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K.M. v. Tehachapi Unified School District

United States District Court, E.D. California

April 5, 2017

K.M., a minor, by and through her parent and guardian ad litem, BRENDA MARKHAM, Plaintiff,




         This case concerns an administrative due process hearing under the Individuals with Disabilities Education Act (“IDEA”). 20 U.S.C. § 1400 et seq. Student K.M. (“Student”), by and through her guardian ad litem, Brenda Markham (“Ms. Markham”), brings this appeal of an education due process hearing and decision pursuant to 20 U.S.C. § 1415(i)(2)(A). Student contends that the decision of the Administrative Law Judge (“ALJ”) of the California Office of Administrative Hearings (“OAH”) erred in several ways, denying her a free appropriate public education (“FAPE”). Doc. 1. Student seeks relief including an award of 230 hours of one-to-one compensatory education or compensation for 230 hours of private tutoring, the assignment of a one-to-one behavior aide to Student for the full school day, and an award of attorney's fees and costs. Doc. 40 at 30-31. Defendants Tehachapi Unified School District (“District” or “the District”), and Director of Student Services for Tehachapi Unified School District Kathleen Siciliani (“Ms. Siciliani”) (collectively “Defendants”) contend that the ALJ's decision was correct and should be upheld.


         Student filed a request for a due process hearing with the OAH on March 20, 2015. Doc. 1 at ¶ 25. The District filed a due process complaint notice on May 22, 2015, seeking a determination that the District was not responsible for individual independent educational evaluations of Student in the areas of occupational therapy, speech and language, and adaptive physical education. Id. at ¶ 26; Administrative Record (“AR”) at 112-14. The ALJ held a consolidated hearing over 10 days between July 30 and August 27, 2015, before. Id. at ¶ 28. The ALJ, following the prehearing conference, identified the following issues as Student's issues for the hearing:

A. Did District deny Student a free and appropriate public education at the March 22, 2013, March 17, 2014, and December 18, 2014 (as continued to January 22, 2015, and February 3, 2015) individualized education program [(“IEP”)] team meetings by failing to offer appropriate goals, specifically:
(1) March 22, 2013, IEP: Goal numbers 1 (Communication), 3 (Reading), 4 (Writing), and 6 (Social/Emotional), and lack of goals regarding assistive technology/communication and ability to stay on task;
(2) March 17, 2014, IEP: Goals numbers 1 (Math), 2 (Reading), 3 (Social/Emotional), 4 (Communication), 5 (Communication), 7 (Social/Emotional), and lack of goals regarding assistive technology/communication and ability to stay on task; and
(3) December 18, 2014, IEP: Goals numbers 1 (Math), 2 (Communication), 3 (Communication), 4 (Math), 5 (Reading), 6 (Social/Emotional), 7 (Communication), 8 (Social/Emotional)?
B. Did District deny Student a FAPE at the March 22, 2013, September 4, 2013, March 17, 2014, May 30, 2014, and December 18, 2014 (as continued to January 22, 2015, and February 3, 2015) IEP team meetings by failing to offer appropriate services in the areas of:
(1) Behavior support; and/or
(2) Assistive technology?
C. Did District deny Student a FAPE by significantly impeding Parents' opportunity to participate in the decision making process by failing to provide to Parents appropriate documentation and communication regarding the use of restraints on Student in November 2014, and Student's injuries in connection with the following incidents: (i) the choking of Student in August 2013; (ii) Student's sunburn in 2014; (iii) Student's fat lip in September 2014; and (iv) Student's ingestion of narcotics in fall 2014?
D. Did District deny Student a FAPE at the December 18, 2014 (as continued to January 22, 2015, and February 3, 2015) IEP team meetings by:
(1) Significantly impeding Parents' opportunity to participate in the decision making process by predetermining placement; and
2) Failing to consider placement in the least restrictive environment?

         AR at 317-18, 1102-03. The ALJ addressed the following as District's issues for the hearing:

A. Did District conduct an appropriate occupational therapy assessment of Student such that District is not required to provide Student with an independent educational assessment at public expense?
B. Did District conduct an appropriate speech and language assessment of Student such that District is not required to provide Student with an independent educational assessment at public expense?
C. Did District conduct an appropriate adapted physical education assessment of Student such that District is not required to provide Student with an independent educational assessment at public expense?

