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class. Mother, in a March 16, 2012 email to Ms. Harris, again insisted on placement in aschool which had full time individual instruction and that Mother would address the socialaspects of Student‟s program by after school activities such as volleyball and 4H club.10.On March 26, 2012, an IEP meeting was held to discuss placement. Attendingwas Mother; Ms.Harris, a program specialist;4 and Jeff Kozlowskiki, director of specialeducation at Winston. Mother vocalized her areas of concern regarding Student‟seducational program at Winston. Mr. Kozlowski stated that Winston was unable to meetMother‟s need for communication, her demand for greater one-to-one instruction, and herintensive involvement in IEP and daily activities. For that reason, Winston would no longerbe able be a placement option for Student. Ms. Harris stated that the District continued tobelieve that Winston offers an appropriate education for Student. The District then offeredStudent a trial placement at Banyan Tree for the remainder of the Spring semester. Motherverbally agreed to the trial placement.Banyan Tree11.Banyan Tree contains between seven to ten total students in elementarythrough high school. Banyan Tree provides one-to-one instruction for three hours per day.In addition to the individual instruction, students participate in small groups to complete theirclass work or work on projects.12.The Banyan Tree school day commences with all students attending thePledge of Allegiance followed by 15 minutes of stretching called “brain gym.” Students canalso socialize during lunch. Speech and language services, including peer group sessions,were conducted by a nonpublic agency , the Crimson Center for Speech and Language, onbehalf of Banyan Tree.13.Student began attending Banyan Tree on April 11, 2012. Student attended thepledge and the brain gym. At lunch, Student was only able to socialize with two otherstudents. Banyan Tree was unable to provide Student group speech and language asprovided in the February 13, 2012 IEP because they did not have anyone to group withStudent. Banyan Tree did provide one hour of individual speech weekly. On May 17, 2012,the Banyan Tree director forwarded an email to Mother stating Banyan Tree could provide4Ms. Harris took over overseeing Student when Mother requested that Lola Harlanbe replaced.6

an additional 15 minutes of individual speech per week which would have to be at furtherDistrict expense.May 23, 2012 and July 24, 2012 Annual IEP Meeting14.On May 23, 2012 and July 24, 2012, the IEP team convened for Student‟sannual IEP meeting. Attending the meeting were Student; Mother; Laura Johnson, theBanyan Tree director; and Laurie Leigh, a program specialist from District.5 Mothersubmitted a series of notes to the team members regarding Student‟s academic achievement,functional performance and parental concerns. These were discussed by the team. Student‟spresent level of performance (PLOP) was discussed. The adopted PLOP was very similar tothose adopted in the February 13, 2012 IEP. One of Mother‟s notes states, “The goal for[Student] is to master proficiency at grade level in all academic areas.” Mother activelyparticipated in all aspects of the meeting.15.Banyan Tree presented a PACEProgram Screening Test.6 At the time oftesting, Student was 14 years and three months of age. Student‟s age equivalent scores were8.6 years in processing speed; 8.2 in working memory; 10.5 in visual processing; 8.2 in wordattack; 6 in auditory analysis; 6.6 in logic and reasoning; 8.8 in selective attention; and 8.7 inspelling.16.Ms. Johnson reported that Banyan Tree was reviewing Student‟s math skillsand recommended that she take pre-algebra during ninth grade. Banyan Tree recommendedthat some goals be revised. These recommendations were accepted by the team. The IEPcontained 18 goals in total in the areas of keyboarding; reading fluency; two goals in readingcomprehension; reading/multi-syllable; vocabulary; three writing goals in writing process,editing, and revision; four goals in math; self-regulation; independence; and two speech andlanguage goals in the areas of developing social skills and reaching grade level in narrativelanguage. Goal 17 was identical to the ninth goal in the February 13, 2012 IEP with anidentical baseline.5Ms. Leigh has B.A. and M.A. in education. She possesses credentials for generaleducation elementary and secondary teaching and pupil personnel services. She had beenemployed as a general education teacher from 1977 through 1991. She was a school-basedmental health professional and counselor from 1991 through 2005 at the Encinitas UnionSchool District. Since 2005, Ms. Leigh has been a program specialist at NCCSE.6PACE is a learning skills and reading program. Scores are given in ageequivalencies.7

