E.S. et al v. Conejo Valley Unified School District, No. 2:2017cv02629 - Document 51 (C.D. Cal. 2018)

Court Description: MEMORANDUM DECISION AND ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS' IDEA APPEAL 43 - 44 by Magistrate Judge Suzanne H. Segal: The Court AWARDS Student an increase in the compensatory education services granted by the ALJ. Plai ntiffs' request for reimbursement of $700.00 for the cost of Dr. Ott's services is GRANTED. All of Plaintiffs' remaining claims and requests are DENIED. Plaintiffs may file a Motion for Attorneys' Fees within thirty days of the date of this Order (see order for further details) (hr)

Download PDF

E.S. et al v. Conejo Valley Unified School District 1 Doc. 51 qq 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 E.S., et al., Plaintiffs, 12 13 14 Case No. CV 17-2629 SS MEMORANDUM DECISION AND ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS’ IDEA APPEAL v. CONEJO VALLEY UNIFIED SCHOOL DISTRICT, [Dkt. Nos. 43-44] 15 Defendant. 16 17 18 I. 19 INTRODUCTION 20 21 On April 6, 2017, Plaintiffs E.S. (“Student”), his mother and Ad Litem Staci S. (“Mother”), and father Terry S. 22 Guardian 23 (“Father”) (collectively, “Plaintiffs”) filed a Complaint pursuant 24 to 20 U.S.C. §§ 1400 et seq. for Violation of the Individuals with 25 Disabilities Education Act (“IDEA”) and for Recovery of Reasonable 26 Attorneys’ Fees against Defendant Conejo Valley Unified School 27 District (“Defendant” or “District”). Plaintiffs challenge certain 28 portions of a January 9, 2017 decision (the “Decision”) by an Dockets.Justia.com 1 Administrative Law Judge (“ALJ”) 2 Administrative Hearings (“OAH”). 3 attorneys’ fees and expenses in connection with the underlying 4 administrative proceeding and this action pursuant to 20 U.S.C. 5 § 1415(i)(2)(B). 6 this matter was reassigned to the undersigned Magistrate Judge on 7 September 21, 2017. at the California Office of Plaintiffs also seek to recover (Complaint at 1-2). Upon the parties’ consent, (Dkt. No. 25). 8 9 The parties filed their respective opening briefs on April 10 27, 2018. (“P Br.,” Dkt. No. 43; “D Br.,” Dkt. No. 44). 11 District filed the Administrative Record on May 2, 2018. 12 Dkt. No. 45). 13 May 18, 2018. 14 June 21, 2018, the Court held a hearing. The (“AR,” The parties’ respective Oppositions were filed on (“P Opp.,” Dkt. No. 46; “D Opp.,” Dkt. No. 47). On 15 16 For the reasons stated below and on the record at the hearing, 17 Plaintiffs’ Appeal is GRANTED IN PART and DENIED IN PART. 18 Court reverses the portion of ALJ’s Decision finding that the April 19 2016 IEP offered Student a FAPE despite Defendant’s failure to 20 conduct 21 impediment 22 participation in the IEP process. 23 ALJ’s finding that Student should not be awarded any compensatory 24 education one-on-one aide services. 25 Student an increase in the compensatory education services granted 26 by the ALJ to include an additional: 27 counseling by a credentialed District counselor; seven hours of 28 speech and language therapy from a District speech and language a functional that that behavior assessment failure posed 2 to and the Parents’ The significant meaningful The Court further reverses the Accordingly, the Court AWARDS seven hours of individual 1 pathologist; sixty minutes of behavior intervention services from 2 a District behaviorist; and fifty-two and a half hours of one-on- 3 one 4 $700.00 for the cost of Dr. Ott’s services is also GRANTED. 5 of 6 Plaintiffs may file a Motion for Attorneys’ Fees within thirty days 7 of the date of this Order, as more fully discussed in Part VII.E 8 below. aide services. Plaintiffs’ Plaintiffs’ remaining claims request and for reimbursement requests are of All DENIED. 9 10 II. 11 STATUTORY OVERVIEW 12 13 Under the IDEA, “[a] child is substantively eligible for 14 special education and related services if he is a ‘child with a 15 disability,’ which is statutorily defined, in relevant part, as a 16 child 17 impairment, or specific learning disability and who, by reason 18 thereof, needs special education and related services.” 19 through Hudson v. Pittsburg Unified Sch. Dist., 850 F.3d 996, 1003 20 (9th Cir. 2017) (citing 20 U.S.C. § 1401(3)(A)). 21 if a child has such a disability, he or she does not qualify for 22 special education services if support provided through the regular 23 school 24 Accordingly, as the Ninth Circuit has explained, with a program serious is emotional sufficient.” disturbance, L.J., 850 other health L.J. by & However, “[e]ven F.3d at 25 26 “[t]he IDEA provides federal funds to assist state and 27 local agencies in educating children with disabilities, 28 but conditions such funding on compliance with certain 3 1003. 1 goals and procedures.” 2 Jackson, 4 F.3d 1467, 1469 (9th Cir. 1993). 3 seeks “to ensure that all children with disabilities 4 have 5 education.” 6 defined as an education that is provided at public 7 expense, meets the standards of the state educational 8 agency, and is in conformity with the student’s IEP 9 [individualized available to Ojai Unified Sch. Dist. v. them a free appropriate 20 U.S.C. § 1400(d)(1)(A). education The IDEA program].” public “A FAPE is Baquerizo v. 10 Garden Grove Unified Sch. Dist., 826 F.3d 1179, 1184 11 (9th Cir. 2016) (citing 20 U.S.C. § 1401(9)). 12 request of a parent or agency, a local educational agency 13 must “conduct a full and individual initial evaluation” 14 to determine whether a child has a disability and the 15 child’s educational needs. 16 (C). 17 team 18 representative, teachers, parents, and in some cases, 19 the child, formulates an IEP. [FN4] § 1414(d)(1)(B). 20 The local educational agency must conduct a reevaluation 21 of the child if it “determines that the educational or 22 related 23 achievement and functional performance, of the child 24 warrant 25 requested 26 § 1414(a)(2)(A). 27 20 U.S.C. § 1414(a)(1)(A)– If a child is determined to have a disability, a including services a a local needs, reevaluation,” by the educational including or child’s \\ 28 Upon \\ 4 if improved a agency academic reevaluation parents or is teacher. 1 [FN4] An IEP includes the following: 1) a 2 statement about the child’s level of academic 3 achievement; 4 3) a description of how the child’s progress 5 towards the goals will be measured; and 4) a 6 statement of the special education and other 7 services 8 § 1414(d)(1)(A). 2) to “measurable be annual provided. 20 goals”; U.S.C. 9 10 The IDEA permits parents and school districts to 11 file due process complaints “with respect to any matter 12 relating 13 educational placement of the child, or the provision of 14 a free appropriate public education to such child.” 15 § 1415(b)(6)(A). 16 educational 17 administrative due process hearings. 18 If a party disagrees with the administrative findings 19 and decision, the IDEA allows for judicial review in 20 state 21 § 1415(i)(2)(A). to the identification, or The state educational agency or local agency courts evaluation, hears and due process federal complaints in § 1415(f)(1)(A). district courts. 22 23 Avila v. Spokane Sch. Dist. 81, 852 F.3d 936, 939–40 (9th Cir. 24 2017). 25 26 Parental involvement in the IEP 27 of the IDEA.” 28 1300 (9th Cir. 1992). process “is a central feature Hoeft v. Tucson Unified Sch. Dist., 967 F.2d 1298, As the Ninth Circuit has emphasized: 5 1 Parental participation in the IEP and educational 2 placement process is critical to the organization of the 3 IDEA. 4 inclusion 5 § 300.321(a)(1) 6 (requiring opportunities for parents “to participate in 7 meetings with respect to identification, evaluation and 8 educational 9 Supreme Court has stressed that the IDEA’s structure See 20 U.S.C. § 1414(d)(1)(B)(i) (requiring the of parents on the IEP 20 U.S.C. (same); placement of the team); 34 § child”). C.F.R. 1415(b)(1) Indeed, the 10 relies 11 substantive success of the IDEA in providing quality 12 education to disabled students: upon parental participation to ensure 13 14 [W]e 15 attached to these procedural safeguards cannot 16 be gainsaid. 17 to say that Congress placed every bit as much 18 emphasis 19 giving parents and guardians a large measure 20 of 21 administrative process as it did upon the 22 measurement of the resulting IEP against a 23 substantive 24 congressional 25 participation of concerned parties throughout 26 the development of the IEP . . . demonstrates 27 the 28 compliance think that the importance Congress It seems to us no exaggeration upon compliance participation at every standard. legislative with We emphasis conviction the with stage think that of that upon procedures 6 procedures the the full adequate prescribed the 1 would in most cases assure much if not all of 2 what Congress wished in the way of substantive 3 content in an IEP. 4 5 [Bd. of Educ. v. Rowley, 458 U.S. 176, 205–06 (1982)] 6 (citation omitted). . . . 7 8 Echoing the Supreme Court, we have held that parental 9 participation safeguards are “[a]mong the most important 10 procedural safeguards” in the IDEA and that 11 “[p]rocedural violations that interfere with parental 12 participation in the IEP formulation process undermine 13 the very essence of the IDEA.” [Amanda J. v. Clark Cnty. 14 Sch. Dist., 267 F.3d 877, 882, 892 (9th Cir. 2001)]. 15 have explained that parental participation is key to the 16 operation of the IDEA for two reasons: 17 only represent the best interests of their child in the 18 IEP development process, they also provide information 19 about the child critical to developing a comprehensive 20 IEP and which only they are in a position to know.” 21 at 882. We “Parents not Id. 22 23 Doug C. v. Hawaii Dep’t of Educ., 720 F.3d 1038, 1043–44 (9th Cir. 24 2013). 25 \\ 26 \\ 27 \\ 28 \\ 7 1 III. 2 BACKGROUND FACTS 3 4 Student was born on April 26, 2010, (AR 0002), to a birth 5 mother with schizoaffective 6 bipolar disorder. 7 Father when he was seven weeks old. 8 administrative hearing in November 2016, Student was a six-year- 9 old first grade student in the District. (AR 542). disorder and a birth father with Student was adopted by Mother and (Id.). At the time of the (AR 540, 542; D Br. at 10 2). 11 primary qualifying disability of emotional disturbance and the 12 secondary qualifying disability of other health impairment, i.e., 13 Attention Deficit Hyperactivity Disorder. Student is eligible for special education services under the (AR 436). 14 On 15 February 6, 2015, Mother submitted paperwork to the 16 District to enroll Student in kindergarten beginning in fall 2015. 17 (AR 322-23). 18 currently, and had never been, enrolled in a special education 19 program. Mother stated on the form that Student was not (AR 323). 20 21 On April 26, 2015, Mother completed a health history form in 22 which she stated that Student 23 overactive, did not have problems in getting along with others, 24 and presented problems in discipline that were merely “usual [for 25 a] 5 yr. old.” 26 Student sucked his thumb, was receiving occupational therapy for 27 “low muscle tone,” and suffered from “speech disfluency,” i.e., 28 stuttering or stammering. (AR 324). did not appear restless or Mother did indicate, however, that (Id.). 8 Mother’s representations about 1 Student’s behavior 2 exhibited pervasive behavioral problems in preschool. 3 received behavioral interventions from the time he was two years 4 old and had been assigned a “one-to-one” aide when he was three 5 years old, along with an “adult shadow” for after-school hours. 6 (AR 2555-59). 7 she deliberately omitted negative information because she did not 8 want District employees to “label” Student, did not know for 9 certain how history were inaccurate, as Student had Student had Mother admitted at the administrative hearing that he would act at school in a “more structured 10 environment,” and felt like she “would be putting the cart before 11 the horse if [she] said, you know, he was a wild child or he had 12 some 13 Elementary School as a kindergartener for the 2015-2016 school 14 year. issues.” (AR 2703). Student was assigned to Madroña 15 16 On August 25, 2015, the day before the start of the school 17 year, Mother met with Madroña’s principal, Hallie Chambers. 18 this 19 Student’s behavioral and mental health history, including that “he 20 had been hitting, punching, kicking, pushing.” 21 also told Chambers that Student had been seeing a psychiatrist 22 because it had reached the point in July where Mother and Father 23 “couldn’t control him anymore[.]” 24 Chambers 25 Meiron, and other Madroña staff. 26 the information that Mother had given her, including that Student 27 “exhibits aggressive behaviors (hitting/punching)” and was seeing 28 a psychiatrist, that his birth family had a “history of bipolar meeting, Mother emailed told Student’s Chambers for first about Mother That same day, kindergarten (AR 348). time (AR 2560). (AR 2561). assigned 9 the During teacher, Pam Chambers summarized 1 and other mental health disorders,” 2 behavior had improved in his last year of preschool, he regressed 3 over the summer while at camp. 4 wanted to set up a “student study team” (“SST”) because she thought 5 “it [was] important that we communicate.”1 (Id.). and that while Student’s Chambers stated that she (Id.). 