J.L. et al v. Manteca Unified School District et al

Filing 36

MEMORANDUM AND ORDER RE CROSS-MOTIONS FOR SUMMARY JUDGMENT signed by Senior Judge William B. Shubb on 6/14/2016: IT IS ORDERED that 30 Plaintiffs' Motion for Summary Judgment be, and the same hereby is, DENIED. IT IS FURTHER ORDERED that 29 Defendants' Motion for Summary Judgment be, and the same hereby is, DENIED. The ALJ was correct in finding that defendants committed a procedural violation by holding the August 6, 2013 IEP meeting without J.L.'s parents and a substantive violation by failing to provide direct individual speech and language services. Defendants are therefore ordered to provide the remedies previously ordered by the ALJ. (Kirksey Smith, K)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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J.L., a minor, by and through
his parent and guardian ad
litem, Y.L. and Y.L.,
individually,

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MEMORANDUM AND ORDER RE: CROSSMOTIONS FOR SUMMARY JUDGMENT

Plaintiffs,

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CIV. NO. 2:14-01842 WBS EFB

v.
MANTECA UNIFIED SCHOOL
DISTRICT and SAN JOAQUIN
COUNTY OFFICE OF EDUCATION,
Defendants.

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AND RELATED COUNTERCLAIMS.

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----oo0oo---This suit was initiated by plaintiff J.L., a student

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with an autism and speech language impairment, by and through his

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mother and guardian ad litem, Y.L., against defendants Manteca

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Unified School District and San Joaquin County Office of

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Education (“SJCOE”) under the Individuals with Disabilities
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Education Act (the “IDEA”), 20 U.S.C. §§ 1400 et seq.

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parties move for summary judgment pursuant to Federal Rule of

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Civil Procedure 56.

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I. Procedural & Factual Background

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Both

(Docket Nos. 29, 30.)

J.L. is a nine-year-old boy with autism who has been

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eligible for an Individual Education Plan (“IEP”) since 2009.

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Pursuant to a settlement agreement, which was in effect until the

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start of the 2012-2013 school year, J.L. attended the Kendall

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School from April 11, 2011 through April 5, 2012, a center-based

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one-to-one Applied Behavior Analysis (“ABA”) program run by the

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nonpublic agency Therapeutic Pathways.

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2285.)

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severely handicapped special day class at Veritas Elementary

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School within the Manteca Unified School District.

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a 1:1 aide with him at all times and the classroom employs ABA

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methodologies throughout the day.

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(Admin. R. (“AR”) at

In May 2012, he transitioned to an autism-specific

(Id.)

He has

(Id. at 2564.)

On November 22, 2013, plaintiffs filed a request for a

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due process hearing with the Office of Administrative Hearings

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(“OAH”) challenging various portions of J.L.’s IEP for the 2012-

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2013 and 2013-2014 school years pursuant to 20 U.S.C. § 1415(f).

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Administrative Law Judge (“ALJ”) Peter Paul Castillo presided

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over a nine-day hearing that involved approximately thirty

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witnesses, over 2,000 pages of evidence, and generated over 2,000

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pages of testimony transcripts.

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favor of plaintiffs on two issues and in favor of defendants on

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all others.

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pursuant to 20 U.S.C. § 1415(i)(2).

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II.

(Id. at 2225.)

The ALJ found in

Both parties have appealed the ALJ’s decision

Applicable Law
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The IDEA, originally enacted in 1975 as the “Education

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for All Handicapped Children Act,” provides federal assistance to

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state and local agencies for the education of children with

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disabilities.

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must provide a “free appropriate public education” (“FAPE”) that

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is tailored to the unique needs of the child with a disability

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through the development of an “individualized educational

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program.”

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To qualify for assistance under the IDEA, a state

20 U.S.C. § 1412(a)(1) & (4).
A “free appropriate public education” means “special

education and related services” that:

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(A) have been provided at public expense, under public
supervision and direction, and without charge;
(B) meet the standards of the State educational agency;
(C) include an appropriate preschool, elementary, or
secondary school education in the State involved; and
(D) are provided in conformity with the individualized
education program required under [the Act].

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Id. § 1401(9).

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designed to meet the unique needs of a child with a disability.

