S.H. v. Mount Diablo Unified School District

Filing 39

ORDER by Judge Joseph C. Spero denying 28 Defendant's Motion for Summary Judgment; granting 29 Plaintiff's Motion for Summary Judgment. The parties shall meet and confer and submit to the Court within 30 days a proposed schedule for convening an IEP meeting consistent with this Order and briefing on Plaintiff's motion for fees and costs(jcslc1S, COURT STAFF) (Filed on 7/3/2017)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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S. H., et al.,

Case No. 16-cv-04308-JCS
Plaintiffs,

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v.
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MOUNT DIABLO UNIFIED SCHOOL
DISTRICT,

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United States District Court
Northern District of California

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Defendant.

ORDER GRANTING PLAINTIFF’S
MOTION FOR SUMMARY JUDGMENT
AND DENYING DEFENDANT’S
MOTION FOR SUMMARY JUDGMENT
Re: Dkt. Nos. 28, 29

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I.

INTRODUCTION

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In this action, Plaintiff S.H. seeks judicial review of an administrative decision of

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

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Education Act (“IDEA”), 20 U.S.C. §§ 1400 et seq. Presently before the Court are cross-motions

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for summary judgment by S.H. and the Mount Diablo Unified School District. A hearing on the

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motions was held on June 2, 2017. Following the hearing, the parties filed supplemental briefs

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addressing the question of what remedy the Court should award if it found that S.H. was entitled

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to summary judgment with respect to any of the alleged errors on the part of the OAH. For the

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reasons stated below, the Court GRANTS Plaintiff’s Motion for Summary Judgment (“Plaintiff’s

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Motion”) and DENIES Defendant’s Motion for Summary Judgment (“Defendant’s Motion”). The

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parties have consented to the jurisdiction of the undersigned United States magistrate judge

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pursuant to 28 U.S.C. § 636(c).

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II.

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BACKGROUND
This case involves challenges to an Individualized Educational Plan (“IEP”) dated October

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14, 2015 relating to the 2015-2016 school year. As of that date, S.H. was fifteen years old. AR

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603-604. S.H. resides with his mother, Ms. Eleasha Partner (“Mother”) within the geographical

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boundaries of Mt. Diablo Unified School District (“Mt. Diablo”) and is eligible for special

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education under the category of speech and language impairment. AR 603. He has been eligible

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for special education since he was three years old. Id.

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During the 2014-2015 school year, S.H. attended ninth grade at Las Lomas High School

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(“Las Lomas HS”), in the Acalanes Union High School District (“Acalanes”). AR 605, 607.

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When he started ninth grade at Las Lomas HS, S.H. was receiving services pursuant to an IEP

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developed on February 27, 2014, when he was in eighth grade. Id. Acalanes held an annual IEP

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team meeting on March 25, 2015, in the spring of S.H.’s ninth grade year. AR 607. The IEP

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developed in connection with that meeting (“the March 25, 2015 IEP”) described S.H.’s levels of
performance, set forth goals and proposed a transition plan. AR 609. It offered as

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accommodations “use of notes for tests/assignments when needed and appropriate; use of

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calculator when needed and appropriate; flexible seating on tests; extended time on class

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assignments/tests; instructions repeated/rephrased; preferential seating; prompting and refocusing;

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and speech to text as an option when applicable.” AR 610. It also offered specialized academic

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instruction for 50 minutes, one time each school day, language and speech services for 40 minutes

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a week (individual and group boxes were checked), college awareness for 30 minutes a month and

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career awareness for 30 minutes a month. Id.

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because she did not believe it met S.H.’s needs and did not sign it. AR 610, 778.

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Mother did not consent to the March 25, 2015 IEP

In May 2015, S.H. was diagnosed with Autism Spectrum Disorder. AR 610. Around this

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time, Mother filed a due process complaint against Acalanes seeking an independent educational

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evaluation (“IEE”) at public expense. Id. That complaint was settled in June 2015, with Acalanes

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agreeing to pay for an IEE. Id. Mother selected Dr. Elea Bernou to perform the IEE and scheduled

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the evaluation to be conducted in the early fall of 2015, which was the earliest Dr. Bernou could

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complete it because she was already “booked” until the third week of August. AR 507, 610.

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Also in the spring of 2015, Mother began looking for other options for S.H. because she

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felt that his placement at Acalanes was not working. AR 788. Around April 2015, S.H. applied to

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Orion Academy (“Orion”), a state-certified non-public school in Moraga California, and he was

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accepted in May. AR 610-611. The tuition for the 2015-2016 school year was $33,500. AR 611.
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Mother entered into a tuition contract with Orion and by July 7, 2015, she had paid $19,230 in

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tuition, much of which S.H.’s grandmother had borrowed from her retirement fund to pay. Id. In

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November 2015 Mother entered into a payment plan for the remainder of the tuition, which was to

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be paid in installments in December 2015, February 2016 and March 2016. Id. To help pay for

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Orion and as part of an agreement with S.H.’s grandmother, Mother and S.H. moved to less

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expensive housing in Concord, California, in the Mt. Diablo Unified School District, on July 31,

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2015. AR 612.

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S.H. began school at Orion on August 6, 2015, when Orion’s school year began. Id. This
was during the summer break after the school year had ended in Acalanes and before the public
high school in Mt. Diablo (Mt. Diablo High School, or “MDHS”) had started. Id. At the

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recommendation of Dr. Kathryn Stewart, the executive director of Orion, S.H. was enrolled there

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as a ninth grader. AR 611-612.

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The first day of school at MDHS was August 26 or 27, 2015. AR 612. A day or two

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before that, on August 24 or 25, 2015, Mother filled out registration paperwork to enroll S.H. at

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MDHS. AR 615. She checked a box indicating that S.H. was in special education. Id. Mt.

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Diablo asked for a copy of S.H.’s most recent IEP and Mother provided a copy of the March 25,

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2015 IEP without a signature page. Id. It appears to be undisputed that Mother did not alert

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anyone at Mt. Diablo at that time that she had not consented to the March 25, 2015 IEP. AR 615.

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Nor is there any evidence in the record that Mt. Diablo asked Mother to supply the signature page

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or if she had consented to the March 25, 2015 IEP.

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On August 25, 2015, Mother told the MDHS registrar that she had privately placed S.H. at

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Orion. AR 615. On August 27, 2015, Mother emailed several Mt. Diablo employees informing

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them that she had enrolled S.H. at MDHS and was requesting an IEP meeting to be conducted in

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October 2015. Id. She requested the October date so that Dr. Bernou’s IEE would be complete by

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the time of the IEP meeting. AR 832. Apparently, MDHS employees believed that S.H. would

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begin attending MDHS at the commencement of school year, creating a schedule for him and

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initially marking him absent when he did not show up to school. AR 615-616. On September 4,

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2015, the MDHS vice-principal, Nichole Hackett, contacted Mother to let her know that S.H. had
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a schedule at MDHS that included two special education classes and two classes supported by

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special education staff. AR 616. Mother responded that she wanted to wait and see what services

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MDHS would be able provide so she could compare them with the services being provided at

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Orion before moving S.H. to MDHS. Id.

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Dr. Bernou completed her written report on October 7, 2015. AR 617. Among other

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things, she recommended that S.H. receive 45 minutes per week of individual speech/language

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services and 45 minutes per week of group speech/language services. AR 257.
On October 14, 2015, Mt. Diablo held an IEP team meeting in order to consider Dr.

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Bernou’s evaluation and develop interim placement and services for S.H. for a 30-day period. AR

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621. In attendance were Mother, Dr. Bernou, Case Manager Dr. Beth Dela Cruz, Ms. Hackett, and

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school psychologist Jennifer Steinbeck. AR 140. Because Mt. Diablo considered the meeting to

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be an interim IEP meeting, the team did not address S.H.’s goals. AR 1084. No general education

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teacher participated in the meeting, and Mother and Ms. Hackett signed a form stating, in part:

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By mutual agreement between the parent/adult student, and
designated representative of the local education agency, the presence
and participation of the Individual Education Program team
member(s) identified below is/are not necessary and has/have been
excused from being present and participating in the meeting
scheduled on 10/14/15 because (1) the member’s area of the
curriculum or related services is not being modified or discussed in
the meeting or (2) the meeting involves a modification to or
discussion of the member’s area or related services and the member
submitted, in writing to the parent and the IEP team, input into the
development of the IEP prior to the meeting.

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AR 144. Handwritten in the space left for listing the names of the missing team members was

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written: “Regular education teachers have been excused due to no definite class schedule.” Id.

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The IEP team decided to offer S.H. the services and placement in the March 25, 2015 IEP

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with some modifications based on Dr. Bernou’s evaluation. AR 621. Under the heading “Offer of

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Services by MDHS” a list of bullet points described the services to be provided. AR 141. One of

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the bullet points states: “Speech and Language: 40 minutes a week” without any elaboration as to

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whether this instruction would be in a group or individual setting. Id. The IEP states that the team

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planned to hold another IEP team meeting “to give Mom time to further consider options – from

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MDHS and from Orion.” AR 142. Mother did not consent to the October 14, 2015 IEP (“Interim
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IEP”).
On October 21, 2015, S.H.’s attorney sent a “Notice of Intent to Place at Orion Academy.”

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AR 348. That letter states that Mt. Diablo’s “current offer of placement . . . is not appropriate.”

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Id. The letter further informed Mt. Diablo that S.H. would remain at Orion and that Mother would

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“seek reimbursement from the district for the costs of this appropriate program.” Id. The next

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day, Mother filed a due process hearing request with the Office of Administrative Hearings

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(“OAH”). AR 603.

