A.V. v. Lemon Grove School District

Filing 29

ORDER on Cross Motions for Summary Judgment [Doc. Nos. 23 , 24 ]. Signed by Judge Cathy Ann Bencivengo on 2/23/2017. (jjg)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 12 A.V. By and Through His Guardians Ad Litem ANDREA VAZ ANTUNES and ANTONIO VAZ ANTUNES, 13 14 15 16 Case No.: 3:16-cv-0803-CAB-(BLM) ORDER ON CROSS MOTIONS FOR SUMMARY JUDGMENT [Doc. Nos. 23, 24] Plaintiff, v. LEMON GROVE SCHOOL DISTRICT, Defendant. 17 18 This matter comes before the Court on Plaintiff A.V.’s (“A.V.”) Motion for 19 Summary Judgment [Doc. No. 23] and Defendant Lemon Grove School District’s 20 (“District”) Cross Motion for Summary Judgment [Doc. No 24]. The motions have been 21 fully briefed and the Court finds it suitable for determination on the papers submitted and 22 without oral arguments in accordance with Civil Local Rule 7.1(d)(1). For the reasons set 23 forth below, the Court DENIES both motions and upholds the decision of the 24 Administrative Law Judge (“ALJ”). 25 26 27 28 1 3:16-cv-0803-CAB-(BLM) 1 I. 2 A.V. is a 12-year-old boy who resides within the District and suffers from dyslexia, 3 auditory working memory, and visual processing deficits. A.V. was first determined to be 4 eligible for special education in December 2007. BACKGROUND 5 In the beginning of 2014, Andrea Vaz Antunes (“Mother”) and Antonio Vaz 6 Antunes (“Father”) (collectively “Parents”) removed A.V. from the District school and 7 placed him in Banyan Tree Foundations Academy (“Banyan”) a non-public school. 8 [Administrative Record (“A.R.”) at 1216-17.1] On March 3, 2014, Parents and District 9 entered into a settlement agreement. [Id. at 1008-19.] 10 The settlement agreement required District to reimburse Parents for tuition they had 11 already paid at Banyan, as well as to set up an account for reimbursement expenses for 12 tuition and transportation costs between the date of the settlement agreement and December 13 19, 2014. [Id.] Under the agreement District was required to conduct A.V.’s triennial 14 assessment during the Fall of 2014 and convene a triennial Individual Educational 15 Program2 (“IEP”) meeting between October 19, 2014, and December 19, 2014. [Id. at 16 1010.] 17 On December 15, 2014, an IEP team meeting was held which included Parents, 18 A.V.’s advocate, Dr. Sara Frampton, and individuals from Banyan and District. [Id. at 19 328-358.] The meeting lasted two hours and some, but not all, of A.V.’s assessment results 20 were discussed. [Id. at 353-56] Determining a placement for A.V. was a topic of 21 discussion but no decision was reached and no offer was made. [Id. at 2329.] Dr. Frampton 22 23 1 24 25 26 27 28 On September 15, 2016, Plaintiff lodged four compact discs with the Court which included the entire administrative record and three audio recording of the Individual Education Program meetings. [Doc. No. 20.] All page references are to pages 1-2390 of the Administrative Record, the number which is located in the top right hand corner of the document. 2 An IEP is defined as a “written statement for each child with a disability that is developed, reviewed, and revised in accordance with section 1414(d) of this title.” 20 U.S.C. § 1401(14). It is a “comprehensive statement of the educational needs of a handicapped child and the specially designated instruction and related services to be employed to meet those needs.” Sch. Comm. of the Town of Burlington v. Mass. Dep’t of Educ., 471 U.S. 359, 368 (1985). 2 3:16-cv-0803-CAB-(BLM) 1 requested District continue to fund A.V.’s education at Banyan past December 19, 2014, 2 District’s legal counsel responded that the request would be discussed with Parents’ 3 counsel. [Id. at 353.] District did not identify a District school where A.V. should enroll 4 while his IEP was being developed3. The meeting adjourned with all team members 5 agreeing to reconvene as soon as possible in order to complete the IEP. [Id. at 355, 1315.] 6 In an email exchange subsequent to the December IEP meeting, Dr. Frampton and 7 District’s legal counsel discussed possible non-public school options for A.V., including 8 NewBridge. [Id. at 958-59.] On December 20, 2014, District’s legal counsel informed 9 A.V.’s representatives that District was taking the position was that it had not caused any 10 delay in convening the triennial IEP mandated by the settlement agreement and stated that 11 District would not continue the funding of Banyan. [Id. at 964.] The communication did 12 not identify which District school or classroom A.V. should report to and no offer of an 13 alternative placement pending development of A.V.s new IEP was provided. [Id.] The 14 email continued “Lemon Grove is open to considering all placement options at the 15 upcoming IEP team meeting, including Banyan Tree.” [Id.] On December 30, 2014, 16 A.V.’s legal counsel requested that District, given the lack an offer of a free appropriate 17 public education (“FAPE”) from District, continue to fund Banyan. [Id. at 360-61.] 18 District did not respond to this request. 19 On January 21, 2015, Parents’ counsel were provided with a draft of A.V.’s goals 20 that were to be discussed at the upcoming IEP team meeting. [Id. at 1035-51.] The email 21 stated that Dr. Burkett had been unsuccessful in her attempts to contact Steve Mayo, 22 Director of NewBridge, to discuss whether NewBridge would be an appropriate placement 23 option for the team to discuss at the upcoming meeting. [Id. at 1035; see also 1543-44, 24 1605-06.] 25 26 27 The District’s Director of Special Education, Dr. Bobbi Burkett, testified at the OAH that there was no stay put placement for A.V. as of the time of this meeting. [A.R. at 1803.] 3 28 3 3:16-cv-0803-CAB-(BLM) 1 On January 23, 2015, IEP team meeting was reconvened. [Id. at 363-64.] The IEP 2 team reviewed the results of all District assessments and Banyan progress reports. [Id; see 3 also 1749-55.] Modifications were made to A.V.’s eligibility categories and proposed 4 goals for A.V. were agreed upon. [Id.] The team agreed that neither a general education 5 classroom nor a special day classroom at a District school would meet A.V.’s needs. [Id. 6 at 364.] District offered A.V. placement at a non-public school but did not believe that 7 Banyan was an appropriate facility4. [Id. at 1756-57, 1826, 2148-49.] Dr. Frampton and 8 Parents wanted A.V. to remain at Banyan to the end of the 2014-2015 school year but 9 suggested NewBridge as an option for a non-public school. [Id. at 364, 2252.] District’s 10 representatives would not agree to A.V. remaining at Banyan but did not propose an 11 alternative school. [Id. at 364, 1766]. Dr. Burkett informed Parents that District would 12 investigate other possible non-public placements and propose an alternative school. [Id. at 13 2253.] 14 Following the initial IEP team meeting in December 2014, District and Parents 15 engaged in settlement discussions which ended in April 2015 with no agreement having 16 been reached. [Supplemental Record (“S.R.”) at 4-90.5] In the wake of the breakdown of 17 the settlement discussions Dr. Burkett began investigating possible non-public school 18 placements for A.V. [A.R. at 1763-64.] Sierra was identified as a potential option for 19 A.V. that had an immediate opening. [Id. at 1764-65, 1772.] During this period, A.V. 20 21 remained at Banyan, with Banyan temporarily waiving tuition charges for him. [A.R. at 1900, 1903-04.] 22 23 24 25 26 27 28 The District, based upon the results of their assessments, were concerned with A.V.’s lack of academic progress at Banyan and that A.V.’s need for peer interaction would not be met due to Banyan’s educational model. [A.R. at 2148-49.] 5 On September 16, 2016, the parties filed a joint motion to supplement administrative record [Doc. No. 21] which was granted by the Court [Doc. No. 22]. Exhibits 1-15 attached to the parties’ joint motion [Doc. No. 21-2] were admitted as supplementary evidence. Page references to the Supplement Record refer to those assigned in the CM/ECF to Doc. No. 21-2. 4 4 3:16-cv-0803-CAB-(BLM) 1 On April 24, 2015, Parents on behalf of A.V. filed a due process hearing request 2 with the Office of Administrative Hearings (“OAH”) (“the OAH Complaint”). [Id. at 1- 3 8.] The OAH complaint was amended on May 13, 2015, to include District’s offer to place 4 A.V. at Sierra Academy. [Id. at 13-24, 36.] 5 On April 26, 2015, District’s legal counsel wrote to A.V.’s legal counsel offering 6 A.V. immediate placement at Sierra once Parents consented to the offer of placement. [Id. 7 at 367-69.] In the letter, District agreed to reimburse Parents for tuition at Banyan subject 8 to proof and documentation of attendance. [Id.; see also 1785-86.] A copy of the IEP 9 document developed at the December 15, 2014, and January 23, 2015, IEP meetings was 10 enclosed. [Id. at 370-404.] 11 On May 6, 2015, District’s counsel wrote to A.V.’s legal counsel asking for any 12 revisions A.V. or his representatives were proposing regarding his IEP. [Id. at 405-06, 13 978.] District reiterated its offer of placement at Sierra and offered to facilitate Parents’ 14 tour of Sierra. [Id. at 405, 978, 1780-81.] May 20, 2015, was proposed as the next IEP 15 team meeting date. [Id. at 405, 407, 978-79.] Before the May IEP team meeting, Parents 16 toured Sierra without involving the District.6 [Id. at 1034, 1275.] 