United States District Court, D. Oregon, Portland Division
OPINION AND ORDER
JANCICE M. STEWART, Magistrate District.
This case concerns whether the West-Linn Wilsonville School District ("the District") provided Student a free appropriate public education ("FAPE") as required by the Individuals with Disabilities Education Act, 20 USC §§ 1400-1487 ("IDEA"), and its Oregon counterpart, ORS 343.146-.193, while Student attended second and third grades at Boones Ferry Primary School ("Boones Ferry") from 2009 to 2011. On October 4, 2012, after a 10-day hearing held in February and continued to March and August with numerous witnesses, Senior Administrative Law Judge Ken L. Betterton ("ALJ") issued a Final Order that the District had provided Student a FAPE during the 2009-10 school year, but denied him a FAPE during the 2010-11 school year. In the Matter of the Educ. of Student and West Linn-Wilsonville Sch. Dist., OAH Case No. DP 11-122 ("Final Order"). Both parties appeal those portions of the ALJ's decision adverse to them. For the following reasons, the Final Order is reversed as to the remedy of tuition reimbursement and otherwise affirmed.
I. Statutory Framework
In 1990, Congress passed the IDEA which provides federal grants to state and local agencies to improve educational opportunities for disabled children. Mark H. v. Lemahieu, 513 F.3d 922, 928-29 (9th Cir 2008). To receive those federal funds, states must comply with the various provisions of the IDEA and its implementing regulations to identify, evaluate, and serve the unique needs of each disabled student. 20 USC §§ 1412, 1414, 1416; 34 CFR § 300 et seq.
The IDEA's central purpose is "to ensure that all children with disabilities have available to them a free appropriate public education that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living." 20 USC § 1400(d)(1)(A). A "free appropriate public education" is "special education and related services" that -
(A) have been provided at public expense, under public supervision and direction, and without charge;
(B) meet the standards of the State educational agency;
(C) include an appropriate preschool, elementary school, or secondary school education in the State involved; and
(D) are provided in conformity with the individualized education program required under section 1414(d) of this title.
20 USC § 1401(9).
Oregon has implemented the substantive and procedural requirements of the IDEA by statute and through regulations issued by the Oregon Department of Education ("ODE"). See ORS 343.146-.193; OAR 581-015-2000 et seq. State standards that are not inconsistent with federal standards are enforceable in federal court. W.G. v. Bd. of Trustees of Target Range Sch. Dist. No. 23, Missoula, Mont. (" Target Range" ), 960 F.2d 1479, 1483 (9th Cir 1992) (citations omitted), superseded by statute on other grounds by 20 USC § 1414(d)(1)(B).
Central to the IDEA is the "individualized education program" ("IEP"), a comprehensive written plan developed by an "IEP team" consisting of the student's parents, teachers, and representatives of the local educational agency ("LEA") or school district where the child is receiving educational services. 20 USC § 1414(d). To comply with the IDEA, the IEP must describe the child's present performance levels, the educator's short and long term goals, the specific educational services to be provided, how much the child can participate in regular educational programs, and objective criteria for measuring the child's progress. 20 USC § 1414(d)(1)(A)(i). The IEP's ultimate purpose is to tailor the educational services the LEA provides to meet the special needs created by the student's disability and ensure that the student receives the benefit of a FAPE. 20 USC §§ 1412(a)(4) & 1414(d).
Parental involvement is a fundamental component of the operation of the IDEA. Thus, the IDEA mandates that a state educational agency ("SEA") or LEA receiving assistance must establish and maintain a litany of procedural safeguards to ensure the parents' opportunity to be fully involved in the educational services provided to their child. 20 USC § 1415.
The significance of the procedures provided by the IDEA goes beyond any measure of a child's academic progress during the period at issue. As the Court in Rowley said, "Congress placed every bit as much emphasis upon compliance with procedures giving parents and guardians a large measure of participation" at every step "as it did upon the measurement of the resulting IEP."
Target Range, 960 F.2d at 1485, citing Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist., Westchester Cnty. v. Rowley (" Rowley" ), 458 U.S. 176, 205-06 (1982).
The parent or LEA may file a complaint with respect to any matter relating to the provision of a FAPE to a child with disabilities which may be heard before an impartial state hearings officer. 20 USC § 1415(b)(6)-(7), (f). Any party aggrieved by the findings and decision made in a state administrative due process hearing may bring an original civil action in a state court of competent jurisdiction or in federal district court to review the findings and decision. 20 USC § 1415(i)(2)(A), (3)(A).