17.The team adopted 15 accommodations including graphic organizers, sensorybreaks, work completion, visual supports, computer writing programs, assistive technologytraining, one-to-one instruction, and self-regulation strategies. The team agreed to Mother‟srequest for an extended school year and to receive copies of Student‟s work production on adaily basis. The team reviewed Dr. Janiuk‟s visual therapy assessment and agreed to 24sessions. Ms. Johnson also reviewed the PACE program which would commence during theextended school year. The IEP noted that “[Student] requires a small group setting and 1:1direct instruction in an NPS.” The IEP lists under services placement in “specializedacademic instruction” in a NPS. Under accommodations, the IEP document states thatStudent would receive one-to-one instruction during academic instruction. The team offeredplacement at Banyan Tree with two individual speech and language therapy sessions for atotal of 90 minutes per week and four 30 minute speech and language consults.7 Motheraccepted the offer.Student at Banyan Tree18.On June 7, 2012, Student was bitten by another student while Student wasreceiving instruction. Mother then removed Student from the social portion of the program,and Student refused to participate in the morning pledge and brain gym. Thus, Student nolonger had any opportunities to work on her social skills.19.Student had received grades above C in all her subjects. Student took theCalifornia Standards Tests during eighth grade and scored in the “basic range” in Englishlanguage arts; “below basic” in science; and “far below basic” in general mathematics.Student continued to make progress on her annual goals.Request for Evaluation20.On August 31, 2013, Mother requested that the IEP team discuss at the nextmeeting whether to complete speech and language portion of Student‟s triennial assessmentearly. On September 6, 2013, Mother formally requested a speech and language assessment.The District agreed to conduct the entire triennial assessment early, which Mother accepted.7Thus, the group speech and language services which had been in theFebruary 13, 2012 IEP were eliminated.8

The 2012-2013 Triennial Assessment21.The District‟s triennial assessment team comprised Rana Holcomb, a Districtschool psychologist; Erin Morrison, a special education teacher at Mission Hills High School(MHHS), and Marilea Brock, the SLP at Banyan Tree.22.Ms. Morrison conducted the academic testing portion of the assessment.Ms. Morrison has a B.A. in psychology, her education specialist credential in mild/moderatedisabilities, and an autism authorization. From September 1999 through June 2003,Ms. Morrison taught a mild/moderate special day class with pupils who had learning and/orbehavior challenges in the Garden Grove Unified School District. From August 2003through June 2005, Ms. Morrison taught a special day class for students with language andcommunication disorders including autism in Clark County, Nevada. Ms. Holcomb has beenemployed by the District as a school psychologist since August 2004 as a schoolpsychologist at MHHS. She has a B.A. in psychology, an M.S. in counseling, and an Ed.S.(Education Specialist) in school psychology. Ms. Holcomb received a California Certificateof Clearance (2000) and school psychology (2004). Ms. Brock has an M.S. in speechpathology and a CCC (Certificate of Clinical Confidence)-SLP. Ms. Brock is an SLP atBanyan Tree who had provided speech services to Student since April 2012.23.In the academic portion, Student demonstrated she was performing in the lowto average range in math, reading, writing, spelling, and oral language. In thepychoeducation portion, Student demonstrated difficulties in the areas of attention, auditoryprocessing, and visual processing. Student‟s academic functioning fell within the levels ofher ability. In the speech and language portion, Student demonstrated a moderate expressiveand receptive language disorder characterized by decreased reading comprehension skills,difficulty organizing written and oral communication, and decreased syntax, grammar, andsequencing skills in written communication. Student also demonstrated moderate socialcommunication and pragmatic language disorder characterized by decreased problem solvingand perspective taking. In the area of executive functioning, Student demonstrated deficits inmeta-cognition, transitions or flexibility, and task initiation.December 201224.Because of her concerns as to Student‟s academic progress, Mother insistedthat Student only receive one-to-one instruction and that Student not participate in the otheraspects of the Banyan Tree program. Student also had frequent absences from school. TheBanyan Tree director informed Ms. Leigh that she felt Banyan Tree could not meet Student‟s9

