F. v. Ripon Unified School District

Filing 31

ORDER signed by Judge Kimberly J. Mueller on 1/8/13 ORDERING that the District's 15 motion for summary judgment is GRANTED, and plaintiffs' 12 motion for summary judgment is DENIED. CASE CLOSED (Kastilahn, A)

1
2
3
4
5
6
7
8

IN THE UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10

Z.F. et al.,

11

Plaintiffs,

12

No. 2:11-CV-02741-KJM-GGH

vs.

13

RIPON UNIFIED SCHOOL DISTRICT,

14

Defendant.

15

ORDER
/

Plaintiffs1 Z.F. and his mother appeal a decision issuing from the State of

16
17

California, Office of Administrative Hearings (“OAH”) under the Individuals with Disabilities

18

Education Act (“IDEA”), 20 U.S.C. § 1415(i)(2)(A). Plaintiffs move for summary judgment,

19

alleging that the OAH decision incorrectly found that defendant, Ripon Unified School District

20

(“District”), offered Z.F. a free appropriate public education (“FAPE”) as required by the IDEA.

21

(ECF 12.) Defendant cross-moves for summary judgment, urging this court to affirm the OAH

22

decision. (ECF 15.) The court heard oral argument on October 19, 2012; George D. Crook

23

appeared for plaintiffs and Ileana Butu appeared for the District. For the following reasons,

24

////

25
1

26

Plaintiff Z.F. pursues this action by and through his guardian ad litem who is his
mother; his mother also is a named plaintiff.
1

1

plaintiffs’ motion for summary judgment is DENIED and defendant’s motion for summary

2

judgment is GRANTED.

3

I.

4

STATUTORY, PROCEDURAL, AND FACTUAL BACKGROUND
A.

5

Procedural History and Statutory Background
The IDEA requires all states receiving federal education funds to provide disabled

6

children a free and appropriate public education (“FAPE”). 20 U.S.C. § 1412(a)(1)(A). The

7

FAPE must be tailored to each student’s unique needs through an individualized education

8

program (“IEP”). 20 U.S.C. § 1401(9). An IEP is a written statement for each disabled student

9

that includes, for example, goals, measures of progress, and a statement of special education and

10

supplementary aids and services the student will be provided. 20 U.S.C. § 1414(d)(1)(A)(i). An

11

IEP is formulated by the school district in conjunction with a student’s parents and others. A

12

school district or a parent can request an administrative due process hearing before a state

13

administrative law judge (“ALJ”) to receive a determination on whether an IEP in fact offers a

14

student a FAPE as required by the IDEA. 20 U.S.C. §1415(f)(1)(A).

15

On February 17, 2011, plaintiffs refused to agree to the IEP at issue in this case.

16

AR2 Vol. 5 at 1242. In response, the District filed with the OAH a request for a due process

17

hearing, styled as a complaint, on March 17, 2011, to determine whether the IEP accorded with

18

the IDEA. AR Vol. 5 at 1242. The District filed its second amended complaint on March 24,

19

2011. Id. The ALJ assigned to the case held a three-day hearing from May 17 through May 19,

20

2011. Id. In her July 18, 2011 written decision, the ALJ found for the District on all issues,

21

concluding that the District’s February 17, 2011 IEP adhered to the IDEA’s requirements and

22

therefore offered Z.F. a FAPE. AR Vol. 5 at 1264. Plaintiffs timely filed this action, as

23

authorized by 20 U.S.C. §1415(i)(2)(A), to seek this court’s review of the ALJ’s decision.

24

////

25
26

2

AR stands for the Administrative Record lodged with this court.
2

1

B.

2

Facts3
Z.F. is an 11-year-old boy with autism who is eligible for special education

3

services under the IDEA. AR Vol. 5 at 1245. At all times relevant to this action, Z.F. attended

4

Weston Elementary School within Ripon Unified School District. Id. When Z.F. began

5

kindergarten in 2006, he was placed in a general education classroom for most of the day;

6

however, he was always accompanied by a one-to-one aide from Genesis, a non-public agency

7

(“NPA”)4 under contract with the District to provide behavioral intervention services for a

8

number of District students. Id. Each of Z.F.’s IEPs, including the February 17, 2011 IEP at

9

issue here, provided that Z.F. shall receive behavior intervention services from any NPA under

10

contract with the district; Genesis was never specifically prescribed in Z.F.’s IEPs. AR Vol. 4 at

11

928; AR Vol. 5 at 1251. Genesis provided Z.F. these services for over four years. During this

12

time, ten different Genesis aides, including four in Z.F.’s last school year alone, and four or five

13

different Genesis case managers worked with Z.F. AR Vol. 5 at 1255. Z.F. had no difficulty

14

with transitions from one Genesis aide to another, except during the 2007-2008 school year. AR

15

Vol. 5 at 1255-56. On January 24, 2011, the District and Genesis executed a mutual agreement

16

to terminate Genesis’s services for the District, with termination to take effect on or before

17

February 17, 2011. AR Vol. 6 at 1619-20. The District notified plaintiffs on January 19, 2011

18

that another NPA, Learning Solutions, would replace Genesis. AR Vol. 5 at 1355.

