B. v. San Francisco Unified School District

Filing 48

ORDER by Judge Hamilton Re 32 35 Motions for Summary Judgment (pjhlc2, COURT STAFF) (Filed on 10/30/2008)

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1 2 3 4 5 6 7 8 9 10 A.B., a minor, by and through W.F.B., his Guardian Ad Litem, Plaintiff, v. SAN FRANCISCO UNIFIED SCHOOL DISTRICT, Defendant. _______________________________/ The parties' cross-motions for summary judgment came on for hearing on July 23, 2008 before this court. Plaintiff, minor A.B. acting through W.F.B., his guardian ad litem ("plaintiff" or "A.B."), appeared through his counsel, Roberta S. Savage. Defendant San Francisco Unified School District ("defendant" or "District") appeared through its counsel, Kimberly A. Smith. Having read all the papers submitted and carefully considered the relevant legal authority, the court hereby GRANTS defendant's motion for summary judgment, and DENIES plaintiff's motion for summary judgment, for the reasons stated at the hearing, and as follows. BACKGROUND This case arises under the Individuals with Disabilities Education Act ("IDEA"), which requires school districts to provide qualifying disabled children with a "free appropriate public education" ("FAPE"). See 20 U.S.C. 1412(1). Plaintiff, who is now twelve years old, is "autistic-like," and has been treated as eligible for special education and related services since preschool. See Administrative Record ("AR") at 2389. During the time period in question, covering the second through fifth grades, A.B. resided within the No. C 07-4738 PJH ORDER RE MOTIONS FOR SUMMARY JUDGMENT UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA United United States District Court 11 For the Northern District of California 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 2 3 4 5 6 7 8 9 10 province of defendant San Francisco Unified School District, and attended Alamo Elementary School. AR 3351-65. Plaintiff now brings suit against the District, alleging that he was denied a free appropriate public education, in violation of the IDEA. A. Background Facts The pertinent facts are set forth in chronological order by school year: Kindergarten (2001-02). During his kindergarten year, plaintiff was placed in a general education classroom pursuant to an individualized education plan ("IEP") that included a behavior support plan ("BSP") to address plaintiff's temper tantrums. AR 2391. In February 2002, the District performed a triennial assessment of plaintiff, which included a psycho-educational assessment and a speech and language assessment. AR 2400-2406; 3442-3468. First Grade (2002-03). Plaintiff's IEP team met for his annual IEP review on March 26, 2003. At the meeting, he received a new IEP with a new BSP, this time that addressed plaintiff's refusal to do school work, in addition to plaintiff's tantrums. AR 2391; 3351-3365. Second Grade (2003-04). In second grade, plaintiff's primary teacher was Dorothy Williams. Plaintiff also received assistance from special education teacher Michelle Wong. AR 409-412; 1419; 2391. During this school year, the District grew concerned that plaintiff's negative behaviors were escalating. To that end, in February 2004, the IEP team revised plaintiff's BSP and agreed to have a behaviorist observe plaintiff and further revise his BSP. AR 2391-92; 2794-2797. The IEP team convened again on March 16, 2004, during which plaintiff's mother presented the District with a document titled ""Mother's Thoughts and Suggestions," which the team stated it would review, and then reconvene to discuss. AR 2394; 1095-98; 3099-3103. Subsequently, in April 2004, plaintiff's mother had plaintiff assessed by a private neuropsychologist, Dr. Vincent Nunno. AR 2394; 3425-3435. On May 5, 2004, the IEP team reconvened to finalize plaintiff's IEP. At the meeting, the District recommended that plaintiff be transferred to a special day class for disabled students from the general 2 United States District Court 11 For the Northern District of California 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 2 3 4 5 6 7 8 9 10 education classroom. AR 1413; 3341-42. Plaintiff's mother expressed concerns with this proposal. AR 3341-42. Finally, the District offered plaintiff a summer special education classroom. AR 1245-53; 1270-72. The IEP team again reconvened on May 18, 2004, at which point plaintiff's mother advised the District of the results of Dr. Nunno's earlier assessment. The IEP team agreed to make no change in placement. AR 3129. Plaintiff's mother also advised the team that plaintiff would be attending Quest Camp for the summer (a private camp). AR 2394. During the entire 2003-04 year, in fact, plaintiff had been receiving private speech and language therapy, as well as private music therapy. AR 2341-42. Plaintiff did not, however, give the District any notice of these services, or seek reimbursement for the services, until plaintiff's filing of a request for due process. Plaintiff's mother did, however, advise the District of her plans to seek reimbursement for the screening costs, program costs, and transportation costs related to Quest Camp, on June 9, 2004. AR 2824. Third Grade (2004-05). Plaintiff's IEP team met on March 23, 2005, in order to conduct plaintiff's triennial IEP (under the IDEA, triennial assessments must be made, in addition to the yearly IEP assessments). The IEP team noted goals and objectives in the areas of social perspective taking, communication, and pragmatics. The IEP team also drafted, but did not originally include, goals in the areas of reading comprehension, writing and organization, focus, and math. AR 3157-3175; 3191. Plaintiff's mother submitted a response to the IEP which requested the addition of other goals, all of which were included by the District in a revised IEP that was sent to plaintiff's mother on April 4, 2005. AR 3191. Subsequently, the IEP team reconvened on May 6, 2005, at which plaintiff's mother made several requests and provided a list of questions. AR 3184-90. The team agreed to reconvene on May 25, 2005, in order to discuss the goals and objectives, designated instruction and services ("DIS") and the need for a functional behavior assessment ("FBA"). AR 3186. On May 25, when the team reconvened, plaintiff's mother provided a different list 3 United States District Court 11 For the Northern District of California 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 2 3 4 5 6 7 8 9 10 of questions. AR 3271-77. The team then agreed that all the goals and objectives discussed at the March 23, 2005 IEP should be included, and the team offered plaintiff an extended school year ("ESY") program for 4 hours a day, 4 days a week, in a special day class. AR 3271-72. On May 18, 2005, plaintiff's mother sent a letter to the District giving notice that plaintiff had been placed at Quest Camp from June 27 to August 19, 2005, in an after school program from May 25 through June 24, 2005, and in private speech therapy from May-August 2005. She also notified the District that she would seek reimbursement for these services (as in second grade, plaintiff was receiving private speech and language therapy, private music therapy, private play therapy, and also participated in the Quest Camp program, throughout the entire third grade year). AR 3203, 2345-2347. Fourth Grade (2005-06). The District completed a FBA of plaintiff on November 21, 2005. AR 3387-3341. On March 9, 2006, the IEP team convened for plaintiff's annual review. AR 3249-3269. The IEP that was drafted identified plaintiff's present levels of performance, and included short-term objectives in the areas of comprehension and analysis of text, writing-organization and focus, math, attention, pragmatics, and interaction skills. The IEP also provided that plaintiff would continue in a general education classroom with an aide and would receive various consultation services, speech and language services, and other supports and modifications, to assist plaintiff in attaining his goals and progressing in the general curriculum. AR 3258-3259. The IEP also included a BSP which indicated occasional interfering