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LEARNING RIGHTS LAW CENTER

205 S. Broadway St., Suite 1008
Los Angeles, CA 90012
Direct (213) 489-4035
Office (213) 489-4030
Fax: (213) 489 - 4033
Janeen@learningrights.org
Attorneys for Petitioner
BEFORE THE
OFFICE OF ADMINISTRATIVE HEARINGS
SPECIAL EDUCATION DIVISION, STATE OF CALIFORNIA

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A. R.,

) Case No.: Unassigned

Student and Petitioner

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vs.

) REQUEST FOR MEDIATION AND DUE

PROCESS
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M Unified School District,

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Respondent

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I.

STUDENT AND PETITIONER - INFORMATION

First and Last Name

DOB
Parent
Street Address
Home Phone
Grade Level
School of Attendance
District of Residence
II.

SUMMARY OF ISSUES
A. Did MUSD Fail to Provide
B. Did MUSD Fail to Provide

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C. Did MUSD Fail to Provide

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D. Did MUSD Fail to Provide

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A. R. Request for Due Process - 1

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III.

STATEMENT OF FACTS
A. Background
A.R. is a 16 year old student at M Unified School District (MUSD) P. School. He is an artistic

student who learns best through visual mediums. A. R. is interested is utilizing his strengths after he exits
high school by becoming an auto-painter or a tattoo artist.
A. R. was assessed and found eligible for special education and related services in September 2009. He

had not been assessed prior to that occasion. As a result, he did not receive any specialized education or

related services until the 11th grade. A. R. qualifies to receive special education and related services

under the eligibility category of Other Health Impaired.

In particular, A. R. struggles in the academic areas of mathematics, and writing. Although he is in

the 11th grade, A. R. has a difficult time with math basics, such as multiplication and subtraction. Further,

A. R. has severe behavioral issues that impede his ability to be a successful student. He was diagnosed

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with Attention Deficit Disorder in or around 2004. He frequently loses focus, is easily distracted, has a

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large amount of energy and has trouble sitting still. In addition, A. R. frequently acts out physically
against peers and adults. He has a difficult time containing his aggression. A. R.s parents are greatly

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concerned about A. R.s academic progress and his mental health. They feel that in order to be successful

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outside the confines of P. School, A. R. needs significant help with his behavior and mental health needs

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as well as math and writing.

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B. Academic History
A. R. has attended several schools in a variety of districts over the past ten years. In the recent

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past, A. R. has attended two Charter School programs, Options for Youth and Opportunity for Learning.

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These programs have not worked for A. R.. He was only able to earn one unit at Options for Youth. He

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needs more than one hundred units to graduate. After Options for Youth, A. R. was placed at P. School in
M Unified School District (MUSD), a public school associated with the juvenile hall in Oxnard. He has
been attending school regularly at P. School since August 2009.

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C. Initial IEP

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On September 30, 2009, A. R.s IEP team met to discuss his eligibility and create his IEP. The

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team, which included A. R. and his school psychologist, Principal, special education teacher, general
education English teacher, speech therapist, education advocates, and Mother, decided that A. R. needed
special education as a student eligible as Other Health Impaired.
1. Test Scores
The eligibility determination was made based on the results of several assessments performed by
MUSD. In particular, the determination was based on the schools Initial Psycho-Educational Assessment,

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which included, among other tests, the Woodcock Johnson III Tests of Achievement (WJ III), Kaufman
Test of Educational Achievement, 2nd Edition (KTEA-2), the Behavior Assessment System for Children2nd Edition (BASC), and the Conners 3 test.
The WJ II test and the TVPS-3 showed that A. R. has a severe discrepancy between his visual
processing abilities, which are high, and his math and written expression abilities, which are low.
Teachers reported observations of A. R. during class are commensurate with the test results. A. R. avoids

math and loses focus easily. He enjoys visual arts and performs at a higher level in this area. The IEP team

decided that the discrepancy indicates a learning disorder that qualifies A. R. for Other Health Impaired.

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In addition to low math and written expression skills, the tests revealed A. R.s significant
behavioral weaknesses. In particular, A. R. struggles with Attention/Hyperactivity, Aggression, and
Impulsivity. During the assessments, A. R.s examiner noted that he displayed some impulsive

inattentive behaviors during the test sessions. . . . Additionally, he needed questions repeated during

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testing due to being distracted by people walking outside the room and loud noises with in [sic] the

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facility. A. R. reports of his own behavior that I have a hard time sitting still anywhere. I have a lot of
energy.