II. Standard of Review
The standard of review in IDEA actions "has been characterized as a modified de novo review." Ashland Sch. Dist. v. Parents of Student E.H., 583 F Supp2d 1220, 1222 (D Or 2008) (citation omitted), aff'd 587 F.3d 1175 (9th Cir 2009). A district court may "hear additional evidence" outside the administrative record and then, basing its decision "on the preponderance of the evidence, " grant "such relief as the court determines is appropriate." 20 USC § 1415(i)(2)(C).
The preponderance of the evidence standard in the IDEA "is by no means an invitation to the court to substitute their own notions of sound educational policy for those of the school authorities which they review." Rowley, 458 U.S. at 206. Because the state is thought to have "specialized knowledge and experience, " the IDEA carries "the implied requirement that due weight shall be given to these proceedings." Id at 206-08 (citation omitted); see also Capistrano Unified Sch. Dist. v. Wartenberg ex rel. Wartenberg (" Capistrano" ), 59 F.3d 884, 892 (9th Cir 1995) ("The district court's independent judgment is not controlled by the hearing officer's recommendations, but neither may it be made without due deference.").
The amount of deference given to the hearing officer's findings is a matter for the court's discretion, with greater deference given to findings that are "thorough and careful." Capistrano, 59 F.3d at 891 (citation omitted). Ultimately, once the court has "consider[ed] the findings carefully... the court is free to accept or reject the finding in part or in whole." Ash v. Lake Oswego Sch. Dist., 980 F.2d 585, 587-88 (9th Cir 1992) (citation omitted).
In reviewing the administrative decision, the court's inquiry is two-fold:
First, has the State complied with the procedures set forth in the Act? And second, is the individualized educational program developed through the Act's procedures reasonably calculated to enable the child to receive education benefits? If these requirements are met, the state has complied with the obligations imposed by Congress and the courts can require no more.
Rowley, 458 U.S. at 206-07.
Congress placed a great deal of importance on the procedural safeguards in the IDEA. R.B., ex rel. F.B. v. Napa Valley Unified Sch. Dist. (" Napa Valley" ), 496 F.3d 932, 938 (9th Cir 2007). However, not all procedural flaws deny the child a FAPE. Id (citations omitted). "A child is denied a FAPE only when the procedural violation "result[s] in the loss of educational opportunity or seriously infringe[s] the parents' opportunity to participate in the IEP formation process." Id (citation omitted), citing Target Range, 960 F.2d at 1484; see also 20 USC § 1415(f)(3)(E)(ii),  34 CFR § 300.513(a),  ORS 343.167(3). Moreover, the Ninth Circuit has concluded that "where the procedural inadequacies of an IEP may have resulted in the loss of an educational opportunity, or deprived a child's parents of the opportunity to participate meaningfully in forming an IEP, an appellate court should not proceed to step two of the Rowley analysis, i.e., whether the IEP was reasonably calculated to enable the child to receive educational benefits." M.L. v. Fed. Way Sch. Dist. (" Federal Way" ), 394 F.3d 634, 645 (9th Cir 2005), citing Target Range, 960 F.2d at 1485. If "a procedural violation does not result in a lost educational opportunity for the student, the violation is harmless error' because it does not deny the student a FAPE." Napa Valley, 496 F.3d at 938 n4 (citation omitted). Thus, "rigid adherence to the laundry list of items given in section 1401(19)' is not paramount." Target Range, 960 F.2d at 1484, quoting Doe v. Defendant I, 898 F.2d 1186, 1190-91 (6th Cir 1990).
As explained by the United States Supreme Court, the "basic floor of opportunity' provided by the [IDEA] consists of access to specialized instruction and related services which are individually designed to provide educational benefit to the handicapped child." Rowley, 458 U.S. at 201 (emphasis added). An IEP need not maximize a student's educational benefit. Id at 199. Further, the district is the final arbiter of the educational program. As aptly noted by one court, "parents, no matter how well-motivated, do not have a right under the [IDEA] to compel a school district to provide a specific program or employ a specific methodology in providing for the education of their handicapped child." Lachman v. Ill. State Bd. of Educ., 852 F.2d 290, 297 (7th Cir 1988) (applying a predecessor statute to the IDEA, the Education for All Handicapped Children Act).