behaviors, and included strategies for reinforcing improving behaviors. AR 2398; 3252-3269. On May 2, 2006, the IEP team convened and modified plaintiff's IEP and BSP in regards to plaintiff's speech and language services, and also provided that plaintiff could have an extra set of classroom textbooks for home preparation. AR 3246-3248. On June 8, 2006, plaintiff's mother wrote to the District, letting the District know that plaintiff had been placed at Quest Camp from June 26 to August 18, 2006, had been 4 United States District Court 11 For the Northern District of California 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 2 3 4 5 6 7 8 9 10 placed at Lindamood Bell for June and August, and would be given private music therapy from June through August. Plaintiff's mother also indicated that she would seek reimbursement from the District. AR 2900-01. Finally, and as with prior years, plaintiff was also enrolled in numerous private therapies throughout the fourth grade school year. AR 2345-2347. Fifth Grade (2006-07). Plaintiff entered the fifth grade with all preexisting IEPs in place. Since plaintiff filed for a request for a due process hearing during his fifth grade year, no updates to the IEP occurred during this time. Plaintiff continued, however, to receive private services from Lindamood Bell and Quest Camp during this time, as well as to participate in private music and metronome therapy. AR 2355-2356. The District was not notified of these placements. B. The ALJ Decision Plaintiff filed his original request for a due process hearing on October 6, 2006. He then filed an amended request for a due process hearing on November 22, 2006. AR 2387. The due process hearing occurred over a nine-day period beginning February 27, 2007, and ending April 12, 2007. AR 2387. The Administrative Law Judge ("ALJ"), Deidre Johnson, considered numerous issues, including the following issues, at the hearing:1 1. Did District fail to assess Student in all areas related to his suspected disability of autistic-like behavior for the 2003-04 school year (second grade), the 2004-05 school year (third grade), the 2005-06 school year (fourth grade), and the 2006-07 school year (fifth grade) as follows: A. Failure to assess Student's behavior needs (all years), including failure to conduct a functional behavior analysis assessment for the 20032004 and 2004-2005 school years?... Failure to assess Student's communication, sensory and motor needs (all years except the 2004-2005 school years), attention, reading, and academic weakness needs (all years except the 2003-2004 school United States District Court 11 For the Northern District of California 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 C. Not every issue considered by the ALJ is included in the recitation below, and certain questions and subsections are omitted. This is because the District is not appealing those issues on which the ALJ held in plaintiff's favor. Accordingly, only those issues on which plaintiff lost before the ALJ, are relevant for purposes of this motion. 5 1 1 2 3 4 5 6 7 8 9 10 2. ... 4. year), auditory processing needs (all years except the 2003-2004 and the 2004-2005 school years), and social skills needs (all years)? [Was] District's functional behavior assessment for the 2005-2006 school year appropriate and timely? Did District deny Student a free appropriate public education (FAPE) for the 2003-2004 school year (second grade), the 2004-05 school year (third grade), the 2005-06 school year (fourth grade), and the 2006-07 school year (fifth grade), by failing to provide him with appropriate education and related services to address his unique needs related to autism, as follows: A. Failure to develop requisite annual goals in the following areas of need: communication, sensory and motor, attention, reading, academic weakness, auditory processing, and social skills (all years)? Failure to offer or provide an IEP that included appropriate designated instruction, services and supports, as follows: social skills training, speech and language therapy, behavior support, a trained aide, occupational therapy, and music therapy )all years), and academic skills intervention (all years except 2003-2004)? Failure to make a clear written offer of placement for speech and language therapy (2003-2004 school year), and the 2004, 2005, and2006 extended school years (ESY)? Failure to provide prior written notice of District's refusals to initiate assessments or to initiate or make changes to Student's placement in response to Parent's requests (all years)? United States District Court 11 For the Northern District of California B. 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 AR 2388-89. C. D. The ALJ issued a sixty-one page decision on June 18, 2007. AR 2387-2448. The ALJ found in plaintiff's favor with respect to some issues, and found that the District did not conduct certain assessments that it should have, and that some assessments were done improperly. The ALJ ultimately ordered reimbursement of approximately $8925, plus additional costs, in connection with certain of plaintiff's paid private assessments and programs. The ALJ found in the District's favor, however, on the issue whether any significant denial of FAPE had occurred. The ALJ evaluated each alleged violation individually, and found that many were harmless, and led to no denial of any educational opportunity. 6 1 2 3 4 5 6 7 8 9 10 A. It is with these findings in the District's favor that plaintiff now takes issue. Plaintiff seeks reversal of the ALJ's decision in these areas, as well as reimbursement for educational expenses and related costs that are still outstanding. As noted above, defendant does not seek review of any of the findings in plaintiff's favor, but rather limits its motion to a request that the court affirm the ALJ's findings that were made in the District's favor. DISCUSSION Legal Standards 1. Summary Judgment Summary judgment shall be granted if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." FRCP 56(c). Material facts are those which may affect the outcome of the case. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute as to a material fact is genuine if there is sufficient evidence for a reasonable jury to return a verdict for the nonmoving party. Id. The court must view the facts in the light most favorable to the non-moving party and give it the benefit of all reasonable inferences to be drawn from those facts. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). 2. IDEA Claims United States District Court 11 For the Northern District of California 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 The IDEA requires school districts to provide disabled children with a "free appropriate public education" ("FAPE"). 20 U.S.C. 1412(1). The education provided must be "reasonably calculated to enable the child to receive educational benefits." Bd. of Educ. of Hendrick Hudson Central Sch. Dist. Westchester County v. Rowley, 458 U.S. 176, 207 (1982). To that end, the IDEA requires school districts to create an "individualized education program" (IEP) for each disabled child. Id. Generally, an IEP must contain: a statement of the child's present levels of educational performance; a statement of 7 1 2 3 4 5 6 7 8 9 10 measurable annual goals; a statement of the extent to which a child will not participate in a regular classroom with nondisabled children; a statement of that special education and related services to be provided; a statement of measurable annual goals; and a statement of how the child's progress toward the annual goals will be measured. See id. at 1414(d)(1)(A)(I); Cal. Educ. Code 56345. The IDEA also authorizes parents challenging their child's IEP to request an "impartial due process hearing." See 20 U.S.C. 1415(f). The party that has requested the hearing bears the burden of proof at the hearing. See Schaffer v. Weast, 126 S.Ct. 528, 537 (2005). A party aggrieved by the findings and decision made in a state administrative due process hearing has the right to bring an original civil action in a state court of competent jurisdiction or in federal district court in order to secure review of the disputed findings and decisions. See 20 U.S.C. 1415(i)(2). The party challenging the decision bears the burden of persuasion on its claim. See Clyde K. v. Puyallup Sch. Dist. No. 3, 35 F.3d 1396, 1399 (9th Cir. 2004). In reviewing the administrative decision, the district court "shall receive the records of the administrative proceedings; shall hear additional evidence at the request of a party; and basing its decision on the preponderance of the evidence, shall grant such relief as the court determines is appropriate." 