioner's failure to serve Respondent in a timely manner.

On September 23, 2003, the Hearing Office received Petitioner's response to Respondent's motion. Petitioner contends that service of her brief via facsimile complied with the California Code of Regulations, title 5, section 3083, the provision governing service for due process hearings. Specifically, Petitioner contends that §3083 provides for service by facsimile and that Petitioner served the brief on Respondent as soon as she completed transmission of the brief to the Hearing Office. According to Petitioner, the facsimile to the Hearing Office was not completed until 4:53 p.m. because the Hearing Office's facsimile machine was busy. Petitioner further contends that Respondent did not object to Petitioner's service of Petitioner's statement of issues and proposed resolutions by facsimile and that Respondent did not express any concerns about the method of service on the last day of hearing, when closing briefs were discussed. Petitioner contends that Respondent should be ordered to pay sanctions, including attorney's fees and costs incurred by Petitioner in preparing her response to Respondent's motion.

Respondent's motion is denied. The California Code of Civil Procedure and the California Rules of Court do not govern due process hearings. California Code of Regulations, title 5, § 3083(b), which does govern due process hearings, clearly

allows for service via facsimile. Petitioner's brief was served on Respondent shortly after 5:00 p.m. on September 19, 2003. The Hearing Officer accepts Petitioner's explanation that the delay was the result of a busy facsimile line at the Hearing Office on that Friday afternoon. Moreover, the District has not demonstrated any prejudice as a result of receiving Petitioner's brief a few minutes after the deadline. Finally, the Hearing Officer did not set any restrictions on the length or content of the closing briefs, other than a request that the parties avoid excessive recitations of witness testimony. Therefore, Respondent's arguments regarding the size and content of Petitioner's brief are without merit. Both party's requests for sanctions are denied.

FACTUAL BACKGROUND

Petitioner STUDENT is a fourteen-year-old ninth-grader eligible for special education and related services as a student with Asperger's Syndrome. She is also eligible under the category of specific learning disability. As a result of her Asperger's, STUDENT has deficits in the areas of social and behavioral skills, and these deficits adversely affect her educational performance. This summer, STUDENT started attending school at Village Glen, a non-public school for students with autism and Asperger's, pursuant to a unilateral placement by her parents.

In 1994, STUDENT began kindergarten in a regular classroom at McKinley Elementary School in the Burbank Unified School District. She was found eligible for special education that same year under the categories of specific learning disability and emotional disturbance. She was placed in a special day class (SDC). That same year, STUDENT was diagnosed with Asperger's Syndrome. She attended first through fourth grades in an SDC at McKinley. She attended fifth grade at Roosevelt Elementary and Jefferson Elementary.

 

STUDENT attended sixth through eighth grades at Jordan Middle School. She was placed in the District's Burbank Academy for Adaptive Learning at Jordan for all three years. In sixth grade, STUDENT was in an SDC at the Academy. In seventh grade, STUDENT was mainstreamed for social science and electives. In eighth grade, STUDENT was mainstreamed for social science, science, computers and electives. In addition, STUDENT participated in social skills counseling once per week for all three years at the Academy.

 

STUDENT performed in the above average range academically during sixth grade at Jordan. During seventh and eighth grades, however, her grades declined as she was mainstreamed. Her grade point average declined from a B+ in sixth grade to a C in

eighth grade. STUDENT received a D- in seventh grade social science for the first semester, which improved to a B in the second semester. She received a D in beginning art for the second semester of seventh grade. In eighth grade, she received a D- in social science and science for the first semester. Her science grade improved to a C during the second semester with the assistance of a part-time aide. Her progress in social and behavioral skills was reportedly minimal during her three years at Jordan.

In the fall of 2000, when STUDENT was beginning sixth grade at Jordan, she developed symptoms of anxiety and anorexia which her parents attributed to the transition to middle school. She received psychotherapy from Dr. Donald Hoagland for a brief period of time which began to address these symptoms. Following this treatment, STUDENT saw a psychiatrist who placed her on a small dosage of Risperdal, an antipsychotic medication which is used, at low doses, to treat anxiety. The Risperdal also reportedly stimulated STUDENT's appetite and food consumption. STUDENT continues to take Risperdal.

In February of 2003, the District retained Education Spectrum, a private educational consultant, to observe STUDENT in class and to make recommendations regarding educational programming for her. In March of 2003, Renee Norman, a school psychologist intern with the District, and Sharon Aponik, District school psychologist, conducted a triennial psycho-educational assessment of STUDENT.

In March of 2003, Greta Binkley, an occupational therapist with the District, conducted an occupational therapy assessment for STUDENT's triennial IEP. In her report, Ms. Binkley notes the following impressions:

STUDENT is intellectually bright and creative but often does not complete schoolwork because of emotional and behavioral difficulties. STUDENT lives with extremely high anxiety and has little tolerance for frustration. She often exhibits cognitive inflexibility, which prohibits her from being able to work with direction or feedback. Once she decides how to do something, there is very little swaying her from her ideas and method. She typically asks to be let alone and will become more and more agitated with continued prompting.

(Respondent's Exhibit J, p. 1.)

In March of 2003, STUDENT was referred to the Los Angeles County Department of Mental Health (DMH) for an AB 3632 mental health assessment. According to the report prepared by Karin Robbins, L.C.S.W., on April 2, 2003, STUDENT was referred to DMH for assessment due to emotional and behavioral problems which were believed to be interfering with her ability to benefit from her school setting. (Petitioner's Exhibit 7, p. 2.) Specifically, STUDENT's parents reported that the middle school environment had increased STUDENT's stress because she felt overwhelmed by the large campus and large student population. For example, she felt fearful and intimidated during passing periods and at lunch. This anxiety had led to increasingly obsessive behaviors, difficulty with social interaction, and difficulty performing academically. In her report, Ms. Robbins expressed her concern that STUDENT "has developed a negative self-esteem and possibly an additional anxiety disorder related to the increase in social pressure in middle school, which may become further exacerbated in high school next year." (Petitioner's Exhibit 7, p. 11.) Ms. Robbins found that STUDENT qualified for a sixth-month trial of mental health services under AB 3632.

