Swanson-Houston, et al. v. Sutter County Superintendent of Schools, et al.

Filing 59

ORDER signed by District Judge Kimberly J. Mueller on 10/13/2016 GRANTING 46 Motion for Summary Judgment; DENYING 44 Motion for Summary Judgment; DIRECTING the Clerk of Court to enter judgment in favor of the defendants. CASE CLOSED. (Michel, G.)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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DAVID SWANSON, through his guardian
ad litem HEATHER SWANSONHOUSTON, and on her own behalf,

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Plaintiff,

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No. 2:14-cv-01431-KJM-DB

ORDER

v.
YUBA CITY UNIFIED SCHOOL
DISTRICT and SUTTER COUNTY
SUPERINTENDENT OF SCHOOLS,

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Defendant.

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David Swanson, a special needs student in his twenties, and Heather Swanson-

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Houston, his mother and guardian ad litem (collectively, Plaintiffs), bring this action under the

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Individuals with Disabilities Education Act (IDEA), 20 U.S.C. § 1400 et seq., and Section 504 of

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the Rehabilitation Act of 1973, 29 U.S.C. § 749 et seq. This matter is before the court on the

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parties’ cross-motions for summary judgment. Pls.’ Am. Mot. for Summ. J. (Pls.’ MSJ), ECF

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No. 44; Defs.’ Mot. for Summ. J. (Defs.’ MSJ), ECF No. 46.

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For the following reasons, the court grants Defendants’ motion for summary

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judgment in its entirety and denies Plaintiffs’ motion for summary judgment in its entirety.

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I.

STATUTORY, FACTUAL AND PROCEDURAL BACKGROUND
A.

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

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

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

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(IEP). Id. § 1401(9). An IEP is a written statement for each disabled student that includes goals,

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measures of progress, and a statement of special education and supplementary aids and services

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the student will be provided. Id. § 1414(d)(1)(A)(i). The IEP must provide the disabled student a

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FAPE in the least restrictive environment. J.W. ex rel. J.E.W. v. Fresno Unified Sch. Dist.,

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626 F.3d 431, 448 (9th Cir. 2010) (citations omitted). The IDEA provides that an IEP shall

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contain a “statement of the special education and related services” that will be provided to a child.

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Id. § 1414(d)(1)(A)(i)(IV). The statute defines these related services as including “school nurse

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services designed to enable a child with a disability to receive a free appropriate public

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education.” Id. § 1401(26)

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A party may request an administrative “due process hearing” before an ALJ to

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challenge any matter related to the provision of a FAPE. 20 U.S.C. §§ 1415(b)(6), (f), (k)(3).

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Violations of the IDEA can arise in two situations: (1) a school district may not comply with the

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procedures outlined in the IDEA; or (2) the IEP developed by the school district may not be

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“reasonably calculated to enable the child to receive educational benefits.” Bd. of Educ. of

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Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206–07 (1982); M.M. v. Lafayette

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Sch. Dist., 767 F.3d 842, 852 (9th Cir. 2014). The IDEA requires a plaintiff to exhaust his or her

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administrative remedies before filing a civil action. 20 U.S.C. § 1415(l).

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B.

Factual Background
David Swanson currently is 24 years old; he has autism and insulin-dependent

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Type 1 diabetes. Defs.’ Resp. to Pls.’ Separate Statement of Undisputed Material Facts (Defs.’

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Resp. UMF) 2:25–28, ECF No. 49-1. He was eligible for special education services under the

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IDEA until he aged out of the public education system during the summer of 2014, when he was

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22. Id. David first began receiving special education services at the age of 3 for his autism, and
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he has very low cognitive abilities. Id. at 3:2–14. He is nonverbal and communicates by using a

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combination of gestures, grunts, and limited sign language. Id. Due to his impairments, David

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has seriously delayed academic, self-help, and social skills. Id.

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David’s Type 1 diabetes is unusually unstable and difficult to control. Id. at 4:28.

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David’s mother, Ms. Swanson-Houston, provides his diabetes care at home. Id. at 4:3–21. She

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does not have a nursing license, but she received two weeks of training through Sutter Memorial

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Hospital in diabetic care. Id. When David was first diagnosed with diabetes in 2005, Ms.