17 On May 20, 2015 an IEP team meeting was convened. [Id. at 411-38.] A.V.’s 18 Parents, legal representatives for both parties, Dr. Frampton, and numerous District 19 employees were present. [Id. at 411.] No representative from Sierra attended the meeting.7 20 [Id. at 1515-16.] Numerous issues of concern to Parents were discussed and the IEP was 21 22 23 24 25 26 27 28 A.V.’s mother did not believe that Sierra would be a good fit for her son. [A.R. at 1406-07, 1426-32.] Nevertheless, at the OAH, A.V. stipulated that he was not contesting whether Sierra was appropriate, could meet his needs, or constituted a FAPE. [Id. at 1056-59 at 1058:25-1059:2.] Sierra was a certified non-pubic school serving children with a variety of disabilities, including dyslexia. It has reading specialists on staff who could provide reading intervention programs to A.V., and had professionals who could provide the related services he needed. 7 Dr. Burkett testified that having a representative of a non-public school in attendance at an IEP meeting prior to agreement would be considered a predetermination of placement. [A.R. at 1767, 1797.] Ms. Eagling, Director of Sierra Academy, testified that it was Sierra’s practice not to send representatives to IEP team meetings unless students are enrolled and/or accepted at its school. [Id. at 1515-16.] 6 5 3:16-cv-0803-CAB-(BLM) 1 modified and revised in the two hour meeting. [Id. at 411.] District made an offer of 2 placement and services to A.V. that included: placement at a non-public school, with 3 round-trip transportation; speech and language therapy twice a week, for 25 minutes a 4 session; occupational therapy services 30 minutes a week; and social work services of 5 1,200 minutes a year. [Id.] The District reiterated that it was offering placement at Sierra, 6 which had an immediate opening and was closer to his home and had a reading teacher and 7 reading interventions. [Id. at 411, 1795-97.] NewBridge did not have an opening for A.V. 8 and was further away than Sierra. [Id; see also 1544, 1795-96.] Dr. Frampton requested 9 District fund Banyan for the remaining three weeks of the school year, and stated that 10 NewBridge would serve A.V. well and had an opening starting at the beginning of the 11 extended school year. [Id.] District agreed to respond to these requests by the end of the 12 school year. [Id.] 13 On May 26, 2015, District responded to Plaintiff’s OAH complaint. [Id. at 986-92.] 14 In its’ response District extended its April 26, 2015, non-confidential settlement offer to 15 the end of the school year and agreed to reimburse Parents for Banyan tuition and mileage 16 reimbursement dating back to January of 2015 to the end of the 2014-2015 school year. 17 [Id. at 991, 1786-87.] District continued to offer Sierra as FAPE. [Id. at 991.] 18 On June 5, 2015, Parents declined District’s May 28, 2015, Statutory Settlement 19 Offer claiming that the terms of the offer were overly broad and lacked specificity. [Id. at 20 601-602, S.R. at 123-24.] On June 20, 2015, Parents’ counsel served notice on District of 21 Parents’ intent to change A.V.’s placement from Banyan to NewBridge for the 2014-2015 22 extended school year. [A.R. at 994.] 23 On June 24, 2015, Parents’ counsel contacted District with a proposed resolution of 24 the OAH matter, sought reimbursement for Banyan and mileage expenses, requested 25 reimbursement for extended school year at NewBridge, placement at NewBridge for the 26 2015-2016 school year, and student’s stay-put placement at NewBridge pending an IEP 27 meeting at the beginning of the school year, an attorney fees and costs in the amount of 28 $6,000.00. [Id. at 603-04.] 6 3:16-cv-0803-CAB-(BLM) 1 On July 1, 2015, Parents enrolled A.V. at NewBridge, for the extended school year 2 at a cost of $2,250. [Id. at 1525, 1551.] Parents were billed $1,825 a month for tuition for 3 the regular school year, which did not include charges for related services. [Id. at 1550.] 4 On August 28, 2015, District responded to the notice of placement reiterating that 5 District had decided against funding A.V.’s placement at NewBridge and that Sierra could 6 provide A.V. with a FAPE in the least restrictive environment. [Id. at 996-98.] District 7 stated that it had investigated Dr. Frampton’s concerns regarding Sierra and concluded, 8 that contrary to her assertions, Sierra does not serve children with significant social and 9 emotional issues and disagreed with her assertion that NewBridge was better than Sierra. 10 [Id. at 996-97.] District specifically referenced “Dr. Frampton’s comment made at the May 11 20th IEP that NewBridge is the ‘perfect fit’ for [A.V.].” [Id. at 997.] On the same day 12 District filed a complaint with the OAH to determine whether its offer of Sierra Academy 13 constituted a FAPE. [Id. at 67-74.] On September 2, 2015, the OAH consolidated A.V. and District’s cases. [Id. at 88- 14 15 90.] 16 Administrative Law Judge Darrell Lepkowsky. On January 8, 2016, the ALJ issued a 17 Decision.8 [Id. at 1060-108.] The ALJ found that A.V. was denied a FAPE between In October and November of 2015 a six day OAH hearing was held before 18 19 8 20 21 22 23 24 25 26 27 28 There were eight identified issues before the ALJ: (1) Did the District deny A.V. a FAPE by failing to make an appropriate, specific offer of placement on or after December 2014?; (2) Did District deny A.V. a FAPE with regard to the January 23, 2015 IEP team meeting by: (a) failing to offer a specific non-public school placement; and (b) failing timely to provide A.V. with a copy of the January 23, 2015 IEP document and meeting notes?; (3) Did the District’s April 25, 2015 offer of placement at Sierra deny A.V. a FAPE, because: (a) District predetermined its offer of placement at Sierra; (b) District made the offer through correspondence between its attorney and A.V.’s attorney instead of at an IEP meeting; and, (c) District failed to convene an IEP team meeting to discuss A.V.’s placement subsequent to making the offer of placement?; (4) Did District deny A.V. a FAPE at the May 20, 2015 IEP meeting, by: (a) Failing to have a non-public school representative from Sierra present; and, (b) denying A.V’s parents the opportunity to meaningfully participate in the meeting?; (5) Did District deny A.V. a FAPE by failing to conduct a vision therapy assessment at any time after the December 15, 2014 IEP meeting?; (6) Did District deny Student a FAPE from December 15, 2014, to the [date of the OAH hearing], by failing to make an appropriate and/or sufficient offer of occupational therapy, speech and language therapy, or vision therapy services?; (7) Did District offer A.V. a FAPE in the least restrictive environment in the triennial IEP dated December 15, 2014, as amended in January 23, 2015, and May 20, 2015?; (8) Does the settlement agreement between 7 3:16-cv-0803-CAB-(BLM) 1 December 20, 2014 and April 26, 2015, because District failed to make an appropriate, 2 specific offer of placement between December 20, 2014, and April 26, 2015. [Id. at 1089- 3 92.] Further, the ALJ concluded that the District did not predetermine its offer of 4 placement at Sierra and was not required to make the offer at an IEP team meeting. [Id. at 5 1093-95.] Additionally, the ALJ held that the failure to have a representative from Sierra 6 at the May 20, 2015, IEP team meeting was not a FAPE violation and that Parents had 7 meaningfully participated in the meeting. [Id. at 1095-97.] Furthermore, the ALJ found 8 that the settlement discussions did not limit A.V.’s remedies, and held that A.V.’s Parents 9 were entitled to reimbursement for A.V.’s tuition at Banyan from January 5, 2015, to June 10 10, 2015, totaling $27,030, and for mileage costs for transporting A.V. to Banyan in the 11 amount of $1,604.67.9 [Id. at 1102-06.] 12 On April 4, 2016, A.V., by and through his Parents as guardians ad litem, filed a 13 complaint for partial reversal of the decision of the Office of Administrative Hearings 14 (“OAH”) pursuant to the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. 15 § 1400 et seq. [Doc. No. 1]. On June 22, 2016, District filed a cross-complaint seeking 16 partial reversal of the decision rendered by the OAH. [Doc. No. 14.] 17 In his complaint Plaintiff alleges that the ALJ erred in holding that Defendant’s April 18 25, 2015, offer of placement at Sierra was not a predetermination (Issue 3(a)). [Doc. No 1 19 ¶ 21.] Further, Plaintiff alleges that the ALJ was incorrect in ruling that the failure to have 20 a non-public school representative at the May 20, 2015, IEP meeting was not a denial of 21 FAPE (Issue 4(a)). [Id. ¶ 22.] Relatedly, Plaintiff also claims that the ALJ incorrectly 22 ruled that Parents were not denied a meaningful opportunity to participate in the May 20, 23 2015, IEP meeting (Issue 4(b)). [Id.] Plaintiff also seeks reimbursement of reasonable 24 25 26 27 28 the parties, executed on February 28, 2014, and March 3, 2014, limit or otherwise preclude any remedy to which A.V. might otherwise be entitled for prevailing on any issue brought in this case? [A.R. at 106162.] 9 Specifically, the ALJ found that A.V. prevailed on a portion of Issue 1; on Issue 2(a); on a portion of issue 7; and on Issue 8 [A.R. at 1106.] 8 3:16-cv-0803-CAB-(BLM) 1 attorneys’ fees as the prevailing party in the OAH proceeding, as well as attorneys’ fees 2 incurred as a result of filing this action. [Id. ¶ 24.] 3 Defendant’s cross complaint includes multiple challenges to the ALJ’s findings. 4 First, Defendant contends that the OAH erred when it ruled that Plaintiff was denied a 5 FAPE. (Issues 1, 2a, 7). [Doc. No. 14 ¶ 22.] Second, Defendant asserts that the ALJ erred 6 in allowing Plaintiff an award of remedies and by deciding that Parents were entitled to 7 tuition reimbursement for A.V.’s time at Banyan after December 20, 2014 (Issue 8). [Id. 8 ¶¶ 25, 26, 28.] Relatedly, Defendant argues that the ALJ did not give due weight to the 9 ongoing settlement discussions between the Parties or the offers made by the District, or 10 fully consider the District’s efforts to resolve Plaintiff’s placement (Issue 8). [Id. ¶¶ 23, 11 24.] Fourth, Defendant argues that Plaintiff should be not be accorded prevailing party 12 status. [Id. ¶ 30.] 