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Id. § 1401(29).

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developmental, corrective, and supportive services, including

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physical and occupational therapy, required to assist the child

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in benefiting from special education.

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is satisfied if the state complies with the act’s procedures and

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“the individualized education program developed through the Act’s

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procedures [is] reasonably calculated to enable the child to

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receive educational benefits.”

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Union High Sch. Dist., 464 F.3d 1025, 1031 (9th Cir. 2006).

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“Special education” is instruction specially

“Related services” are transportation and other

Id. § 1401(26).

The IDEA

Park, ex rel. Park v. Anaheim

An “individualized education program” or IEP is “a
written statement for each child with a disability that is
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developed, reviewed, and revised in accordance with section

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1414(d) of [the Act].”

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that the IEP must contain a statement of the child’s present

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levels of academic achievement and functional performance and

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measurable annual academic and functional goals.

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§ 1414(d)(1).

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team comprised of the child’s parents, teachers, and other

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specialists.

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III. Discussion

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Id. § 1401(14).

Section 1414(d) provides

Id.

The IEP is developed and reviewed each year by a

Id.

The IDEA does not employ the usual deferential standard

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of review for administrative decisions, but rather provides that

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the court “(i) shall receive the records of the administrative

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proceedings; (ii) shall hear additional evidence at the request

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of a party; and (iii) basing its decision on the preponderance of

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the evidence, shall grant such relief as the court determines is

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appropriate.”

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should review for procedural compliance with the statute and for

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whether the program is reasonably calculated to enable the child

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to receive educational benefits.

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v. Wartenberg, 59 F.3d 884, 891 (9th Cir. 1995).

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20 U.S.C. § 1415(i)(2)(C).

The district court

Capistrano Unified Sch. Dist.

“The requirement that the district court receive the

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hearing officer’s record ‘carries with it the implied requirement

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that due weight shall be given to the [administrative]

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proceedings.’”

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176, 206 (1982)).

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administrative findings is within the court’s discretion and

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increases when the hearing officer’s findings are “thorough and

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careful.”

Id.

Id. (quoting Board of Educ. v. Rowley, 458 U.S.
The amount of deference given to the

The court gives the hearing officer’s decision
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“substantial weight” when it “‘evinces his careful, impartial

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consideration of all the evidence and demonstrates his

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sensitivity to the complexity of the issues presented.’”

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of San Diego v. Cal. Special Educ. Hearing Office, 93 F.3d 1458,

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1466 (9th Cir. 1996) (citation omitted).

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is inappropriate because “Congress intended states to have the

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primary responsibility of formulating each individual child’s

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education” and the court must defer to the “specialized knowledge

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and experience” of the state’s administrative bodies.

County

Complete de novo review

Amanda J.

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ex rel. Annette J. v. Clark Cnty. Sch. Dist., 267 F.3d 877, 887-

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88 (9th Cir. 2001).

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The Ninth Circuit has recognized that the procedure

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under the IDEA is “not a true summary judgment procedure,” but is

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“essentially . . . a bench trial based on a stipulated record.”

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Ojai Unified Sch. Dist. v. Jackson, 4 F.3d 1467, 1472 (9th Cir.

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1993).

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as a practical matter under the statute except read the

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administrative record, consider the new evidence, and make an

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independent judgment based on a preponderance of evidence and

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giving due weight to the hearing officer’s determinations.”

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Capistrano, 59 F.3d at 892.

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does not fit well into any pigeonhole of the Federal Rules of

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Civil Procedure,” it is appropriate because it “appears to be

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what Congress intended under the Act.”

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“It is hard to see what else the district court could do

“Even though [this method of review]

Id.

A. Failure to Answer Defendants’ Counterclaims
Defendants argue that because plaintiffs failed to file

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an answer to defendants’ counterclaims, plaintiffs judicially

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admitted all of the matters alleged and the court can grant
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defendants’ motion for summary judgment on this ground alone.

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(Defs.’ Mot. for Summ. J. at 5-6 (Docket No. 29-1)); Fed. R. Civ.

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P. 8(b)(6).

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crossclaim within twenty-one days of being served with the

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pleading, id. R. 12(a)(1)(B), and an allegation “is admitted if a

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responsible pleading is required and the allegation is not

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denied,” id. R. 8(b)(6).