After three stages of extensive briefing, both before and after the administrative hearing (Tr. 87-381, 400-14) and supporting this appeal, the parties are well-versed in the facts of this case. Therefore, the court will refer to the relevant facts only as necessary to resolve the issues presented.
I. Student's Cross Appeal (Counterclaim)
For the 2009-10 school year, the ALJ issued the following conclusions of law adverse to Student:
(1) The District did not fail to evaluate the Student in all areas of suspected disability during the 2009-2010 academic year.
(2) The District did not fail to provide the Student a FAPE during the 2009-2010 academic year.
(3) The District did not fail to provide an appropriate placement for the Student during the 2009-2010 academic year.
The 2009-10 school year involves the January 2009 and the December 2009 IEPs. Although not expressly stated in his conclusions of law, the ALJ opined that the District did not violate the IDEA until "a series of things occurred" beginning in "late February or early March 2011, and continuing to the end of the school year." Tr. 77. Therefore, Student appeals not only the three conclusions of law for the 2009-10 school year, but also those portions of the Final Order adverse to him regarding the 2010-11 school year prior to the spring of 2011 which involves the December 2010 IEP.
A. Legal Standards Applied by ALJ
As a threshold issue, Student contends that the ALJ applied the wrong legal standards. First, Student argues that the ALJ misinterpreted the IDEA's "educational benefit" standard by citing this court's statement that school districts "must, to make such access meaningful, ' confer at least some educational benefit' on disabled students." Tr. 74-75, citing G.R. ex rel. v. Dallas Sch. Dist. No. 2, 823 F Supp2d 1120 (D Or 2011). However, the ALJ correctly quoted this court that, in turn, quoted the Ninth Circuit's interpretation in J.L. v. Mercer Island Sch. Dist., 592 F.3d 938, 951 n10 (9th Cir 2010), of the "educational benefit" standard set forth in Rowley. See G.R., 823 F Supp2d at 1130. The Supreme Court's elucidation of the substantive underpinnings of a FAPE in Rowley has withstood two amendments of the IDEA, and Student presents no compelling argument why its authority has diminished of late. To be clear, the Court dedicated the majority of its opinion dispensing with the notion that the IDEA imposed "upon the States any greater substantive educational standard than would be necessary to make such access meaningful." Rowley, 458 U.S. at 192. Instead,
Congress expressly recognized that in many instances the process of providing special education and related services to handicapped children is not guaranteed to produce any particular outcome. Thus, the intent of the Act was more to open the door of public education to handicapped children on appropriate terms than to guarantee any particular level of education once inside.
Id (internal quotation omitted).
Student also mischaracterizes the ALJ's reliance on K.E. ex rel. K.E. v. Indep. Sch. Dist. No. 15, 647 F.3d 795, 810 (8th Cir 2011), as erroneously adopting a standard under which a student's educational progress overshadows any violation of the IDEA. The ALJ did not borrow any inappropriate standard from the Eighth Circuit, but cited K.E. for similar claims of substantive violations as alleged by the Parents in their Due Process Complaint. Moreover, the Eighth Circuit in K.E. applied the same two-step inquiry mandated by Rowley and applied by the ALJ in this case. K.E., 647 F.3d at 804.
Student also objects to the following characterization by the ALJ of the relationship between the IDEA procedural and substantive requirements: "To the extent that the IEPs applicable to the 2009-10 school year were deficient procedurally in other areas, the Parents failed to prove that the Student did not receive at least some educational benefit during the school year." Tr. 76. Student asserts that this finding is contrary to the requirement that a court "first considers a school district's procedural compliance before reaching the IEP's substance." Napa Valley, 496 F.3d at 938 (citation omitted).
Although procedural and substantive violations are distinct, they are interrelated. Once a procedural violation of the IDEA is identified, the court "must determine whether that violation affected the substantive rights of the parent or child." L.M. v. Capistrano Unified Sch. Dist., 556 F.3d 900, 909 (9th Cir 2009) (citations omitted). Unless procedural violations "result in the loss of educational opportunity, or seriously infringe the parents' opportunity to participate in the IEP formulation process, " then then they are harmless and do not result in the denial of a FAPE. Id, citing Target Range, 960 F.2d at 1484.