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The BASC tests confirm A. R.s severe behavioral problems. A. R.s mother, Math teacher and

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English teacher, all participated in the BASC test. The results of each of their tests showed Clinically

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Significant level of problems in Hyperactivity and Aggression. Clinically significant results suggest a

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high level of maladjustment. The results also showed at least At-risk level of problems in Conduct
Problems, Depression, and Attention Problems. At-risk results signify problem areas that need careful

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monitoring because they may significant and developing into a more severe problem. In addition, the

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participants identified Critical Items in A. R.s behavior. His teachers identified that he Almost Always

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hits other adolescents, Often threatens to hurt others, and Sometimes falls down and is easily
annoyed by others. A. R. identified that it is True that I just dont care anymore, that Sometimes I

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feel like my life is getting worse and that No one understands me.

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The Conners 3 tests, which assesses and identifies ADHD and ADHD-related problems, found that A. R.

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has severe ADHD problems. A. R.s self-report revealed that he has very elevated levels of Aggression,

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Conduct Disorder, and Oppositional Defiance Disorder. A. R.s teachers report revealed that A. R. has
very elevated levels of Hyperactivity/Impulsivity, Aggression, Oppositional Defiance Disorder, and the
Conners 3 Global Index Total.
2. IEP
Although MUSDs assessments identified several areas of need, the only service offered in the
IEP was:

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Specialized Academic Instruction three times a week for 135 minutes a week.
The IEP also includes a Transition to Adult Life plan. It notes two transition assessments that

were performed on September 14, 2009, Career Exploration Inventory and SCANS N. Neither assessment

was presented or discussed at the IEP meeting. To describe A. R.s present level of performance the IEP

states A. R. would like to earn his high school diploma and find a job. The transition plan states that A.
R. hopes to: live independently within 3 years of exiting school in his own apartment or home, attend

vocational school within 3 years of exiting school, attend community college within 3 years of exiting

school, and be employed within 3 years of exiting school in automotive. Of these four achievements, only

one, be employed within 3 years in automotive, is marked as needing a goal. The others are marked No

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Goal needed.
The goal for the employment achievement is listed in the goals section of the IEP and is as
follows: With support from a teacher, A. R. will identify 3 requirements for a job in his stated area of
interest (currently automotive painting) with a rating of satisfactory or better in 4 out of 4 trials as
measured by work samples. The only service listed to address the goal is: career awareness-explore
career prerequisites [at] any other location.
The IEP included only two other goals. In the Academic- Study Skills area of need, In the

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classroom setting, A. R. will stay on-task with fewer than 4 disruptive behaviors requiring redirection by

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teaching staff in a 90 minute academic block as measured by supervisor observation. The goal is noted

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as the responsibility of IEP Team. The baseline provided for the goal is A. R. requires 12 on task
reminders to complete assigned work. . . His off task behavior is disruptive and a distraction to those
around him.
In the Academics-Math area of need, Given core curriculum materials, A. R. will simplify
expressions before solving linear equations and inequalities in one variable such as 3(2x-5)+4(x-2)=12
with 80% correct each opportunity as measured by assessment probes. The goal is also to be
implemented by IEP Team.
Although in the Least Restrictive Environment section of the IEP the special factor of Behavior
interferes with learning (of self or others) is marked Yes, no interventions, strategies, or supports are
listed. The only thing listed is see study skills goal. Further, although the IEP team discussed the
possibility of A. R. meeting with the school psychologist once a week for thirty minutes, this service is

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not reflected in the IEP and currently it is unclear if this service is being offered or implemented.

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The IEP did not include any behavior supports. It did not include an agreement to perform a Functional

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Analysis Assessment (FAA). It did not include any intervention plan to address A. R.s behavior.
D. AB3632 Referral

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At the IEP meeting, the school-based members agreed to refer A. R. for an AB3632 assessment.
This referral was created because, as the school-based members explained, there are currently no mental

health counselors or services offered at the school. As stated by the school-based members, the only way

to access counseling services at P. School is through Ventra County Behavioral Health (VCBH). The only

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way to access VCBH services is through an AB3632 assessment (referred to in Ventura County as a
Chapter 26.5 assessment). The only service the school could possibly offer was meeting with the school
psychologist, who could only address students academic concerns, not their mental health.