13 14 On November 4, 2016, the parties filed cross motions for summary judgment. [Doc. Nos. 23, 24.] 15 II. 16 The Individuals with Disabilities Education Act (“IDEA”) ensures that “all children 17 with disabilities have available to them a free appropriate public education [“FAPE”] that 18 emphasizes special education and related services designed to meet their unique needs and 19 prepare them for further education, employment, and independent living.” 20 U.S.C. § 20 1400(1)(A). The Act requires state and local education agencies to identify children with 21 disabilities and develop annual individualized educational programs [“IEPs”] for every 22 child. Id. § 1414. Further, the IDEA obligates schools and education agencies to fully 23 involve parents in the formulation, review, and revision of their child’s IEP. Bd. of Educ. 24 Of Hendrick Hudson Cent. Sch. Dist., Westchester Cnty. v. Rowley, 458 U.S. 176, 208 25 (1982) (“Congress sought to protect individual children by providing for parental 26 involvement in the development of state plans and polices, [], and in the formulation of the 27 child’s individual educational program.”) LEGAL STANDARD 28 9 3:16-cv-0803-CAB-(BLM) 1 The IDEA provides that in actions challenging an administrative decision “the court 2 shall review the records of the administrative proceedings; shall hear additional evidence 3 at the request of a party; and basing its decision on the preponderance of the evidence, shall 4 grant such relief as the court determines is appropriate.” 20 U.S.C. § 1415(i)(2)(C). The 5 district court reviews the administrative decision under a modified de novo standard. Ojai 6 Unified Sch. Dist. v. Jackson. 4 F.3d 1467, 1471-73 (9th Cir. 1993). But courts are 7 cautioned not to view the provision as “an invitation to the courts to substitute their own 8 notions of sound educational policy for those of the school authorities which they review.” 9 Gregory K. v. Longview Sch. Dist., 811 F.2d 1307, 1311 (9th Cir. 1987) (citations omitted); 10 Ojai, 4 F.3d at 1472. 11 Rather, the reviewing court shall give due weight to the administrative proceedings 12 and consider its’ findings carefully. See Rowley, 458 U.S. at 206; Van Duyn ex rel. Van 13 Duyn v. Baker Sch. Dist. 5J, 481 F.3d 770, 775 (9th Cir. 2007); Ojai 4 F.3d at 1474. 14 Particular deference is to be given when the hearing officer’s administrative findings are 15 thorough and careful or based on the credibility of live witnesses. See Union Sch. Dist. v. 16 Smith, 15 F.3d 1519, 1524 (9th Cir. 1994); Amanda J. ex rel. Annette J. v. Clark Cnty. Sch. 17 Dist., 267 F.3d 877, 889 (9th Cir. 2001). However, “[h]ow much deference to give state 18 educational agencies, [], is a matter for the discretion of the courts.” Gregory K., 811 F.2d 19 at 1311 (emphasis in original). 20 In analyzing whether a FAPE was available to a student under the IDEA, the court 21 must determine if the State has complied with the procedures set forth in the Act and if the 22 IEP is “reasonably calculated to enable the child to receive educational benefits. Rowley, 23 458 U.S. at 206-207. See also K.D. ex rel. C.L. v. Dept. of Educ., Haw., 665 F.3d 1110, 24 1114 (9th Cir. 2011) (citing Amanda J., 267 F.3d at 881) (“A state must comply both 25 procedurally and substantively with the IDEA.”). “However, procedural violations may be 26 harmless “if they do not ‘result[] in a loss of educational opportunity or significantly restrict 27 28 10 3:16-cv-0803-CAB-(BLM) 1 parental participation.” K.D, 665 F.3d at 1122-23 (quoting L.M. v. Capistrano Unified Sch. 2 Dist., 556 F.3d 900, 910 (9th Cir. 2009)).10 3 The party seeking relief bears the burden of demonstrating that the ALJ’s decision 4 should be reversed. J.W. v. Fresno Unified Sch. Dist., 626 F. 3d 431, 438 (9th Cir. 2010). 5 III. 6 In his motion, Plaintiff argues that District’s April 23, 2015, offer of placement at 7 Sierra was improper because it was a predetermination. [Doc. No. 23 at 17-25.11] Further, 8 Plaintiff asserts that the ALJ was incorrect in ruling that the failure to have a non-public 9 school representative at the May 20, 2015, IEP meeting was not a denial of FAPE. [Id. at 10 24-29.] In its’ papers, District assert that it offered A.V. a free appropriate public 11 education. [Doc. No. 24-1 at 19-24.] Further, District contends that the ALJ’s award of 12 reimbursement was in error. [Id. at 25-31.] DISCUSSION 13 As explained in more detail below, the preponderance of the evidence supports the 14 ALJ’s decision that: (a) there was no predetermination; (b) there was no denial of FAPE 15 because of a procedural violation; (c) A.V. was denied a FAPE between December 20, 16 2014 and April 26, 2015; and (d) reimbursement was proper. The Court defers to the ALJ’s 17 fact and policy findings because she presided over a lengthy hearing, reviewed hundreds 18 of pages of documents, and provided a thorough and careful analysis of the issues. Union 19 Sch. Dist., 15 F.3d at 1524. A. ALJ Correctly Decided that School District’s Offer of Placement at Sierra Was Not a Predetermination in Violation of IDEA 20 21 22 One of Plaintiff’s procedural contentions is that placement at Sierra Academy was 23 improper because it was a predetermination, in violation of the IDEA. First, Plaintiff 24 25 26 27 28 10 See also M.M. v. Lafayette Sch. Dist., 767 F.3d 842, 852 (9th Cir. 2014) (quoting N.B. v. Hellgate Elementary Sch. Dist., 541 F.3d 1202, 1207 (9th Cir. 2008)) (“[I]f the court finds procedural inadequacies that result in the loss of educational opportunity, or seriously infringe the parents’ opportunity to participate in the IEP formulation process, or that caused a deprivation of educational benefits” the court would not need to reach the substantive question of compliance with the IDEA.) 11 Document numbers and page references are to those assigned by CM/ECF for the docket entry. 11 3:16-cv-0803-CAB-(BLM) 1 argues that the offer of Sierra was independently developed without parent participation. 2 [Doc. No. 23 at 18-20.] Second, Plaintiff asserts that the District’s offer of Sierra was a 3 “take it or leave it offer” thereby denying Parents and the IEP team an opportunity to be 4 involved in the placement decision. [Id. at 20-21.] Finally, Plaintiff argues that the ALJ 5 was incorrect in ruling that “District had not predetermined the offer of Sierra because it 6 ‘was not required to identify a specific non-public school in Student’s IEP.” [Id. at 21:7- 7 9.] In opposition, District argues that the offer of Sierra was not the selection of A.V’s 8 “educational placement option,” it was simple a location decision. [Doc. No. 26 at 13.] 9 Further, District asserts that the educational placement decision was made at the January 10 23, 2015, IEP team meeting with full participation from A.V.’s Parents. [Id.] 11 Predetermination is a procedural violation that deprives a student of a FAPE in those 12 instances where placement is determined without parental involvement in developing the 13 IEP. Ka.D. ex rel. Ky.D. v. Solana Beach Sch. Dist., No. 08-CV-622 W, 2010 WL 14 2925569, at *4, (S.D. Cal. July 23, 2010) aff'd sub nom. Ka.D. ex rel. Ky.D. v. Nest, 475 15 Fed.Appx. 658 (9th Cir 2012) (citing Deal v. Hamilton Cnty. Bd. of Educ., 392 F.3d 840, 16 857 (6th Cir.2004)). See also, e.g., K.D., 665 F.3d 1124 (“A school district violates the 17 IDEA if it predetermines placement for a student before the IEP is developed or steers the 18 IEP to the predetermined placement.”) (citing W.G. v. Bd. of Tr. of Target Range Sch. Dist. 19 No. 23, 960 F.2d 1479, 1484 (9th Cir.1992), superseded by statute on other grounds, as 20 recognized in R.B. v. Napa Valley Unified Sch. Dist., 496 F.3d 932 (9th Cir.2007)); Z.F. 21 Ripon Unified Sch. Dist., No. 2:11-CV-02741-KJM-GCH, 2013 WL 127662, at *6 (E.D. 22 Cal, Jan. 9, 2013) (“Predetermination occurs when an educational agency has made a 23 determination prior to the IEP meeting, including when it presents one educational 24 placement option at the meeting and is unwilling to consider other alternatives.”) (citation 25 omitted). 26 IDEA requires that the placement be based on the IEP, and not vice versa. Spielberg 27 v. Henrico Cnty. Pub. Schs., 853 F.2d 256, 259 (4th Cir. 1988). But while “IDEA 28 guarantees a free appropriate education, it does not, however, provide that this education 12 3:16-cv-0803-CAB-(BLM) 1 will be designed according to the parent’s desires.” Shaw v. Dist. of Columbia, 238 F. 2 Supp. 2d 127, 139 (D.D.C. 2002). An IDEA procedural violation is redressable only when 3 it denies parents meaningful participation in the IEP process or causes a deprivation of 4 educational benefits. J.L. v. Mercer, 592 F.3d 938, 953 (9th Cir. 2009). 5 In its decision, the ALJ directly addressed Plaintiff’s predetermination argument and 6 found that A.V. had not demonstrated that District predetermined his placement at Sierra. 7 [A.R. at 1093-95.] The ALJ concluded that: 8 9 10 11 12 13 14 15 16 17 18 District here considered Student’s request for placement at NewBridge. However, that school was initially unavailable and could not be offered. District later determined that Sierra would meet Student’s needs, a fact to which Student has stipulated. District was not required to offer Parents’ preferred placement. District engaged in a thorough discussion of Student’s placement needs with Parents and their representatives at the January 23, 2015 IEP team meeting. There is no evidence that Parents’ participation in that discussion was hindered in any way. The decision to offer a non-public school was mutually arrived at by all IEP team members. There is no evidence that District predetermined Student’s placement. [Id. at 1094 ¶ 33.] Neither party disputes the ALJ’s conclusion that Parents had participated in the discussions regarding A.V.’s placement in a non-public school. 