Student argues the ALJ should have followed the Ninth Circuit's decision in Amanda J. ex rel. Annette J. v. Clark Cnty. Sch. Dist. (" Amanda J." ), 267 F.3d 877, 895 (9th Cir 2001), finding that the district's procedural violation denied the student a FAPE. As the Eighth Circuit did in K.E. and the ALJ did here, the Ninth Circuit in Amanda J. considered the widely accepted circumstances under which a procedural violation denies a FAPE. Id at 892. The denial of a FAPE in Amanda J. resulted from the district withholding reports indicating the student's autism which seriously infringed on her parents' opportunity to participate in the formulation of her IEP. Id at 893. That result does not change the usual analysis of determining when a procedural violation impacts the student's rights. Identifying a lost educational opportunity first requires determining whether the student suffered a substantive educational deficit. By concluding that any remaining procedural violations were harmless because they did not seriously infringe the Parents' rights or deny Student an educational benefit, the ALJ did not err.
B. Preservation of Claims
As another threshold matter, the District argues that several of Student's claims are not properly before this court because they were not raised either in the Due Process Complaint or during the administrative hearing. These claims are: (1) the absence of a regular teacher from the December 2010 IEP; (2) the exclusion of the Parents from drafting and revising the Behavior Protocol in February 2009; (3) the failure to include in the December 2010 IEP team a district representative with the authority to meet Student's needs; (4) Student's removal from the readaloud in the regular education classroom after interrupting his teacher, Cynthia Krieg, during the 2010-11 year; (5) the exclusion of Student's Instructional Assistants ("IA") (Sue Like and Kami Switzer) from the drafting the December 2010 IEP; (6) the predetermination of Student's placement; (7) the unilateral change in Student's placement by frequently sending Student home early from school; and (8) deficiencies in the IEPs causing two students to bully Student.
"The party requesting the due process hearing shall not be allowed to raise issues at the due process hearing that were not raised in the notice filed under subsection (b)(7), unless the other party agrees otherwise." 20 USC § 1415(f)(3)(B). The "notice filed under (b)(7)" is the Due Process Complaint. See 20 USC § 1415(b)(7)(A); OAR 581-015-2360(2).
Neither the IDEA nor the Oregon statute explains the level of agreement necessary to include issues not raised by the Due Process Complaint. Student contends that by failing to object to new issues raised at the hearing, the District consented to them. The District responds that constructive consent does not concede jurisdiction over such claims and points to its lack of agreement before or during the 10 days of hearing to add more issues to Student's challenge.
Neither party cites cases addressing the issue of constructive consent in this context. Student argues that the threshold for reviewing an issue not alleged in the Due Process Complaint is whether the District received notice of the issue during the hearing. Some courts have adopted this approach. See e.g., Coale v. State Dep't of Educ., 162 F Supp2d 316, 333 (D Del 2001) (finding that discussion of the allegedly unpreserved issue at the hearing put the state on notice that it was included in the parents' challenge and preserved the issue). Others have denied preservation of claims without an express agreement. See Snyder ex rel. Snyder v. Montgomery Cnty. Pub. Sch., CIV A DKC XXXX-XXXX, 2009 WL 3246579, at *7 (D Md Sept. 29, 2009). However, Snyder relied on First and Fourth Circuit decisions that refused to review issues not "raised to the hearing officer." See A.K. ex rel. J.K. v. Alexandria City Sch. Bd., 484 F.3d 672, 679 n7 (4th Cir 2007); David D. v. Dartmouth Sch. Comm., 775 F.2d 411, 424 (1st Cir 1985). Those two decisions did not interpret the statutory language as requiring an express agreement or searching for evidence of one in the record. This court is more persuaded by the first approach and concludes that, even if not raised by the Due Process Complaint, Student has preserved any claim of error addressed at the hearing, such as through questioning of witnesses without any objection or showing of prejudice by the District.
Turning next to what claims are preserved, this court notes that, contrary to the District's contention, the Due Process Complaint does raise part of one of the contested claims, namely that the District failed to address the bullying incidents in its placement choice in 2010-11. Tr. 467, ¶ 6(b). Thus, that claim is preserved.
As discussed next, the remaining contested issues, with one exception, were raised at the hearing and, thus, were preserved.
Student argues that the claim regarding the absence of a regular education teacher on the December 2010 IEP team was raised by the Due Process Complaint for two reasons. First, he argues that the allegations regarding the absence of a regular teacher at the January 2009 IEP planning meeting apply equally to the December 2010 IEP meeting. Second, he contends that the general allegation regarding the inadequacy of December 2010 IEP was sufficient notice of this claim. This court disagrees.