20 U.S.C. 1415(i)(2)(B). Judicial review of state administrative proceedings under the IDEA is less deferential than the review of other agency actions. See Ojai Unified School District v. Jackson, 4 F.3d 1467, 1471 (9th Cir. 1993). However, "because Congress intended states to have the primary responsibility for formulating each individual child's education, [courts] must defer to their `specialized knowledge and experience' by giving `due weight' to the decisions of the states' administrative bodies." Amanda J. Ex rel. Annette J. v. Clark County Sch. Dist., 267 F.3d 877, 888 (9th Cir. 2001). This review requires the district court to carefully consider the administrative agency's findings. See Susan N. v. Wilson Sch. Dist., 70 F.3d 751, 758 (3d. Cir. 1995). "The amount of deference accorded the hearing officer's findings 8 United States District Court 11 For the Northern District of California 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 2 3 4 5 6 7 8 9 10 increases where they are thorough and careful." Capistrano Unified Sch. Dist. v. Wartenberg, 59 F.3d 884, 891 (9th Cir. 1995). After such consideration, "the court is free to accept or reject the findings in part or in whole." Susan N., 70 F.3d at 758. When the court has before it all the evidence regarding the disputed issues, it may make a final judgment in what "is not a true summary judgment procedure [but] a bench trial based on a stipulated record." Ojai, 4 F.3d at 1472. B. Preliminary Issues The overriding issue raised by the parties' cross-motions is whether the ALJ improperly decided that the District did not deny plaintiff a FAPE from second through fifth grades in connection with certain claims that the ALJ ruled upon, and if so, whether plaintiff's mother should be reimbursed for the private services she provided for plaintiff during that time. Resolution of this larger issue depends, in turn, on resolution of the parties' disputes regarding the various sub-issues addressed and decided by the ALJ. Preliminarily, the parties raise several issues going to the ALJ's consideration of procedural requirements and standards. 1. Whether the ALJ Misapplied the Statute of Limitations United States District Court 11 For the Northern District of California 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiff preliminarily takes issue with the ALJ's application of a three year statute of limitations that barred consideration of any alleged violations occurring prior to October 6, 2003. Specifically, plaintiff contends that the ALJ's application of a three year limitations statute resulted in the improper refusal to consider (1) whether the District's offer of integrated playgroups in the March 2003 IEP violated the IDEA; (2) whether the District's offer of speech and language therapy in the March 2003 IEP violated the IDEA; and (3) whether the annual goals listed on the March 2003 IEP were measurable, as required by the IDEA. The ALJ, as plaintiff points out, held that each of plaintiff's three alleged violations required an examination of the underlying IEP "as of the time [the IEP] was adopted" i.e., in March 2003. See AR 2412, 98 (whether "annual goals complied with the law should be 9 1 2 3 4 5 6 7 8 9 10 examined as of the time that they were adopted by the IEP team in March 2003"); id. at 2426, 165 (whether District's offer of speech and language therapy was clear "must be evaluated at the time it was made" in March 2003); id. at 2426, 166 (whether District made a clear offer of integrated play groups "must be evaluated at the time it was made" in March 2003). However, since the March 2003 IEP fell outside the IDEA's three year statute of limitations (with a limitations deadline of October 6, 2003), the ALJ also held that the merits of each of these purported violations could not generally be litigated in the administrative proceedings before it. See id. Preliminarily, neither party actually disputes the ALJ's application of a three year statute of limitations to be triggered from the filing of plaintiff's administrative claim per se. See Cal. Educ. Code 56505(l), eff. October 7, 2005 to October 8, 2006 (amended by Cal. Educ. Code 56505(l), eff. October 9, 2006). Nor do they dispute that, when the three year statute of limitations is applied in this case, it operates to bar any claims arising out of conduct occurring prior to October 6, 2003. Rather, plaintiff's contention appears to be that, in applying the three year limitations period so that it excluded plaintiff's claims surrounding the written offers and goals listed on the March 2003 IEP, the ALJ improperly "characterized" the statute of limitations by "presum[ing] a bright line rule that the date the IEP is signed is automatically the date of discovery for a procedural violation." See Pl. Mot. Summ. Judg. at 8:18-20. Plaintiff points out that in many cases, it is impossible to discover procedural violations in connection with an IEP as of the date the IEP was signed. In view of this, plaintiff contends that the only question in applying the statute of limitations is whether an IDEA claim relates to an IEP plan that was operative at any point within the three year statute of limitations. In other words, as long as some portion of plaintiff's March 2003 IEP was operative and in effect after October 6, 2003, plaintiff contends that the court should consider any alleged violations stemming from the March 2003 IEP, even though the IEP was technically adopted outside the statute of limitations period. 10 United States District Court 11 For the Northern District of California 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 2 3 4 5 6 7 8 9 10 The court, however, rejects this argument for two reasons. First, as applied here, plaintiff offers no authoritative legal support for the expansive proposition that IDEA claims relating to offers of placement or the inclusion of annual goals in an IEP should be actionable even though made outside the limitations period, simply because some part of the IEP was operative within the limitations period.2 Second, plaintiff overlooks the fact that the ALJ did, in fact, expressly distinguish between claims based on the stated goals or clarity of offers made in the March 2003 IEP, and any claims under the IDEA that the District should have known or discovered while implementing the March 2003 IEP goals or offers at any point after October 6, 2003. The ALJ expressly noted that, while the former claims were properly deemed to fall outside the limitations period, the latter can properly state a basis for a claim under the IDEA, as the District is still obligated to re-examine the propriety of any goals or offers made in the underlying IEP when circumstances require it the underlying IEP date notwithstanding. See AR 2412, 98 (District would have been obligated to re-examine March 2003 annual goals after October 6, 2003 if "new changes, incidents, or information that called into question the appropriateness of the goals in place" came to light); id. at 2426, (clarity of offers made at time of March 2003 IEP are "separate issues" from "whether District should have re-examined Student's [skills and services] during second grade"). Plaintiff's lack of concrete legal authority and the ALJ's recognition that implementation of an IEP can still raise actionable claims where the IEP itself was executed outside the limitations period, belie plaintiff's argument that the ALJ committed error by improperly characterizing the statute of limitations. Rather, the court concludes that the ALJ correctly acknowledged that actionable conduct may be based on an earlier IEP that falls outside the statute of limitations, but that in this case, the conduct complained of is not United States District Court 11 For the Northern District of California 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 To the contrary, plaintiff's reliance on S.B. v. Pomona Unified Sch. Dist., 2008 WL 1766953 (C.D Cal. 2008) is completely inapposite, as even plaintiff concedes that this case "did not address the issue of the statute of limitations." See Pl. Opp. Summ. Judg. at 1:14-16. 