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Swanson-Houston showed the school nurse at the time how to use an insulin pen to administer

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David’s insulin. Id. at 4:22–27. Beginning in April 2009, Licensed Vocational Nurse (LVN)

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Annette Armstrong began providing David’s diabetes care at school. Id. at 7:6–9. Outside of the

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training provided to all LVNs, Armstrong received no specialized training in autism or diabetes,

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and she had not met David prior to becoming his LVN. Office of Administrative Hearings

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(OAH) Decision Factual Findings ¶ 62.

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In May 2012, LVN Armstrong reported a teacher’s alleged abuse of David to the

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Sutter County Superintendent of Schools (County) and Adult Protective Services; Armstrong was

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reassigned to care for another student pending the investigation. Am. Compl. ¶ 11, ECF No. 26;

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Defs.’ MSJ 7:26–28. Ms. Swanson-Houston then filed a due process complaint against

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Defendants with the OAH regarding David’s educational placement, complaining that Defendants

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“failed to offer one-to-one LVN services by an LVN trained to meet David’s unique needs.”

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Administrative Record (AR) 71. On October 23, 2012, the parties reached a settlement

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agreement whereby Defendants agreed, in relevant part, to allow LVN Armstrong to continue

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providing David’s care as long as she was employed by either the Yuba City Unified School

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District (District) or the County. Am. Compl. ¶¶ 12–13; Defs.’ MSJ 7:21–28.

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On February 19, 2013, the County placed LVN Armstrong on administrative leave

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and assigned Alison Anderson, Registered Nurse (RN), as David’s one-to-one nurse. Am.

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Compl. ¶¶ 19, 22; Defs.’ MSJ 8:9–11. The parties agree that both RNs and LVNs have the

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requisite qualifications to provide David’s medical needs at school. July 28, 2016 Mot. Hr’g,

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ECF No. 53. In February 2013, RN Anderson had twenty-three years’ experience as a registered
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nurse and thirteen years’ experience as a school nurse. AR 847–48. Additionally, as LVN

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Armstrong’s supervisor, RN Anderson had directly overseen David’s daily diabetic care from

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November 2012 to February 19, 2013. Id. However, Ms. Swanson-Houston believed Defendants

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were breaching their settlement agreement by assigning RN Anderson to care for David because

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she believed RN Anderson “had failed to develop a health plan and had only met with David

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twice.” Pls.’ MSJ 11:8–11; see Defs.’ Opp’n to Pls.’ MSJ (Defs.’ Opp’n) 9:6–11, ECF No. 49.

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February 19, 2013 was the last day David attended school. Pls.’ MSJ 11:1–15:14; Defs.’ MSJ

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9:1–2. The next day, February 20, 2013, Ms. Swanson-Houston revoked consent for Defendants’

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personnel to provide David with medical care. Am. Compl. ¶ 22; Defs.’ MSJ 8:11–13.

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On February 21, 2013, the County sent Ms. Swanson-Houston a letter and email

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informing her that she must provide Defendants with authorization to provide David with diabetes

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care in order for him to return to school. Defs.’ Resp. UMF 9:6–16. Ms. Swanson-Houston

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refused to sign a new authorization form. Id. at 8:25–9:5. Defendants maintain they were ready

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to meet David’s needs with a one-to-one paraprofessional and a one-to-one LVN should Ms.

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Swanson-Houston sign a medical authorization form. See id. at 10:11–17. On August 19, 2013,

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Defendants offered David an IEP that included a one-to-one nurse for 420 minutes daily, five

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days per week, which provided David with individual nursing services at home prior to school,

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during the bus ride to school, the entirety of the school day, the bus ride home, and at David’s

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home after school. Id. at 11:19–28. Both parties insisted they be allowed to choose who would

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provide David’s diabetic care while at school. See Pls.’ MSJ 11:01–15:14; Defs.’ MSJ 8:08–

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9:02.

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C.

