M. S. v. Lake Elisinore Unified School District, No. 5:2013cv01484 - Document 31 (C.D. Cal. 2015)
Court Description: MEMORANDUM AND OPINION by Judge Christina A. Snyder: The Administrative Law Judge's judgment is REVERSED. Defendant Lake Elsinore Unified School District is ORDERED to reimburse Plaintiff M.S., a minor, by and through her Guardian Ad Litem, Peggy Sartin, for all reasonable and necessary costs incurred for Dr. Robin Morris's services as well as for tuition at Beacon School. (Made JS-6. Case Terminated.) (gk)
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M. S. v. Lake Elisinore Unified School District Doc. 31 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 M.S., a minor, by and through her Guardian Ad Litem, PEGGY SARTIN. 18 ) ) ) Plaintiff, ) ) ) vs. ) ) ) LAKE ELSINORE UNIFIED SCHOOL ) DISTRICT, ) ) Defendants. ) ) _________________________________ ) 19 I. 11 12 13 14 15 16 17 20 Case No. 13-CV-01484-CAS (SPx) MEMORANDUM AND ORDER ON APPEAL FROM ADMINISTRATIVE LAW JUDGE’S DECISION INTRODUCTION This case arises under the Individuals with Disabilities Education Act (the 21 “IDEA”), 20 U.S.C. §§ 1400 et seq. On August 26, 2013, plaintiff M.S., a minor, by 22 and through her Guardian Ad Litem, Peggy Sartin (collectively, “Student”), filed suit 23 against defendant Lake Elsinore Unified School District (“District”), seeking reversal of 24 the Administrative Law Judge’s (“ALJ”) May 22, 2013 decision, which found for 25 District on all of Student’s claims. 26 Presently before the Court is Student’s administrative appeal. A hearing was held 27 on January 21, 2015. The parties present the following primary issues for 28 determination: (1) Whether District properly assessed and identified Student’s Dockets.Justia.com 1 suspected disabilities in behavior, anxiety, and sensory integration; (2) Whether District 2 provided services sufficient to allow Student to make academic progress; (3) Whether 3 District violated the IDEA by holding an individualized education plan meeting in the 4 absence of Student’s parents; (4) Whether Student is entitled to reimbursement for 5 services provided by Dr. Robin Morris; and (5) Whether Student is entitled to 6 compensatory education.1 Having carefully considered the parties’ arguments, the 7 Court finds and concludes as follows. 8 II. 9 STATUTORY FRAMEWORK The IDEA grants federal funds to state and local agencies to provide a special 10 education to children with disabilities. 20 U.S.C. § 1412(a); Ojai Unified Sch. Dist. v. 11 Jackson, 4 F.3d 1467, 1469 (9th Cir. 1993). To this end, schools are charged with the 12 responsibility of identifying and assessing all children who are suspected to have 13 disabilities and are in need of special education and related services. 20 U.S.C. § 14 1400(a)(3); 34 C.F.R. § 300.125; Cal. Educ. Code § 56302. 15 16 17 18 19 The purpose of the IDEA is, among other things, to provide all children with disabilities a free appropriate public education [(“FAPE”)] that emphasizes special education and related services designed to meet their unique needs and prepare them for employment and independent living; [] to ensure that the rights of children with disabilities and parents of such children are protected; [] and to assist States, localities, educational services agencies, and Federal agencies to provide for the education of all children with disabilities. 20 21 20 U.S.C. § 1400(d)(1)(A)-(C). This purpose is implemented through the development 22 of an individualized education plan (“IEP”). An IEP is crafted by a team that includes a 23 student’s parents, teachers, and the local educational agency. 20 U.S.C. § 1414(d). The 24 1 25 26 27 28 Student also raised other issues at the administrative hearing, including whether District failed to develop individualized education plan (IEP) goals that were measurable, appropriate, and unambiguous. However, Student failed to address these in her opening brief and at the hearing. As such, the Court does not consider them. See Officers for Justice v. Civil Service Com’n of City and Cnty. of San Francisco, 979 F.2d 721, 726 (9th Cir. 1992) (refusing to address issues not raised in appellant’s opening brief). 2 1 IEP contains the student’s present level of performance, annual goals, short and long 2 term objectives, specific services to be provided, the extent to which the student may 3 participate in regular educational programs, and criteria for measuring the student’s 4 progress. Id. The IDEA requires that educators also guarantee certain procedural safeguards to 5 6 children and their parents, including: notification of any changes in identification, 7 education and placement of the student; parental presence at the IEP meeting; and a 8 mechanism for parents to bring complaints about issues relating to the student’s 9 education and placement, which may result in a mediation or a due process hearing 10 conducted by a local or state educational agency hearing officer. 20 U.S.C. § 1415(b)- 11 (i). 12 A party may bring a civil action in state or federal court in the event that it is 13 dissatisfied with the decision of an agency hearing officer. 20 U.S.C. § 1415(i)(2). 14 “The burden of proof in the district court rest[s] with . . . the party challenging the 15 administrative decision.” Hood v. Encinitas Union Sch. Dist., 486 F.3d 1099, 1104 (9th 16 Cir. 2007). The court, in considering a request for review of a hearing officer’s 17 decision, must base its decision on the preponderance of the evidence, and grant such 18 relief as the court determines is appropriate. Id. 19 III. 20 FACTUAL BACKGROUND The decision below contains detailed and thorough factual findings. See AR 21 351-378. The Court concludes that the factual findings in the decision below are 22 accurate, and adopts them as they are set out. Additionally, since the factual findings 23 encompass matters no longer pursued in this appeal, and to provide context for the 24 Court’s decision, the Court summarizes the relevant facts. 