11 2 1 2 3 4 5 6 7 8 9 10 actionable since the conduct complained of by plaintiff i.e., the validity and notice given by the District with respect to the offers for integrated play and speech and language therapy, and the validity of the annual goals stated on the March 2003 IEP falls outside the limitations period. And as defendant has correctly noted, plaintiff's three alleged claims require the court to focus on the adequacy of the IEP at the time it was offered. See Adams v. State of Oregon, 195 F.3d 1141, 1149 (9th Cir. 1999). In sum, the court finds that the ALJ correctly concluded that the statute of limitations precludes from consideration plaintiff's claims relating to the District's offers and goals in the March 2003 IEP. Plaintiff's motion for summary judgment as to this issue is therefore DENIED. The District's cross-motion for summary judgment on the issue is GRANTED. 2. Whether Plaintiff's Mother was Denied Meaningful Participation Such that Denial of FAPE Occurred Plaintiff asserts that the ALJ erred when she found that no denial of a FAPE existed on the basis of his mother's lack of meaningful participation in the IEP process. Specifically, plaintiff contends that the District failed to respond to plaintiff's mother's numerous oral and written requests for services, and requests for information about programs, assessments, goals and objectives. Plaintiff cites to several examples in the record that purportedly demonstrate that the District prevented plaintiff's mother from meaningfully participating in the IEP process. See, e.g., AR 2781-90; 2830-1; 2836-60; 2892-3; 3095-129; 3206-26; 3231. The ALJ addressed the issue of plaintiff's mother's meaningful participation in the IEP process in a footnote on page 42 of the ALJ's decision. See AR 2428. The ALJ noted therein that plaintiff's claim that his mother was denied meaningful participation (1) was false and unsupported by the evidence in the record, and (2) was outside the scope of plaintiff's claims at any rate, since plaintiff never raised the issue as a claim in his complaint. Id. There is no evidence in the record that directly contradicts the ALJ's ruling in this 12 United States District Court 11 For the Northern District of California 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 2 3 4 5 6 7 8 9 10 regard. Indeed, even the evidence that plaintiff relies on in support of a purported lack of meaningful participation, all demonstrates the opposite i.e., that plaintiff's mother was meaningfully participating in the IEP process. The record is replete, for example, with the mother's requests and observations, many of which were included as addendums to the IEPs that were adopted by the District. See, e.g., AR 2781; 2853; 3097; 3099. The record also demonstrates that the District received the mother's suggestions, and intended to "review [the] suggestions and then call a team meeting." AR 3097. Defendant, furthermore, has pointed to other examples of plaintiff's mother's participation in the IEP process, and even of some instances in which plaintiff's mother's suggestions were considered and implemented. See, e.g., AR 165, 107, 450-452, 478-79, 759, 813-15. Plaintiff's mother may not have received IEPs that were drafted to her satisfaction. However, this does not mean that she was denied the opportunity to participate in the process. While she is entitled to the latter, she is not guaranteed the former. See, e.g., Amanda J. v. Clark County Sch. Dist., 267 F.3d 877 (9th Cir. 2001)(it is procedural flaws that infringe on parent's participation in the IEP process that constitute a denial of FAPE). All that is required under the IDEA is that parents have the opportunity to participate in the decision making process. See 20 U.S.C. 1415(f)(3)(E)(ii)(II)("denial of FAPE occurs only if procedural violations of IDEA "significantly impeded the parents' opportunity to participate in the decisionmaking process regarding the provision of a free appropriate public education to the parents' child"). And here, the record demonstrates numerous occasions on which plaintiff's mother seized the opportunity to participate in the IEP process in a meaningful way. This is so, even if her recommendations were not always taken into account or if a response to her requests was not always forthcoming. See, e.g., AR 178, 180-82 (mother's hearing testimony asserting that District failed to respond to mother's letters); but cf. AR 188 (acknowledging that District responded to some of mother's communications, if not all). Moreover, the ALJ also noted that plaintiff's claims below did not even raise a 13 United States District Court 11 For the Northern District of California 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 2 3 4 5 6 7 8 9 10 challenge to the mother's participation in the IEP proceedings. Accordingly, and although not raised by the parties here, the ALJ's finding that plaintiff's attempt "to insert a claim for denial of parental participation as a separate IDEA violation fails," was not improper. In sum, plaintiff's claim that the ALJ should have found a denial of a FAPE based on the District having prevented the mother's lack of meaningful participation in the process, is unpersuasive. The court accordingly DENIES plaintiff's motion for summary judgment on this issue. 3. Harmless Error/Loss of Educational Benefits Theory Plaintiff also takes issue with the ALJ's application of the harmless error standard. Under the IDEA, not every procedural violation of the statute results in a denial of a FAPE. Rather, only those procedural violations that result in a loss of educational opportunity or a deprivation of educational benefits, or that seriously infringe on the parents' opportunity to participate in the IEP process, result in a denial of a FAPE. See, e.g., R.B., ex rel. F.B.v. Napa Valley Unified Sch. Dist., 496 F.3d 932, 938 (9th Cir. 2007). Here, asserts plaintiff, the ALJ correctly concluded on no less than 17 occasions that the District committed procedural violations, but incorrectly concluded that nearly half of these violations were harmless. See Pl. Reply Summ. Judg. at 3:3-7. According to plaintiff, the ALJ erred by refusing to take into account the cumulative effect of the procedural violations committed by the District, which supported a denial of a FAPE, even if the violations individually did not. Similarly, and related to this issue, plaintiff also takes issue with the ALJ's conclusion that plaintiff failed to demonstrate a loss of educational opportunity or benefits such that a denial of FAPE was evident. As to plaintiff's first argument, it fails to persuade. While defendant correctly notes that the law requires the ALJ and this court to examine each alleged violation for a loss of educational opportunity or benefits or infringement of parental rights before determining that a denial of FAPE has occurred, plaintiff has not offered a single citation to case law that suggests that such an analysis should be made based on the cumulative effect of any 14 United States District Court 11 For the Northern District of California 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 2 3 4 5 6 7 8 9 10 violations. While plaintiff asserts that such precedent exists in the criminal law arena, the court declines to import a criminal law standard to the instant case without more, in view of the unique standards and laws applicable in the IDEA arena. With respect to the related issue raised by plaintiff i.e., the ALJ's finding that plaintiff had not met his burden in