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The following issues were raised in S.H.’s due process request:
Student’s Issue I: Did Mt. Diablo commit the following procedural
violations, which denied Student a free appropriate public education
for the 2015-2016 school year:
a. failing to make a formal, specific written offer of [free appropriate
public education (“FAPE”)] in the October 14, 2015 individualized
education program document;
b. failing to include any goals in the October 14, 2015 IEP
document;
c. only offering Student interim services in the October 14, 2015
IEP; and
d. failing to have all required IEP team members present at the
October 14, 2015 IEP meeting?
Student’s Issue 2: Did Mt. Diablo deny Student a FAPE in the
October 14, 2015 IEP, designated as an interim IEP by Mt. Diablo,
by failing to offer Student an appropriate placement?

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AR 603-604. The OAH issued a decision on May 2, 2016 in which it found in favor of S.H. on

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issues 1.a and 1.d and in favor of Mt. Diablo on the remaining issues. AR 603-639.

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In the instant motions, each side seeks summary judgment on the issues on which it did not

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prevail in the administrative proceeding. In particular, S.H. asks the Court to hold on summary

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judgment that Mt. Diablo acted unlawfully when it completed an interim IEP that did not include

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any goals in October 2015 and that Mt. Diablo denied S.H. a FAPE by doing so. Mt. Diablo, in

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turn, asks the Court to hold that the interim IEP offer of speech and language services was

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sufficient (Issue 1.a) and that it was lawful for Mt. Diablo to hold the October 14, 2015 team

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meeting without the participation of a general education teacher (Issue 1.d).
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III.

ANALYSIS

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A.

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

Statutory Background

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available to them a free appropriate public education that emphasizes special education and related

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services designed to meet their unique needs and prepare them for further education, employment,

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and independent living.” 20 U.S.C. § 1400(d)(1)(A). The IDEA defines “free and appropriate

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public education” as “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 school, or
secondary school education in the State involved; and
(D) are provided in conformity with the individualized education
program required under section 1414(d) of this title.
20 U.S.C. § 1401(9).
The IDEA establishes a framework in which parents and schools engage in a cooperative

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process culminating in the creation of an IEP for every disabled student. 20 U.S.C. § 1414;

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Schaffer ex rel. Schaffer v. Weast, 546 U.S. 49, 53 (2005). “Each IEP must include an assessment

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of the child’s current educational performance, must articulate measurable educational goals, and

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must specify the nature of the special services that the school will provide.” Schaffer, 546 U.S. at

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53. The IEP must be “reasonably calculated to enable the child to receive educational benefits.”

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Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist. v. Rowley (“Rowley”), 458 U.S. 176, 207

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(1982). Further, in order to provide special education services under an IEP, the school district

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must obtain the informed consent of the child’s parents. 20 U.S.C. § 1414(a)(1)(D). Parents may

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also revoke consent to the receipt of special education services if they do so in writing. 34 C.F.R.

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§ 300.9; Cal. Educ. Code § 56021.1.

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Under the IDEA, the IEP is developed by an “IEP Team.” See 20 U.S.C. § 1414(d)(1)(B).

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The IEP team includes “the parents of a child with a disability;” “not less than 1 regular education

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teacher of such child (if the child is, or may be, participating in the regular education

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environment);” “not less than 1 special education teacher, or where appropriate, not less than 1
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special education provider of such child;” “a representative of the local educational agency;” “an

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individual who can interpret the instructional implications of evaluation results, who may be a

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member of the team” described above, “whenever appropriate, the child with a disability.” Id.; see

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also 34 C.F.R. § 300.321. The IDEA provides, however, that “[a] member of the IEP Team shall

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not be required to attend an IEP meeting, in whole or in part, if the parent of a child with a

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disability and the local educational agency agree that the attendance of such member is not

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necessary because the member’s area of the curriculum or related services is not being modified or

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discussed in the meeting.” 20 U.S.C. § 1414(d)(1)(C)(i). In the alternative, “[a] member of the

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IEP Team may be excused from attending an IEP meeting, in whole or in part, when the meeting
involves a modification to or discussion of the member’s area of the curriculum or related

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services, if . . .the parent and the local educational agency consent to the excusal; and . . . the

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member submits, in writing to the parent and the IEP Team, input into the development of the IEP

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prior to the meeting.” 20 U.S.C. § 1414(d)(1)(C)(ii). Under both of these provisions, the parent

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must agree in writing that the participation of the IEP team member is not required. 20 U.S.C. §

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1414(d)(1)(C)(iii).

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The IEP “is a written statement for each individual with exceptional needs that is

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developed, reviewed, and revised in accordance with [state educational standards], as required by

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Section 1414(d) of Title 20 of the United States Code.” Cal. Educ. Code § 56345(a). It must

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include: 1) “[a] statement of the individual’s present levels of academic achievement and

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functional performance . . . ;” 2) “[a] statement of measurable annual goals, including academic

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and functional goals . . .;” 3) “[a] description of the manner in which the progress of the pupil

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toward meeting the annual goals . . . will be measured and when periodic reports on the progress

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the pupil is making . . .will be provided . . . ;” 4) “[a] statement of the special education and related

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services and supplementary aids and services . . . to be provided . . . and a statement of the

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program modifications or supports for school personnel that will be provided” so that the student

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can attain annual goals; 5) “[a]n explanation of the extent, if any, to which the pupil will not

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participate with nondisabled pupils in the regular class” or activities; 6) “[a] statement of

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individual appropriate accommodations that are necessary to measure the academic achievement
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and functional performance of the pupil on state and districtwide assessments”; 7) “[t]he projected

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date for the beginning of the services and modifications” to be offered under the IEP; and 8)

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“[b]eginning not later than the first individualized education program to be in effect when the

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pupil is 16 years of age, or younger if determined appropriate by the individualized education

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program team, and updated annually thereafter . . .[a]ppropriate measurable postsecondary goals

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based upon age-appropriate transition assessments related to training, education, employment and

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where appropriate, independent living skills.” Id.; see also 34 C.F.R. § 300.320(a).

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Under the IDEA, “[a]t the beginning of each school year, each local educational agency,
State educational agency, or other State agency, as the case may be, shall have in effect, for each

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child with a disability in the agency’s jurisdiction, an individualized education program . . . .” 20

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U.S.C. § 1414(d)(2)(A).

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The time allowed to complete an IEP depends on the student’s circumstances. Under the
California Education Code:
An individualized education program required as a result of an
assessment of a pupil shall be developed within a total time not to
exceed 60 days, not counting days between the pupil’s regular
school sessions, terms, or days of school vacation in excess of five
schooldays, from the date of receipt of the parent’s written consent
for assessment, unless the parent agrees, in writing, to an extension.
However, an individualized education program required as a result
of an assessment of a pupil shall be developed within 30 days after
the commencement of the subsequent regular school year as
determined by each local educational agency’s school calendar for
each pupil for whom a referral has been made 30 days or less prior
to the end of the regular school year. In the case of pupil school
vacations, the 60-day time shall recommence on the date that pupil
schooldays reconvene. A meeting to develop an initial
individualized education program for the pupil shall be conducted
within 30 days of a determination that the pupil needs special
education and related services pursuant to Section 300.323(c)(1) of
Title 34 of the Code of Federal Regulations.
Cal. Educ. Code § 56344(a).

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Notwithstanding these requirements, the IDEA allows school districts to perform an

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“interim IEP” when a student transfers mid-year from one school district to another and has an IEP

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in effect at the time of the transfer. In particular, it provides as follows:

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(C) Program for children who transfer school districts
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(i) In general

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(I) Transfer within the same State

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In the case of a child with a disability who transfers school districts
within the same academic year, who enrolls in a new school, and
who had an IEP that was in effect in the same State, the local
educational agency shall provide such child with a free appropriate
public education, including services comparable to those described
in the previously held IEP, in consultation with the parents until
such time as the local educational agency adopts the previously held
IEP or develops, adopts, and implements a new IEP that is
consistent with Federal and State law.

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20 U.S.C. § 1414(d)(2)(C)(i)(I) (“interdistrict transfer provision”). The California Education Code

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includes a provision that mirrors the federal provision and further provides that for a student who

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transfers into a district not operating under the same special education local plan area, the local

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educational agency (“LEA”) shall provide the interim program “for a period not to exceed 30

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days,” by which time the LEA shall adopt the previously approved IEP or shall develop, adopt,

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and implement a new IEP that is consistent with federal and state law. Cal. Educ. Code §

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56325(a)(1). To facilitate the transfer process, “the new public agency in which the child enrolls

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must take reasonable steps to promptly obtain the child’s records, including the IEP and

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supporting documents and any other records relating to the provision of special education or

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related services to the child, from the previous public agency in which the child was enrolled.” 34

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C.F.R. § 300.323(g)(1). Similarly, “the previous public agency in which the child was enrolled

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must take reasonable steps to promptly respond to the request from the new public agency.” 34

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C.F.R. § 300.323(g)(2).

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The IDEA and the California Education Code also impose obligations on school districts to

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identify children with special needs, referred to as “child find” rules. The California Education

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Code provides that local educational agencies must “actively and systematically seek out all

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individuals with exceptional needs, from birth to 21 years of age, inclusive, including children not

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enrolled in public school programs, who reside in a school district . . . .” Cal. Educ. Code §

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56300. Similarly, the IDEA “child find” provision requires that “[a]ll children with disabilities

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residing in the State, including children with disabilities who are homeless children or are wards

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of the State and children with disabilities attending private schools, regardless of the severity of
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their disabilities, and who are in need of special education and related services, are identified,

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located, and evaluated and a practical method is developed and implemented to determine which

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children with disabilities are currently receiving needed special education and related services.” 20

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U.S.C. § 1412(a)(3).