19

As the ALJ noted, the District’s decision to replace Genesis with Learning

20

Solutions is at the heart of this matter. AR Vol. 5 at 1245. The District began discussing

21

replacing Genesis during Z.F.’s November 16, 2009 IEP process. AR Vol. 6 at 1810. At that

22
3

23
24

As discussed in the section that follows, the court has determined the ALJ’s
administrative findings deserve deference because they are “thorough and careful.” K.D. v.
Dep’t of Ed., Hawaii, 665 F.3d 1110, 1117 (9th Cir. 2011).
4

25
26

An NPA is “a private, nonsectarian establishment or individual that provides related
services necessary for an individual with exceptional needs to benefit educationally from the
pupils' educational program pursuant to an individualized education program [. . .] that is
certified by the department [of education].” CAL. EDUC. CODE § 56035.
3

1

point in time, the District intended to replace Genesis with district aides, not with another NPA.

2

Id. Z.F.’s 2009 IEP team concluded that switching from Genesis to district aides would require a

3

transition plan. Id. Z.F.’s mother stated she would sign “no” to an IEP that replaced Genesis

4

with district aides. AR Vol. 6 at 1811. On August 6, 2010, plaintiffs received a letter notifying

5

them that Genesis had been terminated.5 AR Vol. 3 at 661. In the end, however, the District

6

retained Genesis, in part because it was not able to conclude arrangements for a replacement

7

NPA at that time. AR Vol. 2 at 402. Genesis remained Z.F.’s NPA until the mutual rescission

8

agreement reached by the District and Genesis on January 19, 2011. AR Vol. 5 at 1355.

9

In a meeting on February 17, 2011, the District offered the IEP challenged here,

10

which plaintiffs rejected and which the ALJ found complied with the requirements of IDEA. AR

11

Vol. 5 at 1246. This IEP was drafted over three IEP team meetings. Z.F.’s mother attended the

12

first meeting held on November 8, 2010, which lasted several hours. AR Vol. 5 at 1247. The

13

group meeting there, including the mother, selected November 22, 2010 as the next meeting

14

date, because it had not satisfactorily completed the new IEP. AR Vol. 5 at 1247.

15

Approximately one and-a-half hours before the November 22 meeting, the mother called the

16

District to say she would not be able to attend. Id. The ALJ concluded that the mother must not

17

have objected to the meeting occurring without her, as the meeting was held and she did not

18

complain of her absence from the meeting in the due process hearing. Id. An additional

19

meeting, set first for December 16, 2010 and then January 25, 2011, was never held: the first

20

date was cancelled because the District’s Special Education Director, an indispensable IEP team

21

member, had to attend to a hospitalized parent; the second was cancelled because Z.F.’s mother

22

had to leave the country upon the death of a parent. AR Vol. 5 at 1248-1249. The mother was

23

present for the final meeting, held on February 17, 2011, at which the challenged IEP was

24

offered. AR Vol. 5 at 1246.

25
5

26

Although this letter was not entered into evidence, the ALJ accepted its existence given
the District’s testimony on the subject. AR Vol. 3 at 663.
4

1

The District provided Z.F a transition between NPAs, and Z.F.’s mother had some

2

input on this transition. The District arranged for a Learning Solutions aide to overlap with a

3

Genesis aide for four days, from February 14, 2011 until Genesis’s contract expired on

4

February 17, 2011. AR Vol. 5 at 1380. However, because Z.F. did not attend school on

5

February 16 and 17, aides from the two NPAs overlapped on only two days. AR Vol. 5 at 1614.

6

Z.F.’s mother participated in email and in-person discussions about the transition from Genesis

7

to Learning Solutions. AR Vol. 3 at 682, 685; AR Vol. 5 at 1358-1359, 1366-1367, 1379-1394,

8

1398-1399. Both sides testified that Z.F.’s mother had email exchanges with Erin Chargin, the

9

owner and director of Learning Solutions, and with Susan Harper, the District’s Coordinator of

10

Student Support. AR Vol. 3 at 491, 682. Additionally, the mother asked Ms. Chargin several

11

questions about Learning Solution’s practices and its ability to replace Genesis at the

12

February 17, 2011 meeting at which the District offered the IEP at issue here. AR Vol. 3 at 493.