demonstrating a loss of educational benefits or opportunities in connection with any of the District's procedural violations the ALJ correctly noted that this standard had to be met before denial of a FAPE could be found. And as explained more fully below, plaintiff fails to demonstrate that this standard has been met. Moreover, to the extent plaintiff argues that any loss in educational benefits or opportunities resulting from procedural violations were difficult to quantify in this case because of his mother's insistence on outside supplementation for plaintiff's education, the purpose of plaintiff's argument is not wholly clear. If plaintiff is asserting that the ALJ was required to quantify the educational benefit provided plaintiff by the mother's supplementary services and somehow discount these benefits in order to determine the loss in plaintiff's educational benefits purportedly occasioned by the District's education plan, plaintiff offers no legal authority supportive of this contention. Thus, to the extent plaintiff is arguing that, as a matter of law, it was error to take any supplemental services into account in ultimately determining that plaintiff did not suffer any loss in educational benefits, the court rejects the argument. In sum, therefore, to the extent plaintiff seeks a finding that the ALJ improperly applied the harmless error standard, as well as a finding that the ALJ improperly analyzed whether a loss of educational opportunity occurred sufficient to give rise to a denial of a FAPE, the court DENIES plaintiff's motion. C. The Alleged Procedural Violations Giving Rise to Denial of a FAPE This issue focuses on the heart of the parties' arguments i.e., whether the ALJ correctly found that the District did not deny plaintiff a FAPE from the second through fifth grade years, based on plaintiff's allegations of myriad procedural violations. Each of 15 United States District Court 11 For the Northern District of California 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 2 3 4 5 6 7 8 9 10 plaintiff's alleged violations, and the ALJ's decision thereon, is analyzed in turn below.3 1. District's failure to provide prior written notice for refusals to initiate assessments, changes in placement, and make changes in response to mother's requests "Prior written notice" is required under the IDEA whenever a school district proposes, or refuses to initiate or change, the identification, evaluation, educational placement, or the provision of a FAPE. See 20 U.S.C. 1415(b)(3). A school district's written proposal or refusal to do so must include a description of the action proposed or refused by the district, an explanation for the proposal or refusal, a description of other options considered by the IEP team, the reason why they were rejected, and a description of factors relevant to the district's decision, among other things. See id. at 1415(c)(1). Failure to provide prior written notice is a procedural violation of the IDEA. See, e.g., Union Sch. Dist. v. Smith, 15 F.3d 1519, 1526 (9th Cir. 1994). Plaintiff asserts that the ALJ incorrectly found that the District provided sufficient prior written notice of its refusals to initiate or change plaintiff's current placement with respect to the provision of ESY Quest Camp programs for 2004, 2005 and 2006, and the provision of neuropsychological assessments and an FBA in 2005. While plaintiff acknowledges that the ALJ found that insufficient written prior notice had been given of the District's refusal to initiate or change plaintiff's placement in connection with other ESY programs for 2004-06, plaintiff contends that the ALJ wrongly held these errors harmless. a. the ALJ's rulings United States District Court 11 For the Northern District of California 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 In considering the District's alleged failure to provide prior written notice with respect to the District's purported refusals to make changes in plaintiff's placement or to conduct certain assessments requested by plaintiff's mother, the ALJ preliminarily noted that plaintiff's complaint failed to properly identify at the outset the particular "refusals" that plaintiff was challenging on prior written notice grounds. Id. See AR 2428. Nonetheless, As noted previously, the only issues decided by the ALJ that are before the court are those on which the ALJ ruled in the District's favor. 16 3 1 2 3 4 5 6 7 8 9 10 certain alleged refusals became clear during the hearing, including: the District's alleged refusal to fund plaintiff's Quest Camp services for all 2004-06 summers; the District's failure to provide written notice every time plaintiff's mother submitted `requests for services and questions regarding [plaintiff's] program;' the District's denial of plaintiff's mother's 2004 requests for urgent positive behavioral intervention; the District's denial of plaintiff's mother's 2004 request for a behavioral assessment; and the District's denial of plaintiff's mother's 2004 and 2005 requests for a comprehensive neuropsychological assessment in the second and third grades. See AR 2428-29. Having narrowed down the refusals at issue, the ALJ then made findings with respect to each. All, with the exception of the second noted above, are now at issue before the court. First, the ALJ found that, with respect to the District's purported failure to provide written notice regarding plaintiff's summer ESY programs specifically, plaintiff's placement in the summer Quest Camps the District provided sufficient notice of refusal in writing at the 2004, 2005, and 2006 spring IEP meetings. AR 2429-30. At the 2004 IEP meeting, for example, written notes of the meeting reflected that plaintiff's mother "shared" her summer plans for student with the District, and while the District failed to understand that the mother was proposing alternative services, the District's refusal to change placement was made in the written placement offer for ESY at a public school, and the IEP contained all required elements for prior written notice. AR 2429. As such, the ALJ found that an additional response to the letters sent by plaintiff's mother in June 2004 notifying the District of placement in the Quest Camp and requesting reimbursement, was unnecessary (since a refusal had already been conveyed). Similarly, for 2005 and 2006, the ALJ found that the District's refusal to change placement for the summer from a public school to the Quest Camp was indicated in the spring IEPs, and satisfied the District's prior written notice requirement, such that no additional refusal was necessary by the District in response to the mother's May 2005 and June 2006 letters again notifying the District of placement in Quest, and requesting reimbursement. AR 2429-30. 17 United States District Court 11 For the Northern District of California 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 2 3 4 5 6 7 8 9 10 The ALJ did note, however, that in each of the letters sent by plaintiff's mother to the District in June 2004, May 2005, and June 2006, the mother also gave notice of plaintiff's enrollment in additional private services and therapy programs (e.g., social skills programs, speech and language therapy, Lindamood Bell, music therapy, etc.) which had not been addressed by the District in the preceding IEPs. Accordingly, the ALJ found that the District did commit a procedural violation in failing to give prior written notice of the District's refusals with respect to these programs. See AR 2429-30. The ALJ found the errors harmless, however, as plaintiff failed to establish that the violation resulted in a loss of educational benefits or services. Id. Second, the ALJ found that the District failed to provide prior written notice of its refusals to assess plaintiff's behavioral issues in 2004. AR 2430. The ALJ noted that the District delayed responding to the mother's earlier requests for behavioral assessments until the May 18, 2004 IEP meeting. Although the District did send a letter stating they were going to defer a functional behavior assessment, it was not a prior written notice of refusal because