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The IDEA requires that state education agencies “establish and maintain procedures . . . to

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ensure that children with disabilities and their parents are guaranteed procedural safeguards with

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respect to the provision of a free appropriate public education by such agencies.” 20 U.S.C.A. §

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1415(a). The procedural safeguards required under this section include “[w]ritten prior notice to

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the parents of the child . . . whenever the local educational agency . . . proposes to initiate or
change . . .the identification, evaluation, or educational placement of the child, or the provision of

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a free appropriate public education to the child.” 20 U.S.C. § 1415(b)(3). The Ninth Circuit has

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explained that this “formal requirement has an important purpose that is not merely technical . . .

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and should be enforced rigorously.” Union School Dist. v. Smith, 15 F.3d 1519, 1526 (9th Cir.

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1994). In particular, the court in Smith explained:

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The requirement of a formal, written offer creates a clear record that
will do much to eliminate troublesome factual disputes many years
later about when placements were offered, what placements were
offered, and what additional educational assistance was offered to
supplement a placement, if any. Furthermore, a formal, specific
offer from a school district will greatly assist parents in
“present[ing] complaints with respect to any matter relating to the ...
educational placement of the child.”

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Id. (quoting 20 U.S.C. § 1415(b)).
Section 1415 further provides that “a hearing officer may find that a child did not receive

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a free appropriate public education” based on a procedural violation “only if the procedural

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inadequacies – (I) impeded the child’s right to a free appropriate public education; (II)

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significantly impeded the parents’ opportunity to participate in the decisionmaking process

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regarding the provision of a free appropriate public education to the parents’ child; or (III) caused

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a deprivation of educational benefits.” 20 U.S.C. § 1415(f)(3)(e)(2).

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B.

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“Under the IDEA, federal courts reviewing state administrative proceedings are to ‘receive

Standard of Review

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the records of the administrative proceedings;’ ‘hear additional evidence at the request of a party;’

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and ‘grant such relief as the court determines is appropriate’ based on a preponderance of the

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evidence.” Amanda J. ex rel. Annette J. v. Clark Cty. Sch. Dist., 267 F.3d 877, 887–88 (9th Cir.

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2001) (quoting 20 U.S.C. § 1415(i)(2)(B)). “Thus, judicial review in IDEA cases differs

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substantially from judicial review of other agency actions, in which courts generally are confined

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to the administrative record and are held to a highly deferential standard of review.” Ojai Unified

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Sch. Dist. v. Jackson, 4 F.3d 1467, 1471 (9th Cir. 1993). Instead, “Congress intended courts to

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make bounded, independent decisions—bounded by the administrative record and additional

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evidence, and independent by virtue of being based on a preponderance of the evidence before the
court.” Town of Burlington v. Department of Educ., 736 F.2d 773, 791 (1st Cir. 1984), aff’d sub

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nom. Sch. Comm. v. Department of Educ., 471 U.S. 359 (1985). In making such decisions, courts

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should give “due weight” to state administrative proceedings and must not “substitute their own

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notions of sound educational policy for those of the school authorities which they review.” Bd. of

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Educ. of Hendrick Hudson Cent. Sch. Dist., Westchester Cty. v. Rowley, 458 U.S. 176, 206 (1982).

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While the level of deference that the court gives to the ALJ’s findings is discretionary, it

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“increases where [the findings] are thorough and careful.” Capistrano Unified Sch. Dist. v.

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Wartenberg, 59 F.3d 884, 891 (9th Cir.1995) (internal citations omitted).

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C.

Whether OAH Erred in Finding that Mt. Diablo’s Completion of an Interim
IEP without Any Goals Was Lawful
1. Background

Plaintiff contends the OAH erred in finding that Mt. Diablo acted lawfully when it

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completed an interim IEP for S.H. that borrowed from his earlier IEP and did not include any

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goals. His position turns on the question of whether Mt. Diablo properly treated S.H. as a transfer

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student subject to 20 U.S.C. § 1414(d)(2)(C)(i)(I) (quoted above). S.H. contends this section was

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not applicable to him because: 1) the provision applies only where a student transfers during the

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school year whereas S.H. registered to attend MDHS after the Acalanes school year had ended

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and before the Mt. Diablo school year began; 2) the provision applies only to transfers from one

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public school to another whereas S.H. was coming to MDHS from a non-public school where he
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was privately placed by his mother; 3) the provision applies only to students who have an

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operative IEP and S.H. had none, both because Mother had not consented to the March 25, 2015

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IEP and because his private placement at Orion “got rid of” any previous IEP.
The OAH rejected S.H.’s arguments, finding that Mt. Diablo’s completion of an interim

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IEP was “reasonable” under the circumstances because it promoted the purposes of the IDEA and

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was least likely to result in the denial of a FAPE. AR 625 (citing Doug v. Hawaii Dept. of Educ.,

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720 F.3d 1038 (9th Cir. 2013)). The OAH reasoned that it was reasonable to treat S.H.’s

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enrollment at MDHS as a mid-year transfer because Mother made clear that S.H. would not

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actually be attending MDHS before the IEP meeting with Mount Diablo, regardless of whether he

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was enrolled there prior to the start of school. AR 628. It rejected S.H.’s reliance on 20 U.S.C. §

11
United States District Court
Northern District of California

5

1414(d)(2)(A) in support of the assertion the Mt. Diablo was required to convene an IEP meeting

12

immediately, finding that that section only required Mt. Diablo to provide services “without

13

delay” and that Mt. Diablo was doing so because it believed it had a copy of a recent, approved

14

IEP.

15

As to whether the transfer qualified as an inter-district transfer, OAH concluded that it was

16

reasonable to conclude that it was because the amount of time S.H. spent at Orion was “de

17

minimus.” AR 629. If Mt. Diablo had not treated S.H. as a inter-district transfer student, the

18

OAH reasoned, “[t]his likely would have resulted in Mt. Diablo implementing either Student’s

19

unsigned March 2015 IEP or Student’s February 2014 signed IEP with outdated goals, and

20

without a transition plan and no requirement that the IEP team meet again until student’s annual

21

IEP was due in March 2016.” Id. Consequently, it found, treating S.H. as a transfer student was

22

less likely to result in a denial of FAPE than the alternative. Id.

23

The OAH also rejected S.H.’s argument that because Mother placed him at Orion he was,

24

when he enrolled at MDHS, a student without an IEP and therefore was entitled to a new IEP. AR

25

626. The premise of S.H.’s argument, the OAH said, was that S.H.’s placement at Orion

26

constituted a de facto revocation of consent for special education. Id. In the alternative, S.H.

27

argued that when he enrolled at MDHS, Mt. Diablo’s “child find” obligations were triggered,

28

which meant that Mt. Diablo either had to assess S.H. right away or hold an IEP meeting within 30
12

1

days. Id. The OAH rejected the first argument because revocation of consent to special education

2

must be in writing. AR 627. More importantly, the OAH found that treating a unilateral

3

placement as a de facto revocation of consent would be contrary to the IDEA, leading to the result

4

that the school district would never be required to reimburse families whose children were

5

privately placed because the private placement would, by itself, eliminate the school district’s

6

responsibility to provide FAPE. Id. Moreover, Mother’s conduct was not consistent with an

7

intent to withdraw S.H. from special education, the OAH found. Id.

8
9

2. Discussion
The OAH concluded that Mt. Diablo acted reasonably when it conducted an interim IEP
instead of a complete IEP when S.H. enrolled at MDHS. The Court finds that the OAH

11
United States District Court
Northern District of California

10

incorrectly relied on a “reasonableness” standard that applies only where an educational agency is

12

faced with conflicting obligations under the IDEA and state law, which was not the case here.

13

Even if the reasonableness standard was applicable, Mt. Diablo’s reliance on the interim IEP

14

provision was not reasonable.

15

In Doug C. v. Hawaii Department of Education, the Ninth Circuit addressed the “difficult

16

question” of “what a public agency must do when confronted with the difficult situation of being

17

unable to meet two distinct procedural requirements of the IDEA.” 720 F.3d 1038, 1046 (9th Cir.

18

2013). In that case, the alleged conflict was between the school district’s obligation to conduct a

19

timely IEP meeting and the obligation to ensure parental participation where the school district

20

was having difficulty scheduling the meeting with the student’s father and the deadline for

21

completing the IEP was fast approaching. Id. at 1045.

22

conducting the meeting without the father to meet the deadline. Id. The Ninth Circuit held that

23

when a school district is faced with conflicting obligations, “the agency must make a reasonable

24

determination of which course of action promotes the purposes of the IDEA and is least likely to

25

result in the denial of a FAPE.” Id. at 1046. In that case, the court concluded that the school

26

district had acted unreasonably when it prioritized a deadline over parental participation, citing the

27

emphasis by the Supreme Court and the Ninth Circuit on the importance of parental participation

28

and the rule that a FAPE is not denied in cases of delay where the student is not deprived of any
13

The school district chose the option of

1

educational benefit as a result of the delay. Id. The court also rejected the school district’s

2

assertion that the student’s IEP would have “lapsed” when the IEP deadline passed, concluding

3

that there was no authority for the proposition that the school district would have had to cease

4

offering special education services on the date the IEP deadline expired. Id.