 

That same month, STUDENT resumed psychotherapy with Dr. Hoagland approximately once per week. According to Dr. Hoagland, STUDENT's parents were concerned that her anxiety was increasing as she confronted the prospect of transitioning to high school in the fall and as teasing and taunting by peers at school continued.

 

On March 31 and April 9, 2003, the IEP team convened to develop STUDENT's IEP for the remainder of the eighth grade and the beginning of the ninth grade. The District's offer consisted of STUDENT's placement at the John Burrough's High School Academy Program, which is a continuation of the Burbank Academy at Jordan Middle School. STUDENT's program was to include four periods of special day classes consisting of English, algebra, biology, and health. The IEP further indicates that STUDENT was to be in special education classes fifty-two percent of the time and mainstreamed forty-eight percent of the time. The IEP also describes the recommended programs and services for STUDENT. These include adapted physical education once per week for thirty minutes, occupational therapy one to two times per month for sixty minutes, social skills counseling once per week for thirty to forty five minutes, and AB 3632 services.

On June 3, 2003, FATHER, STUDENT's father, indicated his disagreement with the District's offer of placement at Burrough's High School and requested that STUDENT be placed at a nonpublic school beginning with the 2003 ESY. In the IEP dated March 31, 2003 and April 9, 2003, he states: "STUDENT is in need of a program that can address not only academics, but also social and adaptive behaviors, and where she can access her DMH 3632 services." (District Exhibit A, p. 22 of 24.)

 

On June 5, 2003, the IEP team met to discuss STUDENT's transition to high school, consultation with behavior management specialists, and ESY. The IEP states: "IEP team agrees that the summer school creative writing workshop at Jordan Middle School would greatly assist STUDENT in achieving her writing goals as outlined in her IEP. STUDENT will attend the classes for four out of the five weeks. This is a general education class." (District Exhibit A, p. 2 of 2.) On that same date, FATHER notified the District in writing that STUDENT was being removed from the Burbank public school system and placed in the Village Glen School beginning in the summer of 2003. (Petitioner's Exhibit 34.)

 

On June 9, 16, and 27, 2003, Dr. Chris Davidson conducted a psycho-educational evaluation of STUDENT at the request of her parents.

On June 30, 2003, Petitioner's attorney requested the current special education due process hearing.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

Issue No. 1: Did the District fail to make FAPE available for the 2003-2004 school year by failing to offer an appropriate placement?

Petitioner contends that the District failed to make FAPE available for the 2003­2004 school year by failing to offer an appropriate placement. Specifically, Petitioner contends that the District's offered placement at Burroughs High School is not designed to meet STUDENT's unique social and behavioral needs. Respondent contends that its proposed placement at the Burrough's High School Academy Program constitutes an offer of a FAPE.

Under both State law and the federal Individuals with Disabilities Education Act (IDEA), students with disabilities have the right to a free appropriate public education (FAPE). (20 U.S.C. § 1400; Cal. Ed. Code § 56000.) The term "free appropriate public education" means special education and related services that are available to the student at no charge to the parent or guardian, that meet the State educational standards, and that conform to the student's individualized educational program (IEP). (20 U.S.C. § 1401(a)(8).) An IEP is a written statement that must be developed, reviewed, and revised for each student with a disability. The IEP must include a statement of the goals and objectives, of the special education and related services, and of the program modifications or supports for school personnel that are to be provided to enable the student to be involved in and progress in the general curriculum, and to be educated and participate with disabled and nondisabled peers in extracurricular and other nonacademic activities. (20 U.S.C. § 1414(d)(1)(A); 34 C.F.R. § 300.347; Cal. Ed. Code §§ 56343 and 56345.) "Special education" is defined as specially designed instruction to meet the unique needs of the student, including instruction conducted in the classroom, in the home, in hospitals and institutions, and in other settings. (20 U.S.C. § 1401(a)(16).) The term "related services," which is also referred to in California as "designated instruction and services" (DIS), includes developmental, corrective, and supportive services that may be required to assist a child with a disability to benefit from special education. (20 U.S.C. § 1401(22); Cal. Ed. Code § 56363.)

To determine whether the District provided STUDENT a free appropriate public education, one must first focus on the adequacy of the District's offered and proposed programs. (Gregory K. v. Longview School District, 811 F. 2d 1307, 1314 (9t' Cir. 1987).) In Board of Education of the Hendrick Hudson Central School District, et. al. v. Rowlev, 458 U.S. 176 (1982), the United States Supreme Court determined that the student's individualized educational program (IEP) must be reasonably calculated to provide the student with some educational benefit. The Court in Rowley concluded that the IDEA does not require school districts to provide special education students with the best education available or to provide instruction or services that maximize the student's abilities. The Court stated that school districts are required to provide a "basic floor of opportunity" that consists of access to specialized instruction and related services which are individually designed to provide educational benefit to the student. (Rowlev, 458 U.S. at 207-208.) De minimis benefit or only trivial advancement, however, is insufficient to satisfy the Rowlev standard of "some" benefit. (Walczak v. Florida Union Free School District, 142 F. 3d 119, 130 (2d Cir. 1998).) A child's academic progress must viewed in light of the limitations imposed by his or her disability and must be gauged in relation to the child's potential. (Mrs. B v. Milford Board of Education, 103 F.3d 1114, 1121 (2d Cir. 1997).)

 

Additionally, special education law requires that a student be educated in the least restrictive environment (LRE). 20 U.S.C. section 1412(a)(5)(A) specifically provides:

To the maximum extent appropriate, children with disabilities, including children in public or private institutions or other care facilities, are educated with children who are not disabled, and special classes, separate schooling, or other removal of children with disabilities from the regular education environment occur only when the nature or severity of the disability is such that education in regular classes with the use of supplementary aides and services cannot be achieved satisfactorily.

The requirement that disabled children be educated to the maximum extent appropriate with nondisabled children is often referred to as "mainstreaming" or education in the "least restrictive environment" (LRE). The law demonstrates a "strong preference for `mainstreaming' which rises to the level of a rebuttable presumption." (Daniel R. v. State Board of Education, 874 F.2d 1036, 1044-45 (5t" Cir. 1989.))

