Meridian Joint School District No. 2 v. D.A., et al

Filing 111

MEMORANDUM DECISION AND ORDER. NOW THEREFORE IT IS HEREBY ORDERED that judgment in the amount of $6,854.00 shall be entered in this matter, that Plaintiff reimburse Defendants the amount of $6,854.00 for the reasonable expenses of the IEE, and that final judgment be entered in this case accordingly. Signed by Judge Candy W. Dale. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (st)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

MERIDIAN JOINT SCHOOL
DISTRICT, NO. 2,
Plaintiff,

Case No. 1:11-cv-00320-CWD
MEMORANDUM DECISION AND
ORDER

v.
D.A. and J.A., on behalf of themselves
and as legal guardians and parents of
M.A., a minor individual with a
disability
Defendants.

Before the Court is the question of appropriate relief in this action under the
Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. § 1400 et seq. Plaintiff,
the Meridian Joint School District No. 2 (“MSD”), initiated this administrative appeal to
challenge Hearing Officer Guy Price’s determination that M.A., a child diagnosed with
high-functioning autism and the student at the center of the dispute in this case, was
entitled to an Independent Educational Evaluation (“IEE”) at public expense. The Court
affirmed HO Price’s decision and ruled in favor of Defendants D.A. and J.A., M.A.’s
Parents. (Dkt. 63.)
When doing so, the Court requested additional briefing on appropriate relief by
late April 2013. A decision on this issue was prolonged by Parents’ motion for interim

attorney fees and costs for the underlying due process hearing, (Dkt. 64), and MSD’s
request that the Court bifurcate the issue of entitlement to interim fees from the issue of
the reasonableness of such fees (Dkt. 70). The Court granted the motion to bifurcate,
(Dkt. 71), determined M.A.’s Parents were entitled to interim attorney fees, (Dkt. 92),
and ultimately granted in part and denied in part Parents’ motion for interim fees (Dkt.
101.)
As alleged appropriate relief, M.A.’s Parents request reimbursement for the IEE
and various amendments they obtained at their own expense after MSD denied their
request. The facts and legal arguments are adequately presented in the briefs and the
record. Accordingly, in the interest of avoiding delay, and because the Court conclusively
finds that the decisional process would not be significantly aided by oral argument, this
matter will be decided on the record pursuant to District of Idaho Local Civil Rule 7.1(d).
For the reasons set forth below, the Court finds M.A.’s Parents are entitled to $6,854.00
for the IEE.
BACKGROUND
The underlying facts and procedural history of this case are well known to the
parties and set forth in in more detail in the Court’s rulings on Parents’ motion for interim
attorneys’ fees, (Dkt. 92, 101), and the Court’s Memorandum Decision and Order entered
March 20, 2013 (Dkt. 63). They need not be repeated in full.
Relevant here, on June 6, 2011, HO Price found M.A. was entitled to an IEE at
public expense. In his Memorandum Decision and Order, HO Price declined to decide
whether M.A. was eligible for special education, concluding that such a ruling would be
MEMORANDUM DECISION AND ORDER - 2

premature without an IEE. Although HO Price initially retained jurisdiction, he issued
and Addendum and Errata to Memorandum Decision in July 2011, in which he
relinquished jurisdiction and again noted that issues related to special education
eligibility could not be decided until “the IEE is completed and acted upon by the
District.” (Dkt. 1-3 at 2.) MSD timely appealed shortly thereafter.1 After considering the
record before HO Price and additional evidence presented by the parties, the Court
affirmed the Hearing Officer and ordered the parties to brief the issue of appropriate
relief by late April 2013. 2 (Dkt. 63.)
While the appeal of HO Price’s decision proceeded in this Court, M.A.’s Parents
retained Dr. Barbara Webb, an expert in autism with twenty years of experience as a
school psychologist, to review M.A.’s educational records and prepare an IEE. On
August 29, 2011, Dr. Webb provided Parents an initial IEE based on input from other
professionals and an extensive review of tests, previous school district evaluations,
meeting transcripts, and other records. (Dkt. 22-16.) Dr. Webb amended the initial IEE on
September 13, 2011, to include additional opinions regarding M.A.’s eligibility for
special education and a review of testimony by M.A.’s teachers during the spring 2011
due process hearing before HO Price. (Dkt. 22-21.) Dr. Webb also prepared two