In response to the referral for an assessment, VCBH responded with its refusal to perform an

assessment. The stated reason for the referral is that the school has not shown that it attempted to use

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interventions and counseling before making the referral. Thus, the school asserts that it cannot provide
mental health services, and VCBH asserts that it cannot assess A. R. because the school has not provided
mental health services. A. R. has not received any counseling or mental health services to date.
IV.

ALLEGATIONS
A. APPLICABLE LEGAL STANDARD
The Individuals with Disabilities Education Improvement Act (IDEIA) guarantees every eligible

student a free and appropriate public education [FAPE] which emphasizes special education and related
services designed to meet their unique needs. 20 U.S.C. 1400(d). Courts use a two-part test, delineated

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in the Supreme Courts decision in Board of Education v. Rowley, as a baseline to evaluate whether a

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students program is a FAPE. 458 U.S. 176 (1982). The first inquiry is whether the school district

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followed the proper procedure with regard to developing the childs education program. Second, courts
evaluate whether the school district provided a substantive FAPE. A school districts education program
must provide a FAPE both procedurally and substantively.
With regard to the substantive prong, courts look at four factors to determine whether a school
district has substantively proposed a FAPE: (1) whether the districts proposed placement was designed to
meet the students unique needs; (2) whether the districts proposed placement was designed to provide
educational benefit to the student; (3) whether the districts proposed placement was designed to provide

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the student with an education in the least restrictive environment; and (4) whether the districts actual

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placement and services conformed to the students IEP. In other words, districts must offer sufficient

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support services to students so that they can benefit from special education instruction. Furthermore,
instruction must be personalized and tailored to the unique needs of the disabled student.
In addition to Rowley, congressional findings from the reauthorization of the Individuals with Disabilities

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Education Improvement Act of 2004 strengthen the definition of a FAPE by ensuring that students with

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disabilities have a program that meets their unique needs and prepares them for further education,

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employment, and independent living to the maximum extent possible. See 20 U.S.C. 1400(c)(5)(A-H)
and 20 U.S.C. 1400(d)(1-4). Not only did the congressional findings strengthen the academic aspects of

a FAPE, they also expanded the services aimed at strengthening the functional performance of students.

See 20 U.S.C. 1401(34).

As another important component of a FAPE, the educational program must be offered in the least
restrictive environment, with necessary supports and services that is appropriate to meet the childs

unique needs. A child may only be removed from the least restrictive environment of the general

education setting if the nature or severity of the disability is such that the child cannot be educated in

regular classes, even with supplementary aids and services. 20 U.S.C. 1412(a)(5).

B. MUSD Failed to Provide a FAPE When it Failed to Create Goals In All Areas of
Need

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As part of the provision of a students FAPE, the IEP team must develop measurable annual goals
which are tailored to meet the unique needs of the student. Cal. Educ. Code 56345(a)(2). The IEP

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created on September 30, 2009 only includes 3 goals: one for study skills, one for math, and one for

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transition. None of the goals are sufficient alone to meet A. R.s need in the area.

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In the area of academic skills, A. R.s written expression skills are not given a goal, although the
assessments identify a need. A. R. performed in the 12th percentile, low average range, in written

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expression on the WJ II test. A. R. performed in the 13 th percentile, low average range, in writing on the

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KTEA-II test. He performed even lower in writing than in math on that exam. MUSDs assessments

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reveal A. R.s need in writing. However, the IEP does ot reflect the need and address it with a goal. As a
result, A. R. is prevented from advancing toward a set goal in writing. Thus, MUSD failed to provide
sufficient goals in the IEP.

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The study skills goal in the IEP only addresses A. R.s ability to stay on-task. There are no goals

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to address A. R.s other identified study skill areas of need: aggression and impulsivity. Further, the one

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goal provided does not competently cover the great need A. R. has with hyperactivity/ADD. A. R.s
English teachers biggest area of concern is A. R.s tendency to make decisions or say things without

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thinking them through regardless of their significance. While identified as a major area of concern, there

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is no goal in A. R.s IEP to address his impulsive and hyperactive speech. In addition to teacher

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comments, the results of MUSDs assessments reveal that A. R.s levels of hyperactivity are very
elevated. His hyperactivity levels distract A. R. from his school work and prevent him from accessing
the curriculum in a meaningful way. To address A. R.s complicated and extreme needs, more than one
study skills goal needs to be provided.