To summarize, under the IDEA and Rowley, the District's proposed program must meet the following four substantive requirements in order to constitute an appropriate educational program. It must: (1) be designed to meet STUDENT's unique needs; (2) be reasonably calculated to provide her with some educational benefit; (3) comport with her IEP; and (4) be provided in the least restrictive environment.

1.            Designed to meet STUDENT's unique needs

Petitioner contends that the District's offer of placement at the Burrough's High School Academy Program is not designed to meet STUDENT's individual needs because: 1) the proposed placement does not offer teachers or staff trained to work with students with Asperger's Syndrome; 2) the proposed placement does not address STUDENT's needs in the areas of social skills, communication, and sensory sensitivity; and 3) the offered placement will not appropriately shelter STUDENT from peer harassment nor will it address STUDENT's growing anxiety caused by the stress of the large, crowded campus and the noisy environment.

 

The District contends that its offered placement at the Burrough's High School  Academy Program is designed to meet STUDENT's individual needs. Specifically, the District contends that STUDENT's IEP includes goals and objectives in the areas of math, social skills, adaptive behavior, written language, self-care, organization and fine motor that are designed to meet her unique needs. In addition, the District points to STUDENT's grades at Jordan as evidence that the Burbank Academy program is designed to meet her needs.

To determine whether the District's proposed program for the 2003-2004 school year was designed to meet STUDENT's unique needs, it is necessary to have some understanding of her needs. Petitioner's primary witnesses on this issue were Dr. Donald Hoagland and Dr. Chris Davidson. Dr. Hoagland received his doctorate in clinical psychology from Fuller Graduate School in 1984. He has been in private practice since 1986 where his practice focuses on psychological services for children and adolescents, including psychotherapy and psychological assessments. Dr. Hoagland testified that he has provided psychotherapy and/or assessments for approximately twenty-five children with autistic spectrum disorders, half of whom were children with Asperger's. Dr. Hoagland has provided psychotherapy to STUDENT on a weekly basis since March of 2003. Dr. Davidson received her doctorate in educational management from the University of La Verne in 1992 and her master's degree in counseling from California State University at Long Beach in 1983. She is a licensed school psychologist who has worked as a teacher, school psychologist, and as director of special education and assistant superintendent for the Tustin Unified School District. Dr. Davidson assessed STUDENT over several days in June of 2003, observed STUDENT in class at Jordan, and observed the District's Academy classroom at Burrough's High School.

Dr. Hoagland testified generally that children with Asperger's Syndrome have impairments in social skills and behavior as well as increased sensory sensitivity. With regard to sensory sensitivity, Dr. Hoagland testified that people with Asperger's, such as STUDENT, experience difficulty processing incoming information or stimuli, such as sounds or touch. Normal stimuli can be overwhelming to a person with Asperger's. Dr. Hoagland compared the sensation a person with Asperger's experiences when exposed to normal sounds to the sensation a person without Asperger's might experience when exposed to five different radio or television stations at the same time. According to Dr. Hoagland, the primary coping mechanism for people with Asperger's is avoidance. For example, they are frequently averse to tight clothing, tags on clothing, and brushing their teeth or hair. Dr. Hoagland testified that persons with Asperger's often experience intense anxiety because they lack the coping skills, such as interpersonal connectiveness, to deal with these social and sensory deficits. They frequently withdraw physically and mentally and may perseverate or obsess about irrelevant matters. In addition, Dr. Hoagland testified that they can become aggressive when overwhelmed and will physically strike out to distance themselves from the impinging stimuli.

 

Socially, STUDENT has difficulty interacting with peers. FATHER testified that while STUDENT is familiar with the rules of social engagement, she has difficulty applying them in real world situations. Specifically, she does not know how to initiate a conversation or interpret the social cues of others. As a result, she has difficulty making friends and communicating with her peers. (Testimony of FATHER; Testimony of Dr. Davidson; Testimony of STUDENT.)

 

FATHER, Dr. Hoagland and STUDENT all testified that STUDENT was the subject of peer harassment because of her deficient social skills and unusual behavior. FATHER testified that the frequency of peer harassment directed toward STUDENT increased during eighth grade. He stated that the frequency and severity of the incidents varied week to week. According to FATHER, most incidents involved student's clapping their hands or blowing a "raspberry" at her. STUDENT testified that both boys and girls teased her by razzing, clapping, laughing or screaming at her and that teachers were rarely in the hallways or at recess when this occurred.

 

The evidence demonstrates that STUDENT began to experience increasing anxiety in eighth grade. In his report, Dr. Hoagland indicates that STUDENT was becoming overwhelmed with anxiety during the spring of 2003 as a result of "the chronic

limitations in her ability to relate to others arising from her Asberger's Syndrome and the chronic peer harassment that resulted." (Petitioner's Exhibit 19, p.16.) In his report, Dr. Hoagland notes that it was apparent during his first consultation with STUDENT in March of 2003 that she found the harassment by peers to be very disturbing:

...[S]he referred to peers at school as ‘fucking bastards’ and ‘fucking bitches.’ She explained that her rage had been precipitated by their ‘sticking their tongues out at me and making farting noises. They look at me funny.’ STUDENT went on to vent her sense of injury by referring to her peers as ‘gnarly little rodents and vermins.’ When asked, she indicated that there were not a few specific peers who were harassing her but that it was a ‘whole bunch of different kids.’ She complained that she had been the victim of ridicule since fourth grade.