The Due Process Complaint is lengthy and contains 188 allegations of substantive violations divided into a number of sections, including two separate sections regarding the January 2009 and December 2010 IEPs. Section B(2) regarding the January 2009 IEP planning meeting specifically alleges that:
(c) No regular education teacher attended the January 8, 2009 IEP meeting.
(d) The January 2009 IEP cover sheet, where the regular education teacher's name should be written as a participant, reads, "not necessary due to [Student's] educational program." * * *
(f) The parents were not asked, and did not sign, permission for the regular education teacher to be excused from the January 8, 2009 IEP meeting.
Those specific allegations are not found in the subsequent section addressing the December 2010 IEP. Despite this omission, Student points to the following allegation regarding the December 2010 IEP to suggest a similar procedural violation: "The Present Levels on the 2010 IEP do not address how the Student's disability affects involvement and progress in the regular education curriculum." Tr. 463, ¶ B(5)(i). This same allegation appears in the December 2009 IEP section of the Due Process Complaint (Tr. 457, ¶ B(2)(ccc)), yet the Parents never argued that the December 2009 IEP was inadequate for this reason. Given the exhaustive nature of the Due Process Complaint, the allegations regarding the December 2010 IEP are insufficient to place the District on notice that it lacked input from a regular education teacher.
Although not sufficiently alleged in the Due Process Complaint, Student did raise this issue at the hearing while questioning John Page, Student's special education teacher. Page Test., Tr. 51-52 (Feb. 27). Moreover, the ALJ addressed this issue by concluding that the absence of Ms. Krieg from the December 2010 IEP team contributed to the denial of a FAPE. Tr. 77. Therefore, Student has preserved this claim of error.
With respect to the issue of writing Student's Behavior Protocol in February 2009 without input from the Parents, Student's attorney specifically asked the Mother whether she was involved in writing or revising it. Mother Test., Tr. 296-98 (Aug. 14). This was sufficient to place the District on notice of the Mother's exclusion.
With respect to the issue of not attending the read-aloud in the Ms. Krieg's classroom after misbehaving, the District's attorney questioned Ms. Krieg on that issue. After a general line of questioning about Student's misbehavior increasing throughout the second half of the 2010-11 school year, he asked specifically:
Q. And after that incident, a decision was made to not have him come to your class?
A. Yeah, yeah.
Q. Did - did you request that he not be brought to your class?
A. No, no.
Q. Okay. Do you know who made that decision?
A. Mr. Page made that decision.
Krieg Test., Tr. 200 (Feb. 27).
On cross-examination, Student's attorney asked Ms. Krieg to refer to Mr. Page's email acknowledging that Student would not be joining the regular education class. See Krieg Test., Tr. 209-10 (Feb. 27). The email stated: "This is obviously unacceptable and we will not send [Student] tomorrow or next week." Student Ex. 37. This questioning placed the District on notice of this issue.
With respect to the exclusion of Ms. Like and Ms. Switzer (the IAs at Boones Ferry) from the drafting of the 2010 IEP, Student's attorney discussed this issue with both Ms. Like and Mr. Switzer at the hearing. Like Test., Tr. 126-28 (Feb. 28); Switzer Test., Tr. 239-41 (Feb. 28).
The Due Process Complaint raises the issue regarding the District predetermining Student's placement, but only for the 2009-10 school year. Tr. 461, ¶ 3b ("The District predetermined the Student's placement on the January 2009 IEP as evidenced by the absence of a regular education teacher at the January 8, 2009 IEP meeting."). The allegations in the Due Process Complaint for the 2010-11 school year do not include the specific predetermination argument. Tr. 457. However, at the hearing, the District questioned the Mother about the fact that the 2010-11 placement was prepared prior to the December 10, 2009 IEP planning meeting. Mother Test., Tr. 26-31 (Aug. 15). Thus, Student has preserved the issue of the District predetermining his placement for both the 2009-10 and 2010-11 school years.
With respect to frequently sending Student home early, witnesses were questioned at the hearing numerous times about the frequency or nature of the Parents picking Student up early from school due to misbehavior.
Only one issue was not properly preserved, namely the District's alleged failure to include in the 2010 IEP team a district representative with the authority to meet Student's needs. Student's citation to the Administrative Record (Tr. 10-11 (Feb. 24)) is inaccurate, and the court cannot find where this issue was otherwise raised during the testimony. Therefore, the court will not consider this claim of error.