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MUSD failed to provide goals tailored to A. R.s needs. As a result, A. R. is not able to access his
education in a meaningful way. Thus, MUSD failed to provide A. R. a FAPE when it failed to include
sufficient goals.
C. MUSD Failed to Provide a FAPE When it Failed To Provide an Appropriate

Transition Plan

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Districts must provide students with special needs a transition plan to help the student transition

to adult life. This plan must be provided to students before they turn 16, or like here when the student is

16 at the time of initial eligibility, a transition plan must be provided at the time of eligibility. Transition

plans are:

a coordinated set of activities for a student with a disability that(A) is designed within an

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outcome- oriented process, which promotes movement from school to post-school activities,

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including post-secondary education, vocational training, integrated employment (including

supported employment), continuing and adult education, adult services, independent living, or

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community participation; (B) is based upon the individual students needs, taking into account the

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students preferences and interests; and (C) includes instruction, related services, community

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experiences, the development of employment and other post-school adult living objectives, and,

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when appropriate, acquisition of daily living skills and functional vocational evaluation. 20
U.S.C. 1401(a)(20).

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In Elizabeth M. v. William S. Hart Union High School District, the court interpreted 20 U.S.C.
1401(a)(20) and decided what is required in a transition plan. In this case, the school district identified
that the student wanted to become a sound engineer after graduation. In pursuit of the sound engineer

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goal, the district provided services [that] consisted almost entirely of generic classes that provided

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instruction on how to find a job, write a resume, draft a business card, participate in a job interview, [and]

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complete an employment application. . . The court held that the goal and services were generic and did

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not take into account the students academic weaknesses, the transition services were insufficient to
constitute a transition plan tailored to the students needs and preferences. [T]here is no evidence that

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anyone ever explained to [the student] the academic qualifications of a sound engineer, nor were there any

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transition services provided, uniquely tailored to [the student], that would promote attainment of those

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academic qualifications. This failure alone is sufficient to find that [the student] was not provided with

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transition services that were based upon her needs, taking into account her preferences and interests, as
the statute requires.

As in Elizabeth M., here too there is no evidence that the transition services provided by MUSD

were based upon A. R.s needs or take into account his preferences and interests. A. R.s transition plan,

like the one in Elizabeth M., specifies a particular professional goal, becoming an automotive painter
(although the transition sheet itself only says automotive, the other IEP sections specify automotive

painting). Also like in Elizabeth M., MUSD has never explained to A. R. the academic qualification of an

automotive painter. In fact, it is one of the three goals in the IEP, to find out for himself.

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A. R.s employment goal is unsupported by any services uniquely tailored to A. R.. The only
service is generic, Career Awareness with the equally generic proposed activity explore career
prerequisites. A. R. is a student who is currently in school at a Juvenile Justice facility. As such, to be

uniquely tailored to his needs, the transition plan services must involve his transition from incarceration

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to the outside community. Currently, his plan does not mention the potential impact of his incarceration.

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Thus, like in Elizabeth M., because his transition plan is not uniquely tailored to his needs, MUSD failed
to provide an adequate transition plan and failed to provide A. R. a FAPE.
MUSD also failed to provide A. R. a FAPE because the academic goals in the IEP do not amount

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to sufficient preparation to meet the transition plans listed achievements (live independently, attend

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vocational school, and attend community college within 3years of exiting school). As the decision in

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Elizabeth M. indicates, if it is impossible to meet the transition plan achievements because of the failures
in the other sections of the IEP, the transition plan itself has failed (failing to make reasonable efforts to

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implement [the students] academic goals perforce results in a finding that [the district] failed to provide

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[the student] with adequate transition services to facilitate her matriculation through college). As it

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applies to A. R., his academic goals are insufficient to prepare him to attend community college. He only
has 1 unit. He needs more than 100 units to graduate. Nothing in the IEP addresses A. R.s need to make

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up units. Further, as noted above, there are no goals to address A. R.s written expression deficits. Without

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advancement in written expression, it will be impossible for A. R. to attend community college. There are

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also no goals to address A. R.s ability to live independently. He has no support to help learn about bills,

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home care, and other independent living skills. Without any goal to address these skills, the transition plan
achievement of living independently within 3 years of exiting school is not tenable. Additionally, A. R.s

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needs are unique in this area because he will be incarcerated until his exit from school. Thus, he requires

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intensive assistance to successfully transition from school to adult life.

