M.M. et al v. Lafayette School District et al

Filing 150

ORDER RE: CROSS-MOTIONS FOR SUMMARY ADJUDICATION OF PLAINTIFFS' CLAIMS FOR REIMBURSEMENT UNDER THE IDEA 136 137 . (Illston, Susan) (Filed on 7/27/2016)

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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 M.M., et al., Case No. 10-cv-04223-SI Plaintiffs, 8 v. 9 10 LAFAYETTE SCHOOL DISTRICT, et al., Defendants. Re: Dkt. Nos. 136, 137 11 United States District Court Northern District of California ORDER RE: CROSS-MOTIONS FOR SUMMARY ADJUDICATION OF PLAINTIFFS' CLAIMS FOR REIMBURSEMENT UNDER THE IDEA 12 13 14 15 16 17 Before the Court are two motions: defendants’ motion for summary adjudication of plaintiffs’ claims for reimbursement under the Individuals with Disabilities Education Act (“IDEA”); and plaintiffs’ motion for reimbursement of educational expenses pursuant to the IDEA. Docket Nos. 136, 137. For the reasons set forth below, the Court hereby GRANTS plaintiffs’ motion and DENIES defendants’ motion. 18 BACKGROUND 19 20 21 22 23 24 25 26 27 28 This action, brought under the IDEA and Section 504 of the Rehabilitation Act, concerns a dispute over the educational opportunities provided to C.M., a child who has been identified as an individual with learning disabilities. The facts and procedural history of this case are complex. A detailed summary and timeline are set forth in the Court’s February 7, 2012 order regarding the parties’ cross-motions for summary judgment, Docket No. 78, as well as in the Ninth Circuit Court of Appeals Opinion, M.M. v. Lafayette Sch. Dist., 767 F.3d 842 (9th Cir. 2014). For brevity, the Court now recites only the background relevant to the motions at hand. This case involves three related actions, two of which are now closed.1 Plaintiffs filed 1 The closed cases are Case Nos. 09-3668 and 09-4624. 1 their Second Amended Complaint in this case on March 21, 2011. Docket No. 29. On February 2 7, 2012, the Court ruled on the parties’ cross-motions for summary judgment. Docket No. 78. 3 The Court granted defendants’ motion for summary judgment and denied the majority of 4 plaintiffs’ motion. Id. at 48. 5 Plaintiffs appealed to the Ninth Circuit, which affirmed in part, reversed in part, and remanded the case. 7 “District”) “procedurally violated the IDEA by not providing the parents with [C.M.’s] complete 8 RTI [Response-to-Intervention] data.” M.M., 767 F.3d at 855-56. Under the facts of this case, 9 that procedural violation denied C.M. a free appropriate public education (“FAPE”). Id. at 856. 10 Having found that the District denied C.M. a FAPE, the Ninth Circuit explained that it “need not 11 United States District Court Northern District of California 6 The appeals court found that defendant Lafayette School District (the address the question of whether the resulting IEPs [individualized educational programs] were 12 reasonably calculated to enable C.M. to receive educational benefits.” Id. (citing Amanda J. v. 13 Clark Cty. Sch. Dist., 267 F.3d 877, 895 (9th Cir. 2001)). 14 The appeals court further stated: 15 School districts may be ordered to reimburse the parents of a child who has been denied a FAPE for the cost of private instruction. 20 U.S.C. § 1412(a)(10)(C)(ii); see also 34 C.F.R. § 300.148(c). During the OAH hearing and at the district court, the parents sought reimbursement for C.M.'s audiology and processing assessments, sound-based therapy, and private reading programs that they provided for C.M. at their own expense. Both the ALJ and the district court determined that the parents were not entitled to reimbursement because they had concluded that the District had not denied C.M. a FAPE. Because we conclude otherwise, we remand to the district court for reconsideration of this issue. 16 17 18 19 20 Id. Mandate returning the case to this Court was issued on December 12, 2014. Docket No. 105. 