25 Student is a thirteen-year old girl with autism. As a result of her disability, she 26 suffers from deficits in communication, sensory integration, cognitive development, 27 academic functioning, social interaction, anxiety, focus, attention, and behavior. From 28 January 2011 through about June 2012, Student attended Cottonwood Elementary 3 1 School within the District, where she was placed in an alternative education program 2 pursuant to a settlement agreement between Student and District covering claims arising 3 before 2011. As part of the program, Student was placed in a small class with other 4 special education students, a special education teacher, and a one-to-one support aide 5 provided by the Center for Autism and Related Disorders (“CARD”). Between June 8, 2010 and August 12, 2010, Dr. Robert Patterson conducted a 6 7 psychoeducational independent educational evaluation (“IEE”) of Student at District’s 8 expense. He observed that Student exhibited significant autism-related behaviors, 9 including sitting on the toilet with her pants on, dunking herself in toilet water, pulling 10 out her eyelashes, punching herself, and other impulse control issues. As Allison 11 Mativa, Student’s teacher, also noted, many of Student’s behaviors were cyclical in that 12 they would disappear for a time and reoccur later. In the meantime, when one behavior 13 disappeared, another took its place. This pattern continued beyond Dr. Patterson’s 2010 14 IEE and throughout Student’s time at Cottonwood. In April 2011, also pursuant to the settlement agreement, District referred Student 15 16 to Gallagher Pediatric Therapy (“Gallagher”) for an occupational therapy evaluation. 17 Gallagher administered several tests, including the Bruininks-Oseretsky Test of Motor 18 Proficiency, Second Edition. Gallagher also provided Student’s parents (“Parents”) and 19 teacher with a Sensory Profile questionnaire designed to measure Student’s sensory 20 processing abilities. The version of the questionnaire completed by Parents indicated 21 that Student exhibited a score of “definite difference” from the norm, while the version 22 completed by Student’s teacher found that Student exhibited a score of “typical 23 performance.” 24 Finally, in May 2011, District paid for an IEE in speech and language with Lynda 25 Detweiler-Newcomb. Detweiler-Newcomb administered several formal tests, observed 26 Student, interviewed Parents, and reviewed records related to Student’s disabilities. In 27 her report, Detweiler-Newcomb concluded that while Student’s hearing was within 28 /// 4 1 normal limits, she was deficient in sound production development, receptive language 2 skills, vocabulary, and verbal and written language skills. 3 A. The May 9, 2011 IEP and September 19, 2011 Addendum 4 On May 9, 2011, the parties held an annual IEP meeting. All statutorily required 5 persons attended, as well as a CARD supervisor, an occupational therapist, and a speech 6 and language pathologist. At the meeting, it was determined that Student met two goals 7 from her 2010 IEP, partially met eleven, and failed to meet eight. The eight goals 8 Student did not meet were in academic areas such as writing, math, and reading. While 9 the IEP team amended certain goals for 2011, it adopted others verbatim from the 2010 10 IEP. Parents objected to the IEP on the grounds that merely carrying over some goals 11 was improper and, in any event, the goals were premised on overstated present levels of 12 performance. As to Student’s behavior, Mativa indicated that in her opinion, Student “appeared 13 14 to enjoy attending school and interacting with her peers. She has transition[ed] very 15 well into the new classroom placement.” Although Student sometimes exhibited certain 16 maladaptive behaviors, Mativa and other teachers classified such behavior as merely 17 attention-seeking. Parents, however, disagreed. They contended that Cottonwood’s alternative 18 19 program was too difficult for Student academically and that her classmates’ behavior 20 was impeding Student’s education. Specifically, Parents argued that Student imitated 21 the yelling of obscenities as well as other violent behavior exhibited by her peers. 22 According to Parents, Student had become more aggressive at home and with tutors, 23 sometimes attacking strangers in public. Student had also begun ripping off her toenails 24 and fingernails. Consequently, Parents requested that Student be placed at the Beacon 25 School (“Beacon”), a small, non-public school that specializes in educating autistic 26 children. District formally denied the request on July 14, 2011, stating that it believed 27 Cottonwood was appropriate for Student. 28 /// 5 1 On September 19, 2011, the IEP team met again to discuss Parents’ request for 2 placement at Beacon, as well as CARD behavior goals that were not introduced at the 3 original IEP meeting in May. Parents consented to inclusion of the CARD goals. 4 However, Parents reiterated that Student’s behavior had progressively worsened since 5 beginning the Cottonwood alternative program in January: Student had pulled out all of 6 her eyelashes, had created a one-inch bald spot on her scalp from pulling out her own 7 hair, manipulated her fingers, and violently scratched, pinched, and grabbed people’s 8 necks. On October 3, 2011, District again denied Parents’ request for placement at 9 Beacon. 10 B. 11 On May 8, 2012, the IEP team met to discuss goals for the 2012-2013 school The May 8, 2012 IEP 12 year. Of the eleven reported goals from 2011, Student had met six, partially met four, 13 and failed to meet one. Student’s teachers and CARD aides indicated that they believed 14 Student had progressed academically and behaviorally from the last IEP. They claimed 15 that Student was working at a second grade level and required minimal prompting in 16 completing tasks. Parents disagreed, arguing that Student often communicated in only 17 one or two words, and could not even write a sentence without major prompting. 18 Parents further noted that Student exhibited significant echolalia and perseveration,2 and 19 had developed other troubling behavior such as swiping objects off tables, then 20 breaking the objects and screaming. Student’s CARD aide agreed that in May 2012, 21 Student was forming new, inappropriate behaviors, the frequency of which was 22 increasing. 