(Petitioner's Exhibit 19, p. 2)

The evidence demonstrates that this anxiety manifests itself in a number of ways both at school and at home. Dr. Davidson administered the Burks' Behavior Rating Scale as part of her psycho-educational assessment of STUDENT. According to Dr. Davidson, the Burks' Behavior Rating Scale is designed to identify patterns of behavior shown by children. Both MOTHER and Jill Pappas, STUDENT's eighth grade SDC teacher, rated STUDENT within the "Significant" range in the areas of excessive anxiety and poor anger control, among others. Harriet Baltazar, the vice principal at Jordan Middle School, testified to several incidents involving STUDENT during the spring of 2003. These included incidents in which STUDENT flapped her arms in the faces of several students, jumped out of some bushes and scared a female student, and pushed a female student. In a note sent home to MOTHER in March of 2003, Jill Pappas recounted an incident during which STUDENT began screaming in the hallway after some students made strange noises. (Petitioner's Exhibit 34.) In the DMH mental health assessment, Ms. Pappas is reported to have observed STUDENT running up and down the hall, talking to herself during lunch. (Petitioner's Exhibit 7, p. 7.) Dr. Hoagland testified that STUDENT would engage in manic behavior, such as running around in the backyard or rolling around on the floor at home, in order to suppress her anxiety. According to Dr. Hoagland, she would also perseverate or obsess about irrational fears such as kidnapping or the end of the solar system. FATHER testified that STUDENT has "meltdowns" at school and at home when she is subjected to peer harassment or excessive noise or commotion. During these "meltdowns" STUDENT would cry and tell her parents that the kids think she is stupid and that she could not take it anymore. FATHER testified that STUDENT has stated, on occasion, that she wants to kill herself, although he could not envision her doing so. He has heard her mention suicide more often this year than in past years, however.

 

Dr. Hoagland credibly testified that the intense social challenges caused by STUDENT's Asperger's Syndrome have left her very psychologically fragile. He expressed the concern that her anxiety could spiral out of control to the point that she would become psychologically disabled. This testimony was uncontradicted.

Academically, STUDENT was experiencing difficulties in the mainstream environment. STUDENT was mainstreamed for social science and electives in seventh grade. She received a "D-" as her grade in social science, compared to the "A" she received in her sixth grade SDC social science. She received a "D" in beginning art, another mainstreamed class. In eighth grade, STUDENT was mainstreamed in science, computers, and electives. She received a "D-" in both science and computers for the first semester.

STUDENT also experiences difficulty completing tasks without adult prompting and assistance, organizing and completing tasks or schoolwork, and maintaining focus and sustained attention. The triennial review report prepared by District psychologist Sharon Aponik in March of 2003 indicates that STUDENT "...avoids tasks and doesn't like to be held accountable" and that she "..often daydreams in class and needs frequent redirecting." (District Exhibit K, p. 2.) Dr. Davidson observed STUDENT in her mainstream social science class. She testified that STUDENT was not engaged or listening to the classroom discussion. Renee Norman, the District's school psychologist intern, observed STUDENT in her mainstreamed social science class. In her assessment report, she indicates that STUDENT was not paying attention to her work and repeatedly disrupted the class by flapping book covers, kicking a box, and pulling her shirt over her head. (District Exhibit L, p. 2.)

In his report, Dr. Hoagland describes the program that STUDENT needs in order to address her social and behavioral deficits:

 

STUDENT is in critical need of a small, structured educational program that offers specific instruction in the social skills needed to function in the world, but also integrates the training into her entire academic program. In addition to its providing such instruction, the program must provide her with a much needed safe environment. By sheltering her from peer harassment, by allowing her to associate with other children with autistic features, it will begin to allow her to develop a more positive self-image...

(Id. at p. 17)

Similarly, Dr. Chris Davidson, who conducted a psycho-educational assessment of STUDENT in June of 2003, stated the following in her report regarding STUDENT's needs:

STUDENT will need a small high school setting with very small class size (6-8 children) and a special education credentialed teacher and instructional aide with documented training working with students with Asperger's Syndrome. STUDENT will need a high school program that has shortened periods such as 30-minute periods due to her short attention span.

The program should also include social skills training as an integral part of the program and not as a service added to the existing program as this did not work well for STUDENT last year. The social skills training should be one period per day every day so the students can have the opportunity to practice their skills.

(Petitioner's Exhibit 17, p. 64.)

The District did not present evidence disputing Petitioner's contentions regarding STUDENT's needs. Rather, the District contends that its proposed placement is designed to meet those unique needs.

To address STUDENT's needs, the District proposed placement at the John Burrough's High School Academy Program. STUDENT's program was to include four periods of special day classes consisting of English, algebra, biology, and health. According to the IEP, STUDENT is to be in special education classes for fifty two percent of the time and mainstreamed for forty eight percent of the time. The IEP also describes the recommended programs and services for STUDENT. These include adapted physical education once per week for thirty minutes, occupational therapy one to two times per month for sixty minutes, social skills counseling once per week for thirty to forty five minutes, and AB 3632 services.

 

Additionally, the District proposed four pages of goals and objectives in the areas of writing, behavior, social-emotional skills, math, and eating. The seven goals are broken down into nineteen objectives.

 

The evidence established that the District's offered program was not designed to meet STUDENT's unique and individual needs in the areas of social skills and behavior. The District's offer included social skills counseling once per week for thirty to forty-five minutes. Dr. Gaynon, the director of special education for the District, testified that this social skills counseling is a continuation of the counseling STUDENT received for the past three years at the Jordan Middle School Academy. The evidence presented at hearing established, however, that STUDENT was not benefiting from the social skills counseling she received at Jordan. FATHER, STUDENT's father, testified that STUDENT did not make very much progress in the area of social skills during the three years she was receiving the social skills counseling at Jordan. According to FATHER, she did not make any friends, other than forming a relationship with Kathy Bremer, an adult instructional aide. In addition, he testified that she still has difficulty initiating and maintaining a conversation with peers and reading another's verbal and nonverbal cues. For example, she does not understand the difference between a friendly advance and taunting.

District psychologist Sharon Aponik testified that STUDENT was making progress in her social skills counseling at Jordan. Specifically, Ms. Aponik testified that she taught STUDENT's social skills counseling group from February to June of 2003 and that STUDENT enjoyed the class, particularly the role-playing aspects. On cross-examination, however, Ms. Aponik admitted that she has not personally observed STUDENT apply the social skills rules outside of the class. In addition, Ms. Aponik's statements to a licensed clinical social worker as well as her own statements in assessment reports, set forth below, indicate that STUDENT was not making progress in the area of social skills.