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F.2d 603, 611 (9th Cir. 1980) (finding the defendant’s failure to

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deny an allegation in its answer to the plaintiff’s complaint

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constituted an admission and, as a result, no evidence on this

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element of the bankruptcy case was required); Keel v. Dovey, 459

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F. Supp. 2d 946, 950 n.3 (C.D. Cal. 2006) (same).

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A party must serve an answer to a counterclaim or

See also Lockwood v. Wolf Corp., 629

The court, however, will not grant defendants’ motion

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for summary judgment on such a technicality.

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based on this procedural error is inappropriate, especially in

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light of the fact that both parties have already fully briefed

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the issues and participated in a nine-day hearing in front of the

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ALJ.

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plaintiffs’ claims and defenses from the beginning and were not

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prejudiced by plaintiffs’ failure to file an answer to its

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counterclaims.

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motion for summary judgment on this ground.

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Deciding the issues

There is no question that defendants have been aware of

Accordingly, the court will deny defendants’

B. Assessments
A student must be assessed in all areas related to a

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suspected disability.

20 U.S.C. § 1414(b)(3)(B); 34 C.F.R.

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§ 300.304(c)(4).

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conduct appropriate assessments, results in a denial of a FAPE if

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the violation (1) impeded the child’s right to a FAPE, (2)

A procedural violation, such as a failure to

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seriously infringed the parents’ opportunity to participate in

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the decision making process, or (3) caused a deprivation of

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educational benefits.

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Code § 56505(f)(2).

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See Park, 464 F.3d at 1031; Cal. Educ.

1. Augmentative and Alternative Communication Assessment
Plaintiffs first argue that defendants denied J.L. a

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FAPE by failing to assess him in the area of augmentative and

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alternative communication (“AAC”) in the 2012-2013 and 2013-2014

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school years.

AAC includes all forms of communication, other

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than oral speech, that are used to express thoughts, needs,

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wants, and ideas.

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AAC aids, such as picture and symbol communication boards and

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electronic devices, can be used to help children express

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themselves.

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(Pls.’ Mot. for Summ. J. at 20 n.4.)

Special

(Id.)

The ALJ correctly concluded that plaintiffs failed to

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bring forth sufficient evidence that defendants were required to

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conduct an AAC assessment to find communication tools that are

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more effective for J.L.

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language pathologist hired by plaintiffs, stated at the hearing

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that an AAC assessment would benefit J.L. because “for a

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communicative purpose, it’s a good idea to see if [J.L.] would

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benefit from an AAC device.”

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did not recommend an AAC assessment in either her 2010 or 2013

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speech and language evaluations and also admitted at the hearing

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that she never observed J.L. at school and therefore did not know

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if his picture exchange book system was being implemented

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consistently at school.

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Grandison, the developmental neuropsychologist hired by

Ginna Brents, the licensed speech and

(Id. at 2387-88.)

(Id. at 2389, 2409.)

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Brents, however,

Dr. Carina M.

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plaintiffs, also failed to recommend such an assessment in her

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developmental neuropsychology assessment report based on her

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observations in May and September 2013.

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Similarly, SJCOE’s speech and language pathologist, Isabel

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Contreras, assessed J.L. in May-June 2012 and did not recommend

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an AAC assessment.

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(Id. at 1688-98.)

(Id. at 837-47.)

There was also significant evidence presented that

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defendants were already effectively using augmentative

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communication with J.L. in the form of a picture exchange book

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and that J.L.’s speech was emerging.

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term substitute teacher Cindy Kelch; id. at 4371, SJCOE speech

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and language pathologist Juana Mier-Anaya; id. at 2484, 2508-09

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SJCOE behavior analyst Susan Scott; id. at 2509, 2603, 4089,

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4097, SJCOE speech therapist Monica Filoso; id. at 2729, SJCOE

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instructional assistant Wanda Luis; id. at 3734-35, senior

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service coordinator at Valley Mountain Regional Center Elizabeth

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Diaz.)

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communicate with an iPad but J.L. did not show an interest in

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this device.

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(See id. at 3568-69, long-

The school also attempted to teach J.L. how to

(Id. at 2241.)