it did not contain all required elements of prior written notice. Id. While the District did issue a BSP in May 2004, which was a written response to the mother's request for positive behavioral intervention, the response did not explain why nothing further was offered, and so did not constitute effective prior written notice. AR 2430. The ALJ held that these refusals to provide prior written notice in response to the mother's requests for behavioral assessments and intervention rose to the level of a denial of FAPE and ordered reimbursement of the costs of plaintiff's placement in the summer 2004 Quest Camp as a result. See AR 2430. Finally, with respect to plaintiff's claim that, in 2005, the District failed to provide prior written notice of its refusal to conduct a neuropsychological assessment and an FBA, the ALJ found that the District had satisfactorily provided prior written notice of its refusals to do both. Specifically, the ALJ found that the District's Autism Content Specialist, Ms. Sodhi, had mailed a letter to plaintiff's mother on June 14, 2005, setting forth the District's refusal 18 United States District Court 11 For the Northern District of California 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 2 3 4 5 6 7 8 9 10 to conduct a neuropsychological assessment, and confirming the District's agreement to conduct an FBA and psycho-educational assessment. AR 2340-41. The letters met all the requirements for notice. Id. b. whether the ALJ was correct In connection with the District's purported failure to provide prior written notice of its refusals regarding ESY services, plaintiff asserts that something more than simply a written offer of placement regarding the special day classes (made in connection with plaintiff's IEPs) was required in order to constitute a sufficient notice of the District's refusal to send plaintiff to Quest Camp. Instead, plaintiff contends that the District was required to tell plaintiff's mother that it would not pay for the summer services she contracted for, and to give the reasons why. With respect to the FBA and neuropsychological assessments, plaintiff takes issue with the ALJ's findings regarding the spring 2005 failure to assess only, contending that Ms. Sodhi's letter refusing to conduct a neuropsychological assessment and confirming the agreement to conduct an FBA and psycho educational assessment, did not rise to the level of prior written notice. As to the former, the ALJ properly considered the language of the IEPs issued in the spring of 2004, 2005, and 2006, and noted that the District's consideration of the mother's plans for the summer, and the District's decision to offer special day classes instead all in written form constituted a valid written notice of the District's refusal to make the Quest Camp placements. In view of this, it was reasonable for the ALJ to find that the mother's subsequent letters stating that she had "carefully reviewed" the District's proposal, but was unilaterally placing plaintiff in Quest Camp, required no further documentation or notice. Moreover, the ALJ was also reasonable in finding that this holding did not extend to plaintiff's mother's request for private services and therapies in addition to the Camp Quest program, since the written IEPs never mentioned these additional therapies and services (unlike the mention of the special day school option). As such, plaintiff's argument that the ALJ improperly decided that prior written notice of refusal regarding Quest Camp had been 19 United States District Court 11 For the Northern District of California 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 2 3 4 5 6 7 8 9 10 given, is unavailing. Plaintiff does not, moreover, point to any evidence suggesting that the District's failure to provide written notice of refusal in connection with his mother's request for additional summer therapies and programs, actually resulted in a loss of educational benefits to him. For instance, there is no evidence of reduced test scores in the areas targeted by those private services and therapies. Accordingly, the ALJ's decision that no denial of FAPE resulted with respect to the ESY or additional therapies and services for the three summer years, must also be upheld. Second, and as to plaintiff's argument that the ALJ incorrectly found that the District provided prior written notice of its refusal to conduct a neuropsychological assessment and FBA in spring 2005, plaintiff again presents no evidence showing how the ALJ committed error. Indeed, plaintiff's only grounds for asserting that the ALJ was wrong is that after sending Ms. Sodhi's letter to plaintiff, the District "failed to then follow up with the evaluation of provide prior written notice stating why that particular assessment was no longer necessary." See Opp. to Def. MSJ at 8:8-10. However, this is not a claim that the District failed to provide prior written notice rather, it is a claim by plaintiff that the District failed to properly conduct an assessment of plaintiff's neuropsychological state. Moreover, it should be noted that while plaintiff attempts for the first time in his opposition to defendant's summary judgment motion to raise entirely new grounds to support his claim that the District failed to provide prior written notice, none of these grounds were considered by the ALJ. As noted above, the ALJ was limited only to those issues that plaintiff raised during testimony, and those issues were limited to the ESY, behavioral, and neuropsychological issues noted above. Accordingly, these are the only issues that the court considers here. In sum, the court finds the ALJ's decision on this matter correct and well-reasoned, and worthy of deference. Defendant's motion for summary judgment as to this issue is accordingly GRANTED. Plaintiff's cross-motion as to the same issue is DENIED. 20 United States District Court 11 For the Northern District of California 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 2 3 4 5 6 7 8 9 10 2. District's failure to make a clear offer of placement for services during ESY and not providing prior written notice4 A student's IEP must contain a clear written offer of placement. The offer must include a statement of the special education and related services and supplementary aids and services, including program modification or supports. See Union Sch. Dist. v. Smith, 15 F.3d 1519, 1526 (9th Cir. 1994); see also 20 U.S.C. 1415(b)(3)(A). The offer must also include a statement of the anticipated frequency, location and duration, as well as sufficient information so that the level of the district's commitment of resources is clear, although the offer may be stated in a range if a range of services meets the student's needs. Id. Plaintiff seeks summary judgment on grounds that the ALJ incorrectly determined that no denial of a FAPE occurred with respect to the District's offers of placement in connection with ESY services for the summers of 2004, 2005, and 2006. The District seeks summary judgment affirming the ALJ's decision as to this issue. a. the ALJ's decision United States District Court 11 For the Northern District of California 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 The ALJ considered and ruled on plaintiff's allegations that the District failed to make a clear written offer of placement for speech and language therapy, integrated play groups, and ESY programs. As indicated above in connection with the statute of limitations argument, the ALJ properly declined to consider the merits of plaintiff's allegations with respect to the offers of speech and language therapy, and integrated play groups, since those offers came in March 2003 and are therefore outside the statute of limitations. As for the ESY services, however, the ALJ found that the District's offer of ESY services was sufficiently clear for the 2004 and 2005 years, but not for the 2006 year. Specifically, with respect to 2004, the ALJ noted that the District's May 5, 2004 written IEP offered an SDC placement for plaintiff at Starr King Elementary School, since This issue is related to the foregoing issue. Indeed, it is difficult to tell this issue apart from the foregoing in the parties' papers, particularly since plaintiff routinely refers to the two issues together. 