Procedural Background

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On October 30, 2013, the District filed with OAH a due process complaint against

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Ms. Swanson-Houston, alleging she continued to request special education services for David but

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had refused to allow any of Defendants’ employees to provide David’s necessary one-to-one

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nursing services. AR 10. On December 2, 2013, Plaintiffs filed their own due process complaint

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against Defendants, alleging, in pertinent part, that Defendants denied David a FAPE by failing to

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provide him with appropriate one-to-one LVN services. AR 77. The OAH consolidated the two
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cases on December 19, 2013. Pls.’ MSJ 16:10–12; Defs.’ MSJ 5:13–15. On December 20, 2013,

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the ALJ granted the District’s motion to dismiss all discrimination and retaliation claims under

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Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 749 et seq, leaving four issues to be

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addressed in the administrative proceeding:

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[Student’s Issue for Hearing #1:] Whether District’s and County’s
November 8, 2012 and August 19, 2013 [IEP] denied Student a
[FAPE] by: (a) Failing to provide Student with adequate one-to-one
services by [an LVN] to meet his unique needs regarding diabetes
and communication; and (b) Failing to offer Student a placement
that met his unique needs, especially sensitivity to sound, and by
offering a classroom which contained too many students.

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[Student’s Issue for Hearing #2:] Whether District and the County
denied [David] a FAPE by failing to provide him with special
education and related services from February 21, 2013, through the
present; and failing to permit [his mother] to choose the LVN, or
family member, to provide [David] with diabetic care services at
school.

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[District’s Issue for Hearing #1:] Whether District’s August 19,
2013 [individualized education program (IEP)] denied [David] a
FAPE by failing to offer an appropriate nurse.

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[District’s Issue for Hearing #2:] Whether Parent needs to permit
District to have meaningful access to Student’s physicians and
physician orders regarding his diabetic care so that District may
develop and/or implement a diabetes medical management plan.

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OAH Decision 4–5. During the five-day due process hearing that commenced on February 3,

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2014, the ALJ heard the sworn testimony of nine witnesses and received documentary evidence.

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Id. at 3–4.

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On April 7, 2014, the ALJ issued a thirty-two-page single-spaced decision in favor

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of Defendants on all matters, holding Defendants offered David appropriate nursing services and

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did not commit any procedural or substantive violations of the IDEA. Id. at 5. The decision

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contains extensive factual and credibility findings. Notably, the ALJ observed that Ms. Swanson-

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Houston “failed to assert any specific complaint regarding the County selected nurse,

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Ms. Anderson.” OAH Decision Factual Findings ¶ 58. The ALJ also found that portions of Ms.

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Swanson-Houston’s testimony were “intentionally misleading[, which] diminished the [overall]

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persuasiveness of [her] testimony.” Id. ¶ 61. Additionally, the ALJ acknowledged Plaintiffs’

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argument that Ms. Swanson-Houston was willing to provide David’s diabetic care at school
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herself, but he rejected it as being “not consistent with [her] testimony or conduct.” OAH

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Decision Legal Conclusions ¶ 32.

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On June 16, 2014, Plaintiffs initiated the present action seeking review of the

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OAH decision as provided by 20 U.S.C. § 1415(i)(2)(A). Pls.’ MSJ 18:18. On June 27, 2016,

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Plaintiffs moved for summary judgment under Federal Rule of Civil Procedure 56, arguing

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Defendants denied David a FAPE by: (1) improperly denying Plaintiffs the right to choose

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David’s diabetes care provider during the school day; (2) improperly making the provision of

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special education contingent on Ms. Swanson-Houston’s signing a form that would authorize

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Defendants’ personnel to provide David’s diabetes care during the school day; and (3) failing to

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provide an adequate nurse to care for David’s diabetes while at school. Id. at 26:22–27:27. On

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July 1, 2016, Defendants cross-moved for summary judgment or, in the alternative, partial

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summary judgment on the basis that the ALJ correctly found Defendants offered David a FAPE.

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Defs.’ MSJ 21:13–23. Both parties filed opposition briefs. Pls.’ Opp’n to Defs.’ MSJ, ECF

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No. 48; Defs.’ Opp’n. On July 19, 2016, Plaintiffs filed a second amended motion for summary

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judgment. ECF No. 50. However, the court struck this motion because it was untimely and did

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not comply with the pretrial scheduling order or the local rules. ECF No. 52. On July 22, 2016,

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Defendants replied to Plaintiffs’ opposition brief. ECF No. 51. On July 28, 2016, the court held

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a hearing, at which Martha Millar appeared for Plaintiffs and Daniel Jay appeared for Defendants.

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ECF No. 53.

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II.

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STANDARD OF REVIEW AND DEFERENCE
A court must grant summary judgment under Rule 56(a) of the Federal Rules of

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Civil Procedure when the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a).