1

In their pleadings, both parties urge the Court to decide issues and grant relief related to
M.A.’s alleged eligibility for special education. However, the Court will not do so here. HO
Price properly declined to decide the eligibility question without the benefit of the IEE, and,
accordingly, that question is not before the Court in this appeal.
2
MSD has appealed—without permission from the Court—two interlocutory orders in
this case to the United States Court of Appeals for the Ninth Circuit. (See Dkt. 105 (appealing
the Orders at Dkt. 92 and 101); 67 (appealing the Order at Dkt. 63).) As of this date, the Ninth
Circuit has not ordered a stay of these proceedings pending appeal.
MEMORANDUM DECISION AND ORDER - 3

supplemental assessments in January 2012 and presented her findings at meetings of
MSD’s special education eligibility team in late 2011 and early 2012. (Dkt. 65-3 at 6-7.)
MSD reviewed the IEE in connection with its determination that M.A. is not
eligible for special education, a finding currently before the Court in a separate
proceeding. See D.A. ex. rel. M.A. v. Meridian Joint Sch. Dist. No. 2, No. 1:12-cv-00426CWD (D. Idaho). The parties also engaged in separate litigation over M.A. and his
Parents’ claims against MSD and the Independent School District of Boise City under the
Americans with Disabilities Act and Section 504 of the Rehabilitation Act. See D.A. ex.
rel. M.A. v. Meridian Joint Sch. Dist. No. 2, No. 1:11-cv-00119-CWD (D. Idaho). Trial in
that case resulted in a jury verdict favorable to the school districts. Since 2011, this IEE
proceeding, along with the Section 504 proceedings, all were litigated first at the
administrative level and then in this Court. Each case, including the ADA/Section 504
jury trial, involved somewhat overlapping evidence. That is significant because, as
discussed below, M.A.’s Parents seek reimbursement here for professional services
related to the Section 504 litigation.
Claiming a total cost of $18,509.90, M.A.’s Parents now seek reimbursement from
MSD for the cost of Dr. Webb’s IEE. According to M.A.’s Parents, the cost of the IEE
includes additional assessments of M.A., report preparation, and presentations to MSD
during various meetings after the IEE was submitted. In other words, M.A.’s Parents
argue they should be reimbursed for not only the cost of the evaluation and its
amendments, but also the cost of presenting the IEE to MSD as the school district
assessed M.A.’s eligibility for special education. M.A.’s Parents further request that the
MEMORANDUM DECISION AND ORDER - 4

Court order an assistive technology evaluation pursuant to 34 C.F.R. § 300.105. MSD
objects, arguing M.A.’s Parents are entitled to only $1,500 for the cost of the IEE.
DISCUSSION
1.

Legal Standard
After the Court has reviewed the administrative record, heard additional evidence,

and entered a decision on the preponderance of the evidence, the IDEA authorizes “such
relief as the court determines is appropriate.” 20 U.S.C. § 1415(i)(2)(C)(iii). The United
States Supreme Court interpreted identical language in the IDEA’s predecessor statute as
conferring “broad discretion on the court.” Sch. Comm. of Burlington v. Dept. of Educ. of
Mass., 471 U.S. 359, 369 (1985). Finding the statutory term “appropriate” must be
understood in light of the Act’s purposes, the Supreme Court went on to hold that
“Congress meant to include retroactive reimbursement to parents as an available remedy
in a proper case.” Id.
Congress included the right to an IEE at public expense as one of the IDEA’s
essential procedural safeguards.
School districts have a natural advantage in information and expertise, but
Congress addressed this when it obliged schools to safeguard the
procedural rights of parents and to share information with them.... [Parents]
have the right to an independent educational evaluation of the[ir] child. The
regulations clarify this entitlement by providing that a parent has the right
to an independent educational evaluation at public expense if the parent
disagrees with an evaluation obtained by the public agency. IDEA thus
ensures parents access to an expert who can evaluate all the materials that
the school must make available, and who can give an independent opinion.
They are not left to challenge the government without a realistic
opportunity to access the necessary evidence, or without an expert with the
firepower to match the opposition.
MEMORANDUM DECISION AND ORDER - 5