21 4 1 2 3 4 5 6 7 8 9 10 the District did not operate general education summer school. See AR 2426. The offer was carefully explained to plaintiff's mother, who wrote a letter indicating that she had "carefully considered" the District's offer, but had decided on unilateral placement of plaintiff at Quest Camp instead. AR 2426-27. With respect to 2005, the ALJ found that the District stated in its May 25, 2005 IEP in writing that an offer was being made for "placement in a 4 hour a day, 5 days a week, for 4 weeks of ESY" at Lafayette Elementary. Again, the District noted that there was no general education summer school for 3rd grade level students. AR 2427. The offer was also explained verbally to plaintiff's mother, who indicated in a subsequent letter to the District that she had "carefully considered" the offer, but had again opted for unilateral placement in Quest Camp for the summer. AR 2427. Finally, with respect to 2006, the ALJ found that the District's written offer at the March 2006 IEP meeting failed to clearly state what ESY services were being offered. While the District's Autism Content Specialist, Ms. Sodhi, wrote a letter in June 2006 offering services in a clear and sufficient fashion, this offer was made 3 months after the IEP and failed to meet the requirements of the IDEA. AR 2428. Nonetheless, no denial of a FAPE occurred because the evidence demonstrated that plaintiff's mother understood and considered the ESY services offer for 2006 nonetheless. Id. b. whether the ALJ erred United States District Court 11 For the Northern District of California 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Beginning with the 2004 offer of ESY services, the District concedes from the outset that the ALJ erred in one respect the ALJ incorrectly stated in paragraph 168 of its factual findings that the District made an offer of ESY services in the form of an SDA placement at Starr King Elementary, in 2004. AR 2425. In reality, however, this statement refers to the following school year's offer of placement, not the 2004 ESY offer. Nonetheless, the District contends that the ALJ's error was harmless, because the rest of the ALJ's conclusion that the District carefully explained its offer to plaintiff's mother, and that the mother sent a letter saying she had "carefully reviewed" the offer but decided to decline it 22 1 2 3 4 5 6 7 8 9 10 remains correct. Plaintiff, by contrast, contends that this error creates an ambiguity that demonstrates that the District failed to make a clear written offer of placement for the 2004 ESY. On this issue, plaintiff is correct. The IDEA requires a clear written offer that sets forth a sufficiently specific statement of what the actual offered services will be. Here, while the District has conceded that the ALJ erred, and looked to the wrong written offer in concluding that the 2004 ESY offer had been clearly written, the District is unable to point to evidence that nonetheless demonstrates that a sufficiently explicit offer was made. Indeed, as the District acknowledges, the spring 2004 IEP did not document "the specifics of the program." AR 3336; Def. Mot. Summ. Judg. at 19:23-20:1. Rather, the District seeks to rely on the fact that the ESY services were verbally explained to plaintiff's mother, who understood the offer and then rejected it. AR 131-32; 829-40; 1270. However, a verbal communication of an offer is not sufficient to satisfy the District's obligation to make a clear written offer. Accordingly, the court finds that the ALJ erred in this conclusion, and that the District did not make a clear written offer to plaintiff's mother for 2004 ESY services. The court finds the error was harmless, however, as the District does correctly note that notwithstanding the District's failure to make a proper offer, the mother understood the offer enough to subsequently reject it. AR 134-35; 1133-34; 2824; 3325. With respect to the 2005 ESY offer, however, the ALJ correctly noted that the District's offer of ESY services was clear, and sufficiently detailed to satisfy the IDEA's requirements. AR 3271-72. Indeed, the May 2005 IEP expressly states the details of plaintiff's ESY services, and the fact that no general education services were being offered by the District as an alternative. Id. Moreover, plaintiff's mother subsequently wrote to the District stating she had carefully considered the ESY placement, and chose to place plaintiff in Quest Camp. AR 3203. In sum, therefore, the ALJ's decision on this point is entitled to deference. Finally, with respect to the 2006 ESY offer, the ALJ was again justified in holding 23 United States District Court 11 For the Northern District of California 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 2 3 4 5 6 7 8 9 10 that the District's failure to make a clear written offer of placement was harmless error. The ALJ properly noted that plaintiff's mother did not receive a written offer of placement until a confirming letter was sent to her almost three months after the initial verbal IEP offer, a clear violation of the IDEA. AR 3196. However, for the same reasons noted above, the mother's subsequent confirmation that she understood the initial ESY offer of placement, and her decision to reject it, render the District's failure harmless error. The ALJ's decision on this point is thus entitled to deference. In sum, the court hereby finds the ALJ's decision with respect to the District's failure to make a clear offer of placement in connection with the 2004 ESY services erroneous, but holds the error was harmless. The court furthermore affirms the ALJ's decision with respect to the District's purported failure to make a clear offer of placement in connection with the 2005 and 2006 ESY services. Thus, summary judgment is GRANTED in defendant's favor, and is DENIED to plaintiff. 3. District's failure to assess AB's educational needs United States District Court 11 For the Northern District of California 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiff makes several claims that the District failed to assess plaintiff's educational needs. Plaintiff seeks judgment in his favor as to each claim that was decided unfavorably against him by the ALJ, while the District seeks a ruling affirming the ALJ's decision. Each claim is considered in turn. a. failure to assess behavioral needs Plaintiff asserts that the District failed to properly assess plaintiff's behavioral needs in all four years, from the second through the fifth grades. In considering this claim and the evidence introduced at the hearing, the ALJ found that the District was legally required to, but did not, conduct a functional behavioral assessment during plaintiff's second grade year in the spring of 2004, despite knowledge of plaintiff's significant behavioral problems. See AR 2395. To that end, the ALJ found that the District had denied plaintiff a FAPE during the 2003-2004 school year, and ordered that the District reimburse plaintiff's mother for the cost of the Quest Camp in summer 2004. AR 2442. 