23 The IEP team created nineteen goals for the 2012-2013 school year. Parents 24 again objected to all goals, save for those proposed by CARD, on the grounds that the 25 goals were premised on overstated present levels of performance. Also, since Student 26 27 28 2 Perseveration is the inappropriate repetition of behavior or speech; echolalia is the inappropriate and automatic repetition of another person’s words and sounds. 6 1 would be entering middle school and thus could not remain at Cottonwood, the District 2 made a formal offer of placement in the alternative program at Canyon Lake Middle 3 School (“Canyon Lake”), another school within the District. Although the Canyon 4 Lake program was non-existent at the time of the offer, District officials designed it to 5 function as merely an extension of the Cottonwood program. 6 C. The July 31, 2012 IEP Addendum 7 On June 12, 2012, Parents provided District with notice that they intended to 8 enroll Student in Beacon and expected District to cover the costs. On June 20, 2012, 9 District requested an IEP addendum meeting to discuss the unilateral placement; it 10 proposed three dates from which Parents could choose. On July 9, 2012, Parents 11 responded that none of the proffered dates were acceptable, and they expressly withheld 12 their consent to holding an IEP meeting without their presence. On July 12, 2012, 13 District replied by noting that a meeting was mandatory and, absent a suggestion from 14 Parents as to a day and time, it would be held in their absence on July 20, 2012. Parents 15 did not respond, and District made no further effort to contact them. The meeting 16 ultimately took place on July 31, 2012. District did not communicate to Parents the fact 17 that the date was changed from July 20, 2012. Needless to say, Parents were not 18 present at the July 31 addendum meeting. 19 At the addendum meeting, the IEP team determined that Student’s aggressive 20 behaviors were increasing, and that the behavioral approaches included in the May 8, 21 2012 IEP were ineffective. District recommended a Functional Analysis Assessment by 22 someone other than CARD, after which the IEP team would meet to discuss additional 23 behavioral supports. District sent Parents a copy of the IEP Addendum, to which 24 Parents did not respond. 25 D. Dr. Robin Morris’s IEE 26 Parents sought an independent assessment from Dr. Robin Morris in May 2012. 27 Dr. Morris holds a master’s degree in clinical psychology, a doctorate in psychology, 28 and a graduate academic certification in applied behavior analysis (G.A.C.T.A.B.A.). 7 1 She works primarily with children with autism, and provides individual therapy and 2 neurological and psychological assessments. 3 As part of her IEE, Dr. Morris interviewed Student’s teachers and CARD aide, 4 reviewed Dr. Patterson’s evaluation and Student’s 2012 IEP, and observed Student at 5 school and in her office. Dr. Morris concluded that Student was suffering from high 6 levels of stress and anxiety, and that Student’s behaviors were presenting larger safety 7 issues than they had before. For instance, Student had begun choking herself by putting 8 large objects in her mouth, grinding her teeth furiously, and tensing her body to the 9 point of trembling. Dr. Morris also noted that Student was significantly more 10 aggressive. In particular, during Dr. Morris’s assessment, Student flipped an entire 11 table on Dr. Morris, knocking Dr. Morris to the floor. Student also tore her own shirt 12 off within minutes of beginning the assessment, such that she was entirely naked on her 13 upper body. Academically, Dr. Morris found lack of progress in some areas and made a 14 series of recommendations related thereto. 15 Furthermore, Dr. Morris seconded Parents’ arguments that the IEP was 16 inadequate. She challenged the present levels of performance on which the IEP goals 17 were based, and suggested more goals dealing with social interaction, self-direction, and 18 integrated play. She also expressed her belief that Student’s behaviors have multi- 19 faceted antecedents, and are not just attention-seeking, as CARD and Student’s teachers 20 had determined. 21 E. 22 After District offered Student a placement at Canyon Lake for middle school, Canyon Lakes and Beacon 23 Parents and Dr. Morris toured the campus. As discussed above, at the time of the 24 District’s offer during the May 2012 IEP meeting, and at the time of the tour, Canyon 25 Lakes’s alternative program was in its design phase. No classroom had been set up, and 26 no teacher had been hired. However, District officials involved in the creation of the 27 program stressed that it was to be merely an extension of the Cottonwood program, and 28 8 1 Parents do not dispute that this is how the Canyon Lake program was ultimately 2 implemented. Beacon, on the other hand, is an award-winning school in La Palma, California 3 4 serving autistic children and young adults through age twenty-two. The school retains a 5 psychologist, behavior analyst, and neuropsychologist on staff. All aides are trained 6 behavior interventionists, and all teachers have special education credentials. 7 IV. 8 9 ADMINISTRATIVE PROCEEDINGS On August 14, 2012, Student initiated a due process hearing before the Office of Administrative Hearings (“OAH”). She alleged that District failed to provide her with a 10 FAPE from January 25, 2011 through December 13, 2012, in violation of the IDEA. 11 The specific issues before the ALJ were as follows: 12 1. Did the District fail to provide Student a FAPE by failing to identify all 13 areas of disability or suspected disability between January 25, 2011 and 14 December 13, 2012? 15 2. Did the District fail to develop IEP goals for Student between January 25, 16 2011 and December 13, 2012, which were not vague, measurable, and 17 appropriate for Student? 18 3. Did the District fail to offer Student a FAPE during but not limited to the 19 2012-2013 school year, including the 2012 extended school year (ESY), by 20 failing to offer Student an appropriate combination of direct instructional 21 services and classroom setting? 22 4. 2011 and December 2012? 23 24 5. Is Student entitled to reimbursement for an IEE provided by Dr. Morris as well as her subsequent observations? 