13

Plaintiffs allege that the District violated IDEA procedures by predetermining the

14

nature of Z.F’s transition from Genesis to Learning Solutions, without giving Z.F.’s parents

15

input on the transition. ECF 12 at 1.

16

II.

17

STANDARD OF REVIEW
In IDEA cases, courts give less deference to an administrative decision than in

18

other administrative cases, but at the same time full de novo review is inappropriate. J.L. v.

19

Mercer Island Sch. Dist., 592 F.3d 938, 949 (9th Cir. 2010) (citing J.G. v. Douglas County Sch.

20

Dist., 552 F.3d 786, 793 (9th Cir. 2008); see also Bd. Of Educ. v. Rowley, 458 U.S. 176, 206

21

(1982) (stating that “due weight” should be given to the administrative proceedings below).

22

Congress provides the following guidance regarding standard of review:

23

/////

24

/////

25

/////

26

/////
5

1

In any action brought under this paragraph, the court—

2

(i) shall receive the records of the administrative proceedings;
(ii) shall hear additional evidence at the request of a party; and
(iii) basing its decision on the preponderance of the evidence, shall
grant such relief as the court determines is appropriate.

3
4
5

20 U.S.C. §1415(i)(2)(C). A court therefore can hear evidence that “goes beyond the scope of

6

the administrative record and, based on a preponderance of the evidence, ‘grant such relief as the

7

court determines is appropriate.’” Anchorage Sch. Dist. v. M.P., 689 F.3d 1047, 1053 (9th Cir.

8

2012) (quoting 20 U.S.C. § 1415(i)(2)(C)).

9

This action is presently before the court on cross-motions for summary judgment.

10

Under traditional summary judgment standards, the existence of disputed issues of material fact

11

is fatal to the moving party. FED. R. CIV. P. 56(a); Anderson v. Liberty Lobby, Inc., 477 U.S.

12

242, 250 (1986). In most IDEA appeals, there are disputed issues of fact. Capistrano Unified

13

Sch. Dist. v. Wartenberg, 59 F.3d 884, 891-92 (9th Cir. 1998). But the district court cannot hear

14

the case anew, for otherwise the work of the ALJ would not receive “due weight.” Id. at 891.

15

The pending motions in this IDEA action, therefore, differ from ordinary summary judgment

16

motions because the existence of a disputed issue of material fact will not defeat the motion.

17

Antonaccio v. Bd. of Educ. of Arlington Cent. Sch. Dist., 281 F. Supp. 2d 710, 714 (S.D.N.Y.

18

2003) (“The inquiry, however, is not directed to discerning whether there are disputed issues of

19

fact, but rather, whether the administrative record, together with any additional evidence,

20

establishes that there has been compliance with IDEA's processes and that the child's educational

21

needs have been appropriately addressed.”).

22

The Ninth Circuit has clarified that administrative decisions under the IDEA

23

should receive some deference. The court in Capistrano reasoned that some deference to the

24

administrative decision “makes sense” for the same reasons deference is given to other agency

25

actions: “agency expertise, the decision of the political branches . . . to vest the decision initially

26

in an agency, and the costs imposed on all parties of having still another person redecide the
6

1

issue from scratch.” 59 F.3d at 891 (citing Kerkam v. McKenzie, 862 F.2d 884, 887 (D.C. Cir.

2

1988)). The Circuit also has noted the structure of the IDEA demonstrates that Congress

3

“intended states to have the primary responsibility of formulating each individual child's

4

education.” Hood v. Encinitas Union Sch. Dist., 486 F.3d 1099, 1104 (9th Cir. 2007).

5

Consequently, the court must “not substitute [its] opinions of sound educational policy for those

6

of the school authorities which [it is] reviewing.” Adams v. State of Oregon, 195 F.3d 1141,

7

1149 (9th Cir. 1999).

8
9

The quality of the administrative decision determines the amount of deference the
District Court should afford it. Greater deference should be given to the ALJ's findings when

10

they are “thorough and careful.” K.D., 665 F.3d at 1117; Hood, 486 F.3d at 1104; see also

11

Capistrano, 59 F.3d at 891-92 (holding that “[t]he hearing officer's report was especially careful

12

and thorough, so the judge appropriately exercised her discretion to give it quite substantial

13

deference”); Ojai Unified Sch. Dist. v. Jackson, 4 F.3d 1467, 1476 (9th Cir. 1993) (holding that

14

an ALJ's decision is entitled to “substantial weight” where the “decision evinces his careful,

15

impartial consideration of all the evidence and demonstrates his sensitivity to the complexity of

16

the issues presented”); G.D. v. Torrance Unified Sch. Dist., 857 F. Supp. 2d 953, 964 (C.D. Cal.