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A motion for summary judgment under the IDEA differs from an ordinary summary judgment

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motion because it “is in substance an appeal from an administrative determination.” Capistrano

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Unified Sch. Dist. v. Wartenberg, 59 F.3d 884, 892 (9th Cir. 1995). Unlike an ordinary summary

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judgment motion, the existence of a disputed issue of material fact does not defeat a motion for

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summary judgment under the IDEA. Ojai Unified Sch. Dist. v. Jackson, 4 F.3d 1467, 1472 (9th

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Cir. 1993); Wartenberg, 59 F.3d at 891–92 (observing that the inquiry is not directed at
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discerning whether there are disputed issues of fact, but rather, whether the administrative record,

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taken together with new evidence, establishes by a preponderance of the evidence that there has

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been compliance with IDEA’s procedures, while also giving due weight to the hearing officer’s

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determinations).

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The text of the IDEA provides the following formulation of the standard for
review of an administrative decision:

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In any action brought under this paragraph, the court—

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(i) shall receive the records of the administrative
proceedings;

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(ii) shall hear additional evidence at the request of a party;
and

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(iii) basing its decision on the preponderance of the
evidence, shall grant such relief as the court determines is
appropriate.

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20 U.S.C. § 1415(i)(2)(C).

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Although courts give less deference to an administrative decision in IDEA cases

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than in other administrative cases, full de novo review is inappropriate. J.L. v. Mercer Island Sch.

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Dist., 592 F.3d 938, 949 (9th Cir. 2010) (citing J.G. v. Douglas Cty. Sch. Dist., 552 F.3d 786, 793

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(9th Cir. 2008)); see also Rowley, 458 U.S. at 206 (1982). Instead, courts give “due weight” to

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the administrative proceedings in IDEA cases. J.L., 592 F.3d at 949 (citing Douglas, 552 F.3d at

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793).

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The court in Wartenberg, supra, reasoned that some deference to the

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

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

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

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from scratch.” 59 F.3d at 891 (citing Kerkam v. McKenzie, 862 F.2d 884, 887 (D.C. Cir. 1988)).

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The Circuit has also noted the structure of the IDEA demonstrates that Congress “intended states

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to have the primary responsibility of formulating each individual child’s education.” Hood v.

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Encinitas Union Sch. Dist., 486 F.3d 1099, 1104 (9th Cir. 2007). Consequently, the court must

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“not substitute [its] opinions of sound educational policy for those of the school authorities which

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[it is] reviewing.” Adams v. State of Oregon, 195 F.3d 1141, 1149 (9th Cir. 1999).

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The quality of the administrative decision determines the amount of deference the

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district court should afford it. Greater deference should be given to the ALJ’s findings when they

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are “thorough and careful.” K.D. ex rel. C.L. v. Dep’t of Educ., 665 F.3d 1110, 1117 (9th Cir.

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2011); Hood, 486 F.3d at 1104; see also Wartenberg, 59 F.3d at 891–92 (finding that “[t]he

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hearing officer’s report was especially careful and thorough, so the judge appropriately exercised

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her discretion to give it quite substantial deference”); Ojai Unified Sch. Dist., 4 F.3d at 1476

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(holding that an ALJ’s decision is entitled to “substantial weight” where the “decision evinces

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[the ALJ’s] careful, impartial consideration of all the evidence and demonstrates his sensitivity to

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the complexity of the issues presented”). However, courts retain the freedom to decide

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independently how much weight to give the ALJ’s findings and conclusions. Ashland Sch. Dist.

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

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III.

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DEFERENCE
Plaintiffs argue this court should not afford the ALJ’s decision deference for eight

separate reasons. See Pls.’ MSJ 19:4–26:22. The court rejects each argument, as follows.
Plaintiffs’ first three arguments all concern factual determinations as to whether

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Ms. Swanson-Houston waived medical liability so that she, or someone else of her choosing,

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could administer David’s diabetes care at school. Specifically, Plaintiffs first contend “[t]he ALJ

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erred by repeatedly stating in his decision the misinformation” that Ms. Swanson-Houston would

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only allow LVN Armstrong to treat David’s diabetes at school. Id. at 19:4–24. Second, Plaintiffs

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contend “[t]he ALJ erred by ignoring the evidence that Ms. Swanson-Houston repeatedly

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requested of [Defendants] that she [herself] be allowed to provide David’s diabetes care during