19 The Court finds that the administrative record supports the ALJ’s conclusion that 20 District did not predetermine its offer of placement at Sierra. Two IEP meetings were 21 convened in December 2014 and January 2015 to discuss A.V.’s placement options. [Id. 22 at 328-58, 363-64, 1752-57, 1826, 2148-49.] At the second IEP meeting on January 23, 23 2015 the team agreed that neither a general education classroom nor a special day 24 classroom at a District school would meet A.V.’s needs. [Id. at 363-64, 1756-57, 1826.] 25 The team also agreed on A.V’s areas of need, changed A.V’s eligibility category and 26 agreed that A.V. required small group instruction in a structured setting, with a low student 27 to teacher ratio, in a setting that provided no distractions, with intensive reading support to 28 address A.V.’s dyslexia, to make progress. [Id. at 362-64.] However, when the meeting 13 3:16-cv-0803-CAB-(BLM) 1 dispersed it was unclear where the exact location of the proposed program would be. [Id.] 2 The record shows that Parents and Dr. Frampton were proposing NewBridge but were not 3 in favor of Sierra, and that District had ruled out Banyan as an option. [Id. at 364.] 4 Consistent with District’s policy following the offer of a non-public school, Dr. Burkett 5 informed Parents that the District would investigate possible non-public placements and 6 propose an alternative school. [Id. at 2253.] 7 Beginning in April, 2015, the District made its offer of placement at Sierra. [Id. at 8 367-68.] At the May 20, 2015, IEP team meeting changes were made to the IEP document 9 to reflect the learning disability designations the team had agreed to in January 2015 and 10 to A.V.’s goals. [Id. at 411-38.] District’s offer of placement and services was updated to 11 reflecting the changes requested by Parents and A.V.’s advocate. [Id.] NewBridge and 12 Sierra were discussed as possible placement options for A.V. with District explaining that 13 it was offering placement at Sierra because, unlike NewBridge, it was closer to A.V.’s 14 home, and had an immediate opening. [Id. at 411, 1795-97]. Sierra was also offered 15 because it has staff who could help with A.V.’s reading difficulties and meet his needs. 16 [Id. at 411, 1796.] 17 The Court does not agree with Plaintiff’s assertion that District’s failure to offer to 18 hold an IEP meeting to discuss Sierra after offering it as a placement is evidence of 19 predetermination. While District did not propose an IEP team meeting in the April 26, 20 2015, letter offering Sierra as a placement, it did promptly scheduled an IEP meeting after 21 receiving A.V.’s representatives’ request to hold an IEP meeting to discuss the offer. [Id. 22 at 367, 405, 1780-81.] The IEP team meeting was subsequently held on May 20, 2015, 23 and A.V.’s possible placement at NewBridge and Sierra was discussed by the team. [Id. 24 at 411-38, 1795-96.] The Court declines to read predetermination into District’s behavior 25 finding, as the ALJ did, that “it is disingenuous to argue that District failed to convene a 26 meeting when Student immediately requested one himself, and District immediately 27 moved to make sure that the meeting took place in a timely fashion at a date and time 28 mutually agreeable to all parties.” [Id. at 1095 ¶ 37.] 14 3:16-cv-0803-CAB-(BLM) 1 Neither does the Court agree with Plaintiff’s assertion that District was unwilling to 2 consider alternative placements for A.V.12 The administrative record shows that as early 3 as January 2015, Dr. Burkett had investigated whether NewBridge would be an appropriate 4 placement option for A.V., and that NewBridge was discussed as an option at both the 5 January and May 2015 meetings. 6 Moreover, Plaintiff is incorrect when he asserts that “District admitted they were unwilling 7 to consider any alternative placement for A.V. besides Sierra.” [Doc. No. 23 at 20:20-21.] 8 Dr. Burkett did not testify that the District was unwilling to consider alternative 9 placements. When asked by Ms. Minelli whether, after sending the April 16, 2016 letter 10 “aside from NewBridge and Sierra was the District willing to consider any other non-public 11 school placements as an option?” Dr. Burkett responded “at that point in time, no, we 12 weren’t considering any other options.” [A.R. at 1822:11-15.] The Court interprets this 13 testimony to mean that District was considering NewBridge and Sierra and not as evidence 14 that Sierra was the only option being considered. Similarly, the discussion at the May 20, 15 2015 IEP team meeting about the physical location for A.V.’s placement and District’s 16 agreement to investigate Dr. Frampton’s concerns regarding Sierra and her view that 17 NewBridge would be the ‘perfect fit for A.V” are illustrative of District’s willingness to 18 consider options other than Sierra. [Id. at 411, 997.] 19 (i) 20 [A.R. at 363-64, 411, 1035, 1605-06, 1795-96.] The ALJ Correctly Ruled That District Was Not Required to Identify a Specific Non-Public School 21 The parties dispute whether the ALJ was correct in ruling that District was not 22 required to identify a specific non-public school in Student’s IEP. Plaintiff posits that the 23 ALJ’s finding goes against black letter law and contends that the District is required to 24 offer a specific single program for student and must specify the program when it offers a 25 26 27 28 12 Beginning in April 2015, Dr. Burkett began contacting other non-public schools, not just Sierra and NewBridge to ascertain whether they would meet A.V.’s needs. [A.R. at 1806-08, 1810-11.] 15 3:16-cv-0803-CAB-(BLM) 1 non-public school. [Doc. No. 23 at 21-25.] District counters that school districts can 2 unilaterally identify the school that will implement a student’s IEP. [Doc. No. 26 at 15- 3 18.] 4 The Ninth Circuit has held that the formal written notice requirement of IDEA 5 should be enforced rigorously because it creates a clear record and “a formal, specific offer 6 from a school district will greatly assist parents in ‘presenting complaints with respects to 7 any matter relating to the . . . educational placement of the child.’” Union, 15 F.3d at 1526 8 (quoting 20 U.S.C. § 1415(b)) (finding that district cannot escape its obligation to formally 9 offer educational placement by arguing that a disabled child’s parents expressed 10 unwillingness to accept that placement). 11 “However, choosing which school the student will attend is an administrative 12 decision.” Deer Valley Unified Sch. Dist. v. L.P. ex rel. Schripsema, 942 F. Supp. 2d 880, 13 887 (D. Ariz. 2013) (collecting cases). Educational placement under the IDEA refers to 14 the general educational program in which a student is enrolled rather than the specific 15 school assigned. See A.M. v. Dist. of Columbia, 933 F. Supp. 2d 193, 199 (D.D.C. 2013) 16 (“plaintiffs tend to blur the distinctions between the development of an IEP, the 17 determination of an educational ‘placement’ under the IDEA, and the selection of a 18 particular school location for the implementation of that program.”) (collecting cases); 19 A.W. ex rel. Wilson v. Fairfax Cnty. Sch. Bd., 372 F.3d 674, 682 (4th Cir. 2004) 20 (“educational placement is not the location to which the student is assigned but rather the 21 environment in which educational services are provided”); T.Y. v. N.Y. City Dep’t of Educ., 22 584 F.3d 412, 419 (2nd Cir. 2009) (“‘Educational placement’ refers to the general 23 educational program – such as the classes, individualized attention and additional services 24 a child will receive – rather that the ‘bricks and mortar’ of the specific school.”). The IDEA 25 does not require that the IEP name a specific school location. Deer Valley¸942 F. Supp. 26 2d at 887 (quoting T.Y., 584 F.3d at 419); Brad K. v. Bd. of Educ. of City of Chicago, 787 27 28 16 3:16-cv-0803-CAB-(BLM) 1 F. Supp. 2d 734, 740 (N.D. Ill. 2011) (“The physical location for implementing an IEP 2 need not be included in the IEP.”).13 3 In her decision, the ALJ noted that: 4 First, this Decision has already found that District was not required to identify a specific non-public school in Student’s IEP. Student has provided no legal authority for his contention that a district cannot unilaterally identify an appropriate non-public school placement or that a student’s parents must be involved in the determining which nonpublic school a district will offer. 