17

2012) (giving “substantial deference” to the ALJ’s decision because it was not only “thorough

18

and careful” but also “intensive and comprehensive.”). However, courts retain the freedom to

19

decide independently how much weight to give the ALJ's findings and conclusions. Ashland

20

Sch. Dist. v. Parents of Student R.J., 588 F.3d 1004, 1009 (9th Cir. 2009).

21

Plaintiffs argue that this court should afford the OAH decision no deference

22

because the ALJ failed to frame correctly one of the plaintiffs’ primary legal arguments. Pls.’

23

Mot. Summ. J. at 6-10, ECF 12. At hearing, plaintiffs argued the District violated IDEA

24

procedures by predetermining that Z.F.’s IEP would not include an adequate plan for

25

////

26

////
7

1

transitioning Z.F. from Genesis to Learning Solutions.6 ECF 12 at 9-10. This argument focused

2

on predetermination concerning the transition between NPAs. Plaintiffs aver that the ALJ’s

3

decision focused on predetermination in the context of the District’s power unilaterally to change

4

NPAs, which power plaintiffs concede the District has. Id.; AR Vol. 1 at 33. In their motion

5

here, plaintiffs reproduce part of the hearing transcript to show the ALJ understood the

6

predetermination issue in the “correct” context of the transition from one NPA to another, at the

7

hearing. ECF 12 at 9-10. Juxtaposing the ALJ’s formulation of the issue at the hearing with the

8

ALJ’s later written decision, plaintiffs seek to show that the case the ALJ resolved in her

9

decision was “not the case before her.” Id. This court is unpersuaded.

10

The ALJ did not overlook or misunderstand plaintiffs’ predetermination

11

argument. The ALJ comprehensively addressed the argument in the very paragraph that

12

plaintiffs have reproduced in part in their motion, but in an excerpt plaintiffs have excised. AR

13

Vol. 5 at 1260; ECF 12 at 9. In that paragraph, the ALJ incorporated correct legal principles and

14

Factual Findings 20-25, which discuss predetermination in the transition context, to conclude

15

that “the termination of Genesis as the provider of aide services to Z.F. did not constitute a

16

predetermination of Z.F.’s IEP that denied Parents meaningful participation in the IEP process.”

17

AR Vol. 5 at 1260. As the court discusses more fully below, an IDEA procedural violation is

18

redressable only when, among other things, it denies parents meaningful participation in the IEP

19

process. Mercer, 592 F.3d at 953; 20 U.S.C. § 1415(f)(3)(E)(ii). The ALJ articulated this legal

20

standard in Paragraph 5 of her legal conclusions. AR Vol. 5 at 1258. In Paragraphs 20-25 she

21

concluded that Z.F.’s parents were allowed meaningful participation in the IEP process, even if

22

the District predetermined that no adequate transition plan would be considered. AR Vol. 5 at

23

1250-1251 (stating that “Z.F. claims that this change in [NPA] providers violated his procedural

24
25
26

6

As discussed more fully below, predetermination is a problem because each child’s IEP
should be formulated collaboratively by IEP team members, which include a child’s parents. A
school district should not, therefore, unilaterally determine a child’s IEP.
8

1

rights because it was an impermissible predetermination by the District that denied Parents

2

meaningful participation in the IEP decision-making process”). Properly understood, the ALJ’s

3

conclusion is that the law provides plaintiffs no relief because any predetermination, which

4

qualifies as a procedural error under the IDEA, did not deny Z.F.’s parents of meaningful

5

participation in the IEP process.

6

Here, the ALJ’s decision deserves substantial deference because it is

7

comprehensive, careful, and intensive. The ALJ presided over a three-day hearing. AR Vol. 5 at

8

1242. Each side presented at least a dozen witnesses, including several expert witnesses. AR

9

Vol. 4 at 1177-79 (plaintiffs’ witness list); AR Vol. 4 at 1184-85 (defendant’s witness list). The

10

parties sharpened the issues to be addressed during the hearing through pre-hearing colloquies

11

and briefing. AR Vol. 4 at 1130, 1151, 1154. During the hearing, the officer demonstrated a

12

clear understanding of the dispositive issues before her. After the hearing, the parties submitted

13

extensive post-hearing briefs to advocate further their positions. AR Vol. 3 at 1198, 1220. The

14

ALJ’s 23-page single-spaced decision, which contains very thorough factual findings, exhibits a

15

well-reasoned, impartial, and thoughtful evaluation of each party’s contentions. See AR Vol. 5

16

1242-1264. Consequently, this court grants the decision substantial weight.