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the day or [else] elect to have someone else provide it.” Id. at 19:25–21:3. Third, Plaintiffs

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contend “[t]he ALJ erred by stating in his decision that Ms. Swanson-Houston never requested a

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waiver.” Id. at 21:4–22:15. All three of Plaintiffs’ arguments either mischaracterize or ignore

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pertinent findings in the ALJ’s decision. The ALJ explicitly acknowledged and rejected

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Plaintiffs’ arguments, finding the contrary evidence to be more persuasive because Plaintiffs’
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arguments were “not consistent with [David’s m]other’s testimony or conduct.” OAH Decision

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Legal Conclusions ¶¶ 32–36. In addition, as to the waiver, Plaintiffs’ counsel at hearing could

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point to no time when Ms. Swanson-Houston had explicitly requested a waiver.

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Fourth, Plaintiff argues “[t]he ALJ erred by ignoring . . . that [Defendants] made

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the provision of special education for David contingent on Ms. Swanson-Houston signing an

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authorization form [that states,] ‘Signing this form is voluntary . . . . Refusing to sign this

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authorization will not affect the LEA’s [local education agency] commitment to provide a quality

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education for my child.’ ” Pls.’ MSJ 22:16–23:23 (quoting Waiver Form, AR at 385). This

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argument again mischaracterizes the ALJ’s decision. Far from ignoring this issue, the ALJ fully

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discussed it in conjunction with the District’s contention that it needed authorization to consult

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with David’s physician in order to deliver nursing services safely. See OAH Decision Legal

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Conclusions ¶¶ 39–42.

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Fifth, Plaintiffs contend “the ALJ erred by stating in his Decision that ‘during her

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testimony, [Ms. Swanson-Houston] failed to assert any specific complaint regarding [RN]

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Anderson.’” Pls. MSJ 23:23–24:2 (quoting OAH Decision Factual Findings ¶ 58). For support,

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Plaintiffs cite a passage from the hearing transcript in which Ms. Swanson-Houston testified that

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(1) RN Anderson had failed to supervise David directly, and (2) she had lodged a complaint

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against RN Anderson with the California Board of Registered Nursing for not ensuring David’s

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health records were kept private. TR at 957–59. However, Plaintiffs fail to explain how these

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examples made RN Anderson unqualified to treat David. Additionally, the ALJ’s omission of

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this testimony is consistent with his determination that Ms. Swanson-Houston’s testimony was

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not credible. See OAH Decision Factual Findings ¶ 58; OAH Legal Conclusions ¶¶ 32–33.

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Sixth, Plaintiffs contend the ALJ erred in characterizing the testimony of RN

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Keenan, who served as an independent assessor at the August 2013 IEP meeting, as describing

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David as a “nurse-dependent pupil who required constant and comprehensive services from a

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one-to-one nurse while at school.” Pls.’ MSJ 24:3–24:19 (quoting OAH Decision Factual

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Findings ¶ 43). For support, Plaintiffs cite the hearing transcript in making the following

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argument: “As for nurse Keenan’s testimony, she testified that she does not think that David
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requires nursing staff and medical information for him to be safe at school.” Id. This page of the

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transcript, however, reflects the testimony of Ms. Swanson-Houston. See TR 1212. This

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misleading citation aside, the rest of Plaintiffs’ argument can be distilled down to the proposition

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that because Ms. Swanson-Houston cares for David when he is not in school, and because she is

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not a nurse, David is not a “nurse-dependent pupil.” This argument ignores the thrust of RN

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Keenan’s testimony. RN Keenan describes David as “one of the most intensive [sic] managed

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students with one of the highest degrees of medical complexity,” TR 1176, and testified that

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“anyone providing direct care . . . for David should be a licensed nurse with detailed experience

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with David’s symptoms [and] David’s communication needs.” TR 1172–73. Given this

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testimony and the lack of any contrary evidence in the record, the ALJ did not err.
Seventh, Plaintiff contends the ALJ erred by unilaterally rewriting District Issue

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#1 in a way that “narrowed [the scope of] the issue” so that it “substantially favored the

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defendants.” Pls.’ MSJ 24:20–25:25. The issue was phrased before and after the hearing,

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respectively, as follows:

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[Before the OAH hearing:] Does the District’s August 19, 2013
IEP, including its offer of one-to-one LVN employed by either
County or District, provide Student with a FAPE in the least
restrictive environment?
Defs.’ Resp. UMF 17:3–6.
[In the ALJ’s final decision:] Whether the District’s August 19,
2013 IEP denied student a FAPE by failing to offer an appropriate
nurse.