5 6 7 8 9 [A.R. at 1094, ¶ 33.] Plaintiff argues that the cases relied on by the ALJ are readily distinguishable from 10 11 12 13 14 15 16 17 18 19 20 the current case and assert that there is a fundamental difference between District offering placements at a public school within District’s boundaries, as opposed to offering a nonpublic school. [Doc. No. 23 at 22-25.] In support, Plaintiff relies on Glendale Unified Sch. Dist. v. Almasi, 122 F. Supp. 2d 1093, (C.D. Cal 2000), and A.K. v. Alexandria City Sch. Bd., 484 F.3d 672 (4th Cir. 2007). The Court declines to take Plaintiff’s position, finding it unsupported by the cases cited and contrary to “the weight of authority holding the physical location of the school is an administrative decision.” Deer Valley¸ 942 F. Supp. 2d at 889. Rather, the Court finds that Parents exercised their procedural right and participated in the creation of the IEP but they did not have a procedural right to choose the physical school to implement the IEP. See Id. In Glendale, the Court was confronted with the issue of whether including multiple 21 22 23 placement options in the IEP comported with the specific placement offer requirements of Union and concluded that after discussing the various programs “[i[t was the District’s 24 25 26 27 28 See also N.S. v. Hawaii Dep’t of Educ., Civ. NO. 09-00343 SOM/KSC, 2010 WL 2348664, at *8 (D. Haw. June 9, 2010) (“the physical location where a placement will be implemented is an administrative decision made by the DOE, it is not necessarily included in the IEP. The IEP instead sets forth the IEP team’s decisions.”); Brad K., 787 F. Supp. 2d at 743-44 (“[T]he mere fact that the ultimate location of the placement is determined by an administrator in a central office does not violate the procedural mandates of IDEA.”). 13 17 3:16-cv-0803-CAB-(BLM) 1 responsibility to use its expertise to decide which program was best suited for [student’s] 2 unique needs.” Glendale, 122 F. Supp. 2d at 1108. Judge Pregerson reasoned that offering 3 multiple placements options “puts an undue burden on a parent to eliminate potentially 4 inappropriate placements, and makes it more difficult for a parent to decide whether to 5 accept or challenge the school district’s offer.” Id. at 1107. Unlike here, the placement 6 options in Glendale included various types of classrooms located at a number of different 7 school sites, with varying school-day durations, only one of which was appropriate for the 8 student’s unique needs. Id. at 1108. 9 Likewise, A.K. is distinguishable and, while instructive, is not binding on this Court. 10 In A.K., the IEP in question did not identify any particular school and the District offered 11 five private day school options without establishing if any would be a satisfactory fit or 12 could fulfill the student’s IEP. A.K., 484 F.3d at 681. The Fourth Circuit concluded that 13 “‘[a]fter discussing the advantages and disadvantages of various programs that might serve 14 the needs of a particular child’ it is incumbent on the school district to utilize its expertise 15 to ‘clearly identify an appropriate placement from the range of possibilities.’” Id. (quoting 16 Glendale, 122 F. Supp. 2d at 1108).14 The court emphasized that it was not holding “that 17 a school district could never offer a FAPE without identifying a particular location at which 18 the special education services are expected to be provided.” Id. at 682. Rather an IEP must 19 identify a particular school in order to offer a FAPE in cases where “parents express doubt 20 concerning the existence of a particular school that can satisfactorily provide the level of 21 services that the IEP describes.” Id. But, the concern in this case is not whether a school 22 exists, rather it is which school is an appropriate placement to fulfill A.V.’s IEP. 23 24 25 26 27 28 In reaching its conclusion the court explained that “[t]he identification of a particular school in the IEP indicates to the parents that the school district has carefully considered and selected a school that will meet the unique needs of the student.” A.K., 484 F.3d at 681 (citing Glendale, 122 F. Supp. 2d at 1107). Further, the court noted that “an offer that fails to identify the school at which special educational services are expected to be provided may not be sufficiently specific for the parents to effectively evaluate. Id. at 680 (citing Union, 15 F.3d at 1526). 14 18 3:16-cv-0803-CAB-(BLM) 1 In contrast to the situations in the cases cited by Plaintiff, here, as discussed in more 2 detail above, student stipulated that he was not contesting whether Sierra was appropriate 3 and could meet his needs, the parties knew that Sierra was being considered as a possible 4 placement, were aware of the substance of the program being offered, and fully participated 5 in the IEP meetings and administrative hearing in order to determine whether the proposed 6 program was appropriate. See Fermin ex rel. Fermin v. San Mateo-Foster City Sch. Dist., 7 2000 WL 1130070, at *10-11 (N.D. Cal. Aug. 4, 2000) (District not disclosing the exact 8 location of the program was not a denial of FAPE because parties were aware of the 9 substance of program being offered, participated in the IEP meeting determining the 10 appropriateness of the proposed program, and the location did not affect the 11 appropriateness of the proposed program). 12 Furthermore, Sierra was offered after the IEP had been crafted in January 2015 with 13 parental involvement and because it was determined that Sierra could implement the IEP 14 the team had agreed upon and provide A.V’s needs and related services. Therefore 15 District’s unilateral selection of Sierra did not violate the IDEA. See, e.g., A.M., 933 F. 16 Supp. 2d at 199-201 (holding that parent’s right to participate in the development of an IEP 17 was not violated when District unilaterally selected and offered a particular school after an 18 IEP has been presented and revised with parental involvement). See also Deer Valley, 942 19 F. Supp. 2d at 889 (finding that when “the parent has fully participated in developing the 20 IEP plan, a District has the administrative authority to choose the physical location of the 21 school without the parent’s additional participation.”); Brad K. 787 F. Supp. 2d at 743-44 22 (“[T]he mere fact that the ultimate location of the placement is determined by an 23 administrator in a central office does not violate the procedural mandates of IDEA.”). 24 Thus, the Court will not reverse the ALJ’s finding that District was not required to 25 offer a specific single program for student and must specify the exact location of the 26 proposed program when it offers a non-public school. 27 In sum, it is clear from the record that the decision to offer Sierra was not presented 28 to Parents without any consideration of their opinions and input on the matter. Rather, the 19 3:16-cv-0803-CAB-(BLM) 1 evidence in the record points to Parents’ and A.V.’s advocate’s participation in the process, 2 including discussions surrounding facility options. Based on the foregoing, the Court finds 3 that the ALJ did not err in concluding that Sierra was not predetermined, and upholds her 4 decision on this issue. 5 B. ALJ Correctly Decided that the Failure to Include a Representative from Sierra at the May 20, 2015, IEP Team Meeting Did Not Constitute a Denial of FAPE 6 7 Plaintiff’s second procedural contention is that Parents were denied a FAPE by 8 District’s failure to have a member from Sierra attend the May 20, 2015 IEP team 9 meeting.15 10 A school district has offered a “free appropriate public education if the program (1) 11 address the child’s unique needs, (2) provides adequate support services so the child can 12 take advantage of the educational opportunities, and (3) is in accord with the individualized 13 education program.” Capistrano Unified Sch. Dist. v. Wartenberg, 59 F.3d 884, 893 (9th 14 Cir. 1995) (citing Rowley, 458 U.S. at 188-89); see also M.P. v. Poway Unified Sch. Dist., 15 No. 09 CV 1627 JLS (NLS), 2010 WL 2735759 (S.D. Cal. July 12, 2010). 16 Undoubtedly, “[a]n IEP which addresses the unique needs of the child cannot be 17 developed if those people who are most familiar with the child’s needs are not involved or 18 fully informed.” Amanda J., 267 F.3d at 892. To ensure parental involvement in the 19 creation of an IEP the IDEA proscribes procedures to be followed. But, “not all procedural 20 violations by a school district in implementing the IDEA will necessarily result in the 21 denial of a FAPE. Procedural error [] constitutes the denial of a FAPE only when it results 22 in lost educational opportunity for the child, or when it significantly restricts parental 23 participation in the IEP formation.” M.L. v. Federal Way Sch. Dist., 394 F.3d 634, 653 24 (9th Cir. 2004) (collecting cases). The absence of an IEP team member is one such 25 26 15 27 28 The Court agrees with Defendant that Plaintiff has abandoned his related claim that Parents did not meaningfully participate in the May 20, 2015 team meeting. [Doc. No. 26 at 11.] Neither Plaintiff’s motion for summary judgment nor his opposition make any mention of this claim. 20 3:16-cv-0803-CAB-(BLM) 1 procedural violation that, standing alone, will not result in a denial of FAPE; there must be 2 the loss of educational opportunity or serious infringement on a parent’s participation. 3 Target Range, 960 F.2d 1484; R.B., 496 F.3d at 938. 4 5 34 CFR Section 300.325(a) provides that when developing IEPs for private school placements by public agencies: 6 (1) Before a public agency places a child with a disability in, or refers a child to, a private school or facility, the agency must initiate and conduct a meeting to develop an IEP for the child in accordance with §§ 300.320 and 300.324. (2) The agency must ensure that a representative of the private school or facility attends the meeting. If the representative cannot attend, the agency must use other methods to ensure participation by the private school or facility, including individual or conference telephone calls. 7 8 9 10 11 12 In its decision, the ALJ addressed Plaintiff’s argument that District committed a 13 procedural violation by failing to ensure that a representative from Sierra attended the May 14 20, 2015 IEP team meeting. [A.R. at 1095-96.] The ALJ found that A.V. “had failed to 15 present any evidence that he lost educational benefit or was denied a FAPE by District’s 16 failure to have a Sierra representative present at the May 20, 2015 IEP Meeting.” [Id. at 17 1096, ¶ 43.] Absent from the ALJ’s decision was an express conclusion that that District 18 violated 34 CFR Section 300.325(a). 