6 7 Student began kindergarten on August 26, 2015. In his first 8 few weeks of school, he performed well academically, but exhibited 9 poor impulse control and poor interpersonal skills, as he would 10 “pok[e] 11 “disruptive.” 12 Meiron testified that it is typical for students in the first few 13 weeks of kindergarten to be “fidgety” and have some attention span 14 and 15 September 9, 2015, Meiron sent Student to the principal’s office 16 for “kicking and punching” other students “during recess and in 17 class.” 18 testified 19 education assessment at that time. 20 \\ 21 \\ and impulse his annoy[]” fellow students was sometimes (AR 2014; see also AR 2005-06, 2013). However, control (AR 470). that problems. (AR and 2007). Nonetheless, on Despite Student’s behavioral issues, Meiron Student did not appear to require a special (AR 2013-14). 22 23 24 25 26 27 28 According to the ALJ, “Student Study Team meetings are held to address whether a pupil should be referred for assessment for special education, evaluated for a section 504 plan, or if other interventions in the general education curriculum are recommended by the team.” (AR 545 n.2); see also L.J., 850 F.3d at 1000 (“The purpose of an SST is to develop interventions for students having trouble in school, either academically or behaviorally.”). The Ninth Circuit has recognized that “[i]n many schools, an SST is the first step in addressing a student’s needs before initiating the IEP process.” Id. 1 10 1 On September 16, 2015, school staff and Student’s Parents held 2 their first of three SST meetings. The parties presented 3 conflicting testimony as to what transpired at the meeting. 4 psychologist Miriam Carmona testified that the team discussed 5 Student’s behavioral issues, including his “[h]itting, kicking and 6 drawing with a marker on another student,” and observed that “he’s 7 distracted and he works slowly” and had poor impulse control. 8 680). 9 not a “red flag” that he might need special education “[b]ecause 10 his behavior did not manifest any very intense or very frequent 11 aggression 12 academically.” 13 did decide to refer Student to a general education school counselor 14 “because although the behaviors were infrequent and although the 15 behaviors were not intense, we wanted to provide [an] additional 16 intervention tool that we have for a child in our system. 17 every child is referred to special ed. 18 him know what -- how he thinks, how he’s wired, whatever, and one 19 of 20 affirmatively stated that during the first SST meeting, the team 21 decided not to refer Student for assessment, (AR 711-12), and that 22 although Mother expressed some concerns about the process “taking 23 a long time,” everyone agreed to that plan. School (AR However, Carmona also testified that Student’s behavior was the at tools that point” (AR 686). we use is and he “was doing well in class However, as Carmona explained, staff Not So we wanted to get to know counseling.” (AR 702). Carmona (AR 724). 24 25 However, Mother testified that she “asked for an IEP” for 26 Student at the September 16, 2015 27 According to Mother, staff resisted because they said “they wanted 28 to take a few months to get to know him . . . to see for themselves 11 SST meeting. (AR 2583). 1 the behavior, to watch him . . . .” 2 testified that Meiron, Student’s teacher, stated during the SST 3 meeting that she thought Student should be assessed, but was 4 “overruled.” 5 statement, noting that “if [she] thought he should be assessed, 6 [she] would have asked for him to be assessed.” 7 week after the first SST meeting, Meiron started Student on a 8 specially designed behavior contract to set up a system of rewards 9 with more achievable behavior goals for him than the “regular 10 (AR 2585). behavior contract.” (AR 2584). Mother further However, Meiron denied making such a (AR 1908). The (AR 1910). 11 12 The second SST meeting was held on October 7, 2015. (AR 330- Staff reported that Student’s behavior was “better in terms 13 31). 14 of physical contact,” but that his “new behavior is spitting in 15 faces” while waiting in line. 16 Student poked another student in the eye earlier that day while in 17 line. 18 education 19 speech therapist and to refer him to a counselor. 20 However, Carmona testified that Student’s behaviors still did not 21 set up a “red flag” that Student might need special education. 22 741). (Id.). (AR 330). Staff also reported that The team decided to place Student in a general social skills/communication group with the school’s (AR 328). (AR 23 A third SST meeting was held on February 8, 2016. 24 (AR 341- 25 42). Meeting minutes reflect that the reason for the meeting was 26 a “Parent request for assessment for special education.” 27 Prior to the third SST meeting, school officials had reported 28 several incidents to Mother. (AR 342). For example, on January 27, 2016, 12 1 Chambers emailed Mother, stating that “I was very stern with 2 [Student] and relayed the message that he is making my school 3 unsafe by hitting, kicking, et cetera.” 4 that upon reading the email, she felt that “finally . . . they’re 5 seeing that his behaviors are dangerous, can be dangerous, and that 6 they’re violent and that they’re aggressive,” as she had been 7 attempting 8 Ms. Chambers.” 9 and Chambers told her that on February 3, 2016, Student was standing 10 in line, and “suddenly out of nowhere . . . punched the little boy 11 behind him in the crotch.” 12 became angry upon learning of this incident because she “had been 13 telling them that there were no triggers and nobody would believe 14 [her].” to communicate (Id.). “from (AR 2606). the day Mother stated [she] met with Similarly, Mother testified that Carmona (AR 2608). Mother stated that she (AR 2609). 15 The February 8, 2016 SST minutes reflect that Student had 16 17 “become increasingly aggressive 18 impulsive and 19 others).” (AR 342). 20 difficulty during unstructured time with his behavior” and had been 21 recently diagnosed by a private psychiatrist hired by Parents, 22 Derrick Ott, with conduct disorder, mood disorder, and disruptive 23 mood dysregulation disorder. 24 to the recent diagnosis and the increase in behaviors in the last 25 two months, the team feels an assessment for special education is 26 warranted.” 27 \\ 28 \\ aggressive at behavior home at and school has demonstrated (hitting/kicking The minutes further note that Student “has (Id.). (Id.). 13 The minutes conclude, “[d]ue 1 Carmona specified that it was the combination of the 2 escalation of behaviors and Dr. Ott’s diagnosis that led to the 3 decision to assess Student. 4 ALJ as to whether there was something specific about the diagnosis 5 from Dr. Ott “that basically convinced you that we better assess 6 this child for special education,” Carmona responded, In response to a question from the 7 8 We have disruptive mood disregulation, mood disorder 9 unspecified and the conduct disorder. itself for Education Code -- Conduct disorder 10 by for example, for 11 emotional disturbance -- is not considered emotional 12 disturbance. 13 disorder but he’s not eligible for special education. 14 But when you have that with emotional components and 15 this is now a combination between behavior and emotional 16 components that was a reason for -- another reason for 17 looking at him for an assessment, yes. So you can have a child with conduct 18 19 (AR 866). Carmona affirmed that the diagnosis of disruptive mood 20 disregulation disorder was “the part that really concerned [her].” 21 (AR 867). 22 February 10, 2016, which she approved and returned a week later, 23 on February 17, 2016. The District provided Mother with an assessment plan on (AR 343). 24 25 Following the third SST meeting, Student began to receive 26 outside behavioral services from 27 Department based on a referral by Carmona to Mother. 28 Additionally, Mother hired a private neuropsychologist, Dr. Mary 14 the Ventura County Health (AR 2609). 1 Large, to conduct a neuropsychological evaluation of Student. (AR 2 300 (invoice reflecting Dr. Large’s services for March and April 3 2016)). 4 5 At the conclusion of the assessment process, the District held 6 an initial IEP meeting with District staff, Student’s Parents, and 7 Dr. Large, who presented her private neuropsychological report. 8 The meeting took place over the course of two days, April 20 and 9 25, 2016. (AR 436-57). Student was deemed eligible for special 10 education services under the primary qualifying disability of 11 “emotional disturbance” and the secondary qualifying disability of 12 “other health impairment.” 13 of special education and related services effective April 26, 2016, 14 including: 15 instruction, 16 (3) 240 minutes monthly of speech and language therapy, (4) 300 17 minutes yearly 18 minutes daily 19 Although Parents requested a full-time one-on-one behaviorist aide 20 from a certified non-public agency, the District denied the request 21 on the ground that it “provides paraprofessionals who are trained 22 and supervised by District behaviorists.” 23 not consent to the IEP at that time. (1) 30 (2) of of (AR 436). minutes 60 weekly minutes weekly behavior intensive The IEP provided five areas of of intervention specialized individual services, individualized counseling, and services. (AR 455). academic (5) 90 (Id.). Parents did 24 25 Also on April 25, 2016, the District provided Parents with a 26 follow-up Assessment Plan, reflecting the District’s intention to 27 evaluate Student’s needs for intensive social emotional services 28 (“ISES”), occupational therapy, and increased aide support beyond 15 1 that offered in the IEP. (AR 461). 2 also proposed that the District conduct a functional behavior 3 analysis (“FBA”). 4 did not check the box affirming her full consent to the plan. 5 (Id.). 6 Parent’s “consent or lack thereof to the proposed assessment plan,” 7 but Parents did not respond. 8 District sent Parents a letter summarizing Student’s educational 9 program to date, and reminding Parents that they still had not (Id.). The follow-up Assessment Plan Mother signed the form that day, but On May 2, 2016, Carmona emailed Mother to follow up on (AR 469). On May 27, 2016, the 10 provided their consent to the follow-up Assessment Plan. 11 letter enclosed an additional copy of the plan. The (AR 468). 12 13 Mother signed and returned the follow-up Assessment Plan just 14 prior to the end of the school year. 15 did not consent to the IEP until August 24, 2016, just before the 16 start of the new school year. 17 continued to attend Madroña Elementary School for first grade and 18 was assigned to the classroom of Karen Tokin. 19 interventions specified in the April IEP were implemented. 20 testified that Student was progressing academically and that his 21 behaviors were “not more severe than anybody else’s in [her] class” 22 (AR 2481) and that on “most days,” Student “was earning more 23 [positive behavior] stickers than [she] could keep up with on the 24 rewarding.” 25 not need “one-on-one aide support” in her classroom because she 26 could “handle it,” and that he did not pose a safety risk in the 27 classroom. (AR 2474). (AR 462). However, Parents (AR 458-60, 555, 2681). Student The behavioral Tokin Tokin further testified that Student did (AR 2523). 28 16 1 Pursuant to the District’s aide assessment report, dated 2 September 8, 2016, Student did not require an increase in aide 3 services beyond the one-to-one adult support during unstructured 4 times provided for in the April 2016 IEP. 5 to the report, with the implementation of Student’s IEP goals, (AR 6 494), Student “was compliant, attentive, involved, and cooperative” 7 in the classroom; during lunch and recess he required intervention 8 “very infrequently” and behaved in a “socially appropriate” manner; 9 and overall “was demonstrating appropriate behaviors” both in and 10 outside the classroom. (AR 494-96). According (AR 495). 11 12 Student also received a Functional Behavioral Assessment in 13 September 2016. School Behavior Interventionist Specialist Megan 14 Henderson drafted the FBA report, which was dated September 20, 15 2016. 16 for a Functional Behavioral Assessment (FBA) by the IEP team in 17 April 2016. 18 the FBA was not initiated until September 2016.” 19 Report concluded that teaching and paraprofessional staff should 20 continue the behavioral strategies they were implementing pursuant 21 to the IEP, but that “due to the low frequency, intensity, and 22 duration of the 23 assessment,” no behavior intervention plan was recommended. (AR 24 492-93). Henderson noted at the outset that Student “was referred Due to a delay in acquiring a signed assessment plan, of behaviors observed during the (AR 487). course The 25 26 Student received a second IEP on October 6, 2016. (AR 509). 27 The IEP explicitly notes that the annual “[g]oals continue from 28 4/20/16 IEP.” (Id.). The October 2016 IEP changed the 60 minutes 17 1 of counseling that Student received per week in the April 2016 IEP 2 from “individual counseling” to “ISES counseling” and included 90 3 minutes per month of social work support. 