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OAH Decision 5.

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An ALJ may generally rephrase an issue when the changes are “inconsequential”

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and do not change the ALJ’s consideration of the parties’ arguments. See J.W., 626 F.3d at 442

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(affirming an ALJ’s reorganization of an issue when the “reorganization was inconsequential to

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[the student]” and the ALJ still addressed the student’s arguments). Here, although the ALJ

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rewrote the issue to focus on the dispositive dispute in this case, the dispute over David’s nurse,

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he still considered the August 19, 2013 IEP as a whole. For instance, the ALJ discussed in detail
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the terms of the August 19 IEP, noting David’s educational progress, performance, and goals;

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medical needs; and specialized academic instruction. OAH Decision Factual Findings ¶¶ 29–37.

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The ALJ also considered David’s unique communication needs, OAH Decision Legal

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Conclusions ¶ 18; the “nature, severity, and complexity of [David]’s diabetes, id. ¶ 10; and

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David’s sensitivity to “environmental factors, including noise and the number of peers” in his

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classroom, id. ¶ 21. It is clear from the ALJ’s decision that the changes he made to the issue were

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inconsequential because they did not change his consideration of Plaintiffs’ arguments.

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Finally, Plaintiff argues the ALJ “misstated, misapplied, and ignored relevant law”

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by failing to cite Title 5 California Code of Regulations section 604 and by citing a vacated case,

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Am. Nurses Ass’n v. O’Connell, 185 Cal. App. 4th 393, review granted and opinion superseded

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sub nom. Am. Nurses Ass’n v. O’Connell, 239 P.3d 651 (Cal. 2010), and rev’d sub nom. Am.

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Nurses Ass’n v. Torlakson, 57 Cal. 4th 570 (2013). Pls.’ MSJ 25:26–26:22. However, section

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604 is a permissive regulation providing that a student’s parent or designee may administer the

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student’s medication at school; nothing in the statute suggests a school must allow the parent or

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designee to administer the student’s medication. Cal. Code Regs. tit. 5, § 604(c)–(d) (“The

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pupil’s parent or legal guardian may administer medication to the pupil . . . . An individual

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designated to do so by the parent or legal guardian may administer medication to the pupil . . . .”).

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Additionally, the ALJ cited Am. Nurses Ass’n v. O’Connell only for the proposition that the

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administration of insulin for diabetes management requires medically related training. OAH

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Decision Legal Conclusions ¶ 7. The case was reversed on other grounds, and the proposition

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that the administration of insulin, even when completed by unlicensed individuals, requires

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training remains good law. See Torlakson, 57 Cal. 4th at 591 (observing that California

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“permit[s] trained, unlicensed school personnel to administer prescription medications, including

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insulin, in accordance with written statements of individual students' treating physicians, with

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parental consent . . .”).

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For the above-stated reasons, Plaintiffs’ arguments are without merit. The ALJ’s
decision reviewed together with the transcript from the due process hearing demonstrates that the

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ALJ considered all of the evidence and issues presented carefully and impartially. This court

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therefore affords substantial weight to the ALJ’s findings.

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IV.

FINDINGS SUPPORTED BY A PREPONDERANCE OF THE EVIDENCE

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The court’s task, then, is to determine whether a preponderance of the evidence

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supports the ALJ’s findings that Defendants did not deny David a FAPE. This court’s inquiry is

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twofold. The “procedural prong” requires the court to consider whether the state complied with

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the procedures set forth in the IDEA. Amanda J. v. Clark Cty. Sch. Dist., 267 F.3d 877, 890 (9th

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Cir. 2001); Rowley, 458 U.S. at 206–07. Under the “substantive prong,” the court must determine

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if the IEP developed through those procedures was reasonably calculated to enable the child to

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receive educational benefits. Amanda J., 267 F.3d at 890; Rowley, 458 U.S. at 206–07.
A.