For all the above reasons, the court finds defendants
were not required to provide J.L. an AAC assessment.
2. Functional Behavior Assessment
Plaintiffs next argue J.L. was denied a FAPE under the

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IDEA because defendants developed J.L.’s IEPs without a

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functional behavior assessment.

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behavior impedes the child’s learning or that of others,” the IEP

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team must “consider the use of positive behavioral interventions

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and supports, and other strategies, to address that behavior.”

In the “case of a child whose

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20 U.S.C. § 1414(d)(3)(B)(i); 34 C.F.R. § 300.324(a)(2)(i); Cal.

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Educ. Code § 56341.1(b)(1).

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one type of behavioral intervention or strategy that helps

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identify causative factors and objectionable behaviors.

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Neosho R-V Sch. Dist. v. Clark, 315 F.3d 1022, 1026 (8th Cir.

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2003).

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required.

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411, Civ. No. C04-1926 RSL, 2007 WL 2703056, at *5 (W.D. Wash.

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Sept. 12, 2007) (noting that a functional behavior assessment is

A functional behavior assessment is

See

A functional behavior assessment is not, however,
See S.J. ex rel. S.H.J. v. Issaquah Sch. Dist. No.

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required only when a student has been removed from her current

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placement).

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In this case, the ALJ carefully weighed the evidence

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and concluded that plaintiffs failed to establish that J.L. had

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serious behavior problems at school that warranted a functional

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behavior assessment.

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behavioral issues, such as scratching, pinching, lack of

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attention, and running into others, but reported that they were

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able to easily redirect J.L. from the maladaptive behaviors.

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(See, e.g., AR at 4026, teacher Cindy Campero (testifying that

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she could re-direct Ivan from staring at the ceiling in seconds);

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id. at 3526, 3565, 3574 long-term substitute teacher Cindy Kelch

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(testifying that J.L. was redirected from avoiding eye contact,

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staring at the ceiling, or grabbing, pinching, and scratching in

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seconds).)

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The staff at Veritas were aware of J.L.’s

The court agrees with the ALJ’s finding that the report

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produced by Dr. Carina M. Grandison, a developmental

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neuropsychologist, was not as credible as the testimony of the

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Veritas staff and overemphasized J.L.’s behavioral problems.
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Dr.

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Grandison was hired by plaintiffs and based her report on an

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interview of Y.L., review of school records and a questionnaire

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filled out by J.L.’s teacher, two observations and testing

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sessions in the office, and two ninety-minute school observations

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in April and September 2013.

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Report of Developmental Neuropsychology Assessment.)

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Grandison observed J.L. staring at the ceiling and being

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disconnected for much longer periods of time than reported by the

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Veritas staff, particularly during her second school visit.

(Id. at 1688-98, Dr. Grandison
Dr.

(Id.

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at 1692-93.)

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refusing to work, lying on the floor, scratching, and kicking.

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(Id. at 1693.)

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typical of what Y.L. reported seeing at home.

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concluded that J.L.’s “behaviors outside of the school

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environment are of great concern, maladaptive, and even posing

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the risk of harming himself and others (such as scratching and

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other acts of aggression).”

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While J.L. was in her office, he was often crying,

Dr. Grandison noted that this behavior was
(Id.)

She

(Id. at 1697.)

The ALJ found that Dr. Grandison was not reliable

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because she does not have experience in the behavior field, the

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Veritas staff persuasively testified that Dr. Grandison’s report

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had several significant inaccuracies, the Veritas staff was more

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convincing in their statements overall, and Dr. Grandison failed

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to differentiate between J.L.’s behavior at home and at school.

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(Id. at 2233-34.)

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testimony of the witnesses and observe their demeanor first-hand,

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he was better equipped to assess the credibility of the witnesses

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than this court.

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informed assessment of their credibility.

Given that the ALJ was able to listen to the

The court will therefore defer to his more

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In addition, Susan Scott, a Board Certified Behavior

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Analyst, did eventually conduct a functional behavior assessment

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on behalf of defendants on April 30, 2013 in an effort to

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cooperate with J.L.’s parents.

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assessment concluded that “[a]gression was observed at extremely

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low levels in frequency, duration, and intensity” and “[b]ehavior

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does not appear to be impeding [J.L.’s] learning.”