5

Here, the OAH relied on Doug C. for the proposition that “when confronted with the
situation of complying with one procedural requirement of the IDEA or another, the agency must

7

make a reasonable determination of which course of action promotes the purposes of the IDEA

8

and is least likely to result in a denial of FAPE.” AR 625. It did not, however, point to any actual

9

conflict between obligations under the IDEA. Instead, it emphasized that the facts of this case

10

presented a “very unusual situation not contemplated by the legislature or the courts.” AR 628.

11
United States District Court
Northern District of California

6

Unusual or not, school districts are not given the discretion to pick and choose between applicable

12

obligations (even in a manner that is reasonable) when they do not face an actual conflict. In

13

reading Doug C. so broadly, the OAH impermissibly broadened the rule announced in that case.

14

Even if the reasonableness standard were correct, however, the application of the

15

interdistrict transfer provision was not reasonable. On its face, that provision applies only to mid-

16

year transfers. While the OAH suggested that S.H.’s situation had not been contemplated by the

17

legislature, the United States Education Department’s comments in the official comments to the

18

2006 Federal Regulations suggest otherwise. There, “the United States Department of Education

19

addressed whether it needed to clarify the regulations regarding the responsibilities of a new

20

school district for a child with a disability who transferred during summer.” In the Matter of

21

Parent on behalf of Student v. Los Virgenes Unified School District, OAH Case. No. 2013110490,

22

p. 14 (citing 71 Fed. Reg. 46682 (August 14, 2006)). The comments state as follows:

23
24
25
26
27
28

Comment: A few commenters requested clarification regarding the
responsibilities of the new public agency for a child with a disability
who moves during the summer.
Discussion: Section 614(d)(2)(a) is clear that at the beginning of
each school year, each LEA, SEA, or other State agency, as the case
may be, must have an IEP in effect for each child with a disability in
the agency’s jurisdiction. Therefore, public agencies need to have a
means for determining whether children who move into the State
during the summer are children with disabilities and for ensuring
that an IEP is in effect at the beginning of the school year.
14

1

71 Fed. Reg. 46682 (August 14, 2006)). Thus, it is clear that the interdistrict transfer provision

2

only applies “in the case of a transfer within the same academic year that [the child] was in the

3

previous district.” Los Virgenes, OAH Case No. 2013110490, p. 14.

4

Further, neither Mt. Diablo nor the OAH cite any authority for the proposition that S.H.’s

5

time at Orion may be ignored, for the purposes of determining whether the transfer was “inter-

6

district” because his time there was “de minimis.” Indeed, this conclusion is arguably inconsistent

7

with Mt. Diablo’s earlier argument that the transfer could be considered “mid-year” because S.H.

8

was attending Orion at the beginning of the school year rather than MDHS and thus did not

9

actually attend MDHS when the school year began.

10

Most troubling, though, is the OAH’s conclusion that it was reasonable for Mt. Diablo to

United States District Court
Northern District of California

11

apply a provision that is aimed at students who have an IEP in effect and then to rely on that

12

provision to create an interim IEP based on an invalid IEP. As a preliminary matter, the Court

13

agrees with the conclusion of the OAH that Mother did not withdraw S.H. from special education

14

at any time relevant to this action. She did not withdraw consent in writing, as required under the

15

IDEA and the California Education Code, and she demonstrated by her conduct that at all relevant

16

times she was seeking special education services, diligently seeking to obtain an IEP for S.H. in

17

his new school district so that she could compare the services offered there with the ones he was

18

receiving at Orion. Nonetheless, the March 25, 2015 IEP lacked consent and therefore could not

19

be used as a basis for providing interim services or developing an interim IEP.

20

OAH places great emphasis on the fact that Mother failed to alert Mt. Diablo that she had

21

not consented to the March 25, 2015 IEP in support of its conclusion that Mt. Diablo acted

22

reasonably. AR 628-629. In doing so, it placed on Mother the responsibility for ensuring that Mt.

23

Diablo had S.H.’s file and a complete copy of his IEP. Under the IDEA, however, that burden

24

falls squarely on the shoulders of the school district, which has a responsibility to make reasonable

25

efforts to obtain student’s IEP and records from the prior school district and to determine whether

26

S.H. had a valid IEP. When Mt. Diablo received an IEP without a signature page from Mother, it

27

was on notice that the IEP may not have been consented and was required to make reasonable

28

efforts to obtain records from Acalanes that would have allowed it to determine whether the IEP
15

1

was valid. Having failed to do so, it was not reasonable to rely on an invalid IEP. 1 Further, the

2

OAH’s conclusion that Mt. Diablo’s conduct was reasonable because of Mother’s conduct

3

amounts to the sort of shifting of blame to parents that the Ninth Circuit has found to be improper.

4

Doug C. v. Hawaii Dep’t of Educ., 720 F.3d at 1045 (9th Cir. 2013)(“We have consistently held

5

that an agency cannot eschew its affirmative duties under the IDEA by blaming the parents.”). 2
The Court finds that the OAH erred in concluding that Mt. Diablo did not violate the IDEA

6
7

and the California Education Code when it treated him as a transfer student and completed an

8

interim IEP that did not include goals – or any description of how the achievement of those goals

9

would be measured – as required under Cal. Educ. Code section 56345(a) and 20 U.S.C. §

10

1400(d)(1)(A).

United States District Court
Northern District of California

11
D.

12
13

Whether the OAH Erred in Concluding that Mt. Diablo Did not Comply With
the Formal Written Offer Requirement
1. Background

In the October 14, 2015 IEP, one of the services offered was described as “speech and

14
15

language: 40 minutes a week.” AR 141. As discussed above, Dr. Bernou had recommended that

16

S.H. receive 45 minutes per week of individual speech/language services and 45 minutes per week

17

of group speech/language services. AR 257. In the administrative proceeding, S.H. argued that

18

this offer of services did not comply with the IDEA’s “formal, written offer” requirement, and the

19
20
21
22
23
24
25
26
27
28

1

The Court notes that the application of the reasonableness standard of Doug C. is based on the
actions taken by the school district in light of the legal obligations imposed on it under state and
federal law, not the good faith of the individuals involved in the special education process. Here,
it appears that school district staff made an understandable mistake when they assumed that the
March 25, 2015 IEP was valid, overlooking the lack of a signature page showing consent. The
result of that mistake, however, was what the Court finds to be a fairly serious procedural
violation whereby the school district used an invalid IEP as a starting point for determining the
services it would offer S.H.
2
Mt. Diablo suggests that if it had not relied on the March 25, 2015 IEP that lacked consent it
would have had to resort to relying on the February 2014 IEP (to which Mother had consented),
which would have been less likely to accomplish the objectives of the IDEA than completing an
interim IEP based on the invalid March 25, 2015 IEP. What the school district might
hypothetically have done, or whether reliance on the 2014 IEP would have been lawful are not
before the Court. In any event, Mt. Diablo fails to acknowledge that there was also another
possible hypothetical scenario, namely, the prompt assessment of S.H. and the development of a
new, complete IEP. Presumably, that result would have been more likely to accomplish the goals
of the IDEA than the course that Mt. Diablo followed.
16

1

OAH agreed. AR 28-29.
The OAH found that the “formal written offer” requirement must be enforced

2

“rigorous[ly]” under Union School District v. Smith (“Union”), 15 F.3d 1519 (1994) and noted

4

that while Union involved a school district’s failure to make any formal written offer, many courts

5

have relied on Union to invalidate IEPs that “though offered, were insufficiently clear and

6

specific to permit parents to make an intelligent decision whether to agree, disagree, or seek relief

7

through a due process hearing.” AR 630 (citing A.K. v. Alexandria City School Bd., 484 F.3d 672,

8

681 (4th Cir. 2007); Knable v. Bexley School Dist., 238 F.3d 755, 769 (6th Cir. 2001); Bend

9

LaPine School Dist. v K.H., No. 04-1468, 2005 WL 1587241 (D. Ore. June 2, 2005); Glendale

10

Unified School Dist. v. Almasi, 122 F. Supp. 2d 1093, 1108 (C.D. Cal. 2000); Mill Valley Elem.

11
United States District Court
Northern District of California

3

School Dist. v. Eastin, No. 98-03812, 32 IDELR 140, 32 LPR 6046 (N.D. Cal., Oct. 1, 1999);

12

Marcus I. v. Dept. of Educ., No. 10-00381, 2011 WL 1833207 (D. Hawai’i, May 9, 2011)).

13

Likewise, the OAH found that because of the failure to specify in the October 14, 2015 IEP

14

whether the speech and language services that were being offered would be delivered individually

15

or in a group, the IEP was “not sufficiently clear . . . because there was a request from parent for

16

both and there was only one session offered and the IEP does not indicate whether it was group or

17

individual.” AR 631. The OAH noted that “even after a full hearing, the evidence did not

18

establish whether the services were individual or group.” Id. The OAH found that “[w]ithout the

19

information regarding the character of the speech and language services, especially because Dr.

20

Bernou had recommended both individual and group speech and language services, Mother’s

21

ability to participate was impaired,” resulting in a denial of FAPE to S.H. from October 14, 2015.

22

Id.

23

In its summary judgment motion, Mt. Diablo argues that the OAH erred, applying a

24

“narrow and hyper-technical” reading of Union and its progeny “which abrogates [Mt. Diablo’s]

25

fundamental discretion to choose the methodology of instruction and services.” Dkt. No. 28 at 7.