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Compliance with IDEA Procedures
In analyzing whether the District offered David a FAPE under the IDEA, the court

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

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

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

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

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

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§ 1415(f)(3)(E)(ii). Plaintiffs’ motion for summary judgment focuses only on alleged substantive

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deficiencies in Defendants’ provision of a FAPE—specifically, who should provide David with

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diabetic care during the school day. Plaintiffs conceded at hearing that Defendants did not violate

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IDEA’s procedural safeguards. Furthermore, nothing in the record suggests such violations, and

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the ALJ found that Defendants consistently offered David a FAPE. This court independently has

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examined the procedures giving rise to this case and finds that all of the requirements of

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20 U.S.C. § 1415 were met. Therefore, the court finds this prong is satisfied.

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B.

Substantive Sufficiency of the FAPE
Having found that Defendants complied with the procedural requirements of the

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IDEA, the court must determine whether the FAPE Defendants offered to David satisfied the

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substantive prong of the Rowley test. Amanda J., 267 F.3d at 890. Plaintiffs assert that
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Defendants denied David a FAPE by refusing to allow his mother or her designee to provide his

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diabetes care during the school day. Pls.’ MSJ 26:22–27:9. However, Plaintiffs produced no

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credible evidence at the due process hearing showing it was necessary for Defendants to allow

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Ms. Swanson-Houston or her designee to provide David’s diabetic care for him to receive a

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FAPE. Rather, the ALJ’s determination that this argument was a red herring, and that Plaintiffs’

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true motive was to force Defendants to have LVN Anderson care for David at school, is

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supported by Plaintiffs’ instant motion before the court. First, Plaintiffs acknowledge that

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Defendants asked Ms. Swanson-Houston to “come to school to train the newly hired LVN[, and

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she] responded that she was unavailable to provide training.” Id. at 14:24–27. Then, in the very

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next sentence, Plaintiffs argue Ms. Swanson-Houston requested that she be allowed to “waive

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medical liability and provide [David’s] care herself.” Id. at 14:27–15:01. Given David’s serious

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medical needs, these positions are logically inconsistent; if she was available to care for David the

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entire school day, it stands to reason she could have made herself available to help train a new

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LVN. This inconsistency, coupled with a review of Ms. Swanson-Houston’s correspondence

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with Defendants, wherein she repeatedly demands they reinstate LVN Armstrong, supports the

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ALJ’s determination that her testimony that she would have provided David’s nursing services

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was not credible. The ALJ was in the best position to assess Ms. Swanson-Houston’s credibility

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because his observation of her live testimony enabled him “to see [her] physical reactions to

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questions, to assess [her] demeanor, and to hear the tone of [her] voice.” Ms. S. ex rel. G. v.

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Vashon Island Sch. Dist., 337 F.3d 1115, 1127 (9th Cir. 2003) (quoting United States v. Mejia, 69

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F.3d 309, 315 (9th Cir. 1995)), superseded on other grounds by 20 U.S.C. § 1414(d)(1)(B);

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Amanda J., 267 F.3d at 889 (finding, in the IDEA context, that the administrative hearing officer

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“who receives live testimony is in the best position to determine issues of credibility”).

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Accordingly, his credibility findings are entitled to deference on this appeal.

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Plaintiffs also argue David was denied a FAPE because Defendants made David’s

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special education contingent on the signing of a form that itself indicated signing the form was

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voluntary. Pls.’ MSJ 27:9–22. This argument ignores the next sentence of the form, which states

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that not signing will not affect Defendants’ “commitment” to providing David with a quality
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education. Id. (citing AR 385; TR 962, 967). A preponderance of the evidence supports the

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ALJ’s findings that regardless of whether Ms. Swanson-Houston signed the authorization form,

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Defendants remained committed to offering David a FAPE, and that the voluntariness of the form

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has no bearing on whether the IEP offered to David satisfied the requirements under the IDEA.

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Plaintiffs’ final argument is that Defendants’ choice of nurse did not constitute

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provision of a FAPE in the least restrictive environment. Id. at 27:22–30:20. However, Plaintiffs

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conceded at hearing that there is no authority supporting their position that an IEP must identify

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the designated LVN by name for a student to receive a FAPE. Additionally, the ALJ determined

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that Defendants “stood ready and willing to provide [David with] a special education,” and that

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they employed a qualified nurse who could “provide the same duration, frequency and modality”

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of the LVN service set forth in David’s IEP. OAH Decision Legal Conclusions ¶ 28. The ALJ

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also found RN Anderson, with twenty-three years’ experience practicing as a registered nurse,

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had “extensive experience assessing and providing direct treatment for students with diabetes,

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including those who were non-verbal, with autism, and with serious degrees of type-one

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diabetes.” Id. ¶ 19. The ALJ also found RN Anderson “was directly familiar with [David], his

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means of communication, his complex diabetic requirements, and how to care for his rapidly

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changing diabetic needs.” Id. A preponderance of evidence supports the ALJ’s finding that RN

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Anderson “had the requisite experience, training, and credentialing required of her role.” Id.