25 26 Did the District fail to offer appropriate ESY services between January 25, 6. Is Student entitled to compensatory education as a result of the District’s 27 failure to provide Student with appropriate services for the period of 28 January 25, 2011 through December 13, 2012? 9 A hearing was held on February 19-21, 27-28, and March 4-5, 2013. On May 22, 1 2 2013, the ALJ issued her decision in favor of District on all issues. Specifically, the 3 ALJ found that Dr. Patterson’s initial assessment in 2010 sufficed to identify all areas of 4 suspected disability, that District provided appropriate services as evidenced by 5 Student’s progression academically and behaviorally, and, as such, Student is not 6 entitled to a reimbursement for either Dr. Morris’s IEE or Beacon tuition. 7 V. 8 STANDARD OF REVIEW The standard of review applicable to IDEA administrative proceedings is 9 established by the statute itself. The IDEA provides that in evaluating an administrative 10 decision, the Court: “(i) shall receive the records of the administrative proceedings; (ii) 11 shall hear additional evidence at the request of a party; and (iii) basing its decision on 12 the preponderance of the evidence, shall grant such relief as the court determines is 13 appropriate.” 20 U.S.C. § 1415(i)(2)(C); see Ojai, 4 F.3d at 1471-72 (9th Cir. 1993). 14 The Court reviews de novo the appropriateness of a special education placement 15 under the IDEA. Seattle Sch. Dist. No. 1 v. B.S., 82 F.3d 1493, 1499 (9th Cir. 1996); 16 Livingston Sch. Dist. Nos. 4 & 1 v. Keenan, 82 F.3d 912, 915 (9th Cir. 1996). Despite 17 the de novo standard of review, however, the Court is required to give due weight to the 18 hearing officer’s administrative findings and appropriate deference to the policy 19 decisions of school administrators. The Ninth Circuit has articulated the deference to be 20 given to the administrative findings as follows: 21 22 23 24 25 26 The court reviews de novo the appropriateness of a special education placement under the IDEA. Nevertheless, when reviewing state administrative decisions, courts must give due weight to judgments of education policy. Therefore, the IDEA does not empower courts to substitute their own notions of sound educational policy for those of the school authorities which they review. Rather, the court in recognition of the expertise of the administrative agency, must consider the findings carefully and endeavor to respond to the hearing officer’s resolution of each material issue. After such consideration, the court is free to accept or reject the findings in part or in whole. Despite their discretion to reject the administrative findings after carefully considering them, however, courts are not permitted simply to ignore the administrative findings. 27 Cnty. of San Diego v. California Special Educ. Hearing Office, 93 F.3d 1458, 1466 (9th 28 Cir. 1996) (internal citations and quotations omitted); see also Board of Educ. of the 10 1 Hendrick Hudson Cent. Sch. Dist., Westchester Cnty. v. Rowley, 458 U.S. 176, 206 2 (1982). A court may, in its discretion, choose to accord greater deference to a hearing 3 officer’s findings when those findings are thorough and careful. Capistrano Unified 4 Sch. Dist. v. Wartenberg, 59 F.3d 884, 891 (9th Cir. 1995). A court may “treat a 5 hearing officer’s findings as thorough and careful when the officer participates in the 6 questioning of witnesses and writes a decision containing a complete factual 7 background as well as a discrete analysis supporting the ultimate conclusions.” R.B. v. 8 Nappa Valley Unified Sch. Dist., 496 F.3d 932, 942 (9th Cir. 2007); Park v. Anaheim 9 Unified High Sch. Dist., 464 F.3d 1025, 1031 (9th Cir. 2006). Nonetheless, “at bottom, 10 the court itself is free to determine independently how much weight to give the 11 administrative findings in light of the enumerated factors.” Cnty. of San Diego, 93 F.3d 12 at 1466. In this case, the administrative hearing lasted eight days and the ALJ’s fifty-five 13 14 page decision contains a detailed factual analysis. Moreover, the ALJ’s pertinent 15 factual findings are not disputed. Therefore, the Court will give the ALJ’s factual 16 findings deference and review the legal conclusions de novo. Id. 17 VI. DISCUSSION 18 A. 19 In conducting an evaluation of a student with a suspected disability, the IDEA 20 Whether District Properly Assessed Student in All Areas of Disability provides that the District shall: (A) use a variety of assessment tools and strategies to gather relevant functional, developmental, and academic information, including information provided by the parent . . . 21 22 23 *** 24 25 (B) not use any single measure or assessment as the sole criterion . . . for determining an appropriate educational program for the child. 26 20 U.S.C. § 1414(b)(2)(A)-(B); see also Cal. Educ. Code § 56320 (providing that “no 27 single measure or assessment is used as the sole criterion for determining an appropriate 28 /// 11 1 educational program for the pupil.”); Jack B. v. Council Rock Sch. Dist., 2008 WL 2 4489793, at *8 (E.D. Pa. Oct. 3, 2008). 3 In a one-paragraph analysis, the ALJ dismissed Student’s contention that District 4 failed to assess and/or identify all of Student’s disabilities, noting that Dr. Patterson’s 5 assessment properly focused on all areas of suspected disability, including behavior, 6 anxiety, and sensory integration. District’s contentions closely follow the ALJ’s 7 analysis. District argues that in addition to Dr. Patterson’s assessment in 2010, CARD 8 evaluated Student’s behaviors on an ongoing basis, and a behavior intervention plan 9 was in place to address them. As to anxiety, District claims it continually reassessed 10 Student’s needs by providing access to sensory tools, regular breaks, and a support aide, 11 among other things. Finally, District contends that it assessed Student in sensory 12 integration through Gallagher and the accompanying Sensory Profile questionnaire. 13 Student does not contend that Dr. Patterson’s initial assessment insufficiently 14 addressed and identified Student’s areas of disability at the time of the assessment in 15 August 2010. Nevertheless, the question remains whether District was required to 16 reassess Student during the period at issue in light of new and worsening behaviors. 