26

First, it argues that the rule announced in Union has been applied mainly to lack of specificity in

27

offers of placement. Id. at 16 (citing Bookout v. Bellflower Unified Sch. Dist., No.CV 13-2710-

28

SH, 2014 WL 1152948, at *8 (C.D. Cal. Mar. 21, 2014; J.P. ex rel. Popowitz v. Los Angeles
17

1

Unified Sch. Dist., No. CV 09-01083 MMM MANX, 2011 WL 12697384, at *21 (C.D. Cal. Feb.

2

16, 2011); A.B. v. San Francisco Unified Sch. Dist., No. C07-4738PJH, 2008 WL 4773417, at *15

3

(N.D. Cal. Oct. 30, 2008); Redding Elementary Sch. Dist. v. Goyne, No. CIV. S001174WBSGGH,

4

2001 WL 34098658, at *5 (E.D. Cal. Mar. 6, 2001); Glendale Unified Sch. Dist. v. Almasi, 122 F.

5

Supp. 2d 1093, 1107 (C.D. Cal. 2000)). Even in that context, Mt. Diablo contends, lack of

6

specificity may be harmless where the parent understands the offer in fact. Id. (citing B.M. ex rel.

7

R.M. v. Encinitas Union Sch. Dist., No. 08CV412-L JMA, 2013 WL 593417, at *12 (S.D. Cal.

8

Feb. 14, 2013); A.B., 2008 WL 4773417, at *15). According to Mt. Diablo, that is the case here.

9

Id.

10

According to Mt. Diablo, few cases have applied the rule of Union beyond offers of

United States District Court
Northern District of California

11

placements, and those few have reached different conclusions. Id. at 26-17 (comparing Bend v.

12

LaPine Sch. Dist. v. K.H. with Dept. of Educ., Hawai’i v. C.B. ex rel. Donna B., No. CIV. 11-

13

00576 SOM, 2012 WL 1537454, at *11 (D. Haw. May 1, 2012)). Mt. Diablo contends Union

14

“has not been extended to require exacting specificity in all aspects of an IEP offer; even when the

15

offer provides some uncertainty.” Id. at 17 (citing Jack P. v. Auburn Union Elementary Sch. Dist.,

16

No. S-04-896 LKK/PAN, 2005 WL 2042269, at *20 (E.D. Cal. Aug. 23, 2005)). Rather, it

17

asserts, some “background confusion” does not render an offer fatally unspecific. Id. Mt. Diablo

18

also argues that the services that were offered here can be construed as “as needed” and therefore

19

it is not reasonable to expect it to predict the amount of time S.H. would have actually accessed

20

the services. Id. (citing J.L. v. Mercer Island Sch. Dist., 592 F.3d 938, 953 (9th Cir. 2010)).

21

Mt. Diablo argues further that the OAH’s conclusion undermines its “methodological

22

discretion” because it has inherent discretion to determine the method of delivering speech and

23

language instruction to S.H. Id. at 17-19 (citing M.D. v. Hawaii, Dep’t of Educ., 864 F. Supp. 2d

24

993 (D. Haw. 2012)).

25
26

2. Discussion
Mt. Diablo contends the OAH erred in its application of Union, reading the case too

27

broadly to extend beyond offers of placement to offers of services. Even if that case were

28

applicable, according to Mt. Diablo, the facts here don’t support a finding that there was a
18

1

violation because: 1) Mother actually understood the offer that was made; 2) any confusion was

2

merely “background confusion”; and 3) the offer was for “as needed” services. It also argues that

3

the OAH’s approach was incorrect because it had discretion as to the method of delivering

4

services. The Court finds all of these arguments to be unpersuasive.
First, the Court rejects Mt. Diablo’s assertion that the rigorous approach to notice adopted

6

in Union is limited to offers of placement. Under 20 U.S.C. § 1415(b)(3), parents are entitled to

7

“[w]ritten prior notice” when the school district “proposes to initiate or change . . .the

8

identification, evaluation, or educational placement of the child, or the provision of a free

9

appropriate public education to the child.” 20 U.S.C. § 1415(b)(3). In Union, the Ninth Circuit

10

explained that this “formal requirement has an important purpose that is not merely technical . . .

11
United States District Court
Northern District of California

5

and should be enforced rigorously.” Union School Dist. v. Smith, 15 F.3d 1519, 1526 (9th Cir.

12

1994). In particular, the court in Union explained:

13
14
15
16
17
18
19

The requirement of a formal, written offer creates a clear record that
will do much to eliminate troublesome factual disputes many years
later about when placements were offered, what placements were
offered, and what additional educational assistance was offered to
supplement a placement, if any. Furthermore, a formal, specific
offer from a school district will greatly assist parents in
“present[ing] complaints with respect to any matter relating to the .
. . educational placement of the child.”
Id. (quoting 20 U.S.C. § 1415(b)).
Although Union involved an offer of placement, the reasoning of the case applies equally

20

to offers of services and courts have regularly applied the rigorous approach of that case to such

21

offers, as noted by the OAH. See, e.g., Knable ex rel. Knable v. Bexley City Sch. Dist., 238 F.3d

22

755, 769 (6th Cir. 2001)(holding that IEP violated procedural requirements of IDEA where it

23

contained only “generalized proposal of behavioral and educational goals for [student], with

24

minimal details describing how the [proposed educational program] would help [student] meet

25

such goals”); Bend LaPine Sch. Dist. v. K.H., No. CIV. 04-1468-AA, 2005 WL 1587241, at *10

26

(D. Or. June 2, 2005), aff’d sub nom. Bend-Lapine Sch. Dist. v. K.H., 234 F. App’x 508 (9th Cir.

27

2007) (holding that IEP behavior plan providing for specially designed instruction “throughout the

28

school day” was “vague and indefinite and fail[ed] to make clear to parents or other IEP team
19

1
2

members the District’s specific commitment of resources” and therefore violated the IDEA).
While Mt. Diablo has pointed to a series of cases that involved challenges to placement

3

offers, none of those cases held that Union does not apply to the description of the services offered

4

in the IEP. Indeed, the discussion of Union’s requirements in these cases frequently recognize, at

5

least implicitly, that Union encompasses not only the placement but also the services that will be

6

provided to the student by different programs. See, e.g., Bookout v. Bellflower Unified Sch. Dist.,

7

No. CV 13-2710-SH, 2014 WL 1152948, at *10 (C.D. Cal. Mar. 21, 2014) (holding that school

8

district’s “failure to identify a specific [mild-to-moderate special day class] classroom location in

9

its offer, constituted the failure to offer a specific educational placement” under the IDEA); J.P. ex
rel. Popowitz v. Los Angeles Unified Sch. Dist., No. CV 09-01083 MMM MANX, 2011 WL

11
United States District Court
Northern District of California

10

12697384, at *23 (C.D. Cal. Feb. 16, 2011) (holding that the school district’s offer of “various

12

types of classrooms, located at a number of different school sites, with varying school-day

13

durations” did not comport with Union); A.B. v. San Francisco Unified Sch. Dist., No. C07-

14

4738PJH, 2008 WL 4773417, at *15 (N.D. Cal. Oct. 30, 2008) (holding that a “clear written offer”

15

had not been made where the applicable IEP for the relevant period did not document “the

16

specifics of the program”).

17

Second, while it is true that a procedural violation may be harmless where parents actually

18

understand an offer of placement, see, e.g., B.M. ex rel. R.M. v. Encinitas Union Sch. Dist., No.

19

08CV412-L JMA, 2013 WL 593417, at *11 (S.D. Cal. Feb. 14, 2013), Mt. Diablo’s conclusory

20

assertion that Mother actually understood the offer at issue here is not supported by any citation to

21

the record and is belied by the OAH’s comment that even after a full hearing it could not

22

determine what services Mt. Diablo was offering with respect to whether the speech/language

23

services offered in the IEP would be in a group or individual setting.

24

Nor is the Court persuaded that the vagueness of the offer is merely “background

25

confusion” as was found in Jack P. v. Auburn Union Elementary Sch. Dist., No. S-04-896

26

LKK/PAN, 2005 WL 2042269, at *20 (E.D. Cal. Aug. 23, 2005)) as the facts of that case are

27

distinguishable. In Jack P., the IEP offered a specified number of minutes of one-to-one

28

instruction student would receive during the extended school year but school administrators
20

1

testified that the amount of time devoted to one-to-one instruction might end up being somewhat

2

higher due to factors that were not entirely predictable. Id. The court acknowledged that there was

3

“some information that the District would have had trouble providing at the time (for example,

4

they had not yet hired the teacher and were not sure of the number of other students that would be

5

enrolled in the summer program)” and that the IEP could have been more specific. Id. It

6

concluded, however, that the IEP was sufficiently specific to meet the IDEA’s procedural

7

requirements because it contained a basic offer, noting that the special education coordinator was

8

“not entirely sure of the details of what would be provided to [student] during the ESY and

9

extended ESY, but that she was prepared to offer, at a minimum, that which was indicated in the
IEP.” Id. Under these circumstances, the court concluded that although the offer could have been

11
United States District Court
Northern District of California

10

more specific, any confusion caused by the testimony of the school district employees was merely

12

“background confusion” that did not amount deprive student of a formal written offer. Id.
Under the facts here, in contrast to the circumstances in Jack P., the confusion was not

13
14

“background confusion” relating to services that might be provided in addition to those specified

15

in the IEP. Rather, the confusion related to the basic offer described in the IEP itself. Without any

16

explanation of what type of speech and language services Mt. Diablo was offering in the October