4 Mother signed the IEP with the following addendum: “I don’t believe 5 this IEP offers or provides a free and appropriate public education 6 to [Student] and I reserve all rights with regard to it. 7 meantime, I hereby request and instruct the District to implement 8 the IEP in full.” 9 from Tokin to (AR 510). Chambers, (D Br. at 18 n.4). In the In an email dated October 16, 2016 Tokin reported that Student was 10 “cooperative and focused on learning,” and although he continued 11 to engage in “attention seeking behaviors,” Tokin controlled the 12 incidents without negative reactions from Student. 13 October 18, 2016, Tokin also reported to Chambers that she heard 14 “the sweetest exchange between [Student] and a girl at his table. 15 They are complimenting each other’s work and sharing crayons, using 16 words like ‘please’ and ‘thank you.’ (AR 524). It is delightful!” On (AR 525). 17 18 IV. 19 THE ALJ’S DECISION 20 21 Plaintiffs filed an administrative due process complaint on 22 March 17, 2016, i.e., after the District had provided Parents with 23 an Assessment Plan on February 10, 2016, but before the April 2016 24 IEP meetings were held. 25 complaint raised the same seven questions for each of two periods, 26 the first from April 26, 2015 (the date Mother returned the health 27 history form omitting information about Student’s behavioral and 28 mental issues) through February 10, 2016 (the date the District (AR 540). 18 As amended, Plaintiffs’ 1 offered Mother an Assessment Plan), and the second from February 2 11, 3 Specifically, Plaintiffs asked the OAH to resolve whether, for each 4 of those two periods, the District denied Student a FAPE by failing 5 to: 2016 through the end of the 2016 extended school 6 7 a. 8 9 Student; b. 10 11 c. Student in all areas of suspected find Student eligible for special education and related services; d. 14 15 assess disability; 12 13 meet its “child find” obligations with respect to offer and provide measurable goals and appropriate present levels of performance in all areas of need; e. offer and provide appropriate placement and 16 services, including appropriate accommodations and 17 modifications, 18 occupational 19 psychotherapy, social skills, and extended school 20 year services; 21 f. offer and speech therapy, provide and language behavioral Parents services, interventions, training addressing 22 Student’s behavioral and emotional difficulties; 23 and 24 25 g. make a “formal, specific” of appropriate public education (“FAPE”)]. 26 27 offer (AR 541-42). 28 19 [a free year. 1 The ALJ heard testimony over the course of seven days in 2 November 2016: 3 1187)); November 8 (private neuropsychologist Dr. Large (AR 1204- 4 1458)); November 9 (re-direct and re-cross of Carmona (AR 1501- 5 1631), 6 (kindergarten teacher Meiron (AR 1872-2117), and school speech 7 pathologist Caitlin Templeman (AR 2120-2181)); November 17 (school 8 behavior intervention specialist and author of September 2016 FBA 9 report Henderson (AR 2209-2314), special education teacher Noelle 10 Jordan (AR 2315-2390), behavioral health clinician Caren Jinich 11 (AR 2391-2425), behavioral health clinician-individual therapist 12 Lorena Rojas (AR 2426-2457), and first grade teacher Tokin (AR 13 2457-2537)); and, finally, November 29 (Mother (AR 2549-2754)). 14 The ALJ broadly summarized her conclusions in the Decision as 15 follows: and November 2-3 (school psychiatrist Carmona (AR 649- principal Chambers (AR 1632-1857)); November 16 17 Mother had informed District of Student’s history of 18 social, emotional and behavioral difficulties when he 19 started kindergarten. 20 Student after Mother first requested he be assessed for 21 special education eligibility at an initial Student 22 Study Team meeting on September 16, 2015. 23 promptly 24 Student Study Team meetings and attempted to address 25 Student’s social, emotional and behavioral deficits with 26 interventions in the general education curriculum over 27 the next four and one-half months. assessing District failed to timely assess Student, 28 20 District held Instead of two more District eventually 10 1 assessed Student, found him eligible for special 2 education and offered him a FAPE in the April 2016 IEP. 3 4 District denied Student a FAPE for four and one-half 5 months due to its delay in assessing Student. 6 Student did not establish that District failed to offer 7 him a FAPE in the April 2016 IEP. 8 when District eventually assessed him, it failed to 9 assess him in all areas of suspected disability by to administer failing 11 assessment to him, even though his negative behavior was 12 his 13 failed to establish that District should have assessed 14 him prior to Mother’s request for an assessment on 15 September 16, 201[5]. 16 compensatory 17 personnel in the area of assessment obligations under 18 the IDEA and functional behavior assessments. suspected education area a Student proved that 10 primary timely However, of functional disability. behavior Student Student is awarded remedies of and training for District 19 20 (AR 542). 21 22 Specifically, the ALJ concluded that District failed to meet 23 its “child find” obligations between September 16, 2015, the date 24 of the first SST Meeting, through April 19, 2016, the day before 25 the first IEP Meeting. 26 the District was not required to assess Student prior to Mother’s 27 request for an assessment on September 16, 2015. 28 ALJ further determined that District failed to assess Student in (AR 563). 21 However, the ALJ determined that (AR 562). The 1 all areas of suspected disability between September 16, 2015 and 2 the end of the 2016 extended school year due to its failure to 3 provide a functional behavior assessment. 4 due to the District’s failure to act on Mother’s request for an 5 assessment at the September 16, 2015 SST meeting, which would have 6 also triggered an IEP deadline four and a half months sooner than 7 the date Student’s IEP was actually provided, the ALJ found that 8 District failed to find Student eligible for special education, 9 provide measureable goals and appropriate levels of performance, 10 provide appropriate placement and services, and make a formal, 11 specific FAPE offer between December 1, 2015, the date when an IEP 12 would have been due had District promptly acted on its duty to 13 assess, and April 19, 2016. (AR 563-64). Finally, (AR 574). 14 15 However, the ALJ also found that the District fulfilled its 16 obligation to offer Student a FAPE as of the April 20, 2016 IEP. 17 (AR 542). 18 should 19 District 20 Student’s behaviors, strategies used at school and consequences” 21 such that parent training was not “necessary to create consistency 22 between strategies used at school and at home.” Finally, with respect to Plaintiffs’ claim that District have provided personnel parent and training, Mother the “frequently ALJ concluded communicated that about (AR 571-72). 23 24 The ALJ’s remedial order required the District to compensate 25 Student for the services he would have otherwise received between 26 December 1, 2015 and April 20, 2016, and to reimburse Plaintiffs 27 for Dr. Large’s services. 28 District to provide “at least two hours of special education (AR 576). 22 The ALJ further ordered the 1 training to the special education administrative, teaching, and 2 other professional personnel . . . in the area of the obligations 3 under the IDEA to refer pupils for assessment for special education 4 in 5 functional 6 “Student failed to establish that Dr. Aucoin’s and Dr. Ott’s 7 services 8 education at the times at issue in this proceeding,” the ALJ 9 determined that “Student is not entitled to reimbursement for out 10 all areas of suspected behavior were disabilities, assessments.” reasonably necessary of pocket costs for their services.”2 and (Id.). for in the However, Student to area of because access his (AR 575). 11 12 V. 13 THE PARTIES’ CONTENTIONS 14 15 Although the Complaint broadly asserts that Plaintiffs are 16 seeking “this Court’s review and reversal of the Decision with 17 respect to those issues in which Plaintiffs did not prevail,” 18 (Complaint ¶ 10), Plaintiffs’ brief does not challenge all of the 19 ALJ’s 20 claims. First, Plaintiffs contend that the District’s “child find” 21 obligations arose when Mother met with Principal Chambers on August 22 25, 2015, the day before kindergarten started, and not, as the ALJ adverse decisions, but focuses instead on four primary 23 2 24 25 26 27 28 Student and Parents participated in family therapy with psychologist Dr. Andrea Aucoin in the summer of 2015, before Student started kindergarten, to address Student’s aggressive behaviors at home. At the September 16, 2015 SST meeting, Parents told the team that Student was seeing Dr. Aucoin, who had opined that Student may have a mental disorder, but that such a disorder was difficult to diagnose due to Student’s young age. (AR 545). Plaintiffs do not seek reimbursement for costs related to Dr. Aucoin in this action. 23 1 found, when Mother requested an IEP at the first SST Meeting on 2 September 16, 2015.3 3 challenge the ALJ’s finding that the April 2016 IEP adequately 4 provided Student a FAPE because the District had not yet assessed 5 Student in all areas of disability by that point. 6 11). 7 administer a functional behavior assessment was a fatal procedural 8 flaw 9 appropriate IEP,” and therefore “constituted a denial of FAPE for 10 the period from April 20, 2016 through the end of the 2016 [school 11 year].” (P Br. at 2, 4-7). Second, Plaintiffs (P Br. at 7- According to Plaintiffs, the District’s failure to timely that “made it impossible to develop a substantively (P Opp. at 5). 12 13 Third, Plaintiffs maintain that, apart from the failure to administer an FBA 15 assessment of Student 16 psychologist’s use of assessment instruments for purposes for which 17 they were not valid and reliable, and her failure to administer an 18 assessment 19 instructions, (P Br. at 11-13); (2) Defendant’s failure to properly 20 assess Student’s emotional difficulties, despite the recognition 21 22 23 24 25 26 27 28 prior instrument to was in the also April inadequate accordance 3 2016 with IEP, Defendant’s 14 due the to: (1) the producer’s Plaintiffs claimed in the administrative proceeding that Defendant’s “child find” obligations were triggered even earlier, on April 26, 2015, when Mother submitted a District Permanent Health History about Student that contained concededly inaccurate information. Plaintiffs appear to have renewed that claim in the instant Complaint. (See, e.g., Complaint ¶ 9). However, in their brief, Plaintiffs explicitly reduced the scope of their original contention and alleged that Defendant’s “child find” obligations arose on August 25, 2015, when Mother met with Chambers before the start of Student’s kindergarten school year, approximately three weeks earlier than the ALJ had found. (See P Br. at 4 n.6 (“Plaintiffs do not contend that the District violated its ‘child find’ duties from April 26, 2015 through August 24, 2015.”)). 24 1 that further evaluation was required, 2 (3) Defendant’s failure to review all existing data in connection 3 with its assessment. 4 that the remedies ordered by the ALJ are inadequate because: 5 (1) the compensatory remedies cover only the four and a half-month 6 period between December 1, 2015 and April 20, 2016, instead of the 7 entire period during which the ALJ determined that District failed 8 to comply with at least some portion of the IDEA; used a “cookie 9 cutter” approach as to the frequency and scope of the compensatory (Id. at 14-15). (id. at 13-14); and Fourth, Plaintiffs contend 10 remedies 11 services at all, (P Br. at 16-18); (2) the compensatory remedies 12 did not incorporate all of Dr. Large’s “uncontradicted testimony 13 regarding appropriate compensatory services,” (id. at 18-23); and 14 (3) the monetary remedies did not include reimbursement in the 15 amount of $700 for the services of Dr. Ott, the psychiatrist who 16 diagnosed Student with ADHD in early February 2016. ordered; and failed to include any behavioral aide (Id. at 23). 17 In addition to the remedies ordered by the ALJ, Plaintiffs 18 19 seek: “(a) compensatory education services as follows: 200-250 20 hours of behavioral intervention services by a behavioral aide, 21 100 hours of intensive social emotional service, 50-70 hours of 22 speech and language services to address social interaction; and 50 23 hours of parent training; these services to be implemented at the 24 time and place of plaintiffs’ choosing; (b) reimbursement in the 25 amount of $700 for Dr. Ott’s services; and (c) attorneys fees as 26 the prevailing parties, pursuant to a subsequently filed motion 27 for attorneys fees.” (Id. at 24). 28 25 1 In opposition, Defendant contends that the ALJ correctly 2 concluded that its “child find” obligations arose, at the earliest, 3 on September 16, 2015, because the District was entitled to a 4 “reasonable time” after the start of the school year to determine 5 whether Student should properly be referred for special education 6 assessment. 