17 Typically, District must reassess Student at least once every three years, but no more 18 than once per year absent an agreement by Parents and District to the contrary. 20 19 U.S.C. § 1414(a)(2)(B); J.W. ex rel. J.E.W. v. Fresno Unified Sch. Dist., 611 F. Supp. 20 2d 1097, 1111 (E.D. Cal. 2009) aff’d, 626 F.3d 431 (9th Cir. 2010). A reevaluation 21 occurs “if the local educational agency determines that the educational or related service 22 needs, including improved academic achievement and functional performance, of the 23 child warrant a reevaluation . . . or if the child’s parents or teacher requests a 24 reevaluation.” 20 U.S.C. § 1414(a)(2)(A); Cal. Educ. Code § 56381(a). 25 26 1. Behavior Dr. Patterson’s assessment, which included behavior, was reported in August 27 2010. Thus, District was required to reassess Student’s behavior no later than August 28 2013, but could have conducted a reassessment as early as August 2011, if Parents so 12 1 requested. 20 U.S.C. § 1414(a)(2)(A)-(B); Cal. Educ. Code § 56381(a). Parents made 2 such a request on numerous occasions, including at the September 2011 IEP addendum 3 meeting. District argues that CARD’s support services functioned as a continual and 4 daily informal assessment, and thus, District assessed Student’s behavior within the 5 statutory time frame. CARD’s purported assessment was based on Michelle Martinez’s 6 (“Martinez”) observations as Student’s in-class aide, as well as data she collected on the 7 frequency of Student’s maladaptive behavior. No formal tests were administered. 8 9 The Court finds that District did not assess Student’s behavior within the meaning of the IDEA. First, District itself acknowledges that its “last assessments were 10 completed in 2010.” Opp’n at 24. Second, data collected through observation and 11 observation itself are essentially one and the same, and do not suffice to meet the 12 statutory requirement that District use “a variety of assessment tools and strategies.” 13 20 U.S.C. 1414(b)(2)(A) (emphasis added); W.H. ex rel. B.H. v. Clovis Unified Sch. 14 Dist., 2009 WL 1605356, at *18 (E.D. Cal. June 8, 2009) (suggesting that more than 15 mere observation is required for an assessment); Jack B., 2008 WL 4489793, at *8 16 (finding an assessment that used at least three different formal instruments adequate). 17 Third, Martinez holds a master’s degree in human behavior, and although she is 18 currently seeking her board certification in behavior analysis, the record contains no 19 indication that she is qualified to identify behavioral antecedents. See Cal. Educ. Code 20 § 56320(g) (requiring an assessment to be conducted by persons knowledgeable about 21 that disability). In fact, Martinez characterized Student’s behaviors as merely attention 22 seeking, an assertion which District itself acknowledged was incorrect in the 2012 IEP. 23 Finally, there is ample reason to believe that Student’s behaviors had become 24 progressively more aggressive and posed a threat to her health and safety, warranting a 25 new assessment. See 20 U.S.C. § 1414(a)(2)(A). At the 2011 IEP, Parents expressed 26 their concern that Student had become more aggressive at home and with tutors, and 27 that she sometimes attacked strangers in public. She had also begun ripping off her 28 toenails and fingernails, had a one-inch bald spot on her scalp from pulling out her own 13 1 hair, manipulated her fingers, and violently scratched, pinched, and grabbed people’s 2 necks. She also screamed and cursed at random intervals. At the May 2012 IEP, 3 Parents further noted that Student exhibited significant echolalia and perseveration, and 4 had developed other troubling behavior such as swiping objects off the table and 5 breaking them. Martinez agreed that Student was forming new, inappropriate 6 behaviors, the frequency of which was increasing. Counsel for District also conceded 7 as much at oral argument. Student’s aggressive behavior is perhaps best demonstrated 8 by her violent interaction with Dr. Morris in May 2012. Furthermore, at the July 2012 9 IEP addendum meeting, District concluded that Student’s behaviors had worsened and 10 were not being addressed sufficiently by the behavior plan that had been in place up 11 until that time. In light of the foregoing, District failed to assess Student’s behavior 12 during the time period at issue. 13 District’s failure to assess Student’s behavior constitutes a procedural violation of 14 the IDEA. R.B., ex rel. F.B.v. Napa Valley Unified Sch. Dist., 496 F.3d 932, 940 (9th 15 Cir. 2007) (“we have, more often than not, held that an IDEA procedural violation 16 denied the child a FAPE.”). A procedural violation of the IDEA constitutes a denial of 17 a FAPE “only if the violation: (1) impeded the child’s right to a FAPE; (2) significantly 18 impeded the parent’s opportunity to participate in the decisionmaking process; or (3) 19 caused a deprivation of educational benefits.” W.H. ex rel. B.H., 2009 WL 1605356, at 20 *18; see also 20 U.S.C. § 1415(f)(3)(E)(ii); Cal. Educ. Code § 56505(f)(2); W.G. v. Bd. 21 of Trustees of Target Range Sch. Dist. No. 23, Missoula, Mont., 960 F.2d 1479, 1484 22 (9th Cir. 1992). Here, Student’s maladaptive behaviors resulted in her removal from the 23 classroom on many occasions, thereby causing her to miss instruction or services. 24 Martinez also testified that Student’s behaviors interfered with Student’s ability to learn 25 and access information. Therefore, the District’s failure to assess Student in behavior 26 deprived her of educational benefits, and, accordingly, District denied Student a FAPE 27 on that basis. See Carrie I. ex rel. Greg I. v. Dep't of Educ., Hawaii, 869 F. Supp. 2d 28 14 1 1225, 1247 (D. Haw. 2012) (“The lack of assessments alone is enough to constitute a 2 lost educational opportunity.”). 2. 