Karin Robbins, the licensed clinical social worker who conducted STUDENT's AB 3632 assessment in March of 2003, noted the following in her report regarding STUDENT's lack of progress in the area of social skills:

STUDENT is also eligible for DIS counseling once a week for 45 minutes. The information provided by Jill Goren Cogan in the AB3632 Referral packet indicated that STUDENT has participated in group sessions weekly since 9/00. STUDENT has reportedly not made much progress in counseling and goals focused on active listening, appropriate feeling expression, controlling anger, contributing to discussions, making friends, and asking appropriate questions. Sharon Aponik has been covering STUDENT's counseling sessions for Ms. Cogan recently. She stated that STUDENT is seen in group with six students and the focus is on social skills training. STUDENT reportedly needs reinforcement constantly in group, and is able to talk about appropriate interaction but has not been able to apply it outside of group. She also reported minimal progress in counseling, however, she has noticed an improvement in STUDENT's manners.

 

(Petitioner's Exhibit 7, p. 7.)

 

STUDENT's triennial review, conducted by District psychologist Sharon Aponik, also illustrates STUDENT's lack of progress in the area of social skills. In the triennial report, STUDENT is described as having poor social skills. (District Exhibit K, p. 2.) The report further indicates that STUDENT often whines, cries, and yells at others, even when unprovoked. (Id.) According to the report, she lacks an awareness of her appearance and the feelings and needs of other students and has many socially unacceptable behaviors which are "potentially offensive." (Id.)

 

Similarly, in another psychological assessment report dated March 14, 2003, school psychologist Sharon Aponik and intern Renee Norman state the following:

 

STUDENT continues to demonstrate poor social skills and makes inappropriate statements in relationship to the situation. She also continues to experience frustration with changes in her routine and when asked to complete tasks/assignments that she does not like to do. However, these symptoms are typical of a student diagnosed with Asperger's Syndrome.

 

(Petitioner's Exhibit 9, p. 8.)

 

Finally, the goals and objectives in STUDENT's IEPs demonstrate her lack of progress in this area. In the IEP dated June 12, 2000, one of the listed objectives is "STUDENT will be able to refrain from hitting or yelling at a student who is doing something she doesn't like in 9/10 trials by 6/00." (District's Exhibit E, p. 3 of 10.) In the IEP dated March 31, 2003, one of the listed objectives is "STUDENT will refrain from yelling at or chasing others when she doesn't like something they do or say. She will also refrain from yelling, chasing, or pushing when unprovoked. She will do this successfully with 75% accuracy by 9/03; 85% by 12/03; and 95% by 3/04." (District's Exhibit A, p. 4 of 24.) The similarity of these objectives, created almost three years apart, are persuasive evidence of her lack of progress in the area of social skills.

 

Aside from STUDENT's lack of progress in the social skills counseling offered at Jordan, the evidence presented at hearing demonstrates that the program offered by the District at Burrough's is inadequate to meet her needs. Specifically, David Arth, the teacher for STUDENT's SDC at the Burrough's Academy program, appears to have limited experience teaching children with Asperger's. Mr. Arth testified that he had tutored children with autism on occasion, but there was no evidence that Mr. Arth has any experience teaching either elementary or high school students with autism or Asperger's. In addition, while Mr. Arth has taught social skills programs to elementary school children, he has no experience teaching such programs to high school age students.

 

In addition, the evidence demonstrates that the District's program does not provide STUDENT with a sufficient amount of social skills counseling to meet her unique needs in this area. The Hearing Officer found the testimony of Dr. Hoagland and Dr. Davidson to be persuasive regarding STUDENT's needs in this area. Dr. Hoagland has significant experience with Asperger's Syndrome and has provided STUDENT with weekly psychotherapy since March of 2003. Dr. Davidson assessed STUDENT's social and behavioral skills utilizing information obtained from STUDENT, her parents, and her teachers. She also had the opportunity to observe STUDENT in class at Jordan. Both Dr. Hoagland and Dr. Davidson testified that STUDENT requires daily instruction in this area along with reinforcement of the skills learned both at school and home. According to Dr. Gaynon and David Arth, the District's program only provides STUDENT with social skills counseling once per week, with reinforcement of the lessons as needed in the classroom.

 

Finally, the District's proposed placement does not address STUDENT's continued and growing anxiety caused by the stress of passing periods, teasing, and noise. While the classroom STUDENT would be placed in at Burrough's contains only five children, the evidence presented at hearing demonstrates that the surrounding high school environment is not appropriate for STUDENT's needs. Burrough's has a student population of 2,300 students, approximately twice as many as Jordan. Dr. Hoagland and Dr. Davidson credibly testified that STUDENT is in need of a small, safe, and structured high school environment. While the Academy classroom at Burrough's may offer such a setting, the same does not hold true for passing periods, lunch, mainstream classes, and unstructured time, all of which would occur in the larger high school setting. During these periods STUDENT would likely be exposed to greater noise and teasing than she was exposed to at Jordan. Therefore, the District's program is not designed to meet STUDENT's needs in this area.

In conclusion, the Hearing Officer finds that the District's offered placement is not designed to meet STUDENT's unique needs because STUDENT's social skills have not improved during the three years she attended the District's social skills program, and therefore this program holds no promise for the future; the District's Academy teacher does not have the appropriate qualifications to meet STUDENT's unique needs; the District's program does not offer a sufficient amount of social skills counseling; and the District's proposed placement does not address STUDENT's continued and growing anxiety caused by the stress of passing periods, teasing, and noise.

2.          Reasonably calculated to provide some educational benefit

Petitioner argues that the District's proposed program is not reasonably calculated to provide her with educational benefit. Specifically, Petitioner contends that the District's offered program is not reasonably calculated to provide STUDENT with benefit in the area of social skills as evidenced by her lack of progress in the social skills group that she participated in at Jordan Middle School since the sixth grade. Petitioner further contends that the District's proposed placement is not reasonably calculated to provide educational benefit because STUDENT was not appropriately progressing academically in her mainstream classes at Jordan and the Burrough's Academy Program is a continuation of the program at Jordan.

 

The District contends that its proposed program is reasonably calculated to provide her with educational benefit. Specifically, the District contends that the IEP prepared for the end of STUDENT's eighth grade year and the beginning of her ninth grade year includes appropriate goals and objectives in the areas of math, personal/social, adaptive behavior, written language, self care, organization and fine motor as wells as a transition plan for moving from middle to high school and the development of employment options. The District further contends that STUDENT has experienced significant educational benefit while in the Academy program at Jordan and that the continuation of this program at Burrough's will continue to provide educational benefit to STUDENT.