7 that the April 2016 IEP was reasonably calculated to provide 8 Student a FAPE, as it incorporated recommendations from both the 9 District’s reports and Dr. Large’s report, (id. at 14-17), and has 10 been proven successful by its implementation during Student’s first 11 grade year. 12 remedies ordered were appropriate, and notes that even though the 13 ALJ determined that Defendant should have conducted a functional 14 behavior assessment earlier, the failure to do so was harmless 15 error because when the assessment was eventually performed, “it 16 resulted in no change to [Student’s] educational program.” 17 at 18). (D Br. at 10-13). (Id. at 17-18). Additionally, Defendant maintains Finally, Defendant states that the (Id. 18 19 VI. 20 STANDARD OF REVIEW 21 An action under the IDEA “is in substance an appeal from an 22 23 administrative determination, not a summary judgment.” 24 Unified Sch. Dist. v. Wartenberg, 59 F.3d 884, 892 (9th Cir. 1995) 25 (noting that IDEA proceedings in federal court “[do] not fit well 26 into any pigeonhole of the Federal Rules of Civil Procedure”). 27 district court must “read the administrative record, consider the 28 new evidence, and make an independent 26 judgment Capistrano based The on a 1 preponderance of evidence . . . giving due weight to the hearing 2 officer’s 3 Unified 4 district court is free to determine independently how much weight 5 to give the administrative findings, the courts are not permitted 6 simply to ignore them.”) (internal quotation marks and brackets 7 omitted); M.C. by & through M.N. v. Antelope Valley Union High Sch. 8 Dist., 858 F.3d 1189, 1195 n.1 (9th Cir. 2017) (“[T]he district 9 judge must actually examine the record to determine whether it determinations.” Sch. Dist., 556 Id.; F.3d see 900, also 908 L.M. (2009) v. Capistrano (“Although the 10 supports the ALJ’s opinion.”). In exercising their power of 11 independent review, “courts must not ‘substitute their own notions 12 of sound educational policy for those of the school authorities 13 which they review.’” 14 811, 817 (9th Cir. 2007) (quoting Rowley, 458 U.S. at 206). Van Duyn v. Baker Sch. Dist. 5J, 502 F.3d 15 16 The Ninth Circuit has more recently addressed the issue of 17 deference to underlying 18 administrative decisions in proceedings as follows: 19 20 In IDEA cases, unlike 21 administrative 22 deferential standard of review. 23 887]. 24 inappropriate.” 25 administrative proceedings. 26 “[T]he fact-intensive nature 27 eligibility determination coupled with considerations of 28 judicial economy render a more action, Nevertheless, Id. we other do not cases reviewing employ a highly [Amanda J., 267 F.3d at complete de novo review “is We give “due weight” to the state 27 Van Duyn, 502 F.3d at 817. of a special education deferential approach IDEA 1 appropriate.” 2 F.3d 1099, 1104 n.4 (9th Cir. 2007). 3 deference to 4 findings. R.B. ex rel. F.B. v. Napa Valley Unified Sch. 5 Dist., 496 F.3d 932, 937 (9th Cir. 2007) (internal 6 quotation marks and citation omitted). Hood v. Encinitas Union Sch. Dist., 486 “thorough and We give particular careful” administrative 7 8 J.G. v. Douglas Cnty. Sch. Dist., 552 F.3d 786, 793 (9th Cir. 9 2008); Wartenberg, 59 F.3d at 892 (where a hearing officer’s 10 report and 11 appropriately exercise its discretion to give the report “quite 12 substantial deference”). 13 findings as ‘thorough and careful’ when the officer participates 14 in the questioning of witnesses and writes a decision ‘contain[ing] 15 a complete factual background as well as a discrete analysis 16 supporting the ultimate conclusions.’” 17 (quoting Park v. Anaheim Union High Sch. Dist., 464 F.3d 1025, 1031 18 (9th Cir. 2006) (per curiam)); see also Cnty. of San Diego v. 19 California Special Educ. Hearing Office, 93 F.3d 1458, 1466–67 (9th 20 Cir. 21 decision 22 impartial consideration of all the evidence and demonstrates his 23 sensitivity to the complexity of the issues presented.’”) (quoting 24 Ojai Unified Sch. Dist., 4 F.3d at 1476). 25 court “must consider the [ALJ’s] findings carefully.” 26 F.3d at 937 (internal quotation marks and citation omitted). 27 \\ 28 \\ is “especially 1996) (“This careful the court may A court will “treat a hearing officer’s circuit ‘substantial thorough,” gives weight’ the when 28 R.B., 496 F.3d at 942 state it hearing ‘evinces his officer’s careful, “[A]t a minimum,” the R.B., 496 “In 1 an action for judicial review of an administrative 2 decision [under the IDEA], the burden of persuasion rests with the 3 party challenging the ALJ’s decision.” 4 Here, the Court finds that the ALJ’s thirty-nine page Decision was 5 thorough and careful. 6 “twenty-page Opinion certainly meets [the careful and thorough] 7 standard in our judgment”). 8 detailed summary of the relevant facts, (AR 542-557), comprehensive 9 discussions AR of the See id. at 908 (finding that the ALJ’s The Decision includes a lengthy, applicable 557-572), L.M., 556 F.3d at 910. and statutory generally and case thoughtful, law, (see 10 generally 11 applications of the law to the facts. 12 as noted, the ALJ’s Decision here warrants substantial deference. (Id.). finely-tuned Accordingly, except 13 14 VII. 15 DISCUSSION 16 17 A. Commencement Of The District’s “Child Find” Obligations 18 19 Plaintiffs contend that the District’s “child find” 20 obligations arose when Mother met with Principal Chambers on August 21 25, 2015, the day before kindergarten started, and not, as the ALJ 22 found, when Mother purportedly first requested an IEP at the first 23 SST Meeting on September 16, 2015. 24 to Plaintiffs, the ALJ’s factual finding is incorrect because 25 Mother requested an IEP when she met with Chambers in August. 26 at 5). 27 expressly request an IEP at that meeting, “the information [Mother] 28 provided to Ms. Chambers at the August 25th meeting was . . . (P Br. at 2, 4-7). According (Id. Plaintiffs further contend that even if Mother did not 29 1 sufficient to trigger the District’s duty to assess.” 2 (Id. at 5). This claim is DENIED. 3 4 The Parties presented conflicting evidence as to the substance 5 of the August 25, 2015 meeting between Mother and Chambers. 6 testified that she had several reasons for arranging to meet with 7 Chambers before school started. 8 reason was to give Chambers “a heads up. 9 become increasingly more challenging and, as I said, more violent, 10 and I felt that she needed to be aware of some of the things that 11 we were going through as well as his history, mostly for the safety 12 of the other children.” 13 in response to a question from the ALJ, that she asked for an IEP 14 at during the meeting. 15 Chambers you wanted an IEP? 16 this meeting? According to Mother, her primary (AR 2552). [Student’s] behavior had Mother also testified, only (See AR 2553) (“[ALJ]: [Mother]: Mother [Mother]: Yes. Did you tell Ms. [ALJ]: You did at Yes, I did.”). 17 18 In contrast, Chambers testified in great detail about what 19 transpired at the meeting, (AR 1646, 1653-60), which she expressly 20 maintained did not include a request for an IEP. 21 Furthermore, Chambers’ account of the meeting was memorialized in 22 a contemporaneous email sent at 6:08 p.m. on August 25, 2015, which 23 Chambers 24 [Student’s] mom.” represented was a (AR 1654). “summary of [her] (AR 1658). discussion That email reads, in relevant part, 25 met with [Mother] with 26 I today 27 incoming kindergartener who is in Pam Meiron’s class. 28 [Student] was adopted and there is a history of bipolar 30 . . . . [Student] is an 1 and other mental health disorders in his family. 2 shared 3 behaviorist, 4 received private speech therapy for disfluency. 5 also received PT for low muscle tone in the past but 6 this 7 behaviors (hitting/punching). 8 behavior improved last year; he had an amazing preschool 9 teacher. that has [Student] had a improved. has “shadow” been at [Student] working his with preschool, exhibits Mom a and He has aggressive Mom reported that his The behaviors did regress during the summer 10 while in camp. [Student] and his parents are seeing a 11 private psych as well (I have her card and she is willing 12 to come to meetings). 13 yet. Mom is going to look for any information or reports 14 that she may have and provide us with copies. 15 very supportive and wants to be kept in the loop. 16 is going to fill out a release form for us to talk to 17 the psych. There is not a diagnosis as of Mom seems She 18 19 Pam, I am happy to sit down and discuss more with you 20 but wanted to give you a heads up on what I learned 21 today. 22 23 I would like to set up an SST for [Student]. 24 that normally we wait for a bit to get to know the 25 students (especially in K) but I think it is important 26 that we communicate. 27 28 (AR 348). 31 I know 1 2 Chambers also affirmatively testified that Mother did not request an IEP during that meeting: 3 4 Q. 5 You don’t recall in this conversation [Student’s] mother asking you for an IEP? 6 A. She did not ask me for an IEP. 7 Q. You recall that she didn’t? 8 A. If she had, then we would have had a timeline and 9 we would have addressed her request. 10 11 (AR 1658). 12 13 Although the ALJ acknowledged that Mother disclosed Student’s 14 behavioral problems to Chambers for the first time on August 25, 15 2015, she concluded that the District’s “Child Find” obligations 16 to propose an assessment did not arise until three weeks later, at 17 the first SST meeting. (AR 562-563). The ALJ explained: 18 19 Mother first informed District of Student’s behavioral 20 difficulties at her meeting with Ms. Chambers on August 21 2[5], 2015. 22 reasonably by immediately alerting the Madroña Study 23 Team members and Ms. Meiron of the information Mother 24 had provided about Student and by setting up a Study 25 Team meeting for September 16, 2015. 26 promptly instructed them to pay attention to Student’s 27 behavior and be ready to discuss him at the Study Team 28 meeting. Student’s first day at Madroña was August 2[6], Ms. Chambers responded to this information 32 Ms. Chambers 1 2015, when he started kindergarten. 2 a few negative behaviors in his first few weeks of 3 kindergarten. 4 reasonable 5 behaviors occurred before it referred Student for an 6 assessment for special education. 7 did 8 obligation 9 September 15, 2015. not However, amount breach to of its District time child Student from to find Student exhibited was entitled elapse to after a these Therefore, District and April duty 26, to 2015 assess through 10 11 (AR 562). 12 13 “Child-find requires school districts to develop a method to 14 identify, locate, and evaluate students with disabilities who are 15 in need of special education services.” 16 High Sch. Dist., 816 F.3d 1216, 1221 (9th Cir. 2016). 17 based on a local educational agency’s failure to meet the ‘child 18 find’ requirement are cognizable under the IDEA.” 19 Sch. Dist. v. Addison, 598 F.3d 1181, 1185 (9th Cir. 2010). 20 Ninth Circuit instructs that a duty to evaluate arises when a 21 disability is deemed “suspected”: Beauchamp v. Anaheim Union “[C]laims Compton Unified 22 23 [A] disability is “suspected,” and therefore must be 24 assessed by a school district, when the district has 25 notice that the child has displayed symptoms of that 26 disability. 27 F.3d 796 (9th Cir. 1996), for example, we held that the 28 “informed suspicions of parents, who may have consulted In Pasatiempo by Pasatiempo v. Aizawa, 103 33 The 1 outside experts,” trigger the requirement to assess, 2 even if the school district disagrees with the parent’s 3 suspicions 4 assessment] of children who have disabilities should be 5 a cooperative and consultative process.” Id. at 802. 6 Once either the school district or the parents suspect 7 disability, we held, a test must be performed so that 8 parents 9 opportunity to children.” Id. 10 can because “receive “[t]he identification notification contest, of, conclusions and [and have regarding the their 11 12 Timothy O. v. Paso Robles Unified Sch. Dist., 822 F.3d 1105, 1119– 13 20 (9th Cir. 2016), cert. denied, 137 S. Ct. 1578 (2017); see also 14 J.K. v. Missoula Cnty. Pub. Sch., 713 F. App’x 666, 667 (9th Cir. 15 2018) (“The duty to evaluate a student arises when disability is 16 ‘suspected,’ or ‘when the district has notice that the child has 17 displayed symptoms of that disability.’”) (quoting Timothy O., 822 18 F.3d at 1119); S.B. v. San Mateo Foster City Sch. Dist., 2017 WL 19 4856868, at *13 (N.D. Cal. April 11, 2017) (“A school district’s 20 child find duty is triggered when it has reason to suspect a child 21 has a disability, and reason to suspect the child may need special 22 education services to address that disability.”) (citing Dep’t of 23 Educ. v. Cari Rae S., 158 F. Supp. 2d 1190, 1194 (D. Haw. 2001)). 24 Whether a school district had reason to suspect that a child might 25 have a disability must be evaluated in light of the information 26 the district knew, or had reason to know, at the relevant time, 27 not “‘exclusively in hindsight.’” 28 F.3d 1141, 1149 (9th Cir. 1999) (quoting Fuhrmann v. East Hanover 34 Adams v. State of Oregon, 195 1 Bd. of Educ., 993 F.2d 1031, 1041 (3d Cir. 1993)). 