17

14, 2015 IEP, the confusion caused by the lack of specificity deprived Mother of her right to

18

meaningfully participate in the IEP process. In particular, Dr. Bernou had made specific

19

recommendations as to the type of speech and language services S.H. should receive; the IEP

20

offered by Mt. Diablo, however, did not provide sufficient information for Mother to evaluate the

21

school district’s offer of services in light of Dr. Bernou’s recommendations. Therefore, the Court

22

concludes that the OAH properly found that the offer of speech/language services in the October

23

14, 2015 IEP did not meet the formal written offer requirement.3

24
3

25
26
27
28

The Court also rejects Mt. Diablo’s argument that the offer could be understood as an offer of
“as needed services” and therefore it was reasonable to omit specific details describing the type of
services being offered. In the first place, the OAH did not address this argument, which Mt.
Diablo apparently did not raise in the administrative proceeding. Even assuming it is appropriate
for this Court to reach an argument that was not raised in the administrative proceeding, there is
nothing in the record to support the conclusion that the offer of speech/language services in the
October 14, 2015 IEP was intended to be on an as-needed basis. Thus, Mt. Diablo’s reliance on
J.L. v. Mercer Island Sch. Dist., 592 F.3d 938, 953 (9th Cir. 2010) is misplaced. In that case, the
21

1

Finally, the Court rejects Mt. Diablo’s assertion that the OAH’s conclusion impairs its
discretion as to methodology of instruction. In Rowley, the Supreme Court held that [t]he primary

3

responsibility for formulating the education to be accorded a handicapped child, and for choosing

4

the educational method most suitable to the child’s needs, was left by the [IDEA] to state and local

5

educational agencies in cooperation with the parents or guardian of the child.” 458 U.S. at 207.

6

Applying that rule, the court in M.D. v. Hawaii, Department of Education, found that an IEP that

7

provided for a total amount of speech/language services without specifying how much time would

8

be devoted to each type of service did not deprive the student of a FAPE, concluding that the

9

specific mix of services was a question that fell within the discretion of the school district. 864 F.

10

Supp. 2d 993, 1005 (D. Haw. 2012). While superficially similar to the situation here, the Court

11
United States District Court
Northern District of California

2

concludes that the facts of that case are distinguishable.

12

In contrast to this case, the parents in M.D. did not assert that the IEP did not meet the

13

formal written offer requirement as to speech/language services. Instead, they asserted that the

14

IEP, as written, was so open-ended that it allowed for the provision of “any amount of direct

15

speech therapy, or no actual speech therapy,” thus repudiating the IEP team’s agreement on the

16

frequency of speech therapy and procedurally and substantively denying Student a FAPE. Id. at

17

1005. The court, however, found that the student received more than the total amount of services

18

required under the IEP, the vast majority of which was provided in the form of direct services. Id.

19

It also cited the testimony of the speech-language pathologist, who explained the importance of

20

keeping “options open because conversation, language, speech is a very, very dynamic,

21

ingenerative [sic] discipline.” Id. This testimony supported the conclusion that the IEP offer of

22
23
24
25
26
27
28

IEP listed a lump-sum number of minutes for a variety of accommodations, including “access to
books on tape, access to a peer note taker and word processing software, extended time for tests
and assignments, alternative exam methods, preferential seating and scheduling, and use of a
calculator and literacy software.” Id The court held that “the allocation of a specific number of
minutes to any of [the] accommodations would make no sense because they are all access-based
modifications” and “[p]resumably, [student] had unlimited access to each of the . . .
accommodations.” Id. In that context, the court found that the IEP was not insufficiently specific.
Id. The court recognized, however, that “a lump-sum number like this may not be appropriate in
other individualized educational programs” where the accommodations are not access-based. Id.
There is nothing in the record to suggest that Mt. Diablo intended to offer S.H. unlimited
speech/language services and this aspect of the IEP is not “access-based.”
22

1

services was deliberately somewhat open-ended as to the type of services to be offered for

2

methodological reasons. In contrast, there is nothing in the record of this case that supports the

3

conclusion that the failure to specify whether services would be offered in a group or individual

4

setting was a methodological choice based on educational considerations. Therefore, the Court

5

rejects Mt. Diablo’s assertion that its failure to specify the type of services being offered was a

6

permissible exercise of discretion.

7
8
9
10

E.

Whether the OAH Erred in Concluding that Mt. Diablo Was Required to Have
a General Education Teacher Present at the October 14, 2015 IEP Meeting
1. Background

As discussed above, no general education teacher participated in the October 14, 2015 IEP

United States District Court
Northern District of California

11

team meeting, where the team addressed the recommendations of Dr. Bernou and made some

12

modifications to the March 25, 2015 IEP. Mother signed a consent form excusing the

13

participation of a general education teacher on the basis that “(1) the member’s area of the

14

curriculum or related services is not being modified or discussed in the meeting or (2) the meeting

15

involves a modification to or discussion of the member’s area or related services and the member

16

submitted, in writing to the parent and the IEP team, input into the development of the IEP prior to

17

the meeting.” AR 144. The reason for failing to include a general education teacher expressed in

18

handwritten note on the form was that S.H. had “no definite class schedule.” Id.

19

In the administrative proceeding, Mt. Diablo asserted that because it was making only a

20

30-day interim placement offer, it was not required to conduct a full-fledged team meeting that

21

included all of the IEP team members. AR 81. The OAH disagreed, however, concluding that

22

S.H. was entitled to have the entire IEP team present because the meeting involved not just the

23

making of a 30 day interim offer but also consideration of the IEE results and modifications of the

24

March 25, 2015 IEP based on those results. AR 632. In that context, the OAH found that S.H. was

25

denied a FAPE, notwithstanding Mother’s consent, because neither of the provisions excusing a

26

team member from participation in an IEP team meeting applied. AR 632. In particular, the

27

hearing officer found, the IEE presented by Dr. Bernou at the meeting was “relevant to serving

28

student in both the special education and general education environments” and no written input
23

1
2

was provided by a general education teacher. Id.
In its summary judgment motion, Mt. Diablo argues that neither the making of a 30-day

3

interim offer nor the consideration of Dr. Bernou’s findings would “necessarily directly address or

4

modify the curriculum of any of S.H.’s general education teachers” and therefore, that Mother’s

5

consent to hold the IEP team meeting without a general education teacher present was valid and

6

permissible under the IDEA. Docket No. 28 at 20. Mt. Diablo further contends the OAH erred

7

because it did not conduct a harmless error analysis to determine whether the absence of a general

8

education teacher denied S.H. a FAPE. Id. at 21 (citing Amanda J. ex rel. v. Clark Cty. Sch. Dist.,

9

267 F.3d 877, 892 (9th Cir. 2001)). Here, Mt. Diablo contends, there is no evidence that the
absence of a general education teacher “seriously infringe[d]” Mother’s ability to participate in the

11
United States District Court
Northern District of California

10

IEP development process. Id. In particular, it asserts, Mother did not point to any information

12

she wanted to obtain from a general education teacher that other team members could not provide

13

such that her decision about S.H.’s placement was impaired. Id. In any event, it asserts, Mother

14

had no intention of placing S.H. at MDHS and therefore, the failure to include a general education

15

teacher could not have seriously infringed her rights. Id.

16

S.H. argues that the Court should not consider Mt. Diablo’s assertion that a general

17

education teacher was not required at the October 14, 2015 IEP meeting because it did not raise

18

this argument in the administrative proceeding. Docket No. 33 at 8-9. Even if the Court considers

19

the argument, it fails, according to S.H., because a team member must participate (or provide

20

written input) even if that member’s area of the curriculum is only discussed under the IDEA. Id.

21

at 9 (citing 34 C.F.R. § 300.321(e)(1)). S.H. contends that because the interim offer increased the

22

time to be devoted to “specialized academic instruction” from 100 minutes a day to 177 minutes a

23

day, thereby reducing the time S.H. spent in general education classes, the IEP team had to discuss

24

matters relevant to a general education teacher’s area of the curriculum. Id. at 10.

25

S.H. also argues that Mt. Diablo acted improperly by misrepresenting the law to Mother on

26

the excusal form, suggesting that it need not include a general education teacher where there was

27

no definite class schedule. Id. at 11. That is not a correct statement of the law, S.H. asserts, as a

28

general education teacher who participated in the IEP meeting could have been any teacher who
24

1

might have been S.H.’s teacher. Id. (citing R.B. v. Napa Valley Unified Sch. Dist., 496 F.3d 932,

2

939 (9th Cir. 2007)).

3

S.H. rejects Mt. Diablo’s assertion that the OAH erred because the failure to include a

4

general education teacher was, at most, harmless error under Amanda J. Id. at 11. S.H. contends

5

the Ninth Circuit declined to apply the harmless error analysis of Amanda J. in a case involving

6

facts similar to those of this case, finding that the failure to include a general education teacher at

7

the IEP team meeting was such a “critical structural defect” that it was not appropriate to conduct

8

a harmless error analysis that asks whether the student was denied a FAPE as a result of the

9

absence of the team member. Id. at 11-12 (citing M.L. v. Fed. Way Sch. Dist., 387 F.3d 1101,

10

1116 (9th Cir. 2004)).