3 Anxiety 4 District argues that it recognized anxiety as one of Student’s issues and provided 5 her with supports such as a small classroom, regular breaks, and the support of an aide. 6 However, providing a student with services intended to ameliorate the symptoms of a 7 disability is typically a response to an assessment, not an actual assessment. See W.H. 8 ex rel. B.H., 2009 WL 1605356, at *18. To the extent the services provided were based 9 on teacher observations and their judgment about the antecedents and proper treatments 10 for Student’s anxiety, District improperly assessed Student using only a “single measure 11 . . . for determining an appropriate educational program for the child.” 20 U.S.C. § 12 1414(b)(2)(B). Accordingly, District failed to assess Student in anxiety, and for the 13 same reasons addressed in connection with behavior, denied Student a FAPE on that 14 basis. 3. 15 Sensory Integration In referring Student for an IEE with Gallagher in April 2011, District 16 17 sufficiently assessed Student in sensory integration using a variety of different tools. 20 18 U.S.C. § 1414(b)(2)(A). Gallagher administered several formal tests, including the 19 Bruininks-Oseretsky Test of Motor Proficiency, Second Edition. Gallagher also 20 provided Parents and her teacher with a Sensory Profile questionnaire that was designed 21 to measure Student’s sensory processing abilities. Jack B., 2008 WL 4489793, at *8 22 (finding the use of several formal tests to be sufficient). Student was also the subject of 23 observation by Kristine Penwarden, District’s occupational therapist, who made certain 24 recommendations for addressing Student’s sensory needs. Accordingly, District 25 assessed Student in sensory integration. 26 /// 27 /// 28 /// 15 B. 1 Whether District Provided Services That Allowed Student to Make Academic Progress 2 3 The IDEA requires that IEPs be “reasonably calculated to enable the child to 4 receive educational benefits[.]” Rowley, 458 U.S. at 207. School districts must provide 5 disabled students with specialized instruction such that students are afforded a basic 6 floor of opportunity and receive at least “some educational benefit” from such 7 instruction. J.L. v. Mercer Island Sch. Dist., 592 F.3d 938, 951 (9th Cir. 2010). 8 Districts are not required, however, to provide a potential-maximizing education. 9 Rowley, 458 U.S. at 197 n. 21. Moreover, “no single substantive standard can describe 10 how much educational benefit is sufficient to satisfy the Act. Instead, the Supreme 11 Court left that matter to the courts for case-by-case determination.” Hall by Hall v. 12 Vance Cnty. Bd. of Educ., 774 F.2d 629, 635 (4th Cir. 1985). In this case, only Parents and Dr. Morris allege that Student regressed 13 14 academically. In contrast, every one of Student’s educators testified that she had in fact 15 progressed. For instance, in October 2011, Student was performing at a kindergarten 16 level; by June 2012, she was performing at the level of a second grader. Student’s 17 communication abilities also increased between 2011 and 2012. Although Dr. Morris’s 18 assertions are given due weight, doctors often are not “in a better position to judge a 19 student’s progress than a teacher who has spent hours with the student every day for a 20 whole school year.” M.P. ex rel. Perusse v. Poway Unified Sch. Dist., 2010 WL 21 2735759, at *8 (S.D. Cal. July 12, 2010). While it is true that Student failed to meet 22 many of her academic goals in the 2011 IEP, the situation was vastly different in the 23 2012 IEP, where Student failed to meet or partially meet only a single goal. Indeed, 24 Student improved academically between 2011 to 2012 notwithstanding Parents’ belief 25 that Student’s goals were based on overstated levels of performance, which, if true, 26 would render meeting goals harder rather than easier. Accordingly, the Court agrees 27 with the ALJ that the weight of the evidence supports the conclusion that Student 28 /// 16 1 received “some educational benefit” from her instruction at Cottonwood. J.L., 592 F.3d 2 at 951. 3 C. Without Parents 4 5 Whether District Denied Student a FAPE by Holding an IEP Meeting In a single sentence, the ALJ concluded that Parents had an opportunity to attend 6 the July 2012 IEP meeting, and Student was therefore not denied a FAPE. The Court 7 disagrees. 8 9 The IDEA contains certain procedural safeguards, “the importance of which ‘cannot be gainsaid.’ ” Amanda J. ex rel. Annette J. v. Clark Cnty. Sch. Dist., 267 F.3d 10 877, 891 (9th Cir. 2001) (quoting Rowley, 458 U.S. at 205). Chief among these 11 protections is the requirement that parents be involved in the development of their 12 child’s educational plan, since “[n]ot only will parents fight for what is in their child’s 13 best interests, but because they observe their children in a multitude of different 14 situations, they have a unique perspective of their child’s special needs.” Amanda J. ex 15 rel. Annette J., 267 F.3d at 891. As the Supreme Court noted: 16 17 18 19 20 It seems to us no exaggeration to say that Congress placed every bit as much emphasis upon compliance with procedures giving parents and guardians a large measure of participation at every stage of the administrative process, as it did upon the measurement of the resulting IEP against a substantive standard. We think that the congressional emphasis upon full participation of concerned parties throughout the development of the IEP . . . demonstrates the legislative conviction that adequate compliance with the procedures prescribed would in most cases assure much if not all of what Congress wished in the way of substantive content in an IEP. Rowley, 458 U.S. at 205-06. 21 “Procedural violations that interfere with parental participation in the IEP formulation 22 process undermine the very essence of the IDEA. An IEP which addresses the unique 23 needs of the child cannot be developed if those people who are most familiar with the 24 child’s needs are not involved or fully informed.” Amanda J. ex rel. Annette J., 267 25 F.3d at 892. 26 Given this emphasis on parental involvement, the IDEA requires that the IEP 27 team include at least one parent. 