Schaffer ex. rel. Schaffer v. Weast, 546 U.S. 49, 60-61 (2005) (citations and quotations
omitted).
The right to an IEE entitles parents to a publicly funded independent, expert
assessment of their child. 34 C.F.R. § 300.502(a)(3)(i). The IEE, like MSD’s own
evaluation, must assess “all areas related to the suspected disability.” Id. § 300.304(b)(4);
see also IDAPA 08.02.03.109.05.j (“[T]he criteria under which the evaluation is
obtained, including the location of the evaluation and the qualifications of the examiner,
shall be the same as the criteria the education agency uses when it initiates an evaluation,
to the extent those criteria are consistent with the parent or adult student’s right to an
IEE.”). But this does not entitle parents to expenses unrelated to the expert’s independent
evaluation of the student. Rather, the Court will order reimbursement only for costs
clearly linked to the IEE.
2.

Cost of the IEE
With respect to this case, the Court agrees with HO Price that the IEE of M.A.

“should be specifically designed to understand the student’s disabilities and whether they
affect his academic performance and indicate a need for specialized instruction….” (Dkt.
1-2 at 18.) The August 2011 IEE M.A.’s Parents obtained from Dr. Webb addresses these
criteria through analysis of educational records, observations, and testing by Dr. Webb
and other professionals. Dr. Webb supplemented the IEE with new analyses in September
2011 and twice in January 2012. Dr. Webb also participated in two meetings, one in
November 2011 and one in January 2012, where she presented her findings to the MSD
team tasked with determining whether M.A. was eligible for special education. M.A.’s
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Parents seek reimbursement for all of these services, whereas MSD insists only the cost
of the initial IEE prepared by Dr. Webb is reimbursable.
In addition to the cost of Dr. Webb’s evaluations, M.A.’s Parents claim they
should be reimbursed “for IEE-related activities, assessments, observations, and reporting
to the district” by Michael Spero, Rebecca Thompson, Dr. Craig Beaver, Chris Curry,
and Dr. Tyler Whitney. (Id. at 6-7.) MSD argues that the costs for these professional
services constitute non-reimbursable expert consultation fees. In support, MSD claims the
United States Supreme Court has held that “school districts are not responsible for
reimbursing prevailing parents for services rendered by experts or consultants.” (Dkt. 77
at 11(citing Arlington Cent. Sch. Dist. Bd. of Educ. v. Murphy, 548 U.S. 291 (2006).) But
this overstates the holding in Arlington and misconstrues the scope of the Court’s
discretion under the controlling statutory provision.
Arlington addresses a narrow, clearly defined issue: Whether the IDEA’s feeshifting provision “authorizes prevailing parents to recover fees for services rendered by
experts in IDEA actions.” 548 U.S. at 293-94. There, a student’s parents sought $29,350
for services by a non-lawyer educational consultant as litigation costs under 20 U.S.C.
§ 1415(i)(3)(B).3 The Supreme Court held that neither the goals of the IDEA, the Court’s
interpretation of identical language in other statutes, nor the text of the fee-shifting
provision itself evidenced unambiguous congressional intent to make expert fees part of
the “costs” available to a prevailing parent under 20 U.S.C. § 1415(i)(3)(B). Id. at 3023

Section 1415(i)(3)(B) provides that “the court, in its discretion may award reasonable
attorneys’ fees as part of the costs – (I) to a prevailing party who is the parent of a child with
disability….”
MEMORANDUM DECISION AND ORDER - 7