17

III.

18

ANALYSIS
The sole task, then, for the court in this case is to determine whether a

19

preponderance of the evidence supports the ALJ’s finding that the District, through its

20

February 17, 2011 IEP, offered Z.F. a FAPE. This court’s inquiry is twofold. The first,

21

“procedural prong” requires the court to consider whether the state complied with the procedures

22

set forth in the IDEA. Amanda J. v. Clark Cnty. Sch. Dist., 267 F.3d 877, 890 (9th Cir. 2001);

23

Bd. of Educ. of Hendrick Hudson Cen. Sch. Dist., Westchester Cnty. v. Rowley 458 U.S. 176,

24

206-07 (1982). Under the second, “substantive prong,” the court must determine if the IEP

25

////

26

////
9

1

developed through those procedures was reasonably calculated to enable the child to receive

2

educational benefits.7 Amanda J., 267 F.3d at 890; Rowley, 458 U.S. at 206-07.

3

A.

Compliance with IDEA Procedures

4

In analyzing whether the District offered Z.F. a FAPE under the IDEA, the court

5

first evaluates whether the District complied with the IDEA’s procedural requirements. Rowley,

6

458 U.S. at 206–07. Not every procedural violation results in the denial of a FAPE, however.

7

Mercer, 592 F.3d at 953. A procedural violation denies a FAPE if it “results in the loss of an

8

educational opportunity, seriously infringes the parents’ opportunity to participate in the IEP

9

formulation process or causes a deprivation of educational benefits.” Id.; 20 U.S.C.

10

§ 1415(f)(3)(E)(ii).

11

Here, plaintiffs assert that the District did not comply with IDEA procedures

12

because it had “predetermined” in advance of the February 17, 2011 IEP that it would not offer

13

Z.F. an adequate plan to transition between NPAs. An adequate plan, according to plaintiffs,

14

necessarily would have involved the provision of services by Genesis beyond the termination

15

date of Genesis’s contract with the District. ECF 12 at 3. Plaintiffs point to a series of District

16

actions, dating back to 2009, as establishing that the District was fixated on replacing Genesis at

17

whatever cost to affected students.8 ECF 12 at 3. Additionally, plaintiffs aver that the 2011

18

mutual termination agreement between the District and Genesis is direct evidence of

19

predetermination: the agreement ended any possibility that Genesis could be involved with Z.F.

20

in any way after the contract’s termination date. ECF 12 at 5. In short, plaintiffs allege that the

21

District terminated Genesis’ services without properly consulting Z.F.’s IEP team, and in

22
7

23
24

Although Congress has amended the IDEA several times since the Rowley decision, the
test the Supreme Court outlined in that case remains applicable. J.L. v. Mercer Island Sch. Dist.,
592 F.3d 938, 947-48 (9th Cir. 2010).
8

25
26

The District several times discussed replacing Genesis with district aides. AR Vol. 6 at
1810. At one point, the District fired Genesis, notifying plaintiffs of this in a letter. Id.
However, apparently because it was unable to find a replacement NPA, the District then renewed
its contract with Genesis. AR Vol. 2 at 402.
10

1

particular his parents, thereby independently predetermining the nature of Z.F.’s transition from

2

Genesis to the new NPA.

3

Plaintiffs never explicitly state why this procedure is sufficient to deny Z.F. a

4

FAPE as a matter of law. The court infers from plaintiffs’ arguments about parental

5

participation in students’ IEPs that plaintiffs believe the District’s predetermination “seriously

6

infringe[d] [their] opportunity to participate in the IEP formulation process,” thereby rising to the

7

level of a redressable procedural violation under the IDEA. Mercer, 592 F.3d at 953; see ECF

8

12 at 5.

9

The District counters that Z.F.’s parents had ample opportunity to participate in

10

formulating the February 17, 2007 IEP. Def.’s Mot. Summ. J. at 16, ECF 15. The District also

11

avers that it has the sole discretion to select a qualified NPA to provide services as required by

12

students’ IEPs. ECF 15 at 16-17. Simply replacing Genesis with Learning Solutions, the

13

District maintains, does not equate to the District’s independently developing a student’s IEP.

14

ECF 15 at 14.

15

Predetermination occurs when an educational agency has made a determination

16

prior to the IEP meeting, including when it presents one educational placement option at the

17

meeting and is unwilling to consider other alternatives. Deal v. Hamilton Cnty. Bd. of Educ.