20 U.S.C. § 1414(d)(1)(B); Cal. Educ. Code § 28 56341.5(a). Although District may hold a meeting in Parents’ absence should they 17 1 decline to attend, the statute contemplates that District expend more effort to secure 2 Parents’ presence than the effort expended here. For instance, District is required to 3 maintain records of its attempts to secure Parent’s attendance, including (1) detailed 4 records of telephone calls made or attempted and the results of those calls; (2) copies of 5 correspondence sent to the parents or guardians and any responses received; and (3) 6 detailed records of visits made to the home or place of employment of the parent or 7 guardian and the results of those visits. Cal. Educ. Code § 56341.5(h). In this case, 8 District made no effort beyond sending an email to Parents suggesting a few dates for 9 the IEP meeting. Even if Parents acted unreasonably by failing to suggest dates of their 10 own, District is not thereby excused for ultimately holding the meeting in Parents’ 11 absence. Indeed, the IEP team met on July 31, 2012—not July 20, 2012—as District 12 had informed Parents through their initial email, undermining the ALJ’s conclusion that 13 Parents had an opportunity to attend. District made no attempt whatsoever to notify 14 Parents that the date for the meeting had been switched, in clear violation of the 15 statutory requirement that “[p]arents or guardians shall be notified of the individualized 16 education program meeting early enough to ensure an opportunity to attend.” Cal. 17 Educ. Code § 56341.5(b). Therefore, District procedurally violated the IDEA by 18 holding the July 2012 IEP addendum meeting without Parents. 19 As noted above, a procedural violation of the IDEA constitutes a denial of a 20 FAPE “when the violation results in the loss of educational opportunity or seriously 21 infringes the parents’ opportunity to participate in the IEP formation process.” R.B., ex 22 rel. F.B., 496 F.3d at 938 (internal quotations omitted); see also 20 U.S.C. § 23 1415(f)(3)(E)(ii); Cal. Educ. Code § 56505(f)(2); Target Range, 960 F.2d at 1484; W.H. 24 ex rel. B.H., 2009 WL 1605356, at *18. By not apprising Parents of the new date for 25 the meeting—a meeting which resulted in significant changes to the IEP—District 26 effectively precluded their attendance and “infringe[d] [] [P]arents’ opportunity to 27 participate in the IEP formation process.” R.B., ex rel. F.B., 496 F.3d at 938; Target 28 Range, 960 F.2d at 1485 (holding that the school’s failure to include the child’s parents 18 1 in the IEP denied the child a FAPE). This is especially true given District’s own 2 contention that Parents were active participants in every other IEP, and since District 3 knew Parents were intimately involved in their child’s education. Accordingly, District 4 denied Student a FAPE by failing to include Parents in the July 31, 2012 IEP meeting. 5 D. by Dr. Morris 6 7 Whether Student is Entitled to Reimbursement for Services Provided The ALJ found that Dr. Patterson’s assessment in August 2010 was itself an IEE, 8 and Student is not entitled to an IEE for an IEE. As such, the ALJ concluded that 9 Student is not entitled to reimbursement for Dr. Morris’s services. The ALJ did not 10 reach the issue of whether CARD’s informal daily assessments sufficed to meet the 11 statutory requirements for an assessment. However, as discussed above, Student was 12 statutorily entitled to a reassessment as often as once per year upon Parents’ 13 request—regardless of whether Dr. Patterson’s evaluation was an IEE. Despite 14 numerous requests, District did not fund such an assessment within the requisite time 15 frame, nor were CARD’s informal observations adequate. 16 “A parent or guardian has the right to obtain, at public expense, an independent 17 educational assessment of the pupil from qualified specialists . . . if the parent or 18 guardian disagrees with an assessment obtained by the public education agency.” Cal. 19 Educ. Code § 56329(b); 34 C.F.R. § 300.502(b)(1). If a parent requests an IEE, District 20 must either fund the IEE or initiate a due process hearing to show that its own 21 assessment was appropriate. Cal. Educ. Code § 56329(c); 34 C.F.R. § 300.502(b)(2)(i). 22 “Failure to act on a request for an independent evaluation is certainly not a mere 23 procedural inadequacy; indeed, such inaction jeopardizes the whole of Congress’ 24 objectives in enacting the IDEA.” Harris v. D.C., 561 F. Supp. 2d 63, 69 (D.D.C. 25 2008). 26 District argues that, because there was no assessment of Student after Dr. 27 Patterson’s 2010 assessment, there is no assessment within the statute of limitations 28 with which Parents can disagree, and thus no IEE is required. This position is notably 19 1 inconsistent with District’s argument throughout the rest of its brief—specifically, that 2 District continually assessed Student by way of CARD and teacher observations. 3 Nonetheless, District contends that even if it did assess Student, the assessments were 4 themselves IEEs, echoing the ALJ’s conclusion that Student is not entitled to an IEE for 5 an IEE. The Court, having concluded that District did not assess Student in her areas of 6 7 need, notes that Student has “no statutory right to public reimbursement of [Dr. 8 Morris’s] assessment.” Los Angeles Unified Sch. Dist. v. D.L., 548 F. Supp. 2d 815, 9 821 (C.D. Cal. 2008).3 However, this Court “has the power to grant such relief as it 10 determines is appropriate.” Parents of Student W. v. Puyallup Sch. Dist., No. 3, 31 F.3d 11 1489, 1496 (9th Cir. 1994) (internal quotations omitted). “Equitable considerations 12 are relevant in fashioning relief.” Sch. Comm. of Town of Burlington, Mass. v. 13 Dep’t of Educ. of Mass., 471 U.S. 359, 374 (1985). Further, “[a] parent has an 14 equitable right to reimbursement when a school district has failed to provide a free 15 appropriate public education.” D.L., 548 F. Supp. 2d at 822; Target Range, 960 F.2d at 16 1486. Other courts faced with similar fact patterns have ordered reimbursement of 17 IEEs. See, e.g., Jefferson Cnty. Bd. of Educ. v. Lolita S., 977 F. Supp. 2d 1091, 1126 18 (N.D. Ala. 2013) aff’d, 581 F. App’x 760 (11th Cir. 2014) (ordering reimbursement for 19 an IEE); Warren G. ex rel. Tom G. v. Cumberland Cnty. Sch. Dist., 190 F.3d 80, 88 (3d 20 Cir. 1999) (same); I.K. ex rel. E.K. v. Sylvan Union Sch. Dist., 681 F. Supp. 2d 1179, 21 1192 (E.D. Cal. 2010) (“Appropriate relief under the IDEA can include . . . 