19 However, it is clear from the record, that regardless of the reasons or cause,16 District 20 committed a procedural violation in not inviting a representative from Sierra to the May 21 22 23 24 25 26 27 28 Plaintiff’s position that “no such facts exist in this case” to support the ALJ’s finding Sierra had a “policy” of not attending IEP meetings prior to student enrollment is incorrect. At the OAH, Brandi Eagling, Director of Sierra, testified that Sierra does not normally not attend IEP meetings until a student is enrolled and/or accepted into its program and receiving its services. [A.R. at 1515-16.] The ALJ attempted to clarify Sierra’s policy and the following exchange occurred between the ALJ and Ms Eagling: ALJ Question: The first IEP meeting that Sierra would attend would be the 30-day IEP that’s normally held 30 days after a student first begins? Ms. Eagling Answer: Sometimes it can be sooner, but we do not attend until the student’s enrolled into our program and receiving services from us. Id. at 1115:21-1116:3. 16 21 3:16-cv-0803-CAB-(BLM) 1 20, 2015, IEP team meeting. Therefore, the Court’s analysis will focus on whether the 2 violation affected Parents’ active participation in the IEP process. 3 Plaintiff argues that the procedural violation is material because neither Parents, the 4 IEP team, nor Sierra were offered an opportunity to discuss Sierra’s program with the IEP 5 team. [Doc. No. 23 at 25-29.] Further, Plaintiff contends that Student R.A. v. West Contra 6 Cost Unified Sch. Dist., 14-cv-0931-PJH, 2015 WL 4914795, at *19 (N.D. Cal. Aug. 17, 7 2015), relied upon by the ALJ is readily distinguishable from the case at hand and should 8 not be followed by this Court. [Doc. No. 23 at 27.] Relatedly, Plaintiff asserts that unlike 9 in R.A, Parents’ opinions and input were not taken into consideration when Sierra was 10 offered at as placement. [Id.] The Court disagrees. 11 In R.A., the Northern District rejected the argument that a procedural technical 12 violation of 34 C.F.R. § 300.325, such as the absence of team members at an IEP meeting, 13 will automatically result in a denial of FAPE. Rather, the court determined that the 14 question is whether the rule violation results in a “loss of educational opportunity or serious 15 infringement on a parent’s participation,” resulting in a denial of FAPE. R.A., 2015 WL 16 4914795, at *19. The court concluded that the absence of a team member at an IEP meeting 17 did not rise to the level of a denial of a FAPE. Id. In so doing, the court construed the 18 interactions that occurred subsequent to the team meeting as evidence that the violation did 19 not seriously infringe on parents’ participation in the IEP process. 20 Specifically, the court noted that following the offer the district arranged for parents to Id. at 19-20. 21 22 23 24 25 26 Further, the administrative record also illustrates that Parents were active in their opposition to A.V. attending Sierra which, consequently played a role in the absence of a Sierra staff members from the IEP meeting. At the time of the May 20, 2015 the enrollment process for A.V. to attend Sierra had not begun. District had not sent Sierra a referral package [Id. at 1516-18] and Parents had not begun the enrollment process on their own. [Id. p. 1518] A District policy prohibited District from forwarding A.V.’s information and educational needs to Sierra without permission from Parents. [Id. at 1798-800, 1825.] Parents had not given permission to the District to do so. [Id.] 27 28 22 3:16-cv-0803-CAB-(BLM) 1 meet with the school personnel so that any questions and concerns could be addressed, 2 parents visited the school and were advised by the school what the next steps would be, but 3 that parents did not take them. Id. at 19. 4 In the case at bar, as in R.A., there is “substantial evidence in the record of an 5 interactive and dynamic process between the parents and the various IEP team members” 6 regardless of the absence of one of those members at one of the meetings. Id. at. 19. For 7 example, Parents met with Sierra immediately prior to the May 20, 2015, team meeting, 8 discussed Sierra with the other team members at the May 20, 2015, meeting, and even 9 stipulated that “Student is not contesting whether Sierra is appropriate, could meet 10 Student’s need or constituted a FAPE in the LRE.” [A.R. at 1058:25-1059:2.] Moreover, 11 at that meeting District considered the changes to A.V.’s needs and goals that were 12 proposed by Parents and Dr. Frampton in the January meeting and incorporated them into 13 A.V.’s IEP. [Id. at 411-38.] 14 Actions of a school district cannot, as Plaintiff suggests, be judged exclusively in 15 hindsight. “An IEP is a snapshot, not a retrospective. In striving for ‘appropriateness,’ an 16 IEP must take into account what was, and was not, objectively reasonable when the 17 snapshot was taken, that is, at the time the IEP was promulgated.” Roland M. v. Concord 18 Sch. Comm., 910 F.2d 983, 992 (1st Cir. 1990). What happened subsequent to the OAH 19 hearing is not relevant to the Court’s inquiry. The IEP developed for A.V was done so in 20 light of his unique needs, and, although Parents ultimately did not sign it, they were clearly 21 involved in the process. Amanda J., 267 F.3d at 892. 22 Given these facts, and given the rule in R.A, the Court concludes that the ALJ 23 correctly determined that Sierra’s absence at the May 20 meeting did not result in a denial 24 of FAPE. Accordingly, the Court upholds the ALJ’s decision on this issue. 25 26 C. ALJ Correctly Decided that A.V. was Denied a FAPE Between December 20, 2014, and April 26, 2015 27 District seeks to reverse the ALJ’s decision that A.V. was denied a FAPE. [Doc. No 28 24-1 at 17-25.] District argues that it offered A.V. a FAPE because the May 20, 2015, IEP 23 3:16-cv-0803-CAB-(BLM) 1 document “is actually just an amendment to the District’s initial offer of a non-public 2 school that the ALJ found to be appropriate.” [Id. at 18:22-23; see also 23-24.] Relatedly, 3 District argues that it did not deny A.V. a FAPE by failing to offer a specific non-public 4 school on January 23, 2015, and assert that the ALJ reached its decision on these issues by 5 focusing on irrelevant facts and by formulating an issue not presented in this case. [Doc. 6 No. 24-1 at 19-23.] 7 School districts are responsible for the education of children and are required to offer 8 eligible children a free appropriate public education. Rowley, 458 U.S. at 181; 20 U.S.C. 9 §§ 1409(9), 1412(1)(A). IDEA’s main purpose is to “ensure that all children with 10 disabilities have available to them a free appropriate public education.” Forest Grove Sch. 11 Dist. v. T.A., 129 S. Ct. 2484, 2495 (2009). In order to accomplish its purpose IDEA 12 requires educational agencies have each child’s IEP in effect at the beginning of the school 13 year. 20 U.S.C. § 1414(d)(2)(a). An education authority’s failure to develop an IEP for a 14 student prior to the beginning of a school year results in a violation of IDEA. See D.C. v. 15 Dept. of Educ., 550 F. Supp. 2d 1238, 1250 (D. Haw. 2008) (citing Gadsby v. Grasmick, 16 109 F.3d 940, 950 (4th Cir. 1997)). 17 In deciding whether Parents were denied a FAPE, the ALJ first addressed whether 18 District’s failure to identify a specific school in the January 23, 2015, IEP was a procedural 19 violation. (See supra, section III, A.) After finding no procedural violation, the ALJ 20 considered the issue of who was responsible for providing A.V. with a FAPE in the interim 21 period between the expiration of the settlement agreement and the eventual offer of Sierra. 22 [A.R. at 1091-92 ¶¶ 19-25.] The ALJ held that, as of December 19, 2014, District was 23 required to offer A.V. an alternative placement at a District school and that, as of January 24 23, 2015, District was required to provide A.V. with placement at a non-public school. [Id. 25 at 1092 ¶¶ 22, 24.] The ALJ concluded that District’s delay in identifying and offering 26 A.V. a non-public school denied him a FAPE. [Id. at ¶ 24.] In so finding, the ALJ called 27 attention to the fact that during this four month period A.V. was in limbo, with District 28 declining to pay for Banyan Tree but failing to offer an alternative. [Id. at ¶ 22.] Further, 24 3:16-cv-0803-CAB-(BLM) 1 the ALJ reiterated that school districts have a responsibility to provide a free education to 2 eligible children, explaining that: 3 District here lost sight of the fact that for at least four months, it failed to offer Student a placement, appropriate or otherwise, forcing Parents to pay for an education for which District was legally responsible. . . . Here, District offered no placement. Parents had no choice but to continue Student’s enrollment at Banyan Tree, . . . 4 5 6 7 [A.R. at 1092 ¶ 23.] 8 District’s position that the ALJ improperly inserted and decided an issue not in 9 dispute into the case is incorrect. [Doc. No. 24-1, at 21-22.] The California Education 10 Code provides that the initial due process notice must include “a description of the nature 11 of the problem” and limits the OAH hearing to those raised in the notice. Cal. Educ. Code 12 § 56502(c)(1)(C) and (i). Both A.V.’s Issue number 1 and District’s Issue number 7 13 specifically address the denial of FAPE by failing to offer an appropriate placement. 17 14 Therefore, the Court concludes that the ALJ did not insert an issue not it dispute, placement 15 was a problem clearly identified by both parties. 