21 On August 27, 2015, following briefing on the remaining areas of dispute upon remand, 22 the Court issued an order regarding case management. Docket No. 116. In that order, the Court 23 stated that it would consider plaintiffs’ claim for reimbursement under the IDEA, limited to the 24 categories of expenses that the Ninth Circuit listed in its opinion, which are the same expenses that 25 plaintiffs previously sought at the administrative hearing and before this Court. Id. at 8. These 26 categories are: “C.M.’s audiology and processing assessments, assessment by Lindamood-Bell 27 28 2 1 Learning Processes, Tomatis therapy, and Lindamood-Bell reading interventions . . . as well as 2 compensatory education services in an intensive remedial reading program through Lindamood- 3 Bell.” Id. at 8-9 (citing M.M. v. Lafayette Sch. Dist., Nos. 09-4624, 10-4223, 2012 WL 398773, at 4 *32 (N.D. Cal. Feb. 7, 2012)). The Court granted leave to plaintiffs to file a motion to supplement 5 the administrative record by September 18, 2015, later extended to October 9, 2015, to add any 6 evidence regarding these categories of reimbursement. Id. at 9; Docket No. 119. 7 Plaintiffs did not file a motion to supplement the administrative record. On October 13, 8 2015, plaintiffs filed a motion to file a supplement to the Second Amended Complaint. See 9 Docket No. 123. On November 18, 2015, the Court denied plaintiffs’ motion. Docket No. 132. 10 The Court also denied defendants’ motion for judgment on the pleadings. Id. United States District Court Northern District of California 11 On April 1, 2016, defendants filed a motion for summary adjudication of plaintiffs’ claims 12 for reimbursement under the IDEA. Docket No. 136. On April 29, 2016, plaintiffs filed a motion 13 for reimbursement of educational expenses pursuant to the IDEA, also framed as an opposition to 14 defendants’ motion. Docket Nos. 137, 139. Defendants filed an opposition to plaintiffs’ motion, 15 also framed as a reply in support of defendants’ motion. Docket Nos. 140, 141. Plaintiffs then 16 filed a reply in support of their motion. Docket No. 145. The parties also sought a stay of 17 proceedings on plaintiffs’ Section 504 retaliation claim while the parties pursue settlement. 18 Docket Nos. 142, 143. The parties requested that the Court rule on the present cross-motions 19 regarding plaintiffs’ entitlement to reimbursement prior to the settlement conference set for 20 September 27, 2016. See id. 21 On June 13, 2016, the Court ordered plaintiffs to file proof of the expenditures for which 22 they are seeking reimbursement and gave defendants leave to oppose plaintiffs’ filing. Docket No. 23 146. Plaintiffs filed proof of their expenses on June 24, 2016, and defendants filed an opposition 24 on July 5, 2016. Docket Nos. 148, 149. 25 26 LEGAL STANDARD 27 The IDEA provides that the district court may “grant such relief as the court determines is 28 appropriate.” 20 U.S.C. § 1415(i)(2)(C)(iii). More specifically, “[s]chool districts may be ordered 3 1 to reimburse the parents of a child who has been denied a FAPE for the cost of private 2 instruction.” 3 § 300.148(c)). Where parents enroll their child in private services “without the consent of or 4 referral by the public agency, a court . . . may require the agency to reimburse the parents for the 5 cost of that enrollment if the court . . . finds that the agency had not made a free appropriate public 6 education available to the child in a timely manner prior to that enrollment.” See 20 U.S.C. 7 § 1412(a)(10)(C)(ii). M.M., 767 F.3d at 856 (citing 20 U.S.C. § 1412(a)(10)(C)(ii); 34 C.F.R. The Ninth Circuit has held that “[p]arents have an equitable right to reimbursement for 9 the cost of providing an appropriate education when a school district has failed to offer a child a 10 FAPE.” Anchorage Sch. Dist. v. M.P., 689 F.3d 1047, 1058 (9th Cir. 2012) (citing W.G. v. Bd. of 11 United States District Court Northern District of California 8 Trs. of Target Range Sch. Dist. No. 23, Missoula, Mont., 960 F.2d 1479, 1485 (9th Cir. 1992), 12 superseded on other grounds by 20 U.S.C. § 1414(d)(1)(B)). “[R]eimbursement for such expenses 13 is appropriate only if (1) the school district's placement violated the IDEA, and (2) the alternative 14 placement was proper under the statute.” Id. at 1059 (citing Florence Cty. Sch. Dist. Four v. 15 Carter, 510 U.S. 7, 15 (1993)). “If both criteria