2 consideration 3 additional data “provide[s] significant insight into the child’s 4 condition, and the reasonableness of the school district’s action, 5 at the earlier date.” 6 652 F.3d 999, 1006 (9th Cir. 2011) (quoting Adams, 195 F.3d at 7 1149). of subsequent events may be However, some permissible if the E.M. v. Pajaro Valley Unified Sch. Dist., 8 9 Plaintiffs summarily contend that the ALJ was factually 10 mistaken in finding that Mother did not request an IEP until 11 September 16, 2015 because Mother allegedly did so during her 12 August 25, 2015 meeting with Chambers. 13 response to the ALJ’s (not her counsel’s) questions that she 14 requested an IEP at the August 25 meeting, the testimony was 15 isolated and unsupported by any factual detail. 16 Chambers testified in great detail about what occurred at the 17 meeting, (AR 1646, 1653-60), and memorialized the substance of the 18 discussion in an email that same day. 19 testified that if Mother had requested an IEP during the meeting, 20 she would have followed the relevant IDEA deadlines. 21 Plaintiffs have not shown by a preponderance of the evidence that 22 Mother expressly requested an IEP at her initial meeting with 23 Chambers on August 25, 2015. While Mother testified in (AR 348). In contrast, Chambers further (AR 1658). 24 25 Defendant’s “child find” liability for the three-week period 26 between August 25 and September 16, 2015 that Plaintiffs have put 27 at issue here therefore turns on whether Mother’s representations 28 during the August 25 meeting triggered, as a matter of law, a duty 35 1 on Defendant’s part to conduct an immediate assessment of Student. 2 Plaintiffs 3 obligations by promptly assembling an SST and scheduling a team 4 meeting 5 assessment. contend for three that Defendant weeks later violated instead of its child initiating a find full The Court disagrees. 6 7 Here, Chambers assembled an SST the very day she met with 8 Mother on August 25. The first SST meeting, scheduled for September 9 16, 2015, reasonably provided Defendant a brief window to observe 10 Student’s 11 potential need for general education interventions or a special 12 education 13 reasonable 14 student, 15 behavioral difficulties in making the transition to a new school, 16 and it does not appear that as of August 25, 2015 anyone at Madroña 17 had ever even seen Student. 18 Chambers’ email, Mother admitted during the meeting that despite 19 his purported history of behavioral problems, Student had not been 20 diagnosed with a disability. 21 have taken Mother’s representations seriously, it must also be 22 remembered that Mother misled Defendant by failing to expressly 23 reveal Student’s behavioral history in the school forms she had 24 submitted earlier that Spring and apparently did not even bring 25 any materials documenting Student’s prior behavior with her to the 26 August 25 meeting. 27 District about Student’s history earlier because she did not know 28 how he would behave in a new school and did not want the District behavior before assessment. because could be making This Student, expected a decision brief as to a window about was five-year-old experience some all Student’s the more kindergarten emotional or Furthermore, as memorialized in (AR 348). While Chambers appears to Mother admitted that she did not tell the 36 1 to prejudge him. (AR 2703). 2 question 3 “informed 4 sufficient to call for an immediate assessment. 5 F.3d whether Therefore, Defendant could reasonably Mother’s suspicions” representations about Student’s reflected potential truly disability Timothy O., 822 at 1119 (quoting Pasatiempo, 103 F.3d at 802). 6 7 The District acted reasonably upon learning of Student’s 8 behavioral problems on August 25, 2015 by assembling an SST and 9 scheduling a meeting in the coming weeks. The Court agrees with 10 the ALJ’s finding that the District’s “Child Find” obligation did 11 not arise until the September 16, 2015 SST meeting. 12 Plaintiffs’ “child find” claim is DENIED. Accordingly, 13 14 15 B. The Impact Of The District’s Failure To Complete A Functional Behavior Assessment On The Validity Of The April 2016 IEP 16 17 According to Plaintiffs, the ALJ correctly found that the 18 failure to complete a Functional Behavior Assessment violated the 19 District’s obligation to “assess Student in all areas of suspected 20 disability” from September 16, 2015, the date of the first SST 21 meeting, through the end of the 2016 school year, and impeded 22 Parents 23 However, contrary to the ALJ, Plaintiffs maintain that this failure 24 constituted 25 necessarily invalidated the April 2016 IEP, without regard to the 26 contents of the IEP or whether it was actually effective. 27 at 2; see also id. at 7-11). As discussed below, the ALJ’s Decision 28 appears to reach competing conclusions as to whether Defendant’s from a meaningfully “fatal participating procedural 37 in violation the of IEP the process. IDEA” that (P Br. 1 failure to conduct an FBA effectively denied Student a FAPE from 2 December 1, 2015 through the end of the 2015-2016 school year. 3 light of this tension, the Court will defer to the ALJ’s explicit 4 finding that “the District’s delay in administering a functional 5 behavior assessment to Student constitute[d] a denial of FAPE for 6 the period from April 20, 2016 through the end of the 2016 extended 7 school year,” and reverses any finding that Defendant offered 8 Student a FAPE in the April 2016 IEP. In (AR 565). 9 10 “Under the IDEA, the school district must conduct a ‘full and 11 individual initial evaluation,’ one which ensures that the child 12 is 13 providing 14 Timothy O., 822 F.3d at 1119 (quoting 20 U.S.C. §§ 1414(a)(1)(A), 15 1414(b)(3)(B)). 16 allows the child’s IEP Team to have a complete picture of the 17 child’s functional, developmental, and academic needs, which in 18 turn allows the team to design an individualized and appropriate 19 educational plan tailored to the needs of the individual child.” 20 Timothy O., 822 F.3d at 1119. assessed in that ‘all areas of suspected child with any special disability,’ education before services.” “[T]his requirement serves a critical purpose: it 21 22 “School districts may deny a child a free appropriate public 23 education by violating either the substantive 24 requirements of the IDEA.” 25 or procedural Sch. Dist., 767 F.3d 842, 852 (9th Cir. 2014)). Id. at 1118 (citing M.M. v. Lafayette 26 27 A school district denies a child a free appropriate 28 public education by violating the IDEA’s substantive 38 1 requirements when it offers a child an IEP that is not 2 reasonably calculated to enable the child to receive 3 educational benefits. J.W. ex rel. J.E.W. v. Fresno 4 Unified Sch. Dist., 626 F.3d 431, 432–33 (9th Cir. 2010). 5 The school district may also, however, deny the child a 6 free appropriate public education by failing to comply 7 with 8 procedures. 9 F.3d 1038, 1043 (9th Cir. 2013). the IDEA’s extensive and carefully drafted See Doug C. v. Hawaii Dep’t of Educ., 720 While some procedural 10 violations can be harmless, procedural violations that 11 substantially interfere with the parents’ opportunity to 12 participate in the IEP formulation process, result in 13 the loss of educational opportunity, or actually cause 14 a deprivation of educational benefits “clearly result in 15 the denial of a [free appropriate public education.]” 16 Amanda J., 267 F.3d at 892. 17 18 Timothy O., 822 F.3d at 1118 (emphasis added). 19 20 A loss of an educational opportunity occurs “when there is a 21 ‘strong 22 alternative placement ‘would have been better considered.’” 23 at 1124 (quoting Doug C., 720 F.3d at 1047). 24 on a claim that a child was denied a free appropriate public 25 education because of a procedural error, the individual need not 26 definitively show that his educational placement would have been 27 different without the error.” 28 (emphasis added). likelihood’ that, but for the procedural error, an Id. However, “to succeed Timothy O., 822 F.3d at 1124 39 1 The ALJ found that as of the September 16, 2015 SST meeting, 2 the District was on notice that “Student’s behavior was a suspected 3 area of his disability.” 4 the “District reasonably should have anticipated that results of a 5 functional behavior assessment might be needed to develop effective 6 behavior strategies for Student. 7 included a functional behavior assessment in the untimely proposed 8 assessment plan District gave to Mother on February 10, 2016.” 9 (Id.). (AR 565). As such, the ALJ explained, Therefore, District should have 10 11 12 The ALJ also addressed the harm that resulted from the failure to administer the assessment: 13 14 If District had included a functional behavior 15 assessment in the battery of assessments it administered 16 to Student in spring 2016, the IEP team would likely 17 have had valuable information about Student’s behavior 18 patterns and antecedents to his aggressive behaviors. 19 The absence of results, findings and recommendations 20 from a functional behavior assessment at the April 2016 21 IEP meeting impeded Parents’ opportunity to participate 22 in the decision making process regarding the provision 23 of FAPE to Student. 24 25 When District eventually 26 behavior assessment to Student in September 2016, Ms. 27 Henderson 28 implement behavioral strategies which were already being concluded that administered staff 40 should a functional continue to 1 used with Student, including reinforcement with “token 2 economy” and redirection. 3 not recommend that Student have a behavior intervention 4 plan because his observed negative behaviors occurred 5 infrequently at school, and were low in intensity and 6 brief in duration. If District had administered a 7 functional assessment 8 District and Parents would have had the results and 9 recommendations from it by the April 2016 IEP meeting. 10 This material information would have assisted Parents in 11 deciding what services 12 order to access his education. 13 failure to administer a functional behavior assessment 14 to Student until September 2016, significantly impeded 15 Parent’s 16 decision making process regarding the provision of FAPE 17 to Student between April 20, 2016 through the end of the 18 2016 extended school year. 19 delay in administering a functional behavior assessment 20 to Student constitutes a denial of FAPE for the period 21 from April 20, 2016 through the end of the 2016 extended 22 school year. behavior [sic] Ms. Henderson’s report did to Student earlier, Student reasonably needed in opportunity to Therefore, District’s participate in the Consequently, District’s 23 24 (AR 565) (emphasis added). 25 26 Despite the ALJ’s explicit finding that the failure to assess 27 Student in all areas of suspected disability constituted a denial 28 of FAPE due to the significant impediment that it posed to Parents’ 41 1 ability to participate in the IEP process, the ALJ elsewhere found 2 that “Student did not establish that District failed to offer him 3 a FAPE in the April 2016 IEP” and in fact affirmatively asserted 4 that Defendant “offered [Student] a FAPE in the April 2016 IEP.” 5 (AR 542). 6 IEP properly found Student eligible for special education and 7 related services, (AR 567); offered and provided measurable goals 8 and appropriate levels of present performance, (AR 569); offered 9 and Specifically, the ALJ determined that the April 2016 provided “placement, services, accommodations and/or 10 modifications that [Student] needed to access his education and 11 receive educational benefit, (AR 571); and constituted a formal, 12 specific offer of a FAPE. 13 to have implicitly found that the April 2016 IEP was substantively 14 sufficient despite any procedural errors. 15 whether 16 undermine what the ALJ otherwise found to be a substantively 17 adequate IEP, and if so, what the proper remedy should be. the procedural (AR 573). violation Accordingly, the ALJ appears was The question, then, is sufficiently serious to 18 19 Plaintiffs argue that the failure to conduct an FBA 20 constituted “such a[n] infringement of parent participation in the 21 IEP process” that “an appropriate IEP definitionally could not be 22 created.” 23 suggest that some procedural errors are structural defects that 24 simply cannot be overcome, an approach that the Ninth Circuit has 25 pointedly rejected in this context: (P Br. at 10). This “definitional” argument seems to 26 27 Not all procedural flaws result in the denial of a FAPE. 28 We have never adopted as precedent the structural defect 42 1 approach discussed by Judge Alarcon in M.L. v. Federal 2 Way 3 (plurality). 4 violation may be harmless, and we must consider whether 5 the 6 educational 7 parental participation. School District, 394 F.3d 634 (9th Our precedent is clear: procedural error either opportunity or Cir. 2005) a procedural resulted in a significantly loss of restricted 8 9 L.M., 556 F.3d at 910 (emphasis added). court had concluded district’s lower 11 limitation on the amount of time that parents’ expert could observe 12 student was a “structural” error that deprived parents of “their 13 right to ‘meaningfully participate in the IEP process.’” 14 Ninth Circuit reversed the district court’s finding as “clearly 15 erroneous” 16 Parents’ 17 procedural violation,” and no evidence in the record appeared to 18 support such a finding. 