22 reimbursement for the cost of services that a school wrongfully failed to provide.”); 23 D.L., 548 F. Supp. 2d at 823 (ordering reimbursement for an IEE even though there was 24 no statutory right to an IEE). 25 /// 26 27 28 3 Although the Court also found that District did assess Student through Gallagher in sensory integration, that assessment was provided for in the settlement agreement and was thus an IEE for which Student is not entitled to another. 20 1 As discussed above, Student’s behaviors became progressively more aggressive 2 and violent over time. Although District acknowledged in the 2012 IEP that Student’s 3 behavioral plan was inadequate, it did not agree to fund an assessment to address the 4 issue until after Parents gave unilateral notice of their intent to enroll Student at Beacon. 5 Nor did District initiate a due process hearing, as required by Cal. Educ. Code § 6 56329(c), following its denial of Parents’ numerous requests for IEEs. See Pajaro 7 Valley Unified Sch. Dist. v. J.S., 2006 WL 3734289, at *3 (N.D. Cal. Dec. 15, 2006) 8 (ordering reimbursement for an IEE because the school waited three months to file a 9 due process complaint to show its assessment was adequate). Therefore, the Court finds 10 “that equitable concerns require [District] to be responsible for the funding of 11 [Student’s] IEE.” D.L., 548 F. Supp. 2d at 823. 12 E. Whether Student is Entitled to Reimbursement for Beacon 13 Since the ALJ did not make the predicate findings—namely, that Student was 14 denied a FAPE—the ALJ ultimately held that Student is not entitled to a compensatory 15 education. More specifically, the ALJ found that District sufficiently assessed Student 16 in Student’s areas of need, that Student made academic progress at Cottonwood, and 17 that Parents’ absence from the July 2012 IEP addendum meeting did not result in the 18 denial of a FAPE. As previously discussed, District’s purported assessments of 19 Student’s behavior and anxiety were not adequate and resulted in lost educational 20 opportunity. Further, District’s conduct with respect to the July 2012 IEP addendum 21 meeting seriously “infringe[d] [] [P]arents’ opportunity to participate in the IEP 22 formation process.” R.B., ex rel. F.B., 496 F.3d at 938. Thus, Student was denied a 23 FAPE on these bases. 24 When a student is denied a FAPE, “[t]here is no question that the district court 25 ha[s] the power to order compensatory education.” Parents of Student W., 31 F.3d at 26 1496. Indeed, it is “a rare case when compensatory education is not appropriate.” Id. at 27 1497. Before awarding such relief, the court must “ensure that the student is 28 appropriately educated within the meaning of the IDEA” in the new school. Id.; Forest 21 1 Grove Sch. Dist. v. T.A., 557 U.S. 230, 247 (2009) (“we conclude that IDEA authorizes 2 reimbursement for the cost of private special-education services when a school district 3 fails to provide a FAPE and the private-school placement is appropriate”); Warren G. ex 4 rel. Tom G., 190 F.3d at 84 (“the test for the parents’ private placement is that it is 5 appropriate, and not that it is perfect.”); Daniel S., ex rel. Michael S. v. Council Rock 6 Sch. Dist., 2007 WL 3120014, at *5 (E.D. Pa. Oct. 25, 2007). Nonetheless, the Court 7 must “consider all relevant factors, including the notice provided by the parents and the 8 school district’s opportunities for evaluating the child, in determining whether 9 reimbursement for some or all of the cost of the child’s private education is warranted.” 10 T.A., 557 U.S. at 247. 11 Having denied Student a FAPE by not assessing Student in her areas of need, as 12 well as by impeding Parents’ right to participate in the July 2012 IEP, District is bound 13 to provide Student with a compensatory education. Parents of Student W., 31 F.3d at 14 1496; see also, e.g., J.T. ex rel. Renee v. Dep’t of Educ., 2012 WL 1995274, at *30 (D. 15 Haw. May 31, 2012) (awarding a compensatory education because it is the most 16 equitable method of compensation for lost educational opportunity). Although Parents 17 repeatedly asked for reassessments, District did not fund any. Only after Parents gave 18 unilateral notice of their intent to enroll Student at Beacon did District finally agree to a 19 reassessment of Student’s behavior. District had ample opportunity to evaluate 20 Student—it simply declined to do so. Thus, considering all relevant factors, the Court 21 finds that reimbursement is warranted. T.A., 557 U.S. at 247. As to Beacon’s appropriateness for Student, Student’s maladaptive behaviors 22 23 notably decreased while attending the school, and, as Dr. Morris found, Student made 24 academic progress there as well. In any event, although the parties disagree as to the 25 extent of Beacon’s effect on Student, they do not ultimately dispute the fact that Student 26 /// 27 /// 28 /// 22 1 is “appropriately educated within the meaning of the IDEA” at Beacon.4 Parents of 2 Student W., 31 F.3d at 1496. Accordingly, Student is entitled to reimbursement for her 3 tuition. 4 VII. CONCLUSION 5 For the foregoing reasons, the ALJ’s judgment is REVERSED. District is 6 ORDERED to reimburse Student, by and through her Guardian Ad Litem, for all 7 reasonable and necessary costs incurred for Dr. Morris’s services as well as for tuition 8 at Beacon. 9 IT IS SO ORDERED. 10 11 Dated: July 24, 2015 12 __________________________________ CHRISTINA A. SNYDER UNITED STATES DISTRICT JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 4 25 26 27 28 Although not raised before this Court, Greg Cleave, District’s Program Specialist, testified at the administrative hearing that he thought Beacon was inappropriate for Student because Beacon lacks neurotypical peers and is far from Student’s home. Cleave’s first point lacks persuasive force, as Student had only limited interactions with neurotypical peers even at Cottonwood. The Court also fails to see how Beacon’s location relative to Student’s home has any bearing on whether she would be appropriately educated there. 23
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