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Functional Behavior Assessment.)

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parents seek out behavior services at home because it was clear

(Id. at 2448, 2599.)

The

(Id. at 388,

Scott recommended that J.L.’s

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from a comparison of Y.L.’s reports and classroom observation

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that J.L. was “not displaying the same pattern of behavior at

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school.”

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behavior support plan was not needed.

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provides further evidence that additional functional behavior

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assessments were not necessary in the 2013-2014 school year.

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(Id. at 389.)

The assessment found that a positive
The assessment therefore

Accordingly, the court finds that the preponderance of

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the evidence supports the ALJ’s finding that defendants did not

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deny J.L. a FAPE by failing to conduct additional functional

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behavior assessments.

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C. Parental Rights to Observe and Participate in Student’s
Educational Decision Making Process
The parents of a child with a disability have a right

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to be a member of the IEP team and to participate in meetings

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respecting the identification, assessment, and education

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placement of their child.

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Educ. Code §§ 56304, 56342.5.

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procedural safeguards are those that protect the parents’ right

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to be involved in the development of their child’s educational

20 U.S.C. § 1414(d)(1)(B)(i); Cal.
“Among the most important

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plan.”

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accomplish the IDEA’s goal of providing all children with

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disabilities a FAPE, it is critical that the parents, the

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“individuals who have first-hand knowledge of the child’s needs

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and who are most concerned about the child,” be involved in the

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IEP creation process.

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9

Amanda J. ex. rel. Annette J., 267 F.3d at 882.

To

Id. at 891.

1. Quarterly Progress Reports on IEP Goals
The IEP must include a description of how the child’s
progress toward meeting the annual goals will be measured and

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when periodic reports on the child’s progress will be provided,

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such as through the use of quarterly or other period reports.

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U.S.C. § 1414(d)(1)(A)(III).

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receive quarterly progress reports and, as a result, Y.L. was

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prevented from meaningfully participating in IEP meetings.

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evidence demonstrates, however, that the ALJ was correct in

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finding that defendants provided plaintiffs with quarterly

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updates on J.L.’s progress in the form of handwritten updates on

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the Kendall goals, (AR at 1596-1631, 2528-2530, 2577-83), goal

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update forms, (id. at 1467-93, 2612), or bi-weekly narrative goal

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updates, (id. at 1712-27, 1735-39, 3572, 4052-54, 4124-25).

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Plaintiffs claim that they did not

The

2. Observation
Likewise, the evidence supports the ALJ’s finding that

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defendants did not deny Y.L. her parental right to participate in

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the educational decision making process by requiring her to drop

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off and pick up J.L. from the driveway, rather than directly from

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the classroom, and limiting Y.L.’s observation of J.L.’s

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classroom.

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unequally because other parents were allowed to drop off and pick

Plaintiffs first argue that Y.L. was treated

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up from the classroom on a daily basis and she was not.

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2543.)

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previously allowed classroom drop off/pick up, the security

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policy changed and parents are all now required to drop off and

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pick up students in the driveway.

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2768.)

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pick up location relates to Y.L.’s rights to observe her child’s

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classroom.

(Id. at

Defendants made clear, however, that while they

(Id. at 498, Veritas Handbook,

Further, it is difficult to conceive how the drop off and

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Plaintiffs also argue Y.L. was prevented from observing

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J.L.’s classroom even when she made requests to observe ahead of

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time.

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a child’s classroom if it is “arranged in advance with the

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teacher.”

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when testing is taking place or other activities that may make

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visiting an inappropriate distraction or that would disrupt

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instruction.”

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against her advocacy work on behalf of J.L. by applying a more

18

strict observation policy to her than other parents.

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for Summ. J. at 39.)

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however, that they attempted to comply with Y.L.’s observation

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requests but had to limit visitation periods to an hour to avoid

22

disrupting the classroom and that they sometimes could not

23

accommodate Y.L.’s requests because she did not provide them with

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enough advanced notice.

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The Veritas handbook provides that parents may only visit

(Id. at 498.)

(Id.)

It further states that there “are times

Y.L. argues that defendants retaliated

(Pls.’ Mot.