19 that restrict parental participation in the IEP process are subject 20 to harmless error analysis. right was the court “neglected significantly Id. the school 10 because that In L.M., for example, the to affected Id. consider by the strict The whether District’s Accordingly, even procedural errors Id. at 910-11. 21 22 The cases upon which Plaintiffs rely for the proposition that 23 “an appropriate IEP definitionally [sic] could not be created 24 without the required parental participation” are not entirely 25 controlling here, as the facts are slightly different. 26 10). 27 development of an appropriate, substantively effective IEP. 28 Timothy O., for example, the Ninth Circuit found that the school (P Br. at In those cases, the procedural violation actually foreclosed 43 In 1 district’s complete failure to test an autistic student for autism 2 “deprived his IEP Team of critical evaluative information about 3 his developmental abilities as an autistic child. 4 made it impossible for the IEP Team to consider and recommend 5 appropriate services necessary to address [student’s] unique needs, 6 thus 7 substantially impairing his parents’ ability to fully participate 8 in the collaborative IEP process.” 9 (emphasis added). depriving him of critical educational That deprivation opportunities and Timothy O., 822 F.3d at 1119 10 11 Similarly, in Amanda J., which also concerned an autistic 12 student, the school district wrongfully withheld critical 13 information from student’s parents, thereby depriving them of the 14 opportunity to meaningfully participate in the IEP process. 15 court explained: 16 17 This is a situation where the District had information 18 in its records, which, if disclosed, would have changed 19 the educational approach used for [student], increasing 20 the amount of individualized speech therapy and possibly 21 beginning the D.T.T. program much sooner. 22 particularly troubling violation, where, as here, the 23 parents had no other source of information available to 24 them. 25 failure to act upon early detection of the possibility 26 of autism has seriously impaired [student’s] ability to 27 fully develop the skills to receive education and to 28 fully participate as a member of the community. This is a No one will ever know the extent to which this 44 The 1 Amanda J., 267 F.3d at 893–94; see also N.B. v. Hellgate Elementary 2 Sch. Dist., ex rel. Bd. of Directors, Missoula Cnty., Mont., 541 3 F.3d 1202, 1210 (9th Cir. 2008) (“[W]ithout evaluative information 4 that [student] has autism spectrum disorder, it was not possible 5 for the IEP team to develop a plan reasonably calculated to provide 6 [student] with a meaningful educational benefit throughout the 7 2003–04 school year.”); L.J., 850 F.3d at 1008 (“[T]here is reason 8 to believe that alternative services would have at least been more 9 seriously considered during the IEP process if the School District 10 had assessed [student’s] health . . . . Because his health and the 11 impacts of his medication were never assessed, no matter what 12 assistance [student] received, the School District would remain 13 unable to appropriately address those needs.”).4 14 15 Here, the record suggests that the April 2016 IEP had a 16 positive impact once it was implemented at the start of Student’s 17 18 19 20 21 22 23 24 25 26 27 28 4 The remaining cases cited by Plaintiffs involved IEPs that were developed without any participation at all by the student’s parents or other key persons with knowledge, which is not the case here. See Doug C., 720 F.3d at 1043 (district’s decision to hold IEP meeting without parent even though parent expressed a willingness to participate and merely asked to reschedule constituted denial of FAPE); Shapiro v. Paradise Valley Unified Sch. Dist., 317 F.3d 1072, 1079 (9th Cir. 2003), superseded by statute on other grounds (district’s failure to include student’s parents and a representative of the school for the deaf that student had been attending in IEP meeting resulted in loss of educational opportunity and denial of FAPE); M.L., 394 F.3d at 646 (failure to include regular education teacher on IEP team deprived student of FAPE because “we have no way of determining whether the IEP team would have developed a different program after considering the views of a regular education teacher”); W.G. v. Board of Trustees of Target Range Sch. Dist. No. 23, 960 F.2d 1479, 1484 (9th Cir. 1992), superseded by statute on other grounds (failure to include student’s teacher in IEP and to develop a “complete IEP” denied student a FAPE). 45 1 first grade year, even if Student’s IEP was modified somewhat in 2 his October 2016 IEP.5 3 FBA in the fall of 2016, observed that Student “responded well to 4 directions in the classroom,” (AR 2273), and that his behavior on 5 the playground was “very appropriate. 6 his turn, there was no issue during that outside observation.” 7 2274). 8 incident in which Student was touching a peer or getting in another 9 student’s space, “the peer would tell him to stop or move away and 10 then [Student] would kind of just stop engaging in the behavior 11 and would redirect himself back to what he was supposed to be 12 doing.” 13 behavioral modification motivating rewards for Student for good 14 classroom behavior with the result that Student “was earning more 15 [good behavior] stickers than [she] could keep up with on the 16 rewarding, most days.” 17 Student’s classroom behavior and learning was on par with his 18 peers. 19 academically), 2519 (Tokin had no concerns about her “ability to 20 teach [Student], teach the other children with him in the class, 21 or help him control his behaviors”), 2523 (Student did not require 22 For example, Henderson, who conducted the 24 25 26 27 28 (AR Henderson also noted that the “few times” she saw an (Id.). (See, Tokin, Student’s classroom teacher, implemented e.g., (AR 2474). AR 2495 Otherwise, Tokin testified that (Student tested “middle to top” At the administrative hearing, Plaintiffs’ counsel objected to the introduction of evidence regarding Student’s behavior in the fall of 2016 and to the introduction of the October 6, 2016 IEP on the ground that the “remedies we are requesting have to do with the 2015-16 school year and October 6th, 2016 is not during that year.” (AR 2288). However, the objection was overruled. (AR 2288-89). At the district court hearing, Plaintiffs’ counsel took issue with Defendant’s assertion that Student showed improvement at the beginning of the 2016 school year after the IEP was implemented, noting that Student had three disciplinary referrals in six weeks. (6/21/18 Hrg. Tr. at 21). 5 23 He stayed in line, he took 46 1 one-on-one aide support in Tokin’s classroom and was not a safety 2 risk to himself or others in the classroom). 3 4 Nonetheless, however effective the April 2016 may have been 5 once it was implemented, the ALJ expressly found that the failure 6 to conduct an FBA prior to the April 2016 IEP “significantly impeded 7 Parent’s [sic] opportunity to participate in the decision making 8 process . . . [and their] ability to participate in the IEP 9 process,” and “constitute[d] a denial of FAPE for the period from (AR 565). 10 April 20, 2016 through the end of the school year.” 11 ALJ reasoned that if Defendant had included an FBA in its battery 12 of assessments in the spring of 2016, “the IEP would likely have 13 had valuable information about Student’s behavior patterns and 14 antecedents to his aggressive behaviors.” 15 concluded that this “material information would have assisted 16 Parents in deciding what services Student reasonably needed in 17 order to access his education.” 18 the 19 “constitute[d] a denial of FAPE,” (id.), are extremely difficult 20 to reconcile with the ALJ’s findings elsewhere that “Student did 21 not establish that District failed to offer him a FAPE in the April 22 2016 IEP.” 23 ALJ’s assessment that the delay in conducting an FBA significantly 24 impeded Parents’ ability to participate in the IEP process, the 25 Court finds that Defendant failed to offer a FAPE “for the period 26 from April 20, 2016 through the end of the 2016 [extended school 27 year]” and reverses any finding by the ALJ to the contrary. 28 Opp. at 5). express finding (AR 542). that (Id.). the (Id.). The The ALJ further These findings, including District’s procedural error Accordingly, giving due deference to the (P Because the procedural error “seriously infringe[d] 47 1 on the parents’ opportunity to participate in the IEP formulation 2 process,” as found by the ALJ, the Court concludes that the error 3 was not harmless. 4 this finding is dispositive on the issue of whether Student was 5 offered a FAPE in April 2016, the Court need not address whether 6 the IEP was defective on any other procedural or substantive 7 grounds.6 8 procedural violation that denied a student a FAPE, the court need 9 not address the second [substantive] prong.”). L.J., 850 F.3d at 1003. Furthermore, because Doug C., 720 F.3d at 1043 (“Where a court identifies a 10 11 C. Purported Remedy Errors 12 13 Plaintiffs contend that the remedies ordered by the ALJ are 14 inadequate because (1) the compensatory remedies did not encompass 15 the entire period during which the ALJ found a violation of the 16 IDEA, account for the equities of Student’s deprivation, or order 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiffs maintain that apart from the District’s failure to provide a functional behavior assessment, the District’s assessment of Student was inadequate due to: (1) the psychologist’s use of assessment instruments for purposes for which they were not valid and reliable, and her failure to administer an assessment instrument in accordance with the producer’s instructions, (P Br. at 11-13); (2) District’s failure to properly assess Student’s emotional difficulties, despite the recognition that further evaluation was required, (id. at 13-14); and (3) District’s failure to review all existing data in connection with its assessment. (Id. at 14-15). According to Plaintiffs, the ALJ “inexplicably” failed to take into account these deficiencies when she determined that the April 2016 IEP satisfied the District’s obligations to offer a FAPE. (Id. at 11). However, because the Court’s finding that the failure to conduct a FBA denied Student a FAPE from April 20, 2016 to the end of the extended school year, Plaintiffs’ additional arguments about the substantive inadequacy of the April 2016 IEP are moot. Accordingly, the Court declines to address these contentions. 6 48 1 any behavioral aide services, 2 compensatory 3 “uncontradicted 4 services,” (id. at 18-23); and (3) the monetary remedies did not 5 include reimbursement for Dr. Ott’s services in early February 6 2016. remedies did testimony not (P Br. at incorporate regarding 16-18); all of appropriate (2) the Dr. Large’s compensatory (Id. at 23). 7 8 1. Determination Of Compensatory Remedies 9 10 Plaintiffs claim that the ALJ’s compensatory services award 11 was improperly limited to only four and a half months, even though 12 the ALJ found that the District’s IDEA violations spanned a longer 13 period. 14 frequency of the services that would compensate Student for the 15 District’s 16 frequency of services provided in the IEP. 17 Plaintiffs also complain that the ALJ did not award any aide 18 services to compensate for the deprivation of such services in the 19 2015-2016 school year, even though aide services did not begin 20 until the 2016-2017 school year. Plaintiffs further violations, the contend ALJ that in improperly determining applied (Id. at 17). the the same Finally, (Id. at 17). 21 22 Plaintiffs appear to argue that Student is entitled to 23 compensatory services before December 1, 2015 because the ALJ 24 found, at a minimum, that the District was in violation of its duty 25 to assess Student in all areas of disability during the period 26 between September 16, 2015 and November 30, 2015. 27 disagrees. 28 IDEA obligations during this period, Student was not entitled to The Court Whether or not Defendant failed to satisfy all of its 49 1 placement and services until December 1, 2015. Accordingly, there 2 is no loss of services prior to December 1, 2015 to compensate. 3 Furthermore, because the Court has rejected Plaintiffs’ argument 4 that Defendant’s duty to assess arose on August 25, 2015, the 5 calculation of the period for which compensatory services applies 6 begins on December 1, 2015, as the ALJ found, and not before. 7 8 Plaintiffs also argue that Student is entitled to compensatory 9 services for the period after April 2016 because the IEP did not 10 offer a FAPE due to Defendants’ continuing failure to assess 11 Student in all areas of disability and the significant impediment 12 that failure posed to Parent’s ability to participate in the IEP 13 process. 14 offer a FAPE, the Court shall, in its discretion, consider the 15 period between April 20, 2016 and the end of the extended 2016 16 school year in determining whether additional compensatory services 17 are warranted, as further discussed below. 