C. Evaluation of All Suspected Areas of Disability
Student argues that by overlooking the District's failure to conduct a reevaluation of his behavioral needs, the ALJ erred in concluding that the IEPs evaluated Student in all areas of suspected disability. The IDEA requires reevaluations "if the local educational agency determines that the educational or related service needs, including improved academic achievement and functional performance, of the child warrant a reevaluation" or "if the child's parents or teacher requests a reevaluation." 20 USC § 1414(a)(2)(A). Oregon law requires that reevaluation to be completed within 60 school days "from written parent consent (or from the date the evaluation is initiated under OAR 581-015-2095(3)(c)) to the date of the meeting to consider eligibility, continuing eligibility or the student's educational needs." OAR 581-015-2110(5)(b).
With respect to the 2009-10 school year, the ALJ relied on testimony from Mr. Page, Jennifer Patterson (principal at Boones Ferry) and Ms. Switzer that Student's behavior improved. Tr. 75. Ms. Switzer came to Boones Ferry with Student after instructing him at Stafford Elementary School ("Stafford") and continued as his IA through the 2009-10 school year. Switzer Test., Tr. 245, 257 (Feb. 28). From January to June 2009, Ms. Switzer and Mr. Page observed Student become more social. Id at 251; Page Test., Tr. 417 (Feb. 24). During the 2009-10 school, as Student gradually spent more time in the general education setting, Ms. Switzer observed that the incidents when Student was aggressive or threatening were isolated. Switzer Test., Tr. 257 (Feb. 28). Generally, "things had gotten much better for him behaviorally, " and he was well-behaved for the majority of the time. Page Test., Tr. 258, 416 (Feb. 24). Mr. Page also testified that his staff was able to reduce Student's frustration and threatening behaviors by June 2010. Id at 427 ("The Student has dramatically decreased the amount of threatening behavior throughout the course of the year.").
Student now argues that his misbehavior was pervasive during this period, signaling the District's duty to reevaluate the behavior strategies posed in the January 2009 IEP. He cites a series of isolated outbursts occurring on picture day (September 2009), at a student assembly (December 2009), during PE class (January 2010), during recess (December 2010), and in his Applied Academics ("AA") classroom (January 2010). Citing Scappoose Lake Oswego Pub. Sch Dist. 7J, 109 LRP 31536, Case No. 07-954-021, 12 (SEA Or 2007), Student argues that each event triggered the reevaluation requirement.
Scappoose, however, is distinguishable. In that case, the parents specifically requested that the district evaluate the student for occupational therapy services and assistive technology services. Because the district completed both evaluations within 60 school days, the court found that it had complied with the reevaluation procedures. In contrast here, Student cites no evidence that the Parents made any request for a reevaluation.
Moreover, Student's misbehavior alone did not warrant a reevaluation. The Behavior Protocol, which was written by the IEP team on the same day as the January 2009 IEP meeting and revised on February 3, 2009, established an appropriate response by the District's staff to Student's behavioral outbursts. District Exs. 4-5. One notable incident, which the ALJ referenced as an outlier in Student's record of otherwise improving behavior, was titled the "pig race incident." Tr. 75. Mr. Page testified that the IEP adequately addressed incidents like these because, while memorable, Student was able to regain composure afterwards and finish the school day. Page Test., Tr. 419 (Feb. 24). Based on this evidence, the ALJ did not err by concluding that the District had no duty to reevaluate Student's eligibility for services based on his behavior until the spring of 2011.
D. Provision of a FAPE
With respect to the ALJ's second conclusion of law that the District provided Student a FAPE, Student raises one procedural violation based on the failure to include a regular teacher on the January 2009 IEP team. His remaining claims of error challenge the substance and implementation of the three IEPs operative before March 2011 (January 2009, December 2009, and December 2010).
1. Absence of a Regular Teacher from January 2009 IEP Team
Student argues that the ALJ erred by finding no procedural violation based on the absence of Student's regular education teacher from the January 2009 IEP team. Oregon requires the IEP team to include "[a]t least one regular education teacher of the child, if the child is or may be participating in the regular education environment, consistent with section (4) of this rule." OAR 581-015-2210(1)(c). Section (4) provides as follows:
(4) The regular education teacher of the child must participate as a member of the IEP team, to the extent appropriate, in the development, review, and revision of the child's IEP, including assisting in the determination of:
(a) Supplementary aids and services, program modifications and supports for school personnel that will be ...