24 1 2 3 4 5 6 7 8 9 10 With respect to following years, the ALJ found that the District similarly committed a procedural violation during plaintiff's third grade by agreeing to conduct an FBA assessment when requested by plaintiff's mother in May 2005, and subsequently delaying any such assessment until the fall of 2005. See AR 2397. Unlike the prior finding, the ALJ found this error to be harmless, however, in view of evidence demonstrating that, despite exhibiting behavioral issues at the beginning of the 2004-05 school year, plaintiff's maladaptive behaviors were mostly resolved by June 2005 and plaintiff's behaviors were not serious enough by the District to conduct an FBA; rather, the District did so only because plaintiff's mother requested it. AR 2396-97; 2442. Thus, no loss of educational benefit was established as a result of the delay. Finally, the ALJ found that the evidence did not establish the District's failure to assess plaintiff's behavioral needs in either fourth grade or fifth grade. During both the fourth and fifth grades, plaintiff did not establish that his mother had requested reassessment of his behavioral needs, nor did the evidence establish that the District was required to reassess plaintiff's behavioral needs. AR 2398; 2442. Plaintiff primarily disagrees with the ALJ's conclusion that the District's delay in conducting an FBA during plaintiff's third grade year was harmless error, and the ALJ's conclusion that no FBA was warranted in the fourth and fifth grades. Plaintiff asserts that the BSPs that were in place during these years identified daily inappropriate behaviors by plaintiff. AR 3307, 3323. Moreover, plaintiff argues that while the District attempted to conduct an FBA in fall of 2005, the ALJ found the assessment to be "untimely, incomplete and inappropriate," precisely because of plaintiff's disruptive classroom behavior. AR 2411. Thus, contends plaintiff, the behavioral problems noted during plaintiff's third through fifth grades clearly warranted proper assessments. Plaintiff's argument overlooks, in the first place, the difference between BSPs and FBAs. Whether plaintiff's BSPs indicated the presence of maladaptive behavioral tendencies that required attention is distinct from whether the inappropriate behavior that 25 United States District Court 11 For the Northern District of California 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 2 3 4 5 6 7 8 9 10 plaintiff was demonstrating was sufficiently severe that it required an FBA. See, e.g., Cal Code Regs., tit. 5 3001 (California law requires that a FAA or FBA be undertaken whenever a student develops a "serious behavior problem," which is defined as a student's actions exhibiting self-injurious, or assaultive tendencies, or a student's actions in causing serious property damage or other pervasive and maladaptive tendencies). Yet as to this particular inquiry, plaintiff presents no evidence or legal authorities that demonstrate that the level of severity justified an FBA. Indeed, during the third grade, the ALJ notes that plaintiff's maladaptive behaviors actually improved, and during the fourth and fifth grades, plaintiff's behavior continued to be devoid of serious maladaptive and disruptive behaviors. See AR 2397; 3307. And while plaintiff contests the ALJ's finding in this regard, plaintiff has failed to point to any evidence that suggests that plaintiff was exhibiting the type of "serious behavior problem" sufficient to trigger a need for an FBA. Thus, even though it cannot be disputed that plaintiff continued to exhibit some maladaptive behaviors during the third through fifth grades that were targeted in BSPs, the court is not persuaded that plaintiff has sufficiently cast doubt on the ALJ's conclusion that no FBAs were warranted based on the evidence presented. Absent evidence of serious behavioral problems similar to those experienced by plaintiff in the second grade, the ALJ's findings that no FBA was warranted in the third through fifth grades (and that the District's delayed promise of an FBA in the third grade was harmless error), the ALJ's conclusion that the District's alleged failure to assess plaintiff in second through fifth grades did not cause denial of a FAPE, was reasonable. Accordingly, the plaintiff's motion for summary judgment as to this issue is DENIED. The District's cross-motion on the same issue is GRANTED. b. District's failure to conduct neuropsychological or psycho-educational assessments The ALJ found, and the parties do not dispute that the District failed to conduct a neuropsychological or psycho-educational assessment, following plaintiff's mother's 26 United States District Court 11 For the Northern District of California 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 2 3 4 5 6 7 8 9 10 request to do so at the May 25, 2005 IEP meeting. AR 2398-99. As the ALJ noted, this constitutes a procedural violation of the IDEA. Id. The ALJ concluded, however, that the violation was harmless, since plaintiff could not identify a loss of educational opportunity or benefit that resulted therefrom. Plaintiff now asserts that the ALJ's conclusion was error, since the District's failure to assess does, in fact, rise to the level of denial of a FAPE. Despite his protestations to the contrary, however, plaintiff has not demonstrated any denial of educational opportunity or benefit. Plaintiff's mother had private neuropsychological assessments of plaintiff completed by Dr. Nunno in 2004 and Dr. Guterman in 2005. Plaintiff now asserts that the District failed to consider Dr. Nunno's and Dr. Gruterman's assessments and failed to conduct its own psychoeducational assessment, the combination of which denied plaintiff educational benefits. See Pl. Mor. Summ. Judge. at 20:9-12. However, plaintiff has pointed to no evidence in the record affirmatively demonstrating that the District refused to consider Dr. Nunno's assessments. To the contrary, plaintiff states that she "verbally reported on Dr. Nunno's assessment" at the May 18, 2004 IEP team meeting, suggesting that the District did have the opportunity to consider Dr. Nunno's assessment. While plaintiff correctly asserts that there is no evidence in the IEP resulting from the team meeting indicating that Dr. Nunno's recommendations were in fact adopted, the fact that the District may not have adopted the recommendations from a private outside report do not necessarily indicate without more the District's failure to consider necessary assessments. Moreover, as the District's witness Dr. Pamela Mills testified, in view of Dr. Nunno's assessment in 2004 and Dr. Guterman's in 2005, it would have been bad practice for the District to conduct its own assessment at or about the same time at any rate. See AR 1870; 1910-11; 1475-76. On the whole, the totality of the evidence submitted and considered by the ALJ supports the ALJ's decision that the District's procedural violations in connection with this issue, did not constitute denial of a FAPE. The ALJ's decision is therefore entitled to deference in this respect. The court accordingly DENIES plaintiff's motion for summary 27 United States District Court 11 For the Northern District of California 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 2 3 4 5 6 7 8 9 10 judgment on this issue.5 c. failure to properly assess speech, language, and social skills Plaintiff asserts that the ALJ provided an inadequate remedy for the District's failure to properly assess plaintiff's speech and language skills in 2005 during plaintiff's fourth grade year, and incorrectly found that the District did not improperly fail to conduct social skill assessments for the third through fifth grades. The ALJ found that the District did not properly assess plaintiff's speech and language skills in the fourth grade, and incorrectly reduced plaintiff's speech and language therapy from 90 minutes per week to 60 minutes per week, based on an inappropriate assessment. AR 2401, 2406-07. To that end, the ALJ ultimately concluded that this constituted denial of a FAPE and ordered plaintiff's mother reimbursed for 17.5 hours of private speech and language therapy. AR 2420-21. The ALJ also ordered a new assessment to be conducted by the District, in order to determine plaintiff's present level of skills and needs. AR 2443. With respect to plaintiff's social skills, the ALJ found that the District had been aware of plaintiff's unique needs in the area of social skills at all times, and addressed them. See AR 2403. The ALJ concluded that plaintiff's social skills needs had been adequately addressed through IEP goals and objectives, and that the evidence established that there was no need for any further social skills re-assessment (since the triennial social skills assessment had already been conducted in 2002). AR 2404; see also AR 1018-1020; 2403; 3096; 3163-64; 3332; 3341; 3356. Beginning with plaintiff's speech and language therapy claims, plaintiff does not take iss

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