04. Accordingly, the consultant’s services were not compensable under the fee-shifting
provision. However, Arlington says nothing about the permissible scope of the relief that
may be granted pursuant to 20 U.S.C. § 1415(i)(2)(C)(iii)—the governing IDEA
provision here.
As stated above, 20 U.S.C. § 1415(i)(2)(C)(iii) authorizes “such relief as the court
determines is appropriate.” Unlike the fee-shifting provision at issue in Arlington, the text
of § 1415(i)(2)(C)(iii) evinces clear congressional intent that the district courts should
have broad discretion to craft appropriate remedies for IDEA violations. Indeed, that is
precisely what the United States Supreme Court held in Burlington. 471 U.S. at 369.
While the Court may not award expert fees as part of costs claimed under the IDEA’s
fee-shifting provision, here, the Court may include such fees as part of the relief if
“appropriate.”
Appropriate relief includes only expenses that enabled M.A.’s Parents to obtain
the IEE considered by MSD’s eligibility team. Although the Court recognizes the IEE of
M.A. is a compilation of work by several professionals, the Court also notes that many of
these same professionals have provided services to M.A.’s Parents in other proceedings
involving MSD. Accordingly, the Court will not assume an expense is reimbursable
simply because it appears in an invoice for services rendered to M.A.’s Parents. Rather,
the Court will look for a clear link between the services rendered and the IEE. Absent
such a link, the expense will be disallowed. With these standards in mind, the Court now
reviews Parents’ requested relief.

MEMORANDUM DECISION AND ORDER - 8

a.

Dr. Barbara Webb

M.A.’s Parent claim $11,569.40 for Dr. Webb’s services, including her review of
M.A.’s educational record, IEE preparation, supplemental assessments, and presentations
to MSD’s eligibility team. (Dkt. 65 at 7.) MSD contends that only $1,500—the amount
Dr. Webb billed for preparing the initial IEE—is reimbursable. It is noteworthy that HO
Price determined M.A.’s Parents were entitled to an IEE on June 6, 2011 and that, on
June 14, 2011, Parents’ counsel sent MSD’s counsel a letter stating Parents’ intention to
have Dr. Webb prepare an IEE. (Dkt. 65-2.) Yet M.A.’s Parents claim reimbursement for
$3,963 in services Dr. Webb rendered from February to April, 2011, months before
Parents were found to be entitled to an IEE. (Dkt. 65-3 at 1-3.) These services include
record review, interviews, and testimony, some of which is attributed to the “504 Case”
and some to the “Special Education Case”. (Id.) But Dr. Webb’s IEE indicates her
assessments were conducted in August 2011 and her invoices otherwise contain specific
charges from August 2011 through February 2012 that are linked to the IEE. Therefore, it
is unclear how Dr. Webb’s spring 2011 services relate to the IEE, and the Court finds
these charges are outside the appropriate scope of relief.
M.A.’s Parents also claim $2,056.40 for Dr. Webb’s protocol review, testimony,
hotel, and airfare in connection with “Meridian S.D. 504.” (Dkt. 65-3 at 5.) This cryptic
notation likely refers to services rendered in proceedings under Section 504 of the
Rehabilitation Act. Yet Parents do not explain how expenses from the Section 504
proceedings relate to the cost of the IEE required under the IDEA. Accordingly, the Court
finds these costs do not constitute appropriate relief.
MEMORANDUM DECISION AND ORDER - 9