 

As set forth above, the Hearing Officer found that the District's offered placement is not designed to meet STUDENT's unique needs in the areas of social skills and behavior. The evidence presented at hearing established that STUDENT received little benefit from

the three years of social skills counseling that she received at Jordan and that she would therefore receive little to no benefit from a continuation of this program at Burrough's. In addition, the social skills program offered by the District at Burrough's was not sufficiently intensive to meet STUDENT's needs. Finally, the environment of Burrough's high school is inappropriate for a student like STUDENT, who experiences significant anxiety during passing periods, lunch, and other periods where she is exposed to the general school population. Because appropriate social skills and behavior are essential in order for a student to benefit educationally, the Hearing Officer finds that the District's offer was not reasonably calculated to provide STUDENT with educational benefit.

3.            Comport with her IEP

STUDENT's parents placed her at Village Glen beginning with the 2003 extended school year. Because STUDENT did not attend the District's offered placement at Burrough's High School, the issue of whether that placement comports with her IEP is not relevant here.

 

4.         Least Restrictive Environment

 

Petitioner contends that the District's offered placement at the Burrough's Academy is not the least restrictive environment. Specifically, Petitioner contends that the District's offered placement is not an environment where STUDENT can be educated successfully because it does not meet her unique social and emotional needs.

Respondent contends that its offered placement is the least restrictive environment because it provides for mainstreaming in regular education classes with non-disabled peers.

 

In determining whether a placement is the least restrictive environment, the courts have indicated four factors to be considered. Those factors include: (1) the educational benefits available to the child in a regular classroom, supplemented with appropriate aids and services, as compared to educational benefits of a special education classroom; (2) the non-academic benefits to the handicapped child of interaction with nonhandicapped children; (3) the effect of the presence of the handicapped child on the teacher and other children in the regular classroom; and (4) the costs of supplementary aids and services necessary to mainstream the handicapped child in a regular classroom setting. (Sacramento City Unif. School Dist. v. Rachel H. (9th Cir. 1994) 14 F.3d 1398.)

The test set forth above, however, is designed to determine whether a child should be placed in a regular education classroom or special education classroom. Here, the issue is whether placement in a special day class at a high school, with opportunities to mainstream with regular education students for electives and lunch, is the least restrictive environment for STUDENT.

The Hearing Officer concludes that the District's offered placement is not appropriate because it is not restrictive enough for STUDENT's needs. The evidence presented at hearing demonstrates that STUDENT is need of a small, structured educational program that provides her with a safe environment that shelters her from peer harassment and allows her to associate with other children with autistic features. (Testimony of Dr. Hoagland; Testimony of Dr. Davidson). For these reasons, the Hearing Officer finds that the District's proposed placement does not constitute a FAPE in the least restrictive environment.

Issue No. 2: Did the District fail to make a FAPE available for the 2002-2003 extended school year by failing to make an appropriate placement?

There is no dispute that STUDENT's needs entitle her to an ESY program during the summer of 2003. However, Petitioner disputes the appropriateness of the District's offered ESY program because the summer program offered takes place in a regular classroom setting without an aide for STUDENT and does not address her social and behavioral skills or her deficiency in the area of math. The District contends that the placement offered for STUDENT constitutes an offer a FAPE.

Extended school year programming is educational programming that extends instruction beyond the normal school year to prevent serious regression over the summer months. (Hoeft v. Tucson Unified Sch. Dist., 967 F.3d 1298, 1301 (9th Cir. 1992); see also 34 C.F.R. § 300.309(b). In California, a school district is required to provide a special education student with ESY programming when the student requires special education and related services in excess of the regular academic year or the IEP team has determined the need for ESY programming. (Cal. Code Regs. tit. 5, § 3043; compare with 34 C.F.R. § 300.309(a)(2).) Section 3043 of the California Code of Regulations, title 5, defines such students in the following manner:

 

Such individuals shall have handicaps which are likely to continue indefinitely or for a prolonged period, and interruption of the pupil's educational programming may cause regression, when coupled with limited recoupment capacity, rendering it impossible or unlikely that the pupil will attain the level of self-sufficiency and independence that would otherwise be expected in view of his or her handicapping condition.

Where a child has been determined eligible for ESY services by his or her IEP team, the written IEP must include an ESY program. (Cal. Educ. Code § 56345(b)(3); see also 34 C.F.R. § 300.309(b)(1)(ii).)

As with the regular school year, under the IDEA and Rowley, the District's proposed extended school year program must meet four substantive requirements in order to constitute an appropriate educational program: it must (1) be designed to meet

STUDENT's unique needs; (2) be reasonably calculated to provide her with some educational benefit; (3) comport with her IEP; and (4) be provided in the least restrictive environment.

For the 2003 extended school year, the District offered STUDENT an ESY consisting of a summer school creative writing workshop at Jordan Middle School. STUDENT was to attend the program for four out of the five weeks that the program took place.

The Hearing Officer finds that the District's extended school year program was not designed to meet STUDENT's unique needs. As set forth above, STUDENT has deficiencies in social skills and behavior. To meet her needs in the area of social skills, an extended school year program must include a social skills class or social skills counseling designed to help STUDENT interact appropriately with her peers. The extended school year program offered by the District offered no such assistance.

In addition, the District's extended school year program does not address STUDENT's needs in the area of mathematics. The evidence presented at hearing demonstrates that STUDENT is experiencing significant difficulty in this area. STUDENT received a standard score of 52 on the Math Fluency subtest of the Woodcock-Johnson Tests of Achievement administered in March of 2003. (Petitioner's Exhibit 28, p. 120.) This score placed her below the 0.01 percentile, at the 1.9 grade level and at an age equivalency of 7.3 years old. In addition, Jill Pappas, STUDENT's SDC teacher at Jordan, testified that STUDENT's proficiency in math was at a fifth or sixth grade level. Thus, at the end of eighth grade, STUDENT had not progressed to seventh grade level math work. In addition, FATHER credibly testified that during prior summers STUDENT required a great deal of assistance in order to avoid regressing in the area of math. Despite STUDENT's need to improve her math skills and to avoid regression in this area, however, the District failed to offer STUDENT any type of math course or assistance in this area   for the 2003 extended school year. For these reasons, the Hearing Officer finds that the District's offered ESY program does not constitute an offer of a FAPE.