16 Furthermore, the Court finds District’s additional arguments in favor of reversal 17 unconvincing. District’s arguments overlook its responsibility and erroneously concludes 18 that the ALJ’s finding was based on the timeliness of the District’s development of 19 student’s IEP. Similarly, District’s assertion that the ALJ’s conclusion regarding the May 20 20, 2015, offer of placement at Sierra provided student with a FAPE dictate that District 21 fully prevail on Issues 1 and 7 is unavailing. [Doc. No. 24-1 at 23-24.] Moreover, the 22 Court finds District’s additional arguments in favor of reversal unsupported by the record 23 and a mischaracterization of the ALJ’s reasoning and statements. Contrary to District’s 24 25 26 27 28 Specifically Student’s Issue 1 provided: “Did District deny Student a free appropriate public education by failing to make an appropriate, specific offer of placement on or after December 2014?” [A.R. at 1061.] District’s Issue 7 states: “Did District offer Student a FAPE in the least restrictive environment in the triennial IEP dated December 15, 2014, as amended on January 23, 2015, and May 20, 2015?” [Id. at 1062.] 17 25 3:16-cv-0803-CAB-(BLM) 1 characterization, the statements made by the ALJ do not “inaccurately and prejudicially 2 suggest that A.V. was not receiving any education at all.” [Doc. No. 24-1 at 22:8-10.] 3 Neither did the ALJ, as District suggests, improperly “conflate the procedural issues around 4 naming a non-public school with her negative impression regarding the parties’ settlement 5 efforts.” [Doc. No. 24-1 at 23:9-11.] 6 Rather, the ALJ appropriately focused on the District’s continuing responsibility to 7 provide a free appropriate public education to A.V., an eligible student, and his Parents, 8 irrespective of the ongoing negotiations between the parties and regardless of the fact that 9 an IEP was being developed. See Rowley, 458 U.S. at 181 (school districts are responsible 10 for the education of children and are required to offer eligible children a free appropriate 11 public education.); 20 U.S.C. §§ 1409(9), 1412(1)(A); Forest Grove, 129 S. Ct. at 2495. 12 Admittedly, the settlement agreement did not require the offer of FAPE be made before it 13 expired, but the IDEA requires District provide A.V. with one. Thus, upon the expiration 14 of the settlement agreement, the obligation to provide A.V. with a FAPE reverted back to 15 District. This obligation was not excused because the parties were developing the IEP. 16 Here, it is undisputed that District did not make an offer of placement at any school, 17 until over four months after the settlement agreement terminated on December 19, 2014.18 18 In the interim Parents shouldered the burden for A.V.’s education while District continued 19 to object to Banyan and refused to pay A.V’s tuition there. Parents were offered no 20 alternative placement options. By refusing to fund Banyan Tree, or offer an alternative 21 facility, District was not fulfilling its obligation to provide “at public expense, under public 22 supervision and direction, and without charge” an education for A.V. 20 U.S.C. § 23 1401(9)(A). 24 25 26 27 28 At the December 15, 2014, IEP team meeting, District declined to continue to pay for student’s education at Banyan but offered no alternative placement to Parents and no IEP was in place. [A.R. at 328-358, 1826-27.] At the subsequent January 23, 2015, IEP team meeting, the IEP was drafted and it was agreed that student would be placed in a non-public school, however the actual school that student was to attend was not identified by District. [Id. at 364, 1750-57, 1826, 2148-49.] 18 26 3:16-cv-0803-CAB-(BLM) 1 Accordingly, the Court finds that the District did not meet its responsibility to 2 provide A.V. with a free appropriate public education. This failure, in turn resulted in 3 Parents being financially responsible for their child’s education. Thus, the Court upholds 4 the ALJ’s decision on the issues related to whether A.V. received a FAPE. 5 D. The ALJ Properly Awarded Reimbursement to Plaintiff 6 District also seeks to reverse the ALJ’s award of reimbursement. [Doc. No. 24-1 at 7 25-31.] District contends that the terms of settlement agreement preclude Parents from 8 receiving reimbursement. [Id. at 25-28.] In the alternative, District asserts that any award 9 for reimbursement for Banyan should be reduced or denied based on Parents’ actions 10 during settlement. [Id. at 28-31.] 11 “If a parent believes that a school district has failed to offer a free appropriate public 12 education, parents may place an eligible child in an appropriate private program.” Union, 13 15 F.3d at 1524. Such parents may be entitled to reimbursement if the educational agency 14 did not make a FAPE available to the student in a timely manner prior to the placement, 15 and the placement was appropriate. 20 U.S.C. § 1412(a)(10)(C)(ii). See Sch. Comm. of 16 Town of Burlington v. Dep’t of Educ. 471 U.S. 359, 369-370 (1985) (parents may receive 17 reimbursement under IDEA when “a court determines that a private placement . . . was 18 proper . . . and that an [IEP] calling for placement in a public school was inappropriate.”); 19 Florence Cnty. Sch. Dist. Four v. Carter, 510 U.S. 7, 15 (1993) (parents are “entitled to 20 reimbursement award only if a federal court concludes both that the public placement 21 violated IDEA and that the private placement was proper under the Act.”). See also Target 22 Range, 960 F.2d at 1485 (if a school district fails to provide FAPE from which a child can 23 benefit, a parent has an equitable right to reimbursement for a private educational 24 placement.). 25 Notably, the IDEA provides for the reduction or denial of reimbursement payments 26 for the cost of private school placement in certain circumstances, including “upon a judicial 27 finding of unreasonableness with respect to actions taken by the parents.” 20 U.S.C. § 28 1412(a)(10)(C)(iii)(III). Because the authority to grant reimbursement is discretionary 27 3:16-cv-0803-CAB-(BLM) 1 “equitable considerations [relating to the reasonableness of the action taken by the parents] 2 are relevant in fashioning relief.” Burlington, 471 U.S. at 374. As the Ninth Circuit 3 explained in Anchorage Sch. Dist. v. M.P., 689 F.3d 1047 (9th Cir. 2012), when weighing 4 reimbursement of private placement a court must: 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 exercise its ‘broad discretion’ and weigh ‘equitable considerations’ to determine whether and how much reimbursement is appropriate. C.B. [ex re. Baquerizo v. Garden Grove Unified Sch. Dist., 635 F.3d 1155,] 1159 [(9th Cir. 2011)]. In making this determination, the district court may consider all relevant equitable factors, including, inter alia, notice to the school district before initiating the alternative placement; the existence of other, more suitable placements; the parents’ efforts in securing the alternative placement; and the level of cooperation by the school district. Forest Grove [], 523 F.3d at 1088-89 []. These factors make clear that “[t]he conduct of both parties must be reviewed to determine whether relief is appropriate.” W.G., 960 F.2d at 1486 (emphasis added). Anchorage Sch. Dist. v. M.P., 689 F.3d at 1059. In deciding the reimbursement issue, the ALJ dealt directly with District’s contention that the settlement agreement precluded or limits reimbursement for Banyan. [A.R. at 1102-04.] The ALJ was not persuaded by District’s argument finding that: [t]he agreement specifically stated that Parents would be responsible for continued funding of Banyan Tree if they rejected District’s offer of placement. District did not make an actual placement available to Student until April 26, 2015, when it offered Student placement at Sierra. Student had no place to go in the interim. It was not until Parents rejected the placement that the terms of the agreement applied. Even if there was a viable argument that Parents should have enrolled Student in a District special day class after the end of Winter Break 2014-2015, even if not offered by District at any time during the January 23, 2015 IEP team meeting, Student’s IEP team clarified that a special day class placement was not appropriate for him. . . . However, District, which had not predetermined Student’s placement, did not have a recommendation for a non-public school that day. . . . Therefore, as of January 23, 2015, there was no District-offered placement available for Student to attend that would meet his needs. Student was entitled to a non-public placement as of the date, but District did not provide one until April 26, 2015. 