are satisfied, the district court then must exercise 16 its ‘broad discretion’ and weigh ‘equitable considerations' to determine whether and how much, 17 reimbursement is appropriate.” C.B. ex rel. Baquerizo v. Garden Grove Unified Sch. Dist., 635 18 F.3d 1155, 1159 (9th Cir. 2011) (quoting Carter, 510 U.S. at 15–16). Equitable factors that the 19 district court may consider include: “notice to the school district before initiating the alternative 20 placement; the existence of other, more suitable placements; the parents' efforts in securing the 21 alternative placement; and the level of cooperation by the school district.” Anchorage, 689 F.3d at 22 1059 (citing Forest Grove Sch. Dist. v. T.A., 523 F.3d 1078, 1088–89 (9th Cir. 2008)). In making 23 its determination, the district court must review “[t]he conduct of both parties . . . .” Id. (quoting 24 W.G., 960 F.2d at 1486). 25 26 DISCUSSION 27 Here, the Court finds that the denial of FAPE, as determined by the Ninth Circuit, warrants 28 reimbursing plaintiffs for the costs of certain private services they obtained for C.M. In this case, 4 1 the first criterion for reimbursement under the IDEA has been established, as the Ninth Circuit has 2 already held that the District denied C.M. a FAPE by withholding his complete RTI data from his 3 parents. See M.M., 767 F.3d at 856; Anchorage, 689 F.3d at 1059 (“. . . M.P.’s parents satisfied 4 the first criterion because the [school district] denied M.P. a FAPE . . . .”). The Court must 5 therefore now determine whether the alternative services that C.M.’s parents provided were proper 6 under the statute. See Anchorage, 689 F.3d at 1059. If so, reimbursement is appropriate. Plaintiffs move for “an order granting them $15,997.00, as reimbursement for appropriate 8 Special Education and Related Services that the parents of C.M. privately funded, during the time 9 Defendants denied C.M. a FAPE from March 18, 2007 of his first-grade year through his third- 10 grade year in June 2009.”2 Docket No. 137, Notice of Mot. The reimbursement request falls 11 United States District Court Northern District of California 7 under three broad categories: an audiology evaluation by Dr. Dimitra Loomos; Tomatis services, 12 including therapy, evaluations, parent conference, and transportation; and Lindamood-Bell 13 services, for therapy, evaluation, and transportation. Defendants, by their motion, seek an order 14 upholding ALJ Geren’s denial of reimbursement. Docket No. 136, Defs.’ Mot. at 1. Defendants 15 do not dispute that plaintiffs incurred the costs now sought, but they argue that the Court should 16 reduce or disallow the costs for various reasons, including a balancing of the equities. 17 18 I. Reimbursement for Dr. Loomos 19 In November 2007, C.M.’s “parents obtained a private evaluation from Doctor of 20 Audiology, Dimitra Loomos.” Docket No. 137, Pls.’ Mot. at 5 (quoting M.M., 767. F3d. at 848). 21 Dr. Loomos diagnosed C.M. with a central auditory processing disorder. Id. at 5-6. Plaintiffs now 22 seek reimbursement of $545.00 for the evaluation. Id. at 6. Defendants argue that reimbursement 23 should be denied because, they say, C.M.’s parents “failed to provide the full IEP team with a 24 copy” of Dr. Loomos’s December 2007 assessment until September 2008. Defs.’ Mot. at 14. 25 26 27 28 2 It is unclear why the reimbursement start date should be March 18, 2007, when the IEP meeting at which the initial assessment results were presented, and where the RTI data was originally withheld, occurred on April 18, 2007. See M.M., 767 F.3d at 848. Nevertheless, this distinction is irrelevant, as plaintiffs have not requested reimbursement for any costs incurred prior to April 18, 2007. 