 

Issue No. 3: Are Petitioner's parents entitled to reimbursement for private placement at Village Glen?

Petitioner contends that her parents are entitled to reimbursement for the cost of the 2003 Village Glen ESY program and reimbursement for the cost of Village Glen for 2003-2004 school year. Specifically, Petitioner contends that reimbursement is appropriate because the District failed to provide FAPE and the private placement at Village Glen for the 2003 extended school year and the 2003-2004 school year are both appropriate.

The District contends that reimbursement for STUDENT's 2003 extended school year placement at Village Glen is inappropriate because the program failed to meet the minimum standard for the number of days of instruction. Specifically, the District cites the California Code of Regulations, title 5, section 3043(d), which provides that the duration of an extended school year program shall be a minimum of twenty days. The District argues that the Village Glen extended school year program that STUDENT attended was only three weeks long and that the program was therefore not in compliance with State law.

1.            Reimbursement for the Extended School Year Program

Parents may be entitled to reimbursement for the costs of services they have procured for their child when the school district has failed to provide a FAPE and the private placement or services are determined to be proper under IDEA and are reasonably calculated to provide educational benefit to the child. (School Committee of the Town of Burlington v. Department of Education, 471 U.S. 359 (1985); Student W. v. Puyalllup School District, 131 F.3d 1489, 1496 (9th Cir. 1994).) The Burlington rule of reimbursement is not so narrow as to permit reimbursement only when the placement or services chosen by the parent are found to be the exact proper placement or services required under the IDEA. (Alama Heights Independent Sch. Dist. v. State Bd. of Educ., 790 F. 2d 1153, 1161 (5th Cir. 1986).) In Florence County Sch. Dist. Four v. Carter, 510 U.S. 7, 13, 114 S.Ct. 361 (1993), the Supreme Court expressly exempted parents from having to meet certain requirements of the IDEA in their unilateral placements. For example, parents are not required to conform their unilateral placement to the content of the student's IEP or provide a placement that is certified by the State. (Id. at 13-14.) The Court recognized, however, that the parents' placement must still meet other requirements of the IDEA, such as providing a placement that addresses the student's needs and provides the student educational benefit. (Id.) In summary, to be entitled to reimbursement for the cost of private services, it must be determined that (1) the student was denied a FA-PE, and (2) the student's private placement or program addresses the student's educational needs and was reasonably calculated to provide him or her with educational benefit.

 

In this case, Petitioner is entitled to reimbursement for her private Village Glen program during the 2003 extended school year due to the District's denial of a FAPE for Petitioner during that time. Specifically, as set forth above, the District's offer was inappropriate because it failed to address STUDENT's needs in the areas of social skills counseling and mathematics. In addition, the evidence indicates that the Village Glen placement met her needs and was reasonably calculated to provide her with educational benefit. Ms. Clark from Village Glen testified that Village Glen's program included a social skills program, a basic mathematics class, a basic writing class and an elective, as well as field trips during the course of the program.

As set forth above, Respondent argues that reimbursement for the Village Glen program is inappropriate because it does not meet the State standard for the minimum number of instructional days. The Hearing Officer finds this argument unpersuasive. First, it is not clear from the evidence how long the program was. Ms. Clark initially testified that STUDENT started attending Village Glen during the second week of Village Glen's summer program and that she attended the program for four weeks. At a later point, Ms. Clark mentioned a three week period of time when she was questioned about Petitioner's Exhibit 30, STUDENT's present levels of performance at Village Glen. FATHER also testified that STUDENT attended the Village Glen ESY for four weeks. Even if STUDENT's program consisted of fewer than twenty days of instruction, however, Respondent has not cited any authority which states that such a deficiency is grounds for denying reimbursement of a program which, in all other respects, appears to have addressed STUDENT's needs and was reasonably calculated to provide educational benefit.

Because Petitioner was denied a FADE for the 2003 ESY and the Village Glen program both addressed STUDENT's educational needs and was reasonably calculated to provide her with educational benefit, Petitioner is entitled to reimbursement for costs and/or obligations incurred related to the Village Glen program. Thus, the District is required to reimburse Petitioner for any costs of the Village Glen program.

2.          Reimbursement for the 2003-2004 school year

Petitioner contends that her parents are entitled to reimbursement for costs or obligations incurred as a result of STUDENT's placement at Village Glen because the District failed to offer STUDENT a FAPE and Village Glen is an appropriate placement for STUDENT. The District contends that Village Glen is not an appropriate placement because it only serves students with autism and Asperger's and does not serve emotionally disturbed students such as STUDENT.

As set forth above, to be entitled to reimbursement for the cost of private services, it must be determined that (1) the student was denied a FAPE, and (2) the student's private placement or program addresses the student's educational needs and was reasonably calculated to provide him or her with educational benefit.

In this case, the Petitioner is entitled to reimbursement for her private Village Glen program during the 2003-2004 school year because the District failed to offer STUDENT a FAPE and the private placement at Village Glen appropriately addresses STUDENT's educational needs and is reasonably calculated to provide her with educational benefit. As set forth above, the District's offer was inappropriate because it failed to address STUDENT's unique needs in the areas of social skills and behavior and was not reasonably calculated to provide her with educational benefit.

 

The evidence also demonstrates that Village Glen is an appropriate placement for STUDENT. Pam Clark, the administrator at Village Glen, testified that Village Glen offers a "safe harbor" for students with autism and Asperger's that is geared towards improving their social, behavioral and organizational skills. According to Ms. Clark, the students at Village Glen range from average to gifted in their cognitive abilities, but share common deficits in the areas of social skills and communication.