         AR at 317, 1103. On October 2, 2015, the ALJ issued her decision, finding that Student's objections to the IEP goals and the lack of assistive technology support were without merit and that the District offered sufficient behavior support, with the exception of the March 17, 2014, IEP. AR at 1104. The ALJ found that District failed to provide Student with sufficient behavior support and so deprived her of a FAPE from the time of the March 2014 IEP until November 2014 when the IEP was amended. Id. The ALJ also found that the District's offer of a placement at another school and offer of transportation were procedurally and substantively appropriate and did not deprive Student of an education in the least restrictive environment (“LRE”). AR at 1104.

         On December 4, 2015, Student filed a complaint which included this appeal. Doc. 1. On March 7, 2016, Student filed an amended complaint. Doc. 14.[1] On August 5, 2016, Magistrate Judge Thurston granted in part Student's motion to augment the administrative record, permitting Student to submit as evidence recordings of five IEP meetings which occurred after the administrative decision was issued. Doc. 39 at 4. On August 29, 2016, Student filed a second amended complaint. Doc. 41. The Court has jurisdiction to hear this appeal under 20 U.S.C. §§ 1415(i)(2) and (3), and Student has exhausted her administrative remedies. Student asserts that Defendants violated the IDEA and California Educational Code § 56000 et seq. Student argues that Defendants breached their duty to provide a FAPE by failing to offer Student an appropriate education given her particular needs. Doc. 14 at ¶¶ 31-48. Student also seeks recovery of attorneys' fees under 20 U.S.C. § 1415(i)(3)(B). Id. at ¶ 71.[2]


         Student is a minor child who is eligible for special education and related services because she has autism. AR at 1104. Student resides within the District's boundaries and attended Cummings Valley Elementary School from 2012 until Student's parents removed her from that school in March 2015. Id. Student's issues include difficulties paying attention, elopement[3] from places and tasks, hitting, biting, kicking, pushing, throwing objects, screaming, and whining. Id.

         2012-2013: Student's Kindergarten Year and IEP

         In the 2012 to 2013 school year, Student was enrolled in a kindergarten mild/moderate special day classroom with 12 to 14 other children who had special education eligibilities. AR at 403, 1105. The class met four days per week for 200 minutes per day. AR at 404. Student was mostly nonverbal in this class but was able to communicate her wants and needs by sign language and some verbal communication with her teacher. AR at 1105.

         On March 22, 2013, Student's annual IEP meeting took place with Student's IEP team present.[4]AR at 409. The IEP team determined that Student's greatest need was in staying focused, but that her cognition was at a level where she could be expected to achieve more than a child with a disability. AR at 410. Student had shown progress in reading, writing, and math, as well as responding to “if-then” prompts and obeying classroom rules and procedures. Id. She had also made progress on her speech goals and in communicating with staff. Id.

         The IEP team developed a number of annual goals for Student in areas which included following instructions, verbalizing, writing, reading, math, and social/emotional behavior. AR at 412-418. The IEP provided for a one-to-one aide to assist Student in staying on task and transitioning between activities. AR at 420. Student's behavior problems were accommodated through a visual schedule, a warning before activity transitions, preferential seating, additional classroom movement, privileges, rewards and praise for specific behaviors, verbal encouragement, on-task reminders, visual cues, and using preferred activities for reinforcement. AR at 419. Student would participate in lunch and recess with her peers in general education, but would remain in the mild/moderate special day class for her other activities. AR at 420, 422-23. The IEP provided Student with 40 minutes per week of speech and language services, special education summer school, and transportation. AR at 423. The team discussed using an iPad to assist staff with sign language, and at Ms. Markham's request Student was allowed to bring an iPad to school. Id. Student's parents agreed to the IEP. AR at 424.

         2013-2014: Student's First Grade Year and IEP

         On August 23, 2013, shortly after Student's first grade school year commenced, a classroom incident occurred wherein another student placed his hands around Student's neck to choke her. AR at 425-32. The other student had reacted to Student reaching for the student's personal toy, which the student's mother was holding. Id. Student was not injured in the incident. Id.

         On September 4, 2013, District held an IEP team meeting at the request of Student's parents to discuss the August 23 incident. AR at 435. In addition the Student's parents and teachers, two school psychologists, Student's speech and language pathologist, a District occupational therapist who had witnessed the incident, and two representatives of Student's home provider of applied behavior analysis services were present at the meeting. AR at 438. Since the incident, Student had expressed fear and anxiety and resisted going to school. Id. Student's parents were also concerned that Student's class was being taught by a series of substitutes due to Student's teacher leaving her employment early in the school year. Id.[5] Student's parents requested daily communication from Student's teacher, and Ms. Markham again raised the question of Student bringing an iPad to school for communication. Id. Student's parents did not express any further concerns in response to prompting from the District representatives, but Ms. Markham stated at the hearing that she did not think the District would be responsive to any additional concerns. AR at 3632-34.