5 1 They also argue that C.M.’s parents did not provide notice regarding their intent to obtain this 2 outside assessment. Id. The Court disagrees that these are grounds for denying reimbursement of Dr. Loomos’s 4 assessment in this case. First, although defendants are correct that in some circumstances failure 5 to provide notice to the district may constitute grounds for denying reimbursement, see 20 U.S.C. 6 § 1412(a)(10)(C)(iii), it is not clear that any improper withholding occurred here. The Ninth 7 Circuit has noted, “C.M.’s second grade teacher, Jody Carson, was aware of Dr. Loomos’s 8 evaluation because she completed a report for Dr. Loomos, and E.M. gave a copy of the final 9 evaluation report to Ms. Carson, [Instructional Support Teacher] Jones, and the school front desk 10 when school resumed after the holiday break.” M.M., 767 F.3d at 849. Second, the Court finds 11 United States District Court Northern District of California 3 that this single outside assessment, provided at a reasonable cost, was justified given the District’s 12 withholding of RTI data earlier that year. The Court will not penalize C.M.’s parents for failure to 13 provide notice in this limited circumstance. 14 unidentified needs in C.M.’s auditory processing roughly seven months after the District began 15 withholding RTI data, is an appropriate reimbursement. See Pls.’ Mot. at 17-18. Dr. Loomos’s evaluation, which diagnosed 16 17 18 II. Reimbursement for Tomatis Therapy Plaintiffs also seek reimbursement for “auditory processing therapy” that C.M. received 19 under the supervision of Dr. Deborah Swain,3 using the Tomatis Method. 20 Plaintiffs have provided receipts showing $6,573.00 in payments to The Listening Center, Inc., 21 between February 27, 2008, and February 10, 2009, for evaluations and therapy provided by Dr. 22 Swain. Docket No. 147, Decl. of Lina Foltz (“Foltz Decl.”) ¶ 6, Ex. 3. Defendants challenge 23 Tomatis therapy as an inappropriate service and argue that C.M. derived “little to no benefit” from 24 it. Defs.’ Mot. at 7-9. They also argue that reimbursement should not be allowed because the 25 parents did not provide notice to the District prior to beginning Tomatis therapy, because the 26 parents did not use the IDEA’s independent educational evaluation (“IEE”) process, and because 27 28 3 Dr. Swain is sometimes referred to in the record as “Dr. Ross-Swain.” 6 Pls.’ Mot. at 8. 1 the parents refused or delayed consent to District assessments at various points in 2008. Id. at 10- 2 12. 3 Defendants’ attack on Tomatis therapy amounts to an attack on the second prong of the 4 Ninth Circuit’s test, that reimbursement under the IDEA may not occur if the private service was 5 not “proper under the statute.” See Anchorage, 689 F.3d at 1059. The Ninth Circuit has explained 6 “proper” in this context as follows: 7 8 9 10 To qualify for reimbursement under the IDEA, parents need not show that a private placement furnishes every special service necessary to maximize their child's potential. They need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction. C.B., 635 F.3d at 1159 (quoting Frank G. v. Bd. of Educ., 459 F.3d 356, 365 (2d Cir. 2006)). United States District Court Northern District of California 11 12 13 Thus, to the extent that defendants challenge Tomatis therapy because it “is not intended to replace traditional speech and language therapy or occupational therapy,” this does not constitute a reason to deny reimbursement. See Defs.’ Mot. at 8 (quoting ARII 504). 14 Further, the record reflects that C.M. did make improvements during his time receiving 15 16 17 Tomatis therapy. For instance, as summarized by the Ninth Circuit, “[a]s of February [2008],” when C.M.’s parents first sought Dr. Swain’s services, “C.M.’s RTI SORT scores were declining.” See M.M., 767 F.3d at 849. C.M. received Tomatis therapy throughout the spring and 18 into the summer of 2008. Foltz Decl. Ex. 2. By the time C.M. started third grade the next fall, his 19 SORT scores had improved from 1.2 to 1.9. Docket No. 65-6, Pls.’ Opp’n to Defs.’ Mot. for 20 Partial Summ. Judg., Ex. A at 29. Although defendants may be correct in questioning whether the 21 improvement was entirely attributable to Tomatis therapy, there is at least sufficient dispute in the 22 record that the Court will not use this as a reason to disallow reimbursement. 