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MUSD did not meet its requirement to create a uniquely tailored transition plan provided in an
out-come oriented process. As a result, A. R. will be unable to acquire skills and pursue goals that allow

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him to be successful in the future. To be a FAPE, an IEP must prepare students for future employment and
independent living to the maximum extent possible. Thus, MUSDs failure to provide A. R. with a
transition plan that will allow him to be successful in the future is a failure to provide a FAPE.

D. MUSD Failed to Provide a FAPE When it Failed to Offer Appropriate Behavior

Supports
i. No FAA was approved Though It Was Necessary

Cal. Educ. Code 56320(f) states that students must be assessed in all areas related to the

suspected disability including...health and development, including low vision, hearing, motor abilities,

language function, general intelligence, academic performance, communicative status, self-help,

orientation and mobility skills, career and vocational abilities and interests, and social and emotional

status. Functional Analysis Assessments (FAA) are conducted by persons with documented training in

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behavior analysis. The results of the assessment are used to determine the appropriate behavioral

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interventions to utilize and how to utilize them. A positive behavioral intervention plan (PBIP) is

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developed based on FAA. Without an FAA, no PBIP is possible. Thus, when a district fails to provide an

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FAA it also forecloses the students opportunity to have a PBIP.

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As it applies here, A. R. exhibited significant behavioral problems that warranted an assessment.

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Teachers noted in MUSDs psycho-educational evaluation that A. R., Almost Always hits other

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adolescents, Often threatens to hurt others, Sometimes falls down and Sometimes is easily annoyed

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by others. In addition, teachers observed that A. R. distracts other students with his outlandish behavior,

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such as acting out exaggerated yawns. Most notably, MUSDs assessment results show that A. R. has

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clinically significant levels of Aggression and hits other students. These behaviors are serious, are related

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to A. R.s ADD-related problems and, as noted in the IEP, impact A. R.s ability to access his education.

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As a result, MUSD is required to assess A. R. in this area.

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MUSD did not agree to perform an FAA. Further, an FAA was not discussed at the IEP meeting.

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Thus, A. R. was not able to get a behavioral assessment. As a result, he is unable to benefit from the

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results of an assessment, which would provide for a detailed and uniquely tailored intervention plan. A. R.

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continues to be unable to benefit from his education because of his un-assessed behavioral problems.

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Thus, MUSD has failed to provide required assessments and has failed to provide FAPE.

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ii. No Behavior Intervention Plan Was Created Though It Was Necessary

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Students who have disabilities that affect their behavior in school have the right to an IEP designed to
bring lasting positive behavioral change. 5 Cal. Code of Regulations 3052(a). In addition, Ventura
County Special Education Local Plan Area (SELPA) notes in its literature that:
The basic tenets to PBS*are:

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All behavior communicates something for the student (a want or need).

If we only punish a student after the misbehavior occurs, we will not make a lasting change in
the behavior, as it may only be temporarily suppressed.
We must teach students new, appropriate ways to communicate their wants and needs.
There are many accommodations to the school environment that can be made to reduce the
incidence of (and need for) non-desired behaviors.
Teaching new, more appropriate behaviors requires a continuous process of modeling,

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prompting, shaping and reinforcing-just like teaching any new skill!

The Ventura County SELPA has consistently promoted PBS as an overall construct since

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1993 through its leadership, staff training, policies, forms, guidelines and published materials.

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*PBS stands for Positive Behavior Support, which is Ventura Countys terminology for the PBIP
in 5 Cal. Code of Regulations 3052.
In addition, according to Ventura County SELP literature, a PBIP is appropriate when a special needs
student is exhibiting challenging behaviors which are disrupting the learning process or social activities
at school. Here, A. R. exhibited challenging behaviors, such as hitting other students, that disrupted the
learning process for himself and others. Thus, according to its own explanation, a PBIP was appropriate
for A. R..

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The IEP created on September 30, 2009 did not have any interventions or other support that would bring

lasting positive behavioral change. Instead, the only aspect of the IEP that addresses A. R.s behavior is a

study skills goal. The goal only mentions A. R.s lack of focus. It does not provide any guidance for A.