18 IEP would have offered certain services beginning April 26, 2016 19 had Parents timely accepted it, the Court has found that due to 20 procedural errors, the April 2016 IEP did not offer a FAPE. 21 Accordingly, there was no obligation on Parents’ part to accept 22 the 23 appropriate. IEP The Court agrees. and consideration Because the April 2016 IEP failed to of an Although the April 2016 expanded remedies period is 24 25 Plaintiffs’ contention that the ALJ improperly applied a 26 “cookie cutter” approach in determining the frequency or amount of 27 services required to compensate Student is unsupported. 28 accurate, as Plaintiffs contend, that “[t]here is no obligation to 50 It is 1 provide a day-for-day compensation for time missed. Appropriate 2 relief student 3 appropriately educated within the meaning of the IDEA.” 4 of Student W. v. Puyallup Sch. Dist., No. 3, 31 F.3d 1489, 1497 5 (9th Cir. 1994); see also Reid ex rel. Reid v. District of Columbia, 6 401 F.3d 516, 523 (D.C. Cir. 2005) (rejecting parents’ contention 7 that each hour without a FAPE entitles the student to one hour of 8 compensatory education on the ground that “compensatory education 9 is not a contractual remedy, but an equitable remedy” requiring 10 the exercise of fact-specific discretion) (quoting Parents of 11 Student W., 31 F.3d at 1497). is relief designed to ensure that the Parents As the Reid court explained, 12 13 Some 14 compensatory programs targeted at specific problems or 15 deficiencies. 16 perhaps even exceeding hour-for-hour replacement of time 17 spent without FAPE. 18 that in setting the award, equity may sometimes require 19 consideration of the parties’ conduct, such as when the 20 school 21 respond to a complex problem,” [M.C. v. Cent. Reg’l Sch. 22 Dist., 81 F.3d 389, 397 (3d Cir. 1996)], or when parents’ 23 refusal to accept special education delays the child’s 24 receipt of appropriate services. 25 31 F.3d at 1497. 26 system may require Others may only need short, extended intensive programs, In addition, courts have recognized reasonably “require[s] \\ 27 students \\ 28 51 some time is to Parents of Student W., 1 Reid, 401 F.3d at 524; see also Parents of Student W., 31 F.3d at 2 1497 (“The behavior of Student W.’s parents is also relevant in 3 fashioning equitable relief.”). 4 Parents of Student W. and Reid, the court determined that one-for- 5 one compensation either would (Parents of Student W.) or could 6 (Reid) overcompensate for the time lost. The Court notes that in both 7 8 Even though ALJs (and the courts) are not required to offer 9 compensatory educational services of the same type and frequency 10 as those offered in a subsequent IEP, the cases cited by Plaintiffs 11 do not affirmatively preclude them from doing so, depending on the 12 student’s needs and the equities of the case. 13 discussed 14 contentions of Dr. Large, Plaintiffs have not offered any evidence 15 to support a deviation, either up or down, from the ALJ’s method 16 of calculating compensatory services. Accordingly, Plaintiffs have 17 not shown by a preponderance of the evidence that the ALJ’s 18 compensatory 19 services track the frequency of the services awarded in the IEP. below, except services for award certain was As more fully conclusory, improper simply unsupported because the 20 21 Plaintiffs assert that the ALJ improperly declined to award 22 Student one-on-one aide services on the irrelevant ground that, 23 pursuant to the April 2016 IEP, “Student is already accompanied by 24 an aide during the unstructured parts of his school day.” 25 575).7 (AR According to Plaintiffs, whatever services Student is 26 27 28 7 Pursuant to the April 2016 IEP, Student was receiving 90 minutes per day of “intensive individualized services” on the school campus. (AR 436). 52 1 currently receiving have no bearing on the services he should 2 receive as compensation for the past denial of a FAPE because 3 “[a]ppropriate compensatory education services cannot be replaced 4 by services in a subsequent IEP.” 5 Dist. of Columbia, 786 F.3d 1054 (D.C. Cir. 2015)). 6 though the aide services that Student is receiving now may assist 7 Student from this point forward, they will not compensate him for 8 the harm caused by the deprivation of aide services in the past. (P Br. at 16) (citing Boose v. As such, even 9 10 In Boose, the D.C. Circuit explained that in contrast to 11 education services offered through an IEP, “compensatory education” 12 consists of: 13 14 education services 15 deficiencies in a child’s program. . . . [B]ecause the 16 Supreme Court has held that IEPs need do no more than 17 provide 18 [Rowley, 458 U.S. at 200], an education plan conforming 19 to that standard will speak only to ‘the child's present 20 abilities,’ Reid, 401 F.3d at 523. 21 education, therefore, an IEP ‘carries no guarantee of 22 undoing damage done by prior violations,’ id., and that 23 plan 24 compensatory education. ‘some alone designed educational cannot take to make benefit’ the up for going past forward, Unlike compensatory place of adequate 25 26 Boose, 786 F.3d at 1056; see also Reid, 401 F.3d at 523 (an IEP 27 conforming to a standard that 28 53 looks to the child’s present 1 abilities “carries no guarantee of undoing damage done by prior 2 violations,” which may be “quite severe”). 3 4 While Plaintiffs do not explicitly rely on any Ninth Circuit 5 cases to advance this argument, the Ninth Circuit has in fact cited 6 the D.C. Circuit with approval on this point. 7 C.P. v. Prescott Unified Sch. Dist., 631 F.3d 1117, 1125 (9th Cir. 8 2011). 9 parents’ IDEA action was frivolous because by the time parents 10 initiated suit in district court, “the school district had already 11 taken steps to provide [student] with the programs and staffing 12 they 13 interpreted to mean that no further relief could be granted. 14 The Ninth Circuit reversed, noting that parents had prayed for all 15 relief 16 education as a remedy for the harm a student suffers while denied 17 a FAPE.” Id. The Ninth Circuit explained: “Compensatory education 18 is an equitable remedy that seeks to make up for ‘educational 19 services the child should have received in the first place,’ and 20 ‘aim[s] to place disabled children in the same position they would 21 have occupied but for the school district’s violations of IDEA.’” 22 Id. (quoting Reid, 401 F.3d at 518). 23 noted that “even if the parents were happy with the current IEP, 24 they could reasonably have expected the district court to use its 25 equitable powers to help bring [student] to the point he would have 26 been, had he received a FAPE all along.” Id. at 1126. Accordingly, 27 R.P. strongly suggests that compensatory education services are See R.P. ex rel. In R.P., the underlying district court had concluded that had sought that was from the available, ALJ,” which which 28 54 would the court include erroneously Id. “compensatory The R.P. court specifically 1 distinct from services provided pursuant to a subsequent IEP and 2 serve a different purpose. 3 4 The Court finds Plaintiffs’ contention that some amount of 5 one-on-one aide services should be awarded to compensate Student 6 for services he would have received had he been timely offered a 7 FAPE 8 compensatory education services are not satisfied by the one-on- 9 one aide services provided in Student’s April 2016 IEP because the 10 purpose of compensatory aide services is to bring Student as close 11 to where he would be today if he had not been deprived of such 12 services in the past. 13 an equitable remedy, the Court’s guiding principle must be to 14 fashion an award that will be sufficient to help Student reach the 15 position he would be in now if he had been offered services in the 16 past, but not more. 17 remedies award in Part VII.C.3 below. to be persuasive. The Court further finds that these However, because compensatory education is The Court will address the particulars of its 18 19 2. 20 Dr. Large’s Testimony Regarding Appropriate Compensatory Education Services 21 22 Plaintiffs contend that even though the ALJ found Dr. Large’s 23 testimony very credible and purported to give her assessments of 24 Student “significant weight,” (see AR 550), she improperly failed 25 to 26 testimony 27 remedies to compensate [Student] for the District’s failures.” 28 Br. incorporate at much regarding 22). of the Dr. Large’s appropriate Particularly with 55 “uncontradicted compensatory respect to Dr. opinion education (P Large’s 1 recommendation that Parents receive training, Plaintiffs emphasize 2 that 3 assessment pursuant to the April 25, 2016 follow-up Assessment 4 Plan, the assessor determined that Student “meets the criteria for 5 eligibility for ISES” and recommended that “the IEP consider[] 6 adding ISES which will include individual therapy and social work 7 services.” 8 stated: 9 beneficial as parent[] training and collaborative problem solving 10 and support will increase the chances of high efficacy levels in 11 the 12 structure.” in September 2016, when the District (Id. at 23) (quoting AR 485). “Parental implemental involvement of will therapeutic be completed an ISES The assessor further important techniques and and highly consistent (Id.). 13 Dr. Large recommended, among other things, that Student’s IEP 14 include “four to six hours per week” of home-based 15 should 16 behavioral intervention services incorporating both Mother and 17 Father, (AR 419); respite care “so that [Parents] can have a break 18 from the intensity of [Student’s] behavior,” (AR 420); and a “full- 19 time aide” to provide “one-to-one behavioral support.” 20 Dr. Large 21 services to make up for ground lost by not timely offering an IEP 22 should include 200-250 hours of behavioral intervention services 23 by a behavioral aide, 100 hours of intensive social emotional 24 service, 50-70 hours of speech and language services to address 25 social interaction, and 50 hours of parent training. 26 36). 27 \\ 28 \\ testified that an award 56 of compensatory (Id.). education (AR 1333- 1 In the Decision, the ALJ explained that she was giving “less 2 weight” to Dr. Large’s critiques of Defendant’s assessment of 3 Student’s present levels of performance and its goals for Student 4 in the IEP due to the conclusory nature of the critiques, their 5 lack of alternative proposals, and Dr. Large’s admissions that “she 6 did not have experience developing IEPs” and that “she is not an 7 expert on developing measurable Student goals for an IEP.” (AR 556, 8 ¶¶ 59-60). 9 compensatory remedies: The ALJ then addressed Dr. Large’s proposed 10 11 Dr. Large further opined that the District’s offer of 12 FAPE was inadequate because it should have included: 13 home-based intervention services, parent training and a 14 1-to-1 trained aide for Student throughout the school 15 day. 16 the 17 training she referred to with any specificity. 18 opined that it was essential that school personnel and 19 Parents be consistent with strategies used with Student 20 to 21 recommended Student receive mental health services, but 22 she did not specifically describe those services, or 23 explain 24 materially, or at all and in what way, from the 60 25 minutes 26 individual counseling that District offered Student. 27 Any weight given to Dr. Large’s recommendations was 28 undermined Dr. Large did not describe the nature or extent of home-based extinguish if a intervention his such week by of the services negative mental designated 57 the behaviors. health absence or of She only She services instructional material parent also differed service specificity 1 regarding the nature, and for some recommendations the 2 extent (duration and frequency) of the services she 3 endorsed for Student. 4 full time aide should be only considered for Student. 5 However, she testified at hearing that Student should 6 have a full time aide because he presented a safety risk. 7 This inconsistency also undermined her recommendation 8 that Student needed a full time aide. Also, her report stated that a 9 10 (Id. ¶ 61). 11 12 Additionally, with particular respect to Dr. Large’s 13 contention that Student was entitled to additional parent training 14 or “home-based behavioral interventions,” (see AR 1260), the ALJ 15 noted that: 16 17 Evidence established 18 Mother 19 behaviors, 20 consequences. 21 training was necessary to create consistency between 22 strategies used at school and at home. 23 frequent communication between school and Parents should 24 reasonably suffice to assure that District and Parents 25 consistently 26 behavioral and emotional difficulties. Also, Student 27 offered dealings 28 Student at home was inconsistent with, or in any way frequently no [that] District communicated strategies used personnel about at and Student’s school[,] and Student failed to establish that Parent use strategies evidence proving 58 to The continued address Parents’ Student’s with 1 undermined, the strategies used by District personnel 2 with Student at school. 3 deny Student a FAPE at any time from April 26, 2015 4 through the end of the 2016 extended school year by 5 failing to offer him the designated related service of 6 Parent training addressing his behavioral and emotional 7 difficulties. Therefore, District did not 8 9 (AR 571-72, ¶ 48). 