However, the Court finds the $4,650 billed by Dr. Webb for the IEE and its
amendments qualifies as appropriate relief. (See Dkt. 65-3 at 4-7.) These costs include
record review, preparation of the initial IEE, preparation of the Vineland assessment
supplement, and preparation of the Social Responsiveness Scale supplement—all
performed between August 2011 and January 2012. MSD argues, without supporting
authority, that “[f]ederal law does not contemplate such a ‘rolling’ evaluation.” (Dkt. 77
at 12). Yet MSD also concedes the IEE and its amendments were all considered in
connection with the school district’s February 2012 determination that M.A. is not
eligible for special education. (Id. at 13.) MSD cannot have it both ways, especially
because the school district does not argue the IEE is deficient in any way. If the eligibility
team considered the IEE and its amendments, then M.A.’s Parents are entitled to
reimbursement for the full cost of Dr. Webb’s evaluation.
In addition, the Court regards the $900 Dr. Webb billed for participating in “IEP
Teleconference[s]” on November 10, 2011 and February 2, 2012, as costs appropriately
incurred to obtain the benefit of the IEE. (Dkt. 65-3 at 6-7.) There is sufficient
information in the record for the Court to find that these teleconferences are for eligibility
team meeting where Dr. Webb presented her findings. And the conclusion that such costs
are reimbursable is not without precedent. See M.M. v. Lafayette Sch. Dist., Nos. CV 094624, 10-04223, 2012 WL 398773, *11 (N.D. Cal. Feb. 7, 2012) (including expert’s IEE
presentation as part of the “full cost” of an IEE). The purpose of an IEE, after all, is to
counter the school district’s expert opinion. MSD contends this purpose was met once Dr.
Webb delivered the initial IEE to M.A.’s Parents in August 2011. But Parents’ right to an
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IEE, let alone their right to participate in decisions on the educational placement of M.A.,
see 34 C.F.R. § 300.501(c), would mean little if they were left to challenge the District’s
experts with a partial assessment or “without an expert with the firepower to match the
opposition.” Schaffer, 549 U.S. at 60. Therefore, Parents are entitled to reimbursement
for time Dr. Webb spent explaining her IEE to the eligibility team. In total, M.A.’s
Parents are entitled to $5,550 for Dr. Webb’s services in connection with the IEE.
b.

Rebecca Thompson and Michael Spero

Dr. Webb’s IEE incorporates independent assessments conducted in August 2011
by Michael Spero, an occupational therapist, and Rebecca Thompson, a speech-language
pathologist. (IEE at 1, Dkt. 22-16.) The IEE states Thompson assessed M.A. between
August 9 and 18, 2011, and Spero’s assessments took place between August 18 and 25,
2011. (Id.) M.A.’s Parents note that third-parties, such as Medicaid, paid for some of
Thompson’s and Spero’s services and that Parents do not seek reimbursement for those
costs. (Dkt. 65 at 5.) However, M.A.’s Parents claim reimbursement for $880 in billings
by Thompson and $630 by Spero. MSD attacks these charges as non-reimbursable expert
consultation fees.
Both Thompson’s and Spero’s billing records are imprecise. All of their invoices
are dated months after the assessments noted in the IEE. Thompson’s billing records
include a $560 invoice for “legal representation,” yet she is not licensed to practice law
and the briefs and billing records do not otherwise disclose the nature of her services.
(Dkt. 65-5 at 1.) Thompson’s billing also includes a $320 invoice for “Administration
Time/Paperwork” and “Mileage.” (Id. at 3.) And, unlike Dr. Webb’s invoices, which
MEMORANDUM DECISION AND ORDER - 11

describe the nature of the services rendered, Thompson’s invoices use general “activity
codes” such as “Administrative.” (Dkt. 65-5 at 2, 4.) M.A.’s Parents contend Thompson’s
invoices relate to preparing unspecified reports, conducting unspecified observations, and
attending an unspecified “school team meeting.” (Dkt. 65 at 6.) These contentions invite
the assumption that the paperwork and administrative efforts referenced in these invoices
were incorporated into the IEE and considered by the eligibility team. But, given that
Thompson is involved in other the proceedings between the parties, her invoices and
Parents’ vague statements provide no basis for such a conclusion.
Spero’s billing records are somewhat more descriptive but do not disclose the
dates on which his services were rendered. (See Dkt. 65-6.) One invoice for therapy and
reporting is dated March 2012, the month after MSD utilized the IEE and other evidence
to make its eligibility determination. (Id. at 2.) Spero’s other invoice, dated December
2011, contains charges for Section 504 matters and an “Opinion Letter” with no mention
of the subject. (Id. at 1.) These deficiencies likewise invite the Court to assume a
connection to the IEE where M.A.’s Parents make little effort to demonstrate one. By
providing only cryptic invoices and the bare assertion that “all of the amounts claimed
were related to the IEE,” (Dkt. 84 at 13), M.A.’s Parents have not established the
amounts claimed for Thompson’s and Spero’s services qualify as appropriate relief.
c.