18

392 F.3d 840, 858 (6th Cir. 2004). Predetermination violates the IDEA because the Act requires

19

that an educational placement be based on the IEP, and not vice versa. K.D., 665 F.3d at 1123

20

(citing Spielberg v. Henrico Cnty. Pub. Sch., 853F.2d 256, 259 (4th Cir. 1988)). Parents must

21

have the opportunity “to participate in meetings with respect to the identification, evaluation, and

22

educational placement of the child.” H.B. v. Las Virgenes Unified Sch. Dist., 239 F. App'x 342,

23

344-45 (9th Cir. 2007) (quoting 20 U.S.C. § 1415(b)(1)). Ninth Circuit cases emphasize that

24

parents must be invited to attend IEP meetings and must have the opportunity for meaningful

25

participation in the formulation of IEPs. See Shapiro v. Paradise Valley Unified Sch. Dist. No.

26

69, 317 F.3d 1072, 1078 (9th Cir. 2003) (“The IDEA ‘imposes upon the school district the duty
11

1

to conduct a meaningful meeting with the appropriate parties.’”) (quoting W.G. v. Board of Trs.

2

of Target Range Sch. Dist. No. 23, 960 F.2d 1479, 1483 (9th Cir. 1992) (emphasis in the

3

original)). Thus, “[a] school district violates IDEA procedures if it independently develops an

4

IEP, without meaningful parental participation, and then simply presents the IEP to the parent for

5

ratification.” Ms. S. v. Vashon Island Sch. Dist., 337 F.3d 1115, 1131 (9th Cir. 2003).

6

Courts in this Circuit have rarely found that a school district’s predetermining a

7

student’s IEP rises to the level of a redressable violation of IDEA procedures. This is for two

8

primary reasons. First, procedural violations must surpass a substantial threshold: “procedural

9

violations that have been found sufficient to deprive a student of a FAPE have been labeled

10

‘egregious.’” K.M. v. Tustin Unified Sch. Dist., No. SACV 10-1011 DOC, 2011 WL 2633673, at

11

*11 (C.D. Cal. July 5, 2011) (quoting Amanda J., 267 F.3d at 891); see also M.L. v. Federal Way

12

Sch. Dist., 394 F.3d 634, 656 (9th Cir. 2005) (holding that failing to include the student’s regular

13

education teacher on the IEP team denied the student a FAPE). Predeterminations that rise to the

14

level of “egregiousness” typically involve a school district adopting a “take it or leave it”

15

approach to all, or a significant part of, a student’s IEP. See, e.g., Target Range, 960 F.2d at

16

1484 (finding predetermination when the school district independently developed the IEP

17

without the input of the student’s parents, teachers, or other school representatives).

18

Second, it is often difficult to prove that a district in fact made a determination

19

before an IEP meeting. The Ninth Circuit recently declined to decide whether it was

20

predetermination to take an autistic child from his private school and place him in a public

21

school classroom for children with autism, with no input from the parents and with evidence of a

22

longstanding district plan to make this change.9 Las Virgenes, 239 F. App'x at 344-45. This case

23

is instructive because changing a student’s educational placement from private to public school,

24
9

25
26

The Circuit lacked sufficient facts to make this determination, remanding for
supplementation of the record. Las Virgenes, 239 F. App’x at 345. The court found it critical to
know whether the school district was “unwilling to consider other placements” even if the
parents had given input. Id.
12

1

with no parental input, a more drastic change than switching behavioral services providers, did

2

not qualify as a per se IDEA procedural violation. Id. at 345.

3

Here, the District’s actions with regard to Z.F.’s transition from Genesis to

4

Learning Solutions are not sufficiently egregious to deny Z.F. a FAPE. The court reaches this

5

conclusion for several reasons. First, the fact that the District terminated its contract with

6

Genesis does not mean the District was unwilling to consider others’ input on Z.F.’s NPA

7

transition or unable to act on such input. In their termination agreement, the District and Genesis

8

agreed to end Genesis’s services for the District on or before February 17, 2011, the very day the

9

District offered Z.F. the IEP that is the basis of this action. AR Vol. 6 at 1619-1620. Despite

10

plaintiffs’ assertions that Z.F.’s NPA transition was predetermined because IEP team members

11

thought the termination agreement made discussing a transition “moot” (AR Vol. 1 at 149), a fair

12

reading of the record suggests the District and other IEP team members simply believed Z.F. did

13

not require an elaborate transition plan.10 Z.F. had ten different Genesis aides with four in his

14

last school year alone and four or five different Genesis case managers over the four-plus years

15

Genesis provided his behavioral intervention services. AR Vol. 5 at 1255. Despite the many

16

transitions he experienced, he had difficulty with these transitions only during the 2007-2008

17

school year. AR Vol. 5 at 1255. Based upon this evidence, the ALJ concluded that the February