United States District Court
Northern District of California

11

Nor is it appropriate to rely on Mother’s intent to enroll S.H. at MDHS to determine

12

whether there was harmless error, S.H. asserts. Id. at 13 (citing In the matter of Parents on behalf

13

of student v. San Francisco Unified School District, OAH Case No. 2011020678 at p. 24 ¶ 13)

14

(“SFUSD”)). According to S.H., in SFUSD, the OAH expressly rejected the argument that a

15

procedural violation constituted harmless error because the parents did not actually intend to enroll

16

the child in the school district. Id. The OAH in that case found that even if the parents never

17

intended to enroll their child in the school district, they were entitled to the procedural protections

18

of the IDEA so that they could see what the school district had to offer when making the choice

19

between a public placement and a private one. Id. What was important, the OAH found, was that

20

the parents had followed every procedural step required of them to obtain the IEP. Id. at 14. The

21

same is true here, S.H. asserts. Id.

22
23

2. Discussion
Mt. Diablo argues that the failure to include a general education teacher at the October 14,

24

2015 IEP meeting was not a violation of the IDEA and that even if it was, it constitutes harmless

25

error. The Court disagrees on both counts.

26

As it is undisputed that a general education teacher did not provide written input, the

27

participation of a general education teacher could have been excused only if “the parent of a child

28

with a disability and the local educational agency agree that the attendance of such member is not
25

1

necessary because the member’s area of the curriculum or related services is not being modified or

2

discussed in the meeting.” 20 U.S.C. § 1414(d)(1)(C)(i). Here, though, it is undisputed that the

3

primary purpose of the IEP meeting was to address the recommendations of Dr. Bernou, who

4

addressed in her report the difficulties S.H. was likely to encounter in general education classes,

5

especially where the classes were large. See, e.g., AR 256-257. As a result of her

6

recommendations, the mix of special education and general education was changed, with the

7

amount of time spent in special education classes being increased. Thus, there appears to be no

8

factual basis for Mt. Diablo to assert that the IEP team did not discuss “the member’s area of the

9

curriculum.”

10

The Court also rejects Mt. Diablo’s reliance on the fact that Mother signed a consent form

United States District Court
Northern District of California

11

excusing the participation of a general education teacher. First, the Court finds no authority

12

suggesting that a parent’s consent excuses the participation of an IEP team member even where

13

the reason for the member’s failure to participate does not fall within the terms of the statute.

14

Second, the handwritten note on the form belies Mt. Diablo’s assertion that Mother’s signature

15

indicates her agreement that a general education teacher was not necessary under either of the

16

subsections of Section 1414(d)(1)(C) set forth in the printed part of the form. Rather, Mt. Diablo

17

suggested in the note that a general education teacher was not required for a different reason,

18

namely, that S.H. did not have assigned teachers because he did not have a definite schedule.

19

That, however, is not one of the permissible grounds for excusing a team member under the IDEA.

20

Moreover, it is not a correct statement of the law as the Ninth Circuit has held that after the IDEA

21

was amended in 1997, it “no longer requires the presence of the child’s current regular education

22

teacher on the IEP team.” R.B., ex rel. F.B. v. Napa Valley Unified Sch. Dist., 496 F.3d 932, 939

23

(9th Cir. 2007). Instead, the IDEA gives school districts broader discretion, allowing them to

24

designate a general education teacher “who is, or may be, responsible for implementing a portion

25

of the IEP, so that the teacher can participate in discussions about how best to teach the child.” Id.

26

(citation omitted). To the extent Mt. Diablo appears to have obtained Mother’s signature by

27

suggesting otherwise, it cannot rely on that signature to demonstrate the required consent.

28

With respect to the question of whether the failure to include a general education teacher at
26

1

the IEP team meeting is subject to a harmless error analysis, the Court concludes that under M.L.

2

v. Federal Way School. District, it is not. In M.L., the Ninth Circuit recognized that “[t]he fact of

3

a procedural violation, standing alone, does not automatically require a finding of a denial of a

4

FAPE.” 394 F.3d 634, 645 (9th Cir. 2005) (internal quotation and citation omitted). Rather, only

5

“procedural inadequacies that result in the loss of educational opportunity, or seriously infringe on

6

the parents’ opportunity to participate in the IEP formulation process, clearly result in the denial of

7

a FAPE.” Id. The court went on to hold, however, that the failure to include a general education

8

teacher on the IEP team in that case was the sort of “structural error” that by itself denies a student

9

of a FAPE and therefore, that harmless error analysis was inappropriate. M.L. v. Fed. Way Sch.
Dist., 394 F.3d 634, 648 (9th Cir. 2005) (“the failure to include at least one regular education

11
United States District Court
Northern District of California

10

teacher, standing alone, is a structural defect that prejudices the right of a disabled student to

12

receive a FAPE”). The court observed that Congress added the requirement that a general

13

education teacher participate in the IEP processes in 1997 in recognition of the “central role” that

14

these teachers play in the education of children with disabilities. Id. at 643. It noted further that in

15

failing to include a general education teacher on the IEP team, the school district “did not include

16

individuals Congress concluded were most knowledgeable about a disabled student’s special

17

educational needs.” Id. at 646. The court continued, “[a]s a result, we have no way of

18

determining whether the IEP team would have developed a different program after considering the

19

views of a regular education teacher.” Id. The same reasoning applies here, supporting the

20

conclusion that the failure to include a general education teacher in the October 14, 2015 IEP

21

meeting was, by itself, a denial of FAPE.

22

The Court recognizes that there may be some uncertainty as to whether the “structural

23

defect” analysis set forth in the opinion of Judge Alarcon in M.L. is an accurate statement of Ninth

24

Circuit law as both Judge Gould (in a concurrence) and Judge Clifton (in a dissent) expressly

25

rejected Judge Alarcon’s “structural defect” analysis, finding that it did not accurately reflect

26

Ninth Circuit law. See 394 F.3d at 654-55, 658.

27

that suggested that IDEA violations should not be subject to harmless error analysis and that the

28

legislative history also did not point to that conclusion. Id. at 654-55. He further opined that “the

Judge Gould found that there was no authority

27

1

best means by which to differentiate between such errors is to evaluate each one individually—as

2

colored by each case’s particular facts—and to apply a uniform standard that assesses lost

3

educational opportunity or lost parental participation, not by adopting a per se rule that insulates a

4

subset of errors from future review.” Id. Applying that standard, he went on to find, based on the

5

facts of the case, that the student involved had lost an educational opportunity as a result of the

6

failure of the school district to include a general education teacher and therefore, that the

7

procedural violation was not harmless. Id.; see also Capistrano Unified Sch. Dist. v. Wartenberg,

8

59 F.3d 884, 891 (9th Cir. 1995) (“We have never adopted as precedent the structural defect

9

approach discussed by Judge Alarcon in M.L. v. Federal Way School District”).

10

The Court need not resolve this tension in Ninth Circuit case law because it finds that even

United States District Court
Northern District of California

11

if the failure to include a general education teacher is subject to harmless error analysis, the error

12

is not harmless here. First, the Court rejects Mt. Diablo’s assertion that it is somehow excused

13

from complying with the procedural requirements of the IDEA because Mother may not have

14

intended to enroll S.H. at MDHS. Mother requested an IEP and was entitled to the same

15

procedural protections as any parent who seeks to determine what services the school district will

16

provide in order to make a decision about S.H.’s placement. Even if it was unlikely she would

17

move S.H. to MDMS and she anticipated seeking reimbursement for his private placement from

18

the school district if she did not, she was entitled to the IDEA’s procedural protections. See In the

19

Matter of Parents on behalf of Student v. San Francisco Unified School District, OAH Case No.

20

2011020678, at p. 24, ¶ 13 (finding that “even if Student’s parents had never intended to enroll

21

Student in a public school, they were still entitled to the protections of the IDEA”).

22

Second, the Court concludes that the lack of participation of a general education teacher

23

significantly impaired Mother’s ability to participate in the IEP process because Mother was

24

deprived of the opportunity to ask questions about the significant portion of the day that S.H. was

25

to be placed in general education classes under the interim IEP. Dr. Bernou had raised concerns

26

about S.H.’s ability to function in general education classes due to the likelihood that such classes

27

would be large, making it difficult for S.H. to stay focused and decreasing the likelihood that the

28

teacher would be able to give S.H. the attention he would need to regain his attention and keep
28

1

him focused; she also noted the fact that S.H. engaged in certain odd behaviors in the classroom

2

that would not be shared by students in general education classes, raising the possibility that the

3

environment would be less conducive to learning for S.H. Mother was entitled to hear the

4

opinions of a general education teacher with experience and knowledge of general education

5

classes at MDHS with respect to these concerns so that she could understand the implications of

6

the interim offer and make a meaningful determination as to the adequacy of the offer. Therefore,

7

the Court concludes that the absence of a general education teacher at the October 14, 2015 IPE

8

meeting violated the IDEA and did not constitute harmless error.

9
10

F.

Remedy

The Court has found that Defendant denied S.H. a FAPE by: 1) failing to specify whether

United States District Court
Northern District of California

11

the speech and language services offered in the interim IEP were group or individual; 2) failing to

12

include a general education teacher at the October 14, 2015 IEP meeting; and 3) improperly

13

offering only an interim IEP in the fall of 2015 and using an invalid IEP as the starting point for

14

the interim IEP. It now must determine an appropriate remedy.

15

The IDEA authorizes courts to grant “such relief as the court determines is appropriate.”

16

20 U.S.C.A. § 1415(i)(2)(C)(3). The Supreme Court has held that this provision gives courts

17

“broad discretion” to determine the appropriate remedy where a FAPE has not been provided.

18

Sch. Comm. of Town of Burlington, Mass. v. Dep’t of Educ. of Mass., 471 U.S. 359, 369 (1985).