10 11 Accordingly, the ALJ concluded that, based on the eighteen- 12 week period between December 1, 2015 and April 26, 20168 during 13 which Student should have received services had his IEP been timely 14 implemented, Student was entitled to the following compensatory 15 education services: 16 17 18 19 20 21 22 18 hours of individual counseling from a credentialed District counselor; 18 hours of speech and language therapy from a District speech and language pathologist; and 150 minutes of behavior intervention services from a District behaviorist. 23 The ALJ’s eighteen-week calculation does not appear to have differentiated between weeks in which the school was closed for vacation and weeks when school was actually in session. Accordingly, although the ALJ stated in the Decision that the amount of the compensatory services awarded “coordinates to the amount of services offered per week or year in the April 2016 IEP,” for services calculated on a weekly basis, the ALJ’s compensatory award may actually be somewhat generous, as it provided compensation for weeks when school was not in session. 8 24 25 26 27 28 59 1 (AR 575). However, as noted above, the ALJ did not award additional 2 one-on-one aide services as compensatory education on the ground 3 that “Student [was already being] accompanied by an aide during 4 the unstructured parts of his school day.” (Id.). 5 6 The Court has already concluded that some award of one-on-one 7 aide services is warranted as compensatory education. 8 with respect to the remainder of Dr. Large’s recommendations, the 9 Court finds that the ALJ thoughtfully considered the remedies 10 proposed by Dr. Large and gave well-reasoned explanations as to 11 why she did not give them the weight Plaintiffs argue they deserve. 12 Plaintiffs have not shown by a preponderance of the evidence that 13 the 14 because 15 recommendations. 16 concerning Dr. Large’s recommendations, with the exception of the 17 one-on-one aide services, is DENIED. compensatory they services did not awarded by incorporate Accordingly, the ALJ all were of Plaintiffs’ However, inadequate Dr. Large’s remedies claim 18 19 3. Proper Remedies 20 21 An award of compensatory educational services is an equitable 22 remedy that requires the exercise of fact-specific discretion. 23 Reid, 401 F.3d at 523. 24 disabled students “to the point where [they] would have been, had 25 [they] received a FAPE all along.” 26 courts have discretion on how to craft the relief” and, as noted 27 earlier, there is “no The purpose of any award is to help bring obligation 28 60 R.P., 631 F.3d at 1126. to provide a “The day-for-day 1 compensation for time missed.” 2 quotation marks and citation omitted). Park, 464 F.3d at 1033 (internal 3 4 For the reasons stated above, the Court finds that Student is 5 entitled to compensatory education services for an additional seven 6 weeks beyond the period identified by the ALJ, from April 20, 2016 7 through June 9, 2016, the last day of school for elementary school 8 students in the Conejo Valley Unified School District for the 2015- 9 2016 school year. (See AR 319). However, the Court also defers 10 to the ALJ’s well-considered reasons for not giving significant 11 weight to the full range of remedies advanced by Dr. 12 Plaintiffs have not shown that Student is entitled to substantially 13 more hours of remedial education for the services awarded by the 14 ALJ than the amounts awarded by the ALJ. 15 will increase those awards proportionately as follows: 16 17 Large. Accordingly, the Court An additional 7 hours of individual counseling from a 18 credentialed District counselor, for a total award of 19 25 hours, including the ALJ’s award; 20 An additional 7 hours of speech and language therapy 21 from a District speech and language pathologist, for 22 a total award of 25 hours, including the ALJ’s award; 23 and 24 An additional 60 minutes of behavior intervention 25 services from a District behaviorist, for a total 26 award of 210 minutes, including the ALJ’s award. 27 28 61 1 With respect to one-on-one aide services, the Court notes that 2 the April IEP awarded Student “90 minutes daily of intensive 3 instructional services, consisting of 1-to-1 adult support for 4 Student during unstructured times in the school day (both recesses, 5 lunch 6 Accordingly, if Student had been offered an IEP on December 1, 7 2015, as the ALJ determined he should have been, he would have 8 received 450 minutes of one-on-one aide services per week from that 9 point forward for the 25-week period ending on June 9, 2016. 10 However, as a matter of logic, he would not have received one-on- 11 one aide services to assist with lunch and recess for the days when 12 school was not in session. 13 from December 21, 2015 through January 1, 2016 (ten weekdays); the 14 Spring Recess from March 25 through April 1, 2016 (six weekdays); 15 and 16 (1/18/16), Lincoln’s Day (2/12/16), Washington’s Day (2/15/16) and 17 Memorial Day (5/30/18). 18 one-on-one aide services, at most, for a period of approximately 19 twenty-one weeks, for a total of 9,450 minutes, or 157.5 hours. and the priming following before one-day and during recess).” (AR 554-55). This would include the Winter Recess holidays: Martin Luther King Day Accordingly, Student would have received 20 21 Although Plaintiffs summarily argue that the ALJ should have 22 awarded one-on-one aide services as part of a compensatory remedy, 23 (P Br. at 17-18), and Dr. Large testified that somewhere between 24 “200 and 250 hours” of aide services would be a fair compensatory 25 award, (AR 1334), Plaintiffs have not satisfactorily explained why 26 any particular amount of aide services is warranted. 27 Plaintiffs have not shown by a preponderance of the evidence that 28 Student’s behavior deteriorated 62 to such a For example, point over his 1 kindergarten 2 services to reach the position where he would be had he timely 3 received 4 Furthermore, to the extent that Dr. Large recommended that Student 5 be assigned a one-to-one aide to ensure the safety of other 6 students, it is plain that an award of additional aide services 7 now would not make Student’s fellow students in the past any safer. 8 (See AR 1413-14) (Dr. Large’s testimony that she is recommending 9 an aide for Student “[m]ost certainly to ensure the safety of his 10 year such that he services, requires much less even more 157.5 than hours that of aide amount. peers and also to ensure his own safety”). 11 12 The Court is willing to accept that Student may have gained 13 some additional insight into and control over his behavior had he 14 been accorded a one-on-one aide during recess and lunch from 15 December 1, 2015 on. At the same time, considering (1) the multiple 16 purposes for which a one-on-one aide may serve, only some of which 17 pertain to those goals, (2) Plaintiffs’ failure to present evidence 18 of the exact amount of aide services that would promote those 19 purposes, (3) evidence of Student’s progress in controlling his 20 behavior, and (4) the equities of the award, including Plaintiffs’ 21 own responsibility for causing or prolonging the delay in the 22 implementation of an IEP, the Court concludes that an award of 52.5 23 hours of one-on-one aide services, approximately one-third of the 24 amount that Student would have received had his IEP been timely 25 implemented, should roughly compensate Student for losses suffered 26 or gains not achieved due to the lack of aide services in his 27 kindergarten year. 28 63 1 4. Reimbursement For Dr. Ott’s Services 2 3 Dr. Ott, a psychiatrist, assessed Student in February 2016 4 with conduct disorder, 5 dysregulation disorder. 6 at the Third SST meeting on February 10, 2016 and appears to have 7 been a factor in the decision to put forward an Assessment Plan 8 for Student. 9 to reimbursement in the amount of $700.00 for Dr. Ott’s services, 10 which the ALJ denied on the ground that Student had failed to 11 establish that Dr. Ott’s services “were reasonably necessary for 12 Student to access his education at the times at issue in this 13 proceeding.” (AR 866-87). mood disorder, (AR 342). and disruptive mood His assessment was discussed Plaintiffs argue that they are entitled (AR 575). 14 15 Carmona testified that the decision to conduct an assessment 16 in February 2016 was taken based on both the escalation of Student’s 17 behavior and Dr. Ott’s diagnoses, and that it was the diagnosis of 18 disruptive 19 [her].” 20 enough evidence to order an assessment by September 16, 2015 and 21 should have done so, in fact the District did not act on the 22 information it had until it considered Dr. Ott’s diagnoses. 23 District cannot plausibly argue, as it did in the underlying 24 proceedings, that it had no obligation to assess Student until 25 February 2016 and then contend that the information it received in 26 February 2016 was of no import. 27 the ALJ’s decision with respect to Dr. Ott’s services and ORDERS mood disregulation (AR 866). disorder “that really concerned While the ALJ found that the District had The Accordingly, the Court reverses 28 64 1 the District to reimburse Parents in the amount of $700.00 for his 2 fees. 3 4 E. Request For Attorneys’ Fees 5 6 Plaintiffs pray for “attorneys fees as the prevailing parties, 7 pursuant to a subsequently filed motion for attorneys fees.” 8 Br. at 24). (P The Ninth Circuit instructs: 9 10 The IDEA provides that a “court, in its discretion, may 11 award reasonable attorneys’ fees as part of the costs to 12 the parent or guardian of a child or youth with a 13 disability 14 § 1415(i)(3)(B)(i)(I). 15 every issue in order to be a prevailing party. 16 Anaheim Union High Sch. Dist., 464 F.3d 1025, 1035 (9th 17 Cir. 2006). 18 they “succeed [] on any significant issue in litigation 19 which achieves some of the benefit [they] sought in 20 bringing the suit.” 21 (citation omitted). who is a prevailing party.” 20 U.S.C. A parent need not succeed on Park v. Rather, parents are prevailing parties if Id. at 1034 (emphasis in original) 22 23 M.C., 858 F.3d at 1201; see also Meridian Joint Sch. Dist. No. 2 24 v. D.A., 792 F.3d 1054, 1065 (9th Cir. 2015) (“[T]o be a ‘prevailing 25 party,’ 26 litigation which achieves some of the benefit the parties sought 27 in bringing the suit.’”) (quoting Van Duyn, 502 F.3d at 825); Y.Z. 28 ex rel. Arvizu v. Clark Cnty. Sch. Dist., 54 F. Supp. 3d 1171, 1175 a party must ‘succeed[] 65 on any significant issue in 1 (D. Nev. 2014) (“A plaintiff is a ‘prevailing party’ entitled to 2 fees under the IDEA if he (1) brings an action and is provided 3 judicially-sanctioned relief, also referred to as relief with 4 sufficient ‘judicial imprimatur,’ and (2) the relief changes the 5 legal relationship between plaintiff and defendant.”). 6 Circuit has construed the IDEA to justify awarding attorneys’ fees 7 to parents who prevailed at an administrative hearing.” 8 rel. Miller v. San Mateo-Foster City Unified Sch. Dist., 318 F. 9 Supp. 2d 851, 863 (N.D. Cal. 2004) (citing McSomebodies (No. 1) v. 10 Burlingame Elementary Sch. Dist., 897 F.2d 974, 975 (9th Cir. 11 1989)). “The Ninth Miller ex 12 The Court agrees that an award of attorneys’ fees appears 13 14 appropriate here. 15 within thirty days of the date of this Order. 16 address whether an award of attorneys’ fees is warranted for both 17 the underlying administrative proceeding and, separately, for the 18 action in this Court, and shall include a detailed declaration to 19 support any amounts requested, including the information necessary 20 for the Court to evaluate whether the hourly rate and the hours 21 requested are reasonable. 22 within fourteen days of service of the Motion. 23 if 24 Opposition. 25 \\ 26 \\ 27 \\ 28 \\ any, shall be Plaintiffs may file a Motion for Attorneys’ Fees filed The Motion shall The District’s Opposition shall be due within 66 seven days Plaintiffs’ Reply, of service of the 1 VIII. 2 CONCLUSION 3 4 For the reasons stated above and on the record at the hearing, 5 Plaintiffs’ Appeal is GRANTED IN PART and DENIED IN PART. 6 Court reverses the portion of ALJ’s Decision finding that the April 7 2016 IEP offered Student a FAPE despite Defendant’s failure to 8 conduct 9 impediment that failure posed to Parents’ meaningful participation a functional behavior assessment and the The significant 10 in the IEP process. 11 that Student should not be awarded any compensatory education one- 12 on-one aide services. 13 increase in the compensatory education services granted by the ALJ 14 to include an additional: 15 a 16 language therapy from a District speech and language pathologist; 17 sixty minutes of behavior intervention services from a District 18 behaviorist; and fifty-two and a half hours of one-on-one aide 19 services. 20 the cost of Dr. Ott’s services is GRANTED. 21 remaining claims and requests are DENIED. 22 Motion for Attorneys’ Fees within thirty days of the date of this 23 Order, as more fully provided in Part VII.E above. credentialed The Court further reverses the ALJ’s finding Accordingly, the Court AWARDS Student an District seven hours of individual counseling by counselor; seven hours of speech and Plaintiffs’ request for reimbursement of $700.00 for All of Plaintiffs’ Plaintiffs may file a 24 25 DATED: July 27, 2018 /S/ SUZANNE H. SEGAL UNITED STATES MAGISTRATE JUDGE 26 27 28 67

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.