Veritas staff’s persuasively testified,

(AR at 3176, 3239-42.)

Accordingly, the court must find that defendants did

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not interfere with Y.L.’s parental rights by requiring her to

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comply with its drop off/pick up and observation policies.

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3. Parental Participation in IEP Meetings
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1

“Parental participation in the IEP and educational

2

placement process is central to the IDEA’s goal of protecting

3

disabled students’ rights and providing each disabled student

4

with a FAPE.”

5

1040-41 (9th Cir. 2013) (finding the student was denied a FAPE

6

because the parent was denied the opportunity to participate in

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the IEP meeting).

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parents only if the parents “affirmatively refuse to attend.”

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Id. at 1041 (citation omitted).

Doug C. v. Haw. Dep’t of Educ., 720 F.3d 1038,

An IEP meeting may be conducted without the

Id.

Accordingly, the ALJ was

10

correct in finding that defendants committed a procedural

11

violation by holding the August 6, 2013 IEP team meeting in

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Y.L.’s absence.

13

reschedule the meeting and at no time refused to attend.

14

no excuse that defendants sought to hold the IEP meeting before

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the start of the upcoming 2013-2014 school year.1

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Defendants do not dispute that Y.L. requested to
It is

Plaintiffs also contend that even when they were

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included in IEP meetings, defendants ignored the parents’ input

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and thereby denied them their right to participate in the

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decision making process.

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opportunity to meaningfully participate, the education agencies

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are not required to agree with the parents or to execute their

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suggestions.

23

Dist., Civ. No. S-06-2136 LKK GGH, 2008 WL 682595, at *10 (E.D.

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Cal. March 10, 2008).

While parents must be given an

See, e.g., J.R. ex rel. W.R. v. Sylvan Union Sch.

Plaintiffs identify examples of how

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26
27
28

1

The court need not address defendants’ argument
regarding whether in light of this finding plaintiffs were the
prevailing party for the purposes of attorney’s fees as the
attorney’s fees are the subject of a separate action, Civ. No.
2:14-01364 WBS AC.
14

1

defendants failed to adopt the changes the parents suggested but

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fail to provide sufficient evidence that defendants refused to

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consider the parents’ input or denied them meaningful

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participation.

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is evidence of several instances in which defendants changed

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their course of action in response to the parents’ requests and

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concerns.

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assessment and a functional behavior assessment at the parents’

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request.

In fact, contrary to plaintiffs’ position, there

For example, defendants agreed to conduct an AAC

(AR at 193-96, 2448, 2599.)

Further, defendants

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adopted the specific changes requested by J.L.’s parents to

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J.L.’s first, second, sixth, and thirteenth annual goals and

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objectives in his October 2, 2013 IEP.

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Plaintiffs’ Letter with Input to Drafted Goals, with id. at 1509-

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26, Oct. 2, 2013 IEP Annual Goals and Objectives.)

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therefore did not establish that defendants failed to consider

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their input.

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18

(Compare id. at 362-64,

Plaintiffs

D. Adequate Goals
The IEP must include “a statement of measurable annual

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goals, including academic and functional goals, designed to” both

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“meet the child’s needs that result from the child’s disability

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to enable the child to be involved in and make progress in the

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general education curriculum” and also to “meet each of the

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child’s other educational needs that result from the child’s

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disability.”

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a direct relationship between the present levels of performance,

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the goals and objectives, and the specific educational services

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to be provided.”

28

20 U.S.C. § 1414(1)(A)(i)(II).

“The IEP shall show

Cal. Code. Regs., tit. 5, § 3040(b).

Plaintiffs contend that defendants failed to offer J.L.
15

1

adequate goals when he transferred from the Kandall School to

2

Veritas.

3

operative goals at the Kendall School whereas he had only

4

eighteen offered at Veritas in the October 2, 2013 IEP.

5

at 1509-26, IEP Annual Goals and Objectives.)

6

requested that defendants add fourteen additional goals but

7

defendants did not comply.

8

this is evidence that defendants failed to set goals sufficient

9

to meet J.L.’s needs.

10

(Pls.’ Mot. for Summ. J. at 46-48.)

(Id. at 362-64.)

J.L. had forty

(See AR

Plaintiffs

Plaintiffs contend

The evidence, however, supports the ALJ’s finding that

11

the goals were adequate.