Chris Curry, Dr. Craig Beaver, and Dr. Tyler Whitney

M.A.’s Parents also seek reimbursement for services rendered by Chris Curry, Dr.
Craig Beaver, and Dr. Tyler Whitney. The IEE references reports prepared by these
professionals, but all of this information predates HO Price’s finding that M.A.’s Parents
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were entitled to an IEE at public expense. (Dkt. 22-16 at 1 (Curry’s report dated March
14, 2011; Beaver’s report dated May 19, 2010; Whitney’s report dated April 29, 2009).)
Close inspection of the invoices confirms that many of these expenses relate to Parents’
efforts to establish their entitlement to the IEE—as opposed to the cost of preparing or
presenting the IEE itself. Indeed, Dr. Beaver’s and Ms. Curry’s invoices include charges
for April 2011testimony in the due process hearing before HO Price. (Dkt. 65-4, Dkt. 657.) More problematic, Curry’s invoice also includes costs for observations and a report on
“504 accommodations,” yet M.A.’s Parents again do not explain how assessments for
Rehabilitation Act purposes relate to the IEE they are entitled to under the IDEA. (Dkt.
65-4 at 1.)
The entirety of Dr. Whitney’s billing is for services in late 2010, before M.A.’s
Parents even requested an IEE from MSD. (Dkt. 65-1 at 2-3.) Further, Dr. Whitney’s
charges relate to either unspecified school meetings or travel time to and from
unspecified locations. Simply put, it is largely unclear clear how these three
professionals’ services relate to the cost of the IEE prepared by Dr. Webb and considered
by MSD. The Court is not inclined to guess.
The only exceptions are expenses for the special education eligibility portion of
Curry’s Educational Needs Assessment. In particular, Curry’s invoice discloses $1,304 in
expenses for travel, a six-hour observation session “for eligibility,” and a report “on
eligibility” dated March 14, 2011. Dr. Webb specifically references Curry’s March 14
report in the IEE. (Dkt. 65-1 at 1, 9-14.) This is a clear link between the invoices and the
IEE, the type of link absent from many of the other invoices attached to Parents’ request
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for relief. Thus, there is sufficient basis for the Court to conclude this $1,304 in expenses
may appropriately be considered part of the IEE cost.
3.

Assistive Technology Evaluation
Near the end of their initial brief on appropriate relief, M.A.’s Parents make a terse

request for a Court-ordered independent assistive technology evaluation. (Dkt. 65 at 8.)
The only support for the request is an allusion to 34 C.F.R. § 300.105, which directs
school districts to make assistive technology services “available to a child with disability
if required as part of the child’s – (1) Special education under § 300.36; (2) Related
services under § 300.34; or (3) Supplementary aids and services under §§ 300.38 and
300.114(a)(2)(ii).” (emphasis added). MSD contends that M.A.’s need for assistive
technology is not properly before the Court and is otherwise beyond the scope of an
appropriate IEE. The Court agrees.
By stating “if required as part of the child’s… Special education,” the regulations
clearly contemplate assistive technology services only for students eligible for special
education. 34 C.F.R. § 300.105(a). This appeal, however, presented the narrow question
of whether HO Price correctly found that M.A.’s Parents were entitled to an IEE at public
expense. The legally and factually distinct question of whether M.A. is eligible for
special education is now pending before the Court in a separate case. See D.A. ex. rel.
M.A. v. Meridian Joint Sch. Dist. No. 2, No. 1:12-cv-00426-CWD (D. Idaho). Therefore,
the assistive technology evaluation is not appropriate relief in this action.

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CONCLUSION
The Court, in its discretion, has determined that M.A.’s Parents are entitled to
$6,854.00 in reimbursement for the expenses of the IEE. The additional expenses claimed
by M.A.’s Parents are not clearly linked to the IEE and are thus outside the scope of
appropriate relief. Likewise, an assistive technology evaluation, as it relates to the M.A.’s
alleged eligibility for special education, is not before the Court in this proceeding.
ORDER
NOW THEREFORE IT IS HEREBY ORDERED that judgment in the amount
of $6,854.00 shall be entered in this matter, that Plaintiff reimburse Defendants the
amount of $6,854.00 for the reasonable expenses of the IEE, and that final judgment be
entered in this case accordingly.
November 25, 2013

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