         Student's aide and Ms. Markham both noticed that Student's behavior deteriorated after the August 2013 choking incident. AR at 3190, 3200. Student began to display behaviors including anxiety, fear, reluctance to attend school, and refusal to enter the classroom if the student who had choked her was inside. AR at 1625, 3188-89. The other student was transferred to a different classroom, which apparently made Student more comfortable, but her behavior did not improve and she engaged in aggressive behaviors as well as elopement. AR at 1610, 1618-19, 1622. During the same timeframe, Student was mainstreamed into an arts and crafts class, which she enjoyed, and would stay in as long as she could attend to the task at hand. AR at 1647.

         In progress reports on October 17, 2013, and January 10, 2014, District noted that student was progressing in her goals of following oral directions, verbalizing needs for assistance, reading, transitioning between activities, and complying with the teacher's directions. AR a 498-501. She had met her writing and math goals. Id. Ms. Markham communicated with Student's classroom teacher Richard Stanley, and other District personnel regarding behavior strategies, and a January 31, 2014, email to Ms. Markham from Mr. Stanley indicated that Ms. Markham's visits and ideas were helpful. Id.

         Student's first quarter report card for first grade indicated that she received 1's, denoting insufficient progress toward the standard, in all areas of reading and in the single area of math in which she was tested. AR at 503. Her teacher's notes indicated that Student enjoyed school, but assessments were difficult for Student and she often became frustrated. Id. Student's third quarter report card showed that she received 1's in all areas in which she was tested except for a 2, indicating that she was progressing toward the standard, in computation-addition. Id. Her teacher noted that the report was a bit misleading as Student knew her alphabet and sounds, and could perform addition problems up to 10. Student's report card does not list any grades were listed for Student's second quarter. Id.

         District held an IEP meeting for Student with all members present on March 17, 2014. AR at 809. Student's need was identified as speech, while her strengths were that she was quick to pay attention and was smart. AR at 800. The team revised Student's writing goal, continued and expanded upon her goal of improving transitions, and developed new annual goals. AR at 809. The new annual goals included a math subtraction goal based on first grade standards, a reading goal based on kindergarten standards but using first grade level words, and a social/emotional goal that addressed transitioning to a non-preferred activity without tantrums or more than one prompting. AR at 801-04. Two new goals addressed communication, one involving following two and three step oral instructions and the other recognizing pictures when named or given a choice by vocalizing words and multi-word phrases. Id. Two new social/emotional goals involved Student initiating an appropriate verbal or nonverbal response to a verbal prompt and using appropriate greetings with adults and peers when given direct verbal prompts. Id.

         The March 17, 2014, IEP provided accommodations including warnings before transitions, a visual schedule and cues, preferential seating, a one-to-one aide, simple, repetitive directions, extra classroom movement as necessary, positive reinforcement and on-task reminders, the use of manipulatives, and increased verbal response time. AR at 805. The IEP noted that Student's behavior impeded her learning and that of others and included behavior goals, but did not include a behavior support plan. AR at 806. The IEP did not provide for any assistive technology. Id. It did provide for Student to attend a general education first grade class with her one-to-one aide for 30 minutes weekly in order to provide exposure and socialization, as well as special day class placement, 40 minutes of speech services per week, special education summer school, and door-to-door transportation. AR at 808-10. Student's parents consented to the IEP. AR at 811.

         On May 30, 2014, District called an IEP meeting at the request of Ms. Markham, who wanted to discuss Student's status and how to prepare her over the summer for the next school year. AR at 812. Student's general education teacher did not attend the meeting, but Ms. Markham, Ms. Siciliani, the school principal, Student's special education teacher, and Michelle Flores, an employee of Multilevel Services, attended the meeting. Id. The IEP team recommended ways to prepare Student for the next school year and in improving her academic performance. Id. The special education teacher reported on Student's current achievements in various academic and goal areas. Id. Ms. Markham said that the meeting had answered or addressed her questions and concerns. Id.