The evidence demonstrates that the educational program at Village Glen appropriately addresses STUDENT's needs in the area of social skills. Specifically, the curriculum includes daily social skills instruction for thirty to forty minutes per day that is incorporated into each of the classes and at home. According to Ms. Clark, the social skills program at Village Glen is an amalgam of several social skills courses. All staff receive specific training to address social skills issues. The instruction includes the rules of social interaction and application of those rules to real life school situations. Students are taught "theory of mind" which assists students with Asperger's in understanding other people's beliefs, attitudes, and emotions. According to Ms. Clark, some of the students at Village Glen are more adept at social skills and are used as appropriate role models for the other students, in addition to the teachers and staff. Teasing or other inappropriate behavior is redirected to appropriate behavior.

Village Glen also satisfies STUDENT's need for a small, safe, and structured environment. Ms. Clark testified that the high school at Village Glen is comprised of fifty-seven students, with no more than twelve students for each class. Each class has a teacher and an aide. Students are supervised by a teacher or an aide at all times both in class and during transitions from class to class. Thus, STUDENT will not be subjected to the same level of teasing, noise and commotion during classes, passing periods, and lunch that she would be exposed to at a large regular high school. Moreover, peer harassment during transitions from class to class will be promptly identified and addressed because of the supervision provided during these transitions.

The Village Glen program would also offer STUDENT an appropriate academic curriculum. Ms. Clark testified that Village Glen offers a course of study that is intended to prepare the students for college. According to Ms. Clark, STUDENT would be enrolled

in English, algebra, physical education, a foreign language, and two electives based upon her ability.

Furthermore, the evidence demonstrates that Village Glen can offer STUDENT mainstreaming opportunities at District high schools and/or the local community college when she is ready for interaction with regular education students. Ms. Clark testified that students at Village Glen can be dually enrolled in Village Glen and a District high school or the Los Angeles Valley Junior College, where Village Glen students can obtain high school credit for courses taken there.

Finally, the District argues that Village Glen is not an appropriate placement because the evidence presented at hearing by Petitioner focused on STUDENT's emotional difficulties and Village Glen does not serve emotionally disturbed students. The Hearing Officer finds this argument unpersuasive. The evidence presented at hearing, particularly the testimony of Dr. Hoagland, demonstrates that STUDENT's emotional and behavioral difficulties are a manifestation of her Asperger's, rather than an independent emotional disturbance. Specifically, in his report dated August 4, 2003, Dr. Hoagland indicates that STUDENT was becoming overwhelmed with anxiety during the spring of 2003 as a result of "...the chronic limitations in her ability to relate to others arising from her Asberger's Syndrome and the chronic peer harassment that resulted." (Petitioner's Exhibit 19, p.16.) Moreover, as set forth above, the evidence presented at hearing demonstrates that Village Glen is an appropriate placement for STUDENT in part because it will provide her with the type of environment that will reduce her anxiety and improve her social skills.

Because the District failed to offer a FAPE for the 2003-2004 school year and the Village Glen program is appropriate, Petitioner is entitled to reimbursement for costs related to the Village Glen program. Thus, the District is required to reimburse Petitioner for any costs of the Village Glen program, including transportation costs, for the 2003­2004 school year.

 

ORDER

1.         The District shall reimburse Petitioner for any costs of the Village Glen program, including transportation expenses, for the period from the start of the District's offered 2003 extended school year through the end of the 2003 extended school year. Reimbursement shall be made within fifteen days from the receipt of proof of such costs.

2.         The District shall reimburse Petitioner for any costs or obligations relating to the 2003-2004 Village Glen program incurred to date, including transportation expenses. Reimbursement shall be made within fifteen days from the receipt of proof of such costs.

3.         The District shall provide prospective placement at Village Glen NPS for the remainder of the 2003-2004 school year.

4.         All of Petitioner's other requests for relief are denied.

PREVAILING PARTY ON EACH ISSUE

Pursuant to 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 this statute:

 

1. Did the District fail to make a FAPE available for the 2003-2004 school year by failing to offer an appropriate placement?

Petitioner prevailed on this issue.

2. Did the District fail to make a FAPE available for the 2002-2003 extended school year by failing to make an appropriate placement?

Petitioner prevailed on this issue.

3. Are Petitioner's parents entitled to reimbursement for private placement at Village Glen for the 2003 ESY and the 2003-2004 school year?

Petitioner prevailed on this issue.

RIGHT TO APPEAL THIS DECISION

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

 

Date: October 21, 2003

                                                                       Christian P. Hurley, Hearing Officer

                                                                       California Special Education Hearing Office

 

1   The issues are not listed specifically as stated on the first day of hearing. They have been reorganized for this Decision to facilitate analysis.

2   In her closing brief Petitioner alleges, for the first time, two procedural violations by the District. First, Petitioner contends that the District's offer is not legally sufficient under Union School District v. Smith. 15 F. 3d 1396, 1398 (9th Cir. 1994) because it does not provide enough information to Petitioner's parents about the District's proposed placement and program to allow them to evaluate whether it is designed to meet STUDENT's unique needs and whether it will provide her with educational benefit. Second, Petitioner contends that the District's proposed program is inappropriate because it allows for decisions about STUDENT's placement and services to be made without the input of an IEP team. Petitioner requested the hearing in this matter and thereby was entitled to frame the issues for hearing. Because these alleged violations were not put at issue either prior to the hearing, during issue clarification or during the hearing itself, the Hearing Officer will not adjudicate these issues.

3 For purposes of this Decision, this document will hereinafter be referred to as "Respondent's Motion to Exclude Petitioner's Brief and for Sanctions " or simply as "Respondent's motion. "

4 The IEP does not delineate where STUDENT is to be mainstreamed. Dr. Gaynon, the director of special education for the District, testified that STUDENT would not be immediately mainstreamed, but that she could be mainstreamed into an advanced placement biology class and electives.

5   According to Ms. Clark, the entire population of Village Glen, including the high school, is approximately 130 students.

N Jane DuBovy, M.A., J.D. (Attorney & Certified Mediator)
Nancy R. London (Attorney)
Karen Acedo (Advocate)
Carolina D. Watts (Advocate)

16712 Marquez Avenue,
Pacific Palisades CA 90272
Phone 888-IDEA-ADA (888-4332-232) FAX (310) 573-1425

email inquiry@a2zedad.com