23 The Court also declines to exercise its equitable powers to reduce plaintiffs’ 24 reimbursement request on the basis of other reasons that defendants cite. Regarding notice, at the 25 time that the parents obtained an initial assessment from Dr. Swain, the District had been 26 withholding C.M.’s RTI data from the parents for nearly one year. Given this, the Court finds that 27 the equities point in favor of awarding reimbursement as the parents tried to resolve how to meet 28 7 their child’s educational needs, given that he was being denied a FAPE. Moreover, the District 2 was effectively on notice of the Tomatis services for the majority of the timeframe in which the 3 services were incurred. See M.M., 767 F.3d at 849 (“. . . throughout the spring, . . . conversations 4 between E.M. and C.M.’s teachers were ongoing concerning . . . the recommendations contained 5 in both [Dr. Loomos’ and Dr. Swain’s] evaluation reports.”). Nor is the Court persuaded that the 6 parents should have pursued the IEE process as a prerequisite to reimbursement; when they did 7 request an IEE in September 2008, “[f]or two months, the District did not respond to the IEE 8 request . . . .” See id., 767 F.3d at 849-50. Finally, the Court will not deny reimbursement based 9 on any withheld consent to the District’s proposed assessments, as the District did not propose 10 these assessments until May and September 2008, well after Dr. Swain conducted her initial 11 United States District Court Northern District of California 1 evaluation. See Defs.’ Mot. at 11-12. Although Dr. Swain later reevaluated C.M. in January 12 2009, the reevaluation cost of $150.00 is a reasonable one. See Foltz Decl. Ex. 3. The Court 13 therefore finds it appropriate under the present circumstances to order reimbursement to plaintiffs 14 for the $6,537.00 paid for Tomatis services. 15 16 17 III. Reimbursement for Lindamood-Bell Plaintiffs’ receipts show $7,652.90 in payments to Lindamood-Bell Learning Processes for 18 a diagnostic evaluation and treatment.4 19 reimbursement for an October 20, 2008, evaluation and for services provided from March through 20 May 2009. Id.; Pls.’ Mot. at 11-12, 23. Defendants argue that reimbursement should be denied 21 because, they say: the District offered “instruction using the Lindamood-Bell methodology by 22 trained staff”; the services were not necessary to provide C.M. with a FAPE; and the District 23 offered to reassess C.M. Defs.’ Mot at 15-19. They cite to ALJ Geren’s and this Court’s prior 24 findings and argue that any violation on the District’s part was procedural only and not 25 substantive. 26 Foltz Decl. Ex. 1, 2. Plaintiffs have requested At the outset, the Court notes that the parties devote a considerable amount of space in 27 28 4 In their motion, plaintiffs round this figure up to $7,653.00. See Pls.’ Mot. at 12. 8 1 their briefs to disputing whether there was also a substantive denial of FAPE, in addition to the 2 procedural one that the Ninth Circuit found. It is unclear why they do this, as such a finding is 3 unnecessary to reimbursement, which is the sole question currently before the Court. See M.M., 4 767 F.3d at 856. The Ninth Circuit made clear that the procedural FAPE violation that it found in 5 this case could support a claim for reimbursement, and the Court will not entertain the parties’ 6 arguments as to whether the IEPs that the District offered were substantively appropriate under the 7 IDEA. Defendants’ arguments that this Court should uphold ALJ Geren’s finding denying 9 reimbursement is likewise misplaced. Defendants argue that ALJ Geren’s decision should stand 10 because “the Ninth Circuit left intact this Court’s overall determination that ALJ Geren’s decision 11 United States District Court Northern District of California 8 was entitled to substantial deference.” Defs.’ Mot. at 5. In this circuit, “[u]nder the IDEA, federal 12 courts accord considerably less deference to state administrative proceedings than they do in most 13 instances of judicial review of . . . agency actions . . . .” Anchorage, 689 F.3d at 1053 (internal 14 quotation marks and citation omitted). “Administrative proceedings are accorded ‘due weight’ 15 and the reviewing court must, at least, consider the findings carefully.” Id. (internal quotation 16 marks and citation omitted). Here, the Ninth Circuit overturned ALJ Geren’s and this Court’s 17 decision finding that there was no FAPE violation, and remanded for reconsideration of plaintiffs’ 18 reimbursement request in light of this finding. 