R.s aggressive behaviors. Further, the goal is unsupported by interventions or services. There is nothing

in the IEP to indicate how the goal will be enforced. MUSD did not provide A. R. with an IEP that

included accommodations to the school environment that can be made to reduce the incidence of (and

need for) non-desired behaviors. It also did not provide an IEP designed to bring lasting positive

behavioral change. As a result, A. R.s behaviors continue to interfere with his ability to access his

education. Thus, by failing to provide an appropriate PBIP, MUSD failed to provide A. R. a FAPE.

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E. MUSD Failed to Provide a FAPE When It Failed To Offer Appropriate Services In

the Area of Mental Health
i. No Psychological Service Was Offered Though It Was Necessary
Students with special needs qualify for special education and related services. Psychological
services other than assessment and development of the [IEP] is an available related service. Cal. Educ.
Code 56363 (b)(10). Psychological services may include: (a)Counseling provided to an individual with
exceptional needs by a credentialed or licensed psychologist or other qualified personnel. (b)Consultative
services to parents, pupil, teachers, and other school personnel. (c)Planning and implementing a program
of psychological counseling for individuals with exceptional needs and parents.
In order to provide a FAPE, a students education plan must be reasonably calculated to provide
meaningful educational benefit. Rowley, 458 U.S. 176 (1982). As it applies here, in order to be
reasonable calculate to provide meaningful educational benefit, A. R.s IEP needed to include the related
service of psychological services.

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A. R. self-reported feelings of helplessness and an extremely poor relationship with his father. He
reported that sometimes he feels like his life keeps on getting worse and worse. Mother reported that A.
R. has a history of running away from home and bullying others. Teachers and Mother evaluate A. R. as

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having at-risk levels of depression. At the IEP meeting, A. R. indicated that he may not have been

forthcoming in his answer of No to whether or not he has suicidal thoughts. Mother indicated that A. R.

does not admit his suicidal thoughts because he is afraid of potential harsh consequences, such as solitary

confinement. In addition, as discussed above, A. R. has severe behavior issues that are related to his

disability. His problem with aggression, for example, is not just a conduct problem, but indicates a need

for psychological services to address the underlying issues creating the behavior.

An IEP must seek to create a plan for the student as a whole. Thus, A. R.s IEP must encompass

his psychological needs as well as his behavioral needs. The IEP must also be uniquely tailored to A. R.s

needs. A. R. attends school within the confines of Juvenile Hall. Thus, his need for psychological services

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is enhanced by the stressful and stifling environment he lives in each day. Thus, in order to be reasonably

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calculated to provide meaningful educational benefit, A. R.s IEP needed to include services to address his

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psychological needs within the context of his school environment. He needed psychological services.

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MUSDs failure to offer or provide any psychological services is a failure to provide a plan reasonably

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calculated to provide meaningful educational benefit, and thus is a failure to provide a FAPE.
ii. No Services Are Available At The School Though A. R.s Unique Needs
Require Mental Health Support

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As detailed above, A. R.s needs include mental health services. At the IEP meeting on September

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30, 2009 the school-based members stated that the only psychological services available to students at P.

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School are through Ventura County Behavioral Health (VCBH). The school-based members explained

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that, although they may be able to give A. R. some educational counseling through the school

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psychologist, no psychological services were available unless through VCBH.

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In order to receive services from VCBH, a student with special needs must be referred for

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assessment, and VCBH must agree to assess the student. Because P. School does not have any

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psychological services available, the school-based members of the IEP team agreed to refer A. R. to

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VCBH so he could possibly get the needed services through that agency. However, when MUSD sent the

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referral packet to VCBH, VCBH refused to assess A. R. because no services had been implemented by the

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school. VCBH stated that the school had not shown that it had attempted to address A. R.s needs.

However, P. School could not possibly have attempted to address A. R.s needs because, as the school-

based members stated, the school does not have any psychological services available. Thus, A. R. cannot

get psychological services from MUSD because P. School does not have them available, and A. R. cannot

get psychological services from VCBH because P. School has not provided any psychological services. A.

R. is left in a context where he is unable to get any psychological services at all. The unavailability of any

psychological services prevents A. R. from having access to a uniquely tailored education. As a result, the

unavailability of any psychological services is a denial of FAPE.

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Dated: __ ______

Learning Rights Law Center

By: ____________________________
Janelle Ureta Esq.
Attorneys for Petitioner

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A. R. Request for Due Process - 13