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A preponderance of the evidence also supports the ALJ’s determination that the

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August 19, 2013 IEP was “reasonably calculated to enable the child to receive educational

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benefits.” Rowley, 458 U.S. at 207, quoted in OAH Decision Legal Conclusions ¶ 3. For

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instance, the IEP offered David a one-to-one nurse for 420 minutes daily, five days per week.

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AR 492–526. It provided David with individual nursing services at home prior to school, during

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the bus ride to school, the entirety of the school day, the bus ride home, and at David’s home after

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school. Id. The IEP reviewed his progress and performance, and adopted new goals. Id. It

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provided specialized academic instruction in a special day class. Id. Three independent assessors

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as well as RN Anderson and LVN Armstrong each testified at the OAH hearing, and all five

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agreed the August 19, 2013 IEP was appropriate to meet David’s unique needs. The ALJ found
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that Plaintiffs “failed to provide any [credible] evidence or elicit any [credible] testimony” that

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indicated David required additional or different nursing services than those offered in the IEP.

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OAH Decision Legal Conclusions ¶ 17. The record is clear that, at the very least, the August 19,

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2013 IEP provided David with the required basic “floor of opportunity.” See J.L., 592 F.3d at

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947 (observing that schools are obligated to provide “a ‘basic floor of opportunity’ to disabled

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students, not a ‘potential-maximizing education’” (quoting Rowley, 458 U.S. at 197 n. 21));

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Anchorage Sch. Dist. v. M.P., 689 F.3d 1047, 1057 (9th Cir. 2012) (same).

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For the foregoing reasons, a preponderance of the evidence supports the
conclusion Defendants offered David a FAPE. Plaintiffs have not met their burden of persuading

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this court that the ALJ’s decision should be reversed. J.W., 626 F.3d at 438 (“[T]he party

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challenging the administrative decision bears the burden of persuasion on each claim

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challenged.”). The court GRANTS Defendants’ motion for summary judgment and DENIES

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Plaintiffs’ motion for summary judgment under the IDEA.

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V.

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SECTION 504 OF THE REHABILITATION ACT
Under Section 504, “[n]o otherwise qualified individual with a disability in the

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United States . . . shall, solely, by reason of her or his disability, be excluded from the

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participation in, be denied the benefits of, or be subjected to discrimination under any program or

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activity receiving Federal financial assistance.” 29 U.S.C. § 794(a). The Ninth Circuit has stated

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that:

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[t]o establish a violation of § 504 of the Rehabilitation Act,
[Plaintiffs] must show that (1) the student is handicapped within the
meaning of the Rehabilitation Act; (2) the student is otherwise
qualified for the benefit or services sought; (3) the student was
denied the benefit or services solely by reason of [his] handicap;
and (4) the program providing the benefit or services receives
federal financial assistance.
Lovell v. Chandler, 303 F.3d 1039, 1052 (9th Cir. 2002).
Implementing a valid IEP under the IDEA satisfies the substantive and procedural
portions of Section 504. See Mark H. v. Lemahieu, 513 F.3d 922, 933 (9th Cir. 2008). Because

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Defendants offered David a FAPE under the IDEA, Plaintiffs cannot recover under Section 504.

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The court GRANTS Defendants’ motion for summary judgment and DENIES Plaintiffs’ motion

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for summary judgment under Section 504.

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VI.

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

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preponderance of the evidence. The record shows that Defendants provided David with a FAPE

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on and after February 19, 2013 and in the August 19, 2013 IEP. Defendants’ motion for

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summary judgment is hereby GRANTED, and plaintiffs’ motion for summary judgment is

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DENIED. This order resolves ECF Nos. 44 and 46. The Clerk of the Court shall enter judgment

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in favor of Defendants. CASE CLOSED.
IT IS SO ORDERED.
DATED: October 13, 2016.

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UNITED STATES DISTRICT JUDGE
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