         2014-2015: Student's Second Grade Year and IEP

         In August of 2014, Student began second grade in a mild/moderate special day class containing 10 children and taught by Nancy Piercy. AR at 1111-12. Student initially had a succession of temporary one-to-one aides, and as a result Ms. Markham requested that the District contract with Multilevel Services to provide a one-to-one aide until a permanent aide could be hired, and to provide up to six months of training for the new aide. AR at 515-16. Ms. Markham noted that the prior year had been traumatic for Student, and said that Student's teacher the prior year had not spent one-on-one time with Student and that the classroom lacked structure. Id. She also said that Student copied the detrimental behaviors of other children in her prior classroom. Id. Ms. Markham described the progress Student had made in her kindergarten class and compared it to the deterioration she observed during Student's first grade year. Id.

         On August 29, 2014, Student's class had a water play day in which the students were allowed to play in small plastic pools outside of the classroom while wearing swimwear. AR at 530-35. The students were outdoors for approximately one hour and 20 minutes, and were also allowed to eat lunch outside in addition to taking their usual lunch and afternoon recesses. Id. When Student returned home, her mother noticed that Student was badly sunburned on her back, shoulders, and scalp, which she reported to the school. Id. On September 10, 2014, Student fell on a sidewalk at school and sustained a bruised lip. Student's teachers did not explain how Student fell in their incident reports. AR at 525-29. Ms. Markham noted that Student had a scuff on her elbow as well. Id. After the fall, Student's parents took her to a doctor for an examination, and, after noticing a line on her front teeth, took Student to a dental clinic which specialized in treating children with disabilities. AR at 3639-40, 3643.

         On September 16, 2014, Student's parents requested the District move up Student's scheduled triennial assessment and complete a functional behavior assessment (“FBA”). AR at 767. Ms. Markham gave District signed consent to triennial assessments in the areas of academics, self-help/social and emotional status, motor abilities, language and speech, general ability, and adapted physical education on October 6, 2014. AR at 877.

         On October 7, 2014, a serious incident occurred during lunch where Student took and opened an unattended blister pack containing two Diastat[6] applicators. AR at 537-47. Student manipulated the applicator causing the Diastat to release onto her hands and the table. Id. An aide washed Student's hands and the table, and school officials called 911. Id. Student's parents were called to the school and, after consulting with an EMT, took Student to a hospital. Id. The incident reports prepared by aides and teachers who were present had some discrepancies, but suggested that there was confusion as to who was responsible for safeguarding the narcotic medication and poor communication between aides when one aide left the cafeteria to walk another student back to the classroom and another aide apparently left to eat her lunch. Id. As a result of the incident, Student's parents removed her from school and served District with a 10-day notice that they intended to place Student into private school and seek reimbursement from District. AR at 556.

         On October 9, 2014, District held an IEP meeting to address the October 7 incident, Student's sunburn, and her bruised lip, as well as an incident where Student escaped from her classroom unbeknownst to staff. AR at 824. The meeting was attended by Troy Tickle, the County Special Education Local Plane Area Coordinator, Ms. Siciliani, Student's parents, and counsel for Student's parents and for District. AR at 822. District agreed to contract with Multilevel Services to provide Student with a one-to-one aide for eight weeks, and agreed that Student need not return to school until the aide was available. Id. The team also agreed that Student should be mainstreamed for up to 20 minutes per day. Id. District reported that Student had made progress on all of her goals except for her reading goal, where Student had regressed. Id. The team agreed to keep Student's goals in place since new information would be available within eight weeks from triennial assessments and a FBA. Id. The goals and IEP were to be addressed after the team reviewed the FBA and assessments. Id.

         On October 23, 2014, the IEP team re-convened the October 9 meeting to discuss the role and services of Multilevel Services. AR at 823. Multilevel Services was retained to conduct a FBA set to begin on October 24 and direct observations of Student at school would begin on October 27. Id. The IEP team agreed that Student would continue to have a one-to-one aide while Multilevel Services completed its assessment. Id. No new or changed IEP goals were agreed to at the meeting. A November 4, 2014, addendum gave Multilevel Services more time to complete the FBA and provided that Multilevel Services would train student's aide in applied behavior analysis. AR at 825. Multilevel Services would provide Student with one-one-one aide time for 230 minutes per day on Monday and Wednesday, with the goal of increasing the time to a full school day of 317 minutes on each weekday. AR at 826.