needs because she was not participating in the full school program and because of herabsences.25.On December 18, 2012, Laura Johnson, Banyan Tree‟s director, forwarded aletter to Mother informing her that Banyan tree was giving a 20-day notice terminating itscontract with the District to provide services to Student because Banyan Tree was unable toprovide an appropriate education for Student.26.On December 19, 2012, Ms. Johnson forwarded a letter to the District giving a20 day notice of the school‟s intent to terminate its contract with the District to educateStudent. Ms. Johnson stated that Student‟s program had “been reduced to a „tutoringprogram‟ per mother‟s request.” Ms. Johnson goes on to state Banyan Tree‟s reason forgiving the 20-day notice thusly:Our model and methods of instruction have always been madeclear at all IEP meetings regarding [Student]. During the IEPmeetings that have occurred since placement, [Student‟s]educational program has been reduced to a „tutoring program‟per mother‟s request. Banyan Tree Foundations Academy hasclearly stated in every IEP meeting that we disagree with thedecisions to limit social interactions and activities. Due to theselimitations, Foundations Academy is no longer providing theeducational experience that we feel is key to student success.Therefore, Foundations Academy has given the school district,San Marcos, and [Mother], a 20 day notice of intent to cancelthe contract to provide services.Additionally, Ms. Johnson cited the difficulty “to have a cohesive, comprehensive program”due to Student being absent for more than 18 percent of the time “due to emotional upsets,travel, illness and assessments.”27.Prior to the District‟s winter break, Ms. Leigh and Mother communicatedabout the 20-day notice and the need to find a new placement. Mother understood that theIEP team would discuss placement at the upcoming January 14, 2013 IEP meeting asdemonstrated by Mother‟s January 8, 2013 letter to the IEP team where stated that she didnot agree to a change of placement. Mother suggested that her conflicts with Banyan Treecould be resolved by Banyan Tree changing Student‟s program specialist, who was theBanyan Tree director.10

January 14, 2013 IEP Meeting28.On January 14, 2013, the IEP team convened. Attendees included Mother,Ms. Harlan, Ms. Leigh, Ms. Holcomb, and Ms. Morrison. Mother threatened to leave themeeting as she objected to the attendance of Ms. Harlan. Mother did not want Ms. Harlan inattendance as Mother had a number of disputes with Ms. Harlan when she was Student‟sprogram specialist. Ms. Leigh explained that she had requested Ms. Harlan attend to takemeeting notes. Mother then agreed to continue the meeting. Participating by telephone fromBanyan Tree were Ms. Johnson, director; Leann Poluak, a general education teacher;Ms. Brock; and Sara Frampton, an educational consultant retained by Banyan Tree. Motherobjected to Ms. Frampton being in attendance and requested that the meeting be continued.Mother felt that there was a conflict of interest on behalf of Ms. Frampton, who had beenretained by Mother as a consultant/advocate at the end of July 2012, but was no longerretained by September 2012. Mother asked to continue the meeting. Ms. Leigh stressed theimportance of the meeting, which was to review the triennial assessment results and todetermine a placement for Student, and stated the meeting would continue. Mother thenexited. Ms. Frampton then discontinued her participation in the meeting. Because of theneed to offer Student a placement, Ms. Leigh continued the meeting without Mother.29.Ms. Brock reviewed her speech and language assessment and recommendedthat the annual goals from the May 23, 2012 IEP be continued. Ms. Brock did note thatStudent should be in a placement which would give her more exposure to independence andopportunities for self-advocacy. Banyan Tree members, noting that Student did well withone-to-one instruction, stated that Student “needs more group opportunities with peers.”30.Ms. Holcomb and Ms. Morrison reviewed her assessment results. The teamfound Student as continuing to be eligible for special education under the categories ofautism with other health impaired and speech and language impairment. The team alsoagreed to continue the 18 annual goals from the May 23, 2012 annual IEP as Student had notmet the goals.31.The team discussed possible placement for Student. Ms. Morrison andMs. Holcomb shared that based on the assessment results and Student‟s academicperformance, they both were of the opinion that Student does not require one-to-oneinstruction. Ms. Morrison opined that although Student‟s academic abilities were belowaverage, Student was similar to many other mild/moderate students. Ms. Morrison believedthat Student could succeed academically in a supportive environment like a special day class.Ms. Holcomb and the team believed that Student could access the curriculum withoutone-to-one instruction. The team felt that MHHS could meet Student‟s unique needs and11