19 administrative decision due weight, the Court finds reason to depart from that decision, given the 20 direction from the Ninth Circuit on remand. M.M., 767 F.3d at 856. Even giving the 21 The Court will order reimbursement for the Lindamood-Bell services that plaintiffs 22 obtained during the time period in question. The District does not argue that the Lindamood-Bell 23 services fail to meet the two-prong test used in the Ninth Circuit. It is clear that the District 24 violated the IDEA, and that Lindamood-Bell services were “proper under the statute.” See id. at 25 1059. Therefore, the District’s arguments amount to urging that the Court find the equities to 26 weigh against reimbursement. See C.B., 635 F.3d at 1159 (“If both criteria are satisfied, the 27 district court then must exercise its ‘broad discretion’ and weigh ‘equitable considerations' to 28 determine whether and how much, reimbursement is appropriate.”). 9 The Court declines to find that the equities weigh against plaintiffs’ reimbursement in this 2 case. The District argues that it offered similar or superior services using the Lindamood-Bell 3 technique at the March 16, 2009, IEP meeting. Defs.’ Mot. at 16. However, by this point it had 4 been nearly two years since the District began withholding C.M.’s RTI data. As stated above, this 5 act, which constituted a FAPE violation, entitles C.M. to reimbursement for the cost of obtaining 6 private services, where a FAPE was not made timely available. 7 § 1412(a)(10)(C)(ii). 8 assessment and roughly two months’ worth of services. See Foltz. Decl. Ex. 1. Even if the 9 parents refused District assessment, such refusal does not always mean the parent may not obtain 10 reimbursement for privately funded services. See 20 U.S.C. § 1412(a)(10)(C)(iii) (“The cost of 11 United States District Court Northern District of California 1 reimbursement . . . may be reduced or denied” if the District used the IDEA’s notice requirements 12 to notify the parents “of its intent to evaluate the child . . ., but the parents did not make the child 13 available for such evaluation . . . .”) (emphasis added); see also S.L. ex rel. Loof v. Upland Unified 14 Sch. Dist., 747 F.3d 1155, 1158, 1160 (9th Cir. 2014) (awarding reimbursement where the mother 15 did not consent to District’s proposed assessment but requested a meeting to discuss the proposal). 16 Finally, defendants’ argument that Lindamood-Bell services were not needed to provide C.M. with 17 a FAPE is not credible where defendants simultaneously point out that they offered Lindamood- 18 Bell services in C.M.’s proposed IEP. See Defs.’ Mot. at 17. The Court will order reimbursement 19 for the $7,652.90 that C.M.’s parents paid for privately funded Lindamood-Bell services. See 20 U.S.C. Plaintiffs seek reimbursement for a limited period of time—for one 20 21 IV. Transportation 22 Finally, plaintiffs seek reimbursement for the cost of driving C.M. to and from 23 Lindamood-Bell and Tomatis therapy. Specifically, they seek $325.90 for providing one round- 24 trip, at five miles each way, for Tomatis therapy sessions and for Dr. Swain’s evaluations (forty- 25 five sessions and one evaluation in the first half of 2008, and fifteen sessions and one evaluation in 26 2009). 27 reimbursement for two round-trips for each Lindamood-Bell therapy session and one round-trip 28 for each evaluation and instructional session, at 8.1 miles each way. Pls.’ Mot. at 12 n.12; M.M. Pls.’ Mot. at 9 n. 10; Docket No. 148, Decl. of M.M. ¶¶ 1-2. 10 They also seek 1 Decl. ¶¶ 3-4. In each instance, they seek reimbursement at the IRS mileage rate and ask that the 2 Court take judicial notice of those rates. Docket No. 138, Pls.’ Req. for Judicial Notice. The Court will order reimbursement for these transportation expenses, with modifications 4 based on the Court’s calculations as explained below. Transportation may be a “related service” 5 under the IDEA, where “required to assist a child with a disability to benefit from special 6 education . . . .” 