12

certified behavior analyst who was J.L.’s clinical supervisor at

13

the Kendall School and supervised the Kendall School aides who

14

helped transition J.L. to Veritas, testified that the forty goals

15

implemented at the Kendall School were not all targeted every

16

day.

17

select priority areas for him and work on the goals in that

18

order.

19

School goals were distilled into a smaller number of goals when

20

J.L. transitioned to Veritas and that she supported the goals

21

that were ultimately agreed upon by the IEP team at Veritas.

22

(Id. at 3357.)

23

witnesses suggested that J.L.’s goals were insufficient.

24

(Id. at 3318-19.)

(Id. at 3327.)

For example, Marie Polk, a board

Instead, the Kendall School staff would

Further, she explained that the Kendall

Moreover, aside from J.L.’s parents, none of the

The record also supports the ALJ’s finding that J.L.

25

continued to make progress on his goals after transferring from

26

the Kendall School to Veritas.

27

to be not credible as discussed above, and Y.L. were the only

28

witnesses who testified that J.L. regressed while at Veritas.

Dr. Grandison, whom the ALJ found

16

In

1

contrast, Polk testified that J.L. continued to make “slow

2

progress” and to “gain some skills” during the transition months

3

from Kendall School to Veritas that she oversaw.

4

She represented that J.L. had a similarly slow rate of

5

acquisition while at the Kendall School.

6

Further, the IEP team at Veritas, (id. at 1530), J.L.’s long-term

7

substitute teacher Cynthia Kelch, (id. at 3524, 3571), teacher

8

Cindy Campero, (id. at 3969, 4036-37, 4041-42, 4056, 4060-61),

9

SJCOE instructional assistant Wanda Luis, (id. at 2733), and

(Id. at 3368.)

(Id. at 3369-70.)

10

occupational therapist Kelly Inderbitzen, (id. at 4311-12, 4320-

11

24, 4328), all testified that J.L. was making progress towards

12

his goals.

13

Accordingly, the court finds that plaintiffs failed to

14

establish that J.L.’s IEP goals were inadequate or that he did

15

not make sufficient progress towards his goals.

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E. Adequate Services

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1. Fine Motor and Sensory Needs

18

Occupational therapy is a type of “related service”

19

that can be required in order for a student “to take advantage of

20

the education opportunities” and receive a FAPE.

21

at 1033; see also 20 U.S.C. § 1401(26)(A).

22

Park, 464 F.3d

Plaintiffs argue that the ALJ erred in finding that the

23

Occupational Therapy (“OT”) consultations defendants provided in

24

the special day class at Veritas were sufficient and contend that

25

defendants should have provided direct pull-out OT services to

26

address J.L.’s sensory processing, core strength and security,

27

fine motor skills, gravitation insecurity and visual perception

28

issues.

(Pls.’ Mot. for Summ. J. at 57.)
17

J.L.’s 2012 IEP

1

offered sixty minutes per month of OT consultation and his 2013

2

IEP offered ninety minutes per month.

3

(AR at 4323-24.)

In finding in favor of defendants, the ALJ carefully

4

explained why he relied more on the report and testimony of

5

defendants’ occupational therapist, Kelly Inderbitzin, who

6

recommended OT consultation, than the report and testimony of

7

plaintiffs’ occupational therapist, Karen Chaddock, who

8

recommended direct OT.

9

consider in her analysis that the Veritas special day class

The ALJ found that Chaddock “failed to

10

integrates OT into its program, and that Veritas staff could

11

implement the recommendations she made in her report without

12

individual OT service.”

13

Chaddock’s report, the court agrees that Chaddock recommended

14

J.L. “begin an OT clinic experience” and suggested that “[c]linic

15

based OT weekly can enhance his learning experience at school and

16

help prepare him to engage in pre-academics.”

17

Chaddock did not consider the OT programming already in place at

18

Veritas or what sort of OT would be appropriate in the context of

19

J.L.’s school, rather than a clinic.

(Id. at 2259.)

After reviewing

(Id. at 1372.)