was the least restrictive environment. The team felt that Student should be placed at a NPSas a transition to the large MHHS campus. The team determined that the appropriateplacement would be the Excelsior School with the related services continued from theMay 23, 2012 IEP.8 Placement at Excelsior was to commence on January 31, 2013. AtExcelsior, Student would have an opportunity to experience a classroom setting and beexposed to socializing with peers. The IEP team was willing to meet with Mother at anothertime to review all of the information and reports from the meeting.January 14, 2013 to May 3, 201332.After leaving the IEP meeting, Mother delivered a hand written letteraddressed to the District superintendent, Ms. Leigh and Dawn Dully, the District‟s specialeducation director. She requested that the District reconvene the IEP meeting because sheobjected to the attendance of both Ms. Harlan and Ms. Frampton.33.On January 15, 2013, Ms. Dully responded by letter to Mother. Ms. Dullystated that the District was willing to implement Student‟s IEP at Excelsior, which was not achange in placement as Banyan Tree could no longer provide services to Student. Ms. Dullyoffered to meet informally or through the IEP process.34.On February 1, 2013, Student ceased attending school due to Mother‟s refusalto accept the District offered placement. District, through Ms. Dully, offered to provideinterim home instruction in an effort to permit Student to receive some education serviceswhile she was absent from school. This offer was later accepted by Mother and one hour ofhome instruction to Student was provided from March 28, 2013 to May 3, 2013.35.On March 6, 2012, the District forwarded a Team Meeting Notice to holdStudent‟s annual meeting on March 14, 2013. On March 11, 2013, Mother refused to meeton March 14. On March 14, 2013, District forwarded to Mother a Team Meeting Noticescheduling the annual IEP meeting for March 18, 2013. On March 15, 2013, Motherforwarded an email to the IEP team confirming that she could not attend the scheduled IEPmeeting scheduled for March 18, 2013. She requested that the District contact her afterMarch 23, 2013, with alternative dates. Mother cited as a reason for not being available that8Excelsior is a small, NPS, elementary through high school, in San Diego. Excelsioris similar to Winston with small classes. Excelsior could provide individual instruction ifneeded. Thus, Excelsior could provide Student a small group setting with individualinstruction when needed.12

her water heater leaked on March 13, 2013, and it needed to be replaced. On April 10, 2013,the District once again forwarded a Team Meeting Notice for Student‟s annual IEPscheduled for May 3, 2013. Mother consented to the meeting.May 3, 2013 IEP Meeting36.On May 3, 2013, the IEP team convened for Student‟s annual IEP meeting.Attending were Mother; Student; Ms. Morrison; Ms. Harlan; Ms. Holcomb; Ms. Leigh;Carrie Goodwiler, a District SLP; and Monique Frost, a general education teacher. AvaWeitzen, attorney for Student, and Jonathan Read, counsel for the District, were also inattendance. Mother and the home instructor reported that Student was doing well with herhome instruction.37.In discussing Student‟s present levels of performance, the team reviewedStudent‟s assessment results and her performance academically and socially. In theSocial/Emotional/Behavioral section of the present levels, it was noted that Student had onlybeen exposed to small settings with little or no exposure to non-disabled peers which resultedin her being unable to access the social and academic modeling of non-disabled peers.Mother objected as she did not feel that Student was isolated because Student had beeninvolved in YMCA, acting classes, overnight camp, ballet, and ice skating outside of school.38.The team reviewed a Vision Therapy Status Report dated April 1, 2013, whichwas prepared by Lyna Dyson, a certified optometric vision therapist,9 who did not attend themeeting. The report contained no test results but did report that Student had made excellentprogress in all areas. Ms. Dyson commented that Student was easily distracted andrecommends that time be set aside for reinforcement of her visual skills. No details weregiven as to this recommendation. Ms. Dyson noted that Student was “still struggling in theareas of visual perception speed and tracking speed.” She then recommended that aDevelopmental Optometrist should conduct an evaluation to confirm Student‟s progress sothat scores can be compared. The team denied Mother‟s request for a vision therapyevaluation based on the triennial assessment, observations, and Student‟s academic grades.The team did agree to have Student be given an occupation therapy assessment to furtherlook at whether a vision therapy assessment was ne

Ava Nawy Weitzen, Attorney at Law, represented Student. Student‟s mother (Mother) was present throughout the hearing. Jonathan P. Read, Attorney at Law, represented the District. Barbara Moore, the District‟s specia