28 3:16-cv-0803-CAB-(BLM) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 [A.R. at 1104 ¶¶ 79, 80.] The Ninth Circuit confronted a similar situation in Sam. K. v. State of Haw. Dep’t of Educ., 788 F.3d 1033 (9th Cir. 2015). In Sam K, a student’s family entered into a settlement agreement with the department of education that provided for reimbursement of private school tuition for the proceeding school year and continued funding of the private placement until the end of the 2009-2010 school year. Id. at 1036. The agreement required Parents participate in an “IEP Reevaluation meeting” by the end of June 2010. Id. at 1036. During the months that followed the parties met several times to discuss student’s IEP, but no different placement was ever agreed upon. The department of education did not present a specific public school placement until half way through that school year, and did not make its position final until March 2011. The Ninth Circuit held that student’s parents were entitled to reimbursement of private tuition because “[b]y waiting so long into that school year to propose a different placement, the [department of education] tacitly consented to [student’s] enrollment” at the private school. Id. at 1040. In so holding, the court noted that the department knew that student was going continue to be enrolled at the school and “necessarily consented to that enrollment for that school year because it had not offered another alternative.” Id. In this case, as in Sam K., the settlement agreement provided for A.V.’s special education placement through a defined period and upon its expiration District waited months before offering a specific alternative placement. Here, the settlement agreement made no reference to where A.V. would transition upon its expiration and only mentions placement in a District mild-to-moderate special day class as a stay put in the event of a dispute. [A.R. at 1008-17.] Moreover, notwithstanding the provisions surrounding convening an IEP team meeting and the consequences of Parents’ refusal to consent to the completed IEP, the agreement was silent as to where A.V.’s placement would be should the IEP documentation not be completed or an offer of FAPE not be made prior to its 28 29 3:16-cv-0803-CAB-(BLM) 1 expiration. [Id. at 1012-13.19] While the IEP for a non-public school was offered at the 2 January 23, 2015, team meeting, District did not identify and offer Sierra as the non-public 3 school alternative until April 26, 2015. [Id. at 367.] Similar to the education agency in 4 Sam K., District was aware that, in the interim between the agreements expiration and the 5 offer of Sierra, Parents were continuing to keep A.V. at Banyan. Given these facts, the 6 Court holds that District “necessarily consented to the enrollment for that school year 7 because it had not offered another alternative.” Sam K. 788 F.3d at 10140. 8 Relying on Bd. of Educ. of the Penfield Cent. Dist., 44 IDELR 112, 105 LRP 43655 9 (SEA NY April 6, 2005), District make the alternate argument that Parents conduct during 10 the settlement negotiations bars this Court from providing them reimbursement, pursuant 11 to 20 U.S.C. § 1412(a)(10)(C)(iii)(III). [Doc. No. 24-1 at 28-31.] In Penfield, parents were 12 denied reimbursement for private reading services that were similar to the services offered 13 by the District that parent requested not be provided by District. The Court finds District’s 14 argument unpersuasive and the case it relies on readily distinguishable. 15 Here, unlike in Penfield, Parents were never formally offered a similar placement 16 option for A.V. until months after the IEP was drafted. Although all parties agreed to a 17 non-public school placement and NewBridge was being contemplated as A.V.’s non-public 18 placement during the negotiations, Sierra was not identified and offered as the specific 19 facility being proposed for A.V. until April 2015. Further, the Court is unaware of any 20 legal authority that contradicts the ALJ’s conclusion that “Parents’ settlement posture is 21 22 23 24 25 26 27 28 19 The settlement agreement included a number of pertinent provisions. It required the District conduct A.V.’s triennial assessment during the Fall of 2014 and convene a triennial IEP meeting between October 19, 2014, and December 19, 2014. [A. R. at 1010.] The agreement also provided that if, due to circumstances entirely within the District’s control, the District failed to timely convene the triennial IEP team meeting and make a FAPE offer to A.V., then he could bring a due process hearing claim against District. [Id. at 1012.] However, if the triennial IEP meeting was not convened before December 19, 2014 due to circumstances/reasons outside of the District’s control and/or for reasons not attributable to the District, then the agreement precluded A.V. from being any claims against District for untimely holding the IEP team meeting and/or delay in offering the Student a FAPE on or before December 19, 2014. [Id. at 1013.] 30 3:16-cv-0803-CAB-(BLM) 1 not dispositive of whether they are entitled to reimbursement for the costs incurred” in 2 retaining A.V. at Banyan while they awaited District’s offer of placement. [A.R. at 1104 3 ¶ 78.] Moreover, the Court has thoroughly reviewed the record and finds nothing untoward 4 in Parents’ conduct during the negotiations that suggests their conduct was unreasonable. 5 For example, Parents provided District with explanations why they were rejecting the 6 proposed settlements, including communicating their concerns that the proposed settlement 7 was restricting A.V.’s rights under the IDEA. [S.R. at 16, 46, 48-56, 62-72, 89-91, 96-117, 8 123-124; A.R. at 603-04.] Although it disputes Parents’ interpretation of its settlement 9 offers, even District does acknowledges “that the repeated rejection of its settlement offers 10 were not necessarily done in bad faith on the Parents’ part.” [Doc. No. 24-1 at 30:7-8.] 11 What is more, upon consideration of the equitable factors, the Court concludes that 12 Parents’ conduct was reasonable and did not taint the collaborative IEP process. As 13 discussed in detail above, the IEP process here was dynamic with the active participation 14 of all involved. The evidence demonstrates that although Parents were focused on A.V. 15 attending NewBridge, they collaborated with the District in drafting the IEP and repeatedly 16 requested that A.V. be kept at Banyan until the parties could agree on the specific non- 17 public school A.V. was to attend. Clearly, District was aware that A.V was attending 18 Banyan and yet did not suggest an alternate school until April 2015. See Forest Grove, 19 523 F.3d 1, at 1088-89. Consequently, the Court holds that Parents’ conduct was not 20 unreasonable and does not warrant a reduction in the reimbursement award. 21 In light of the foregoing, the Court finds Parents’ decision to retain A.V at Banyan 22 warranted and concludes that the ALJ correctly determined that Parents were entitled to 23 full reimbursement for expenses associated with Banyan through the end of the school year. 24 Accordingly, the Court upholds the ALJ’s decision on this issue. 25 E. Prevailing Party Status 26 Plaintiff originally argued that the District had failed to provide A.V. with a FAPE 27 based on six issues, excluding subparts. District, in turn, presented two issues for the ALJ 28 to determine. District prevailed on a majority of the issues, with the ALJ finding that A.V. 31 3:16-cv-0803-CAB-(BLM) 1 prevailed on Issues 2(a) and 8 and on portions of Issues 1 and 7. [A.R. at 1106] As 2 discussed above, the ALJ’s findings of fact and conclusions of law on these issues were 3 correct. Therefore, the Plaintiff should be considered the prevailing party. 4 The IDEA provides that “the court, in its discretion may award reasonable attorneys’ 5 fees as part of the costs to a prevailing party who is the parent of a child with a disability. 6 20 U.S.C. § 1451(i)(3)(B). “The prevailing party inquiry does not turn on the magnitude 7 of the relief obtained.” Farrar v. Hobby, 506 U.S. 103, 111 (1992). Rather “a prevailing 8 party” is one who ‘succeed[s] on any significant issue in litigation which achieves some of 9 the benefit the parties sought in bringing the suit.’” Van Duyn, 502 F.3d at 825 (quoting 10 Parents of Student W. v. Puyallup Sch. Dist., No. 3, 31 F.3d 1489, 1498 (9th Cir. 1994)). 11 Specifically, “[t]he success must materially alter the parties’ legal relationship, 12 cannot be de minimis and must be causally linked to the litigation brought.” Van Duyn, 13 502 F. 3d 825. (citations omitted). See also Tex. State Teachers Ass’n v. Garland Indep. 14 Sch. Dist., 489 U.S. 782, 792 (1989) (“The touchstone of the prevailing party inquiry must 15 be the material alteration of the legal relations of the parties. . . .’). A legal relationship has 16 been materially altered where “the plaintiff become entitled to enforce a judgment, consent 17 decree, or settlement against the defendant.” Fisher v. SJB-P.D. Inc., 214 F. 3d 1115, 1118 18 (9th Cir. 2000) (quoting Farrar, 506 U.S. at 113 (1992)); see also Shapiro ex rel. Shapiro 19 v. Paradise Valley Unified Sch. Dist. No. 69, 373 F.3d 857, 865 (9th Cir. 2004); V.S. ex rel. 20 A.O. v. Los Gatos-Saratoga Joint Union High Sch. Dist., 484 F.3d 1230, 1233 (9th Cir. 21 2007). 22 Here, Plaintiff was the prevailing party at the ALJ hearing because Plaintiff was 23 afforded significant relief that materially altered the relationship of the parties. A.V. was 24 found to have been denied a FAPE between December 2014 and April 2015. To remedy 25 the denial of a FAPE, the ALJ required District to reimburse Parents for expenses 26 associated at Banyan through the end of the 2015 school year. [A.R. at 1105 ¶ 83.] The 27 fact that the ALJ ruled in favor of the District on other issues does not change the fact that 28 Plaintiff prevailed at the ALJ hearing. 32 3:16-cv-0803-CAB-(BLM) 1 IV. 2 For those reasons, the Court exercises it discretion, affords due weight to the ALJ’s 3 thorough determinations and affirms its decision on all issues. Accordingly, the Court 4 DENIES both motions for summary judgment. CONCLUSION 5 It is FURTHER ORDERED that Plaintiff’s application for reasonable and 6 necessary fees be filed by March 9, 2017. Plaintiff is reminded that as the applicant, he 7 “bears the burden of documenting the appropriate hours expended in the litigation and must 8 submit evidence in support of those hours worked.” Gates v. Deukmejian, 987 F.2d 1392, 9 1397 (9th Cir. 1992) (citing Hensley v. Eckerhart, 461 U.S. 424, 433 (1983)). 10 11 IT IS SO ORDERED. Dated: February 23, 2017 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 33 3:16-cv-0803-CAB-(BLM)

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