20

The ALJ noted that Inderbitzin did not dispute J.L.’s

21

fine and gross motor and sensory processing deficits but rather

22

concluded that he would “benefit from Occupational Therapy

23

consultation and collaboration with the IEP team to help support,

24

modify, or adapt his education programming to optimize successful

25

occupational performance.”

26

that the consultative model was sufficient because J.L.’s fine

27

motor and sensory goals could “be worked on in the classroom

28

every day” because the staff “have the knowledge to support the

(Id. at 608.)

18

Inderbitzin testified

1

goals.”

2

class and staff, she believed J.L. would benefit from working on

3

his goals throughout the day in different contexts, rather than

4

in only the discrete trial context.

(Id. at 4324.)

5

Based on her knowledge of the Veritas

(Id. at 4317.)

It is clear that the ALJ thoroughly and carefully

6

considered this question and that the preponderance of the

7

evidence supports his finding that direct OT services were not

8

required.

9
10

2. Speech and Language Services
The court agrees with the ALJ’s reliance on the

11

professional opinions of Brents and the ALJ’s finding that J.L.

12

required direct speech and language services, rather than just

13

consultation.

14

documents and conducting three to four hours of testing, Brents,

15

a licensed speech and language pathologist, concluded that J.L.

16

required five, twenty-minute sessions of direct speech and

17

language therapy per week with an additional hour of consultation

18

per month.

19

recommendation was for direct speech services in the school

20

setting, not a clinical setting.

21

(See id. at 2259.)

(Id. at 2375.)

After reviewing J.L.’s IEP

She testified that this

(Id. at 2374-75.)

Defendants argue that Brents relied on an improper

22

standard because she suggested that direct speech and language

23

therapy would “help [J.L.] make the greatest gains and most

24

rapidly acquire appropriate speech language and learnings skills”

25

and best meet his needs.

26

IDEA does not require schools to provide children with

27

disabilities “the absolutely best or ‘potential-maximizing’

28

education” but rather “to provide ‘a basic floor of opportunity’

(Id. at 491 (emphasis added).)

19

The

1

through a program ‘individually designed to provide educational

2

benefit to the handicapped child.’”

3

15 F.3d 1519, 1524 (9th Cir. 1994) (citation omitted); see also

4

Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458

5

U.S. 178, 200-01 (1982).

6

Union Sch. Dist. v. Smith,

Congress, however, “did not intend that a school system

7

could discharge its duty under the [IDEA] by providing a program

8

that produces some minimal academic advancement, no matter how

9

trivial.”

Amanda J. ex rel. Annette J., 267 F.3d at 890

10

(citation and internal quotation marks omitted).

11

recommended what she thought would be best for J.L., she also

12

found in both her 2010 and 2013 evaluations that J.L. was

13

“severely delayed in all aspects of communication and requires

14

intervention for speech and language remediation with a qualified

15

speech and language pathologist.”

16

expressed “great concern” that he “does not currently have a

17

consistent communication system in the home and school

18

environments.”

19

opinion, necessary for J.L. to acquire the skills he needs to

20

communicate and to communicate consistently across different

21

environments.

22

recommend direct services, SJCOE’s speech and language therapist,

23

Isabelle Contreras, also recognized J.L.’s severe language

24

deficits and slow progress.

25

(Id. at 490.)

(Id. at 491.)

While Brents

(AR at 490, 422.)

She

Direct services are, in her

Furthermore, while she did not

(Id. at 846-47, 2977.)

Accordingly, the court finds that the ALJ’s order that

26

defendants provide 30 minutes a week of direct language and

27

speech services for the 2014 extended school year and the 2014-

28

2015 school year is supported by the record.
20

1

IT IS THEREFORE ORDERED that plaintiffs’ motion for

2

summary judgment (Docket No. 30) be, and the same hereby is,

3

DENIED.

4

IT IS FURTHER ORDERED that defendants’ motion for

5

summary judgment (Docket No. 29) be, and the same hereby is,

6

DENIED.

7

a procedural violation by holding the August 6, 2013 IEP meeting

8

without J.L.’s parents and a substantive violation by failing to

9

provide direct individual speech and language services.

The ALJ was correct in finding that defendants committed

10

Defendants are therefore ordered to provide the remedies

11

previously ordered by the ALJ.

12

Dated:

June 14, 2016

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