18

17, 2011 IEP did not require a transition plan. AR Vol. 5 at 1256. Additionally, Z.F.’s mother

19

/////

20
21
22
23
24
25
26

10

Sharon Filippi, an IEP team member who is a speech and language pathologist,
testified before the ALJ that she thought discussing a transition would have been “moot” in light
of Genesis’ termination; however, she went on to say that, had a transition been discussed at that
meeting, she did not “think a lot would have been — a lot more would have done [sic] — if
anything, I just think it would have been discussed more.” AR Vol. 1 at 150. Susan Harper,
coordinator of special education services for the District, testified that she did not consider
extending Genesis’s termination date to accommodate a transition because she “really felt very
confident in Learning Solutions.” AR Vol. 2 at 435. Ms. Harper had “spoken to many people
about [Z.F.’s] ability to move forward .” Id. She further testified that the transition “was not
brought up at the IEP as a concern by anyone that this was going to be a difficult transition at
that point . . . Genesis was there, they didn’t have any objection to that either.” Id. at 438.
13

1

was not surprised at the February 17, 2011 IEP meeting by the news that Genesis was being

2

terminated; she had been notified by letter on January 19, 2011. AR Vol. 5 at 1355.

3

Second, as a practical matter, the District has the power unilaterally to choose

4

NPAs. Plaintiffs concede as much. ECF 12 at 9-10. So long as this choice does not affect the

5

substantive quality of a student’s IEP, and a student’s IEP does not require the services of a

6

particular NPA, the IDEA provides no relief to a parent who does not agree with the District’s

7

choice of provider. Plaintiffs do not allege, and the record does not support, that Genesis’s

8

replacement NPA, Learning Solutions, is unqualified for the job of an NPA. None of Z.F.’s IEPs

9

specifically named Genesis; every one of his IEPs fashioned in the District, including the

10

February 17, 2011 IEP at issue here, provides that Z.F. receive behavior intervention services

11

from any NPA under contract with the district. AR Vol. 4 at 928; AR Vol. 5 at 1251. Z.F.

12

continues to receive the same IEP services, with a different company providing them.

13

Finally, the District’s actions do not rise to the level of a procedural violation that

14

seriously impaired Z.F.’s parents’ opportunity to participate in the IEP formulation process.

15

Maximum parental participation is not the standard under the IDEA; rather, the standard is

16

meaningful participation. Mercer, 575 F.3d at 1033 (citing Rowley, 458 U.S. at 197 n.21, 200).

17

Z.F.’s parents had many opportunities to participate meaningfully in formulating the significant

18

elements of the February 17, 2011 IEP. They also had the opportunity to provide input on his

19

transition between NPAs.

20

The administrative record supports the ALJ’s conclusion that Z.F.’s mother

21

meaningfully participated in the IEP process. Leading up to the District’s IEP offer on February

22

17, 2011, Z.F.’s IEP team held three meetings. His mother attended the first, held on November

23

8, 2010, which, not unusually for Z.F.’s team meetings, lasted several hours. AR Vol. 5 at 1247.

24

The group meeting that day, including the mother, selected November 22, 2010 as the next

25

meeting date, as it had not satisfactorily completed the new IEP. Id. Shortly before the

26

November 22 meeting, Z.F.’s mother called the District to say she would not be able to attend.
14

1

Id. The meeting was held and the mother did not make her absence from the meeting an issue in

2

the due process hearing. Id. An additional meeting, set for December 16, 2010 and then January

3

25, 2011, was never held. AR Vol. 5 at 1248-1249. The IEP that is the basis of this action was

4

offered to the mother at the third meeting on February 17, 2011. AR Vol. 5 at 1249.

5

Z.F.’s mother also participated in email and in-person discussions specifically

6

about the transition from Genesis to Learning Solutions. AR Vol. 3 at 682, 685; AR Vol. 5 at

7

1358-59, 1366-67, 1379-94, 1398-99. The owner and director of Learning Solutions, Erin

8

Chargin, testified that she sent the mother two or three emails in January regarding the NPA

9

transition. AR Vol. 3 at 491. The mother asked Ms. Chargin several questions about Learning

10

Solution’s practices and ability to replace Genesis at the February 17, 2011 meeting at which the

11

District offered Z.F.’s IEP. AR Vol. 3 at 493.