         Student's Evaluations

         Jennifer Faulk, a licensed speech-language pathologist, performed a speech and language evaluation of Student on November 18, 2014. AR at 892, 1039. Ms. Faulk interviewed Student's school speech and language pathologist as well as Student's teacher, aides, and mother. AR at 896. She also reviewed Student's educational records. AR at 892-4. Ms. Faulk assessed Student using the Preschool Language Scale-5, the Peabody Picture Vocabulary Test-4, the Speech Mechanism Examination, the Expressive Language Sample, informal speech tasks, and informal pragmatic checklists. AR at 897. She also used alternative assessment instruments, including language sampling, informal assessment, observation of communication interactions, and interpretation of standardized test results in non-standard ways. Id.

         Based on her evaluations of Student, Ms. Faulk concluded that Student functioned with severe deficits in all areas of communication secondary to her autism diagnosis. AR at 905. Student's scores in receptive language were equivalent to a normally developing child of three years seven months to four year ten months and her scores in expressive language were equivalent to those of a normally developing child from two years three months to two years ten months. Id. Student demonstrated significant interfering behaviors, including reaching/grabbing, ignoring/refusing, over-focusing on preferred tasks and objects, impulsivity, frequent need for movement, and short attention span, which impaired her ability to participate in directed tasks. Id. She responded well to offers of tangible rewards and short frequent breaks from directed activities in exchange for participation. Id.

         Student demonstrated understanding of early language concepts up to the four year six month old level and could understand labels for familiar items and actions, routine directions, and yes or no questions about her personal needs. Id. Student showed some understanding of verbal negotiating concepts. Id. She had difficulty with verbal tasks requiring longer listening sets or verbal reasoning. She could use labels for a variety of nouns and actions and combine words in short routine phrases to express her needs and wants. Id. She was not able to use her verbal skills to take turns in conversation of answer questions about story book pictures of recent events, but was showing some emerging skills in replacing nonverbal skills with verbal skills. Id. Student's speech intelligibility level was significantly below the expected level for her age, and her speech was often difficult to understand without context clues. Id.

         Ms. Faulk recommended that Student be placed in a special day class with frequent opportunities to develop functional communication skills. AR at 907. She also recommended a highly structured classroom with a low student to teacher ration to ensure that Student had access to frequent prompting and assistance in attending to and participating in classroom activities. Id. Ms. Faulk opined that a speech-language pathologist should be available to consult in developing and implementing Student's classroom communication program. Id. She also recommended direct speech and language therapy, with specific goals including following simple directions, identifying pictures containing critical elements, identifying pictures corresponding to a specific spoken word sounds, and using intelligible sentences to talk about actions in pictures. Id. Ms. Faulk felt that Student's prognosis was good, in light of the severity of Student's deficit and her progress thus far. Id. The prognosis was contingent upon regular classroom communication training, direct speech and language therapy, and willingness on the parents' part to help carryover newly learned skills to the home environment. Id.

         Barry Lille, a school psychologist for the County Schools Superintendent, issued a report of his psycho-educational evaluation of Student on December 10, 2014. AR at 879. Mr. Lille observed Student in class on two occasions, including recess. AR at 880. He assessed Student through the Developmental Test of Visual-Motor Integration and the Differential Ability Scales-Second Edition, and Ms. Markham provided information for the Developmental Profile-III. AR at 881-82. Mr. Lille opined that Student was eligible for special education as a student with autism, and that her cognitive skills were in the borderline rage with strengths in vocabulary skills. AR at 885. He opined that Student's then-current placement was a good fit for her cognitive and academic skills, but not as good a fit for her behaviors. AR at 886. He did not recommend a placement for Student, and suggested that her areas of greatest need were in improving her compliance, decreasing her inappropriate behaviors, and lengthening the periods during which she could work without a break or reinforcement. Id.

         Melissa Tomberlin, a board certified behavior analyst from Multilevel Services, performed a FBA of Student in November 2014. AR at 916. Ms. Tomberlin assessed Student through a file review, collection of behavior data through a “Questions About Behavior Function” test, interviews with teachers and staff, direct observation, and a Functional Behavior Assessment Interview with Student. Id. Ms. Tomberlin observed that Student's disruptive activities had the primary goal of getting something she wanted and a secondary function of escaping a disfavored activity. AR at 921. She recommended 14 goals and objectives for Student and a number of strategies for behavior intervention, treatment, and data collection. AR at 921-23. Ms. Tomberlin also recommended that Student be provided with 24.5 to 27.5 hours per week of one-on-one instructional aide support for 12 weeks to train staff in implementing her recommendations and eight ...

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