20 U.S.C. § 1401(26)(A). The Ninth Circuit has awarded reimbursement for 7 transportation expenses at the IRS rate where the privately funded placement was found to be 8 appropriate. See, e.g., S.L., 747 F.3d at 1160. Defendants do not meaningfully argue that the IRS 9 mileage rates and Google Maps mileage calculations are improper subjects for judicial notice. 10 Rather, they argue that this is a belated request to introduce new evidence. Docket No. 140, Defs.’ 11 United States District Court Northern District of California 3 Reply at 18-19. The Court finds that the IRS mileage rates from 2008 and 2009 and the Google 12 Maps mileage calculations, attached as exhibits to plaintiffs’ request for judicial notice, are “not 13 subject to reasonable dispute because [they] can be accurately and readily determined from 14 sources whose accuracy cannot reasonably be questioned.” See Fed. R. Evid. 201(b)(2). The 15 Court GRANTS plaintiffs’ request for judicial notice. Having found that C.M.’s parents are 16 entitled to reimbursement for the privately funded Tomatis and Lindamood-Bell services in 2008 17 and 2009, reimbursement for transportation to and from these services is likewise proper. 18 However, the Court finds some errors in plaintiffs’ calculations. Plaintiffs based their 19 2009 Tomatis transportation calculations on the IRS mileage rate of $.585 rather than the correct 20 rate of $.55. See Pls.’ Req. for Judicial Notice, Ex. 1; Pls.’ Mot. at 9 n.10. The 2009 Tomatis 21 therapy sessions and reevaluation (sixteen trips total, at one round-trip, five miles each way) 22 therefore cost $88.00, rather than $93.60. 23 $320.30 ($232.30 for services in the first half of 2008, and $88.00 for services in 2009). The total for Tomatis transportation is therefore 24 As to the request regarding Lindamood-Bell services, plaintiffs appear to have under- 25 calculated their transportation costs. The documents submitted show mileage of 8.1 miles each 26 way.5 M.M. Decl., Ex. 2; Pls.’ Req. for Judicial Notice, Ex. 2. The financial statements from 27 5 28 Plaintiffs appear to have mistakenly used the mileage of five miles each way that apply to the Tomatis therapy. See Pls.’ Mot. at 12 n.12. 11 1 Lindamood-Bell Learning Processes show one diagnostic evaluation in October 2008, and eighty- 2 seven therapy sessions in 2009.6 One round-trip transport for an evaluation in the second half of 3 2008 (IRS mileage rate of $.585) equals $9.48. Two round-trip transports for eighty-seven 4 therapy sessions in 2009 (IRS mileage rate of $.55) equals $1,550.34. The Court finds that it is 5 not unreasonable for the parents to have made two round-trips, to drop off and to pick up C.M. for 6 his therapy sessions, given the relatively short one-way distance of 8.1 miles. Therefore, plaintiffs 7 are entitled to reimbursement of $1,559.82 for the transportation they provided to and from 8 Lindamood-Bell services. In sum, the Court finds plaintiffs are entitled to the following reimbursements: $545.00 for 10 Dr. Loomos’s evaluation provided in November 2007; $6,573.00 for evaluations and Tomatis 11 United States District Court Northern District of California 9 therapy provided by Dr. Swain between February 27, 2008, and February 10, 2009; $7,652.90 for 12 an evaluation in October 2008 and therapy from March through May 2009 from Lindamood-Bell 13 Learning Processes; $323.30 in transportation to and from Tomatis therapy and evaluations; and 14 $1,559.82 in transportation to and from Lindamood-Bell therapy and evaluations. 15 CONCLUSION 16 17 For the foregoing reasons and for good cause shown, plaintiffs’ motion for reimbursement 18 is GRANTED and defendants’ motion is DENIED. 19 Defendants shall reimburse plaintiffs $16,654.02. 20 21 22 IT IS SO ORDERED. Dated: July 27, 2016 ______________________________________ SUSAN ILLSTON United States District Judge 23 24 25 26 27 28 6 Plaintiffs appear to have calculated this to total 160 round-trip drives rather than 175 (one round-trip for one evaluation and two round-trips for eighty-seven therapy sessions). See Pls.’ Mot. at 12 n.12. 12

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