12

At Z.F.’s hearing on the pending motions, plaintiffs’ counsel refined plaintiffs’

13

position, stating it was not Z.F.’s mother’s lack of an opportunity to participate in formulating an

14

NPA transition plan, but rather that the District was not receptive to her desires. The IDEA

15

guarantees parents the opportunity to participate meaningfully; however, as one participant in a

16

group, the parents’ opinions may be overridden. Vashon, 337 F.3d at 1131 (stating that a district

17

“has no obligation to grant [a parent] a veto power over any individual IEP provision.”). Here

18

the record contains several emails from Z.F.’s mother to various District personnel that suggest

19

some tension existed between the parties. See, e.g., AR Vol. 5 at 1358 (depicting an email in

20

which the mother, in response to emails about IEP processes, takes the District to task for

21

various alleged infractions against her and Z.F.). However, these emails also demonstrate that

22

the mother was meaningfully active in Z.F.’s IEP processes: her preference for one NPA

23

company over another was simply overridden by the District. No authority provides that such an

24

action denied Z.F. a FAPE.

25
26

The facts of this case thus are materially distinguishable from those of Target
Range, a case plaintiffs think should control this one. In Target Range, the district
15

1

independently developed a student’s entire IEP and then presented it to the student’s parents,

2

without their input or participation, and without the input or participation of the student’s regular

3

classroom teacher or any other representative of the student’s school. 960 F.2d at 1484. Here,

4

Z.F.’s IEP team met on three occasions, and the District did not unilaterally change a single

5

provision of the IEP, it only changed the entity tasked with fulfilling a provision of the IEP. The

6

record demonstrates that Z.F.’s entire IEP team, including his parents, participated meaningfully

7

in the formulation of the February 17, 2011 IEP. And most members of the IEP team simply did

8

not believe a transition was necessary.11

9
10
11

Therefore, the court holds that the District’s February 17, 2011 IEP did not deny
Z.F. a FAPE through predetermining the nature of Z.F.’s transition to a new NPA.
B.

12

Substantive Sufficiency of the IEP
Apart from procedural compliance, the IEP must also satisfy the substantive

13

prong of the Rowley test: it must be “reasonably calculated to enable the child to receive

14

educational benefits.” Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 207 (1982).

15

Congress enacted the IDEA “to ensure that all children with disabilities have

16

available to them a free appropriate public education [a ‘FAPE’] that emphasizes special

17

education and related services designed to meet their unique needs.” M.M. v. Lafayette Sch.

18

Dist., CV 09-4624, 2012 WL 398773, at *5 (N.D. Cal. Feb. 7, 2012) (quoting 20 U.S.C.

19

§ 1400(d)(1)(A)). “Each IEP must include an assessment of the child's current educational

20

performance, must articulate measurable educational goals, and must specify the nature of the

21

special services that the school will provide.” Id. (quoting Schaffer, 546 U.S. at 53). Schools are

22

obligated to provide “a ‘basic floor of opportunity’ to disabled students, not a ‘potential-

23
24
25
26

11

The District did in fact provide Z.F. a transition between NPAs. A Learning Solutions
aide overlapped with a Genesis aide for four days, from February 14 until the Genesis contract
expired on February 17. AR Vol. 5 at 1380. But Z.F. did not attend school on February 16 and
17. AR Vol. 5 at 1614. At the hearing on this matter, plaintiffs’ counsel effectively conceded
that the decision to keep Z.F. home during these two days was not advisable.
16

1

maximizing education.’” J.L. v. Mercer Island Sch. Dist., 575 F.3d 1025, 1033 (9th Cir. 2009)

2

(quoting Rowley, 458 U.S. at 197 n.21, 200).

3

Plaintiffs’ motion for summary judgment focuses only on the alleged procedural

4

deficiencies in the District’s development of Z.F.’s February 17, 2011 IEP. In fact, before the

5

OAH hearing, plaintiffs stipulated that, other than the seven issues specifically objected to, the

6

February 17, 2011 IEP was otherwise “designed to meet Z.F.’s unique needs and confer

7

educational benefit.” AR at 1244. The only one of those seven issues plaintiffs have appealed to

8

this court is the predetermination-in-transition argument. As plaintiffs do not allege that Z.F.’s

9

IEP was substantively deficient and nothing in the record suggests such deficiency, and as the

10

ALJ found that the February 17, 2011 IEP offered Z.F. a FAPE, the court finds this prong is

11

satisfied.

12

III.

13

CONCLUSION
For the foregoing reasons, the court affirms the ALJ's decision as supported by

14

the preponderance of the evidence. The record demonstrates that the District provided Z.F. with

15

a FAPE in the February 17, 2011 IEP. The District’s motion for summary judgment is hereby

16

GRANTED, and plaintiffs’ motion for summary judgment is DENIED.

17
18

IT IS SO ORDERED.
DATED: January 8, 2013.

19
20

UNITED STATES DISTRICT JUDGE

21
22
23
24
25
26
17