19

“[E]quitable considerations are relevant in fashioning relief.” Id. at 374. Where parents have

20

unilaterally placed a child with a disability in a private school, reimbursement for the cost of

21

enrollment may be awarded “if the court or hearing officer finds that the agency had not made

22

FAPE available to the child in a timely manner prior to that enrollment and that the private

23

placement is appropriate.” 34 C.F.R. § 300.148; see also C.B. ex rel. Baquerizo v. Garden Grove

24

Unified Sch. Dist., 635 F.3d 1155, 1159 (9th Cir. 2011) (“A parent or guardian is ‘entitled to

25

reimbursement only if a federal court concludes both (1) that the public placement violated the

26

IDEA, and (2) that the private school placement was proper under the [IDEA].’”)(quoting Cty. of

27

San Diego v. California Special Educ. Hearing Office, 93 F.3d 1458, 1466 (9th Cir. 1996)). In

28

C.B., the court explained that “[i]f either criterion is not met, the parent or guardian may not obtain
29

1

reimbursement” whereas “[i]f both criteria are satisfied, the district court then must exercise its

2

‘broad discretion’ and weigh ‘equitable considerations’ to determine whether, and how much,

3

reimbursement is appropriate.” Id. (citing Florence Cty. Sch. Dist. Four v. Carter By & Through

4

Carter, 510 U.S. 7, 15-16 (1993)).

5

In this case, the hearing officer in the OAH proceeding addressed the question of whether

6

reimbursement for the cost of enrollment at Orion was an appropriate remedy for the violations of

7

the IDEA relating to the failure to specify the type of speech and language services to be provided

8

and the absence of a general education teacher at the October 14, 2015 IEP meeting. She

9

concluded that reimbursement for S.H.’s enrollment at Orion was not an available remedy. AR
635-636. First, she concluded that under 34 C.F.R. § 300.148, S.H. would have had to have been

11
United States District Court
Northern District of California

10

denied FAPE by Mt. Diablo before he enrolled at Orion, which was not the case as S.H. enrolled

12

at Orion before he even registered at Mt. Diablo. Similarly, she reasoned, S.H. did not give the

13

required prior notice to Mt. Diablo of his intent to enroll at Orion. AR 636. Finally, she

14

concluded that S.H. had not demonstrated that Orion was an “appropriate placement.” AR 636.

15
16
17
18
19
20
21
22
23
24
25

The OAH findings on the question of whether Orion was an appropriate placement were as
follows:
Student was inappropriately retained in ninth grade and was
repeating classes at Orion he had successfully passed at Los Lomas
and for which he received high school credit. Dr. Stewart admitted
that Student did not meet the criteria to be retained in a public
school. Student also failed to show that he had been receiving
educational benefit while at Orion. He did not show that he had
made educational progress in the area of academics, behavior or
social skills while he was enrolled at Orion. There was no reliable
evidence presented showing any academic progress. The behavioral
reports at the end of the first term at Orion were virtually identical to
the reports from the previous year at Los Lomas. Student also did
not show that his social skills improved while at Orion. Again, the
reports of Student’s social skills were also virtually identical to the
reports from Los Lomas. He did not show that the courses in which
he was enrolled were appropriate for him including the Dog Class,
Homebridging and Personal Projects. Therefore, Student failed to
show that placement at Orion was appropriate and reimbursement
for the placement must also be denied for this reason.

26

AR 636. These findings were based on an in-depth review of the evidence relating to S.H.’s

27

placement at Orion in the fact section of the decision. See AR 612-615.

28

The OAH went on to address an appropriate remedy for the failure to specify the type of
30

1

speech and language services offered in the interim IEP. AR 637. This question was

2

“complicated” the OAH found, because “Student put on no evidence regarding compensatory

3

speech and language” and “Student did not establish what services were actually

4

provided” prior to his enrollment at Orion. Id. In this context, the OAH went on to reach the

5

following conclusions as to an appropriate remedy:

6

The evidence established that Student needs social skill instruction
through speech and language services and that he has benefited from
them in the past. It is appropriate to deliver social skills speech and
language compensatory services for Student in a small group, so that
Student can practice what he learns with other students. Mt. Diablo
denied Student a FAPE from October 14, 2015 through March 1,
2016, a total of about 20 weeks. Therefore, Student is entitled to
20,40-minute sessions of group speech and language services,
focusing on social skills. Parents shall provide Mt. Diablo with the
name of a certified non-public agency of their choice and Mt. Diablo
shall contract with the provider promptly. The services shall
conclude no later than August 30, 2017.

7
8
9
10

United States District Court
Northern District of California

11
12
13
14
15
16
17
18
19
20

Id.
With respect to the failure to include a general education teacher at the October 14, 2015
IEP meeting, the OAH concluded,
For Mt. Diablo’s failure to have a regular education teacher at the
IEP team meeting, Mt. Diablo shall notice and convene an IEP team
meeting within 30 days of this decision. All required members shall
be in attendance. Mt. Diablo will pay for Dr. Bernou to attend the
IEP team meeting and the IEP team shall consider her assessment.
Id. The OAH went on to deny S.H.’s request for compensatory education in the areas of math and
Writing on the grounds that “Dr. Bernou’s determination that Student needed this compensatory

21
education was not based upon any calculation of an appropriate amount based on any denial
22
23
24

of FAPE by Mt. Diablo for Student, but appears to be a recommendation for remediation.” Id.
The OAH further found that S.H. did not show that Mt. Diablo’s offer of writing or math was not
appropriate for Student and resulted in any denial of FAPE.” Id.

25
In determining the appropriate remedy here, and in particular, whether S.H. should be
26
reimbursed for the cost of attending Orion for a school year, the Court affords significant
27
deference to the conclusion of the hearing officer that S.H. did not establish that Orion was an
28
31

1

“appropriate” placement for S.H. The hearing officer reviewed the evidence in the record and

2

made specific findings in support of the conclusion. Capistrano Unified Sch. Dist. v. Wartenberg,

3

59 F.3d 884, 891 (9th Cir.1995) (internal citations omitted) (holding that while the level of

4

deference that the court gives to the ALJ’s findings is discretionary, it “increases where [the

5

findings] are thorough and careful.”). Further, the findings appear to be reasonable in light of the

6

evidence cited by the OAH in support of its conclusions.
The Court also notes that Plaintiff made no meaningful effort in the motion papers

8

(including the supplemental brief requested by the Court to address the appropriate remedy in this

9

case) to challenge the OAH’s findings as to the appropriateness of the Orion placement. Plaintiff

10

states in the supplemental brief that S.H. established that Orion “provided educational instruction

11
United States District Court
Northern District of California

7

designed to meet Student’s unique needs” by presenting testimony of Dr. Stewart, the director of

12

Opinion, and Aiko Akers, S.H.’s literature teacher at Orion. Plaintiff’s Supplemental Brief at 4.

13

The hearing officer, however, identified what she found to be shortcomings in the testimony of

14

both of these witnesses, concluding that their testimony was not sufficient to show that the Orion

15

placement was appropriate. S.H. did not address those shortcomings or explain why the

16

conclusions of the OAH were incorrect on this issue. Therefore, the Court concludes that S.H. has

17

not shown that Orion is an “appropriate placement” and denies S.H.’s request for reimbursement

18

of the cost of attending Orion on that basis.

19

The Court also finds that the remedy awarded by the OAH as to the failure to specify the

20

type of speech and language services is appropriate. Therefore, Mt. Diablo shall provide S.H. with

21

20 40-minute sessions of group speech and language services, focusing on social skills, to

22

conclude no later than July 2018.

23

The Court also gives significant weight to the OAH’s findings as to S.H.’s request for math

24

and writing instruction, which the Court declines to award. Again, the OAH decision offered

25

specific reasons for concluding that such instruction would be remedial and was not related to any

26

denial of FAPE. In his briefs filed in connection with the instant motions, however, S.H. did not

27

address the reasoning or conclusion of the hearing officer on this question.

28

Next, the Court must decide what remedy should be awarded for Mt. Diablo’s failure to
32

1

include a general education teacher at the IEP meeting and its failure to offer a full IEP, which

2

would have included goals for S.H. Although compensatory education may be an appropriate

3

remedy where FAPE has denied, S.H. has not pointed to any specific compensatory education that

4

would be tailored to the shortcomings in the IEP process that the Court has found – either the

5

completion of an interim IEP that did not contain goals or the failure to include a general

6

education teacher at the meeting. Therefore, the Court concludes that the appropriate remedy for

7

these violations is the convening of an IEP meeting in which all required participants will

8

participate. In addition, Mt. Diablo is ordered to conduct a full IEP (including goals) rather than

9

an interim IEP.
Finally, the Court awards reasonable attorneys’ fees to S.H. pursuant to 20 U.S.C. §

10

United States District Court
Northern District of California

11

1415(i)(3)(B) (permitting the court, in its discretion, to award “reasonable attorneys’ fees as part

12

of the costs . . . to a prevailing party who is the parent of a child with a disability”).

13

IV.

CONCLUSION

14

For the reasons stated above, Plaintiff’s summary judgment motion is GRANTED.

15

Defendant’s summary judgment motion is DENIED. The parties shall meet and confer and within

16

thirty (30) days shall submit a joint proposed order that establishes a schedule for convening an

17

IEP meeting consistent with this Order and for briefing on S.H.’s motion for attorneys’ fees and

18

costs.

19
20
21
22

IT IS SO ORDERED.
Dated: July 3, 2017
______________________________________
JOSEPH C. SPERO
Chief Magistrate Judge

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