Grants Pass School District v. Student
Filing
33
Opinion and Order. Upon review of the record and considering both the high threshold for ESY eligibility and the deference due to the educational authorities, I conclude that Student's IEP, including the District's ultimate ESY determination, was reasonably calculated to provide Student with FAPE. The decision of the Administration Law Judge in Oregon Department of Education Case No. DP 14-104 is REVERSED. Signed on 04/29/2015 by Judge Owen M. Panner. (rsm)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
MEDFORD DIVISION
GRANTS PASS SCHOOL DISTRICT,
Plaintiff-Appellant,
No. 1:14-cv-01115-PA
OPINION & ORDER
v.
STUDENT,
Defendant-Appellee.
PANNER, J.
Plaintiff-Appellant Grants Pass School District ("the
District") seeks review of the Final Order by Administrative Law
Judge A. Bernadette House ("the ALJ")
finding the District in
violation of the Individuals with Disabilities Education Act
("IDEA").
I held a hearing on this appeal at which Defendant-
Appellee Student ("Student") was represented by his father
("Parent") appearing pro se.
After careful consideration of the
party's briefing, as well as the administrative record, I REVERSE
the decision of the ALJ.
1 - ORDER
Legal Standard
I. Statutory Framework
The IDEA's central purpose is "to ensure that all children
with disabilities have available to them a free appropriate
public education that emphasizes special education and related
services designed to meet their unique needs and prepare them for
further education, employment, and independent living."
U.S.C.
§
1400 (d) (1) (A).
20
A "free appropriate public education"
("FAPE") includes "special education and related services" that:
(A) have been provided at public expense, under public
supervision and direction, and without charge;
(B) meet the standards of the State educational agency;
(C) include an appropriate preschool, elementary
school, or secondary school education in the State
involved; and
(D) are provided in conformity with the individualized
education program required under section 1414(d) of
this title.
20
u.s.c.
§
1401(9).
Oregon has implemented the substantive and procedural
requirements of the IDEA by statute and through regulations
issued by the Oregon Department of Education ("ODE").
343.146- 343.193; OAR 581-015-2000 et seq.
See ORS
State standards that
are not inconsistent with federal standards are enforceable in
federal court.
W.G. v. Bd. of Tr. Of Target Range Sch. Dist. No.
23, 960 F.2d 1479, 1483 (9th Cir. 1992), superseded by statute on
other grounds.
One of the most important components of the IDEA is the
"individualized education program" ("IEP"), a comprehensive
written plan developed by an "IEP team" consisting of the
student's parents, teachers, and representatives of the local
2 - ORDER
educational agency ("LEA").
20 U.S.C.
§
1414(d).
"The IEP's
ultimate purpose is to tailor the educational services the LEA
provides to meet the special needs created by the student's
disability and ensure that the student receives the benefit of a
FAPE."
West-Linn Wilsonville Sch. Dist. v. Student ("West-
Linn"), No. 3:12-cv-2364, 2014 WL 3778571, at *2
2014).
(D. Or. July 30,
The IDEA requires that the IEP describe the student's
present levels of performance, annual goals, short-term
objectives, and the specific educational services to be provided.
20 U.S. C.
§
1414 (d) (1) (A) (i).
The IDEA permits a parent or LEA to file a complaint with
respect to any matter relating to the provision of FAPE, which
may be heard by an impartial administrative law judge ("ALJ").
20
u.s.c.
§
1415 (b) (6)' (f).
II. Standard of Review
Under the IDEA, any party aggrieved by the decision of an
ALJ may file an administrative appeal in a U.S. District Court.
2 0 U. S . C .
§
14 15 ( i ) ( 2 ) (A) .
The party cha 11 eng in g the
administrative decision bears the burden of persuasion.
Hood v.
Encinitas Union Sch. Dist., 486 F.3d 1099, 1103 (9th Cir. 2007).
Judicial review in IDEA cases "differs substantially" from
judicial review of other agency actions.
Ojai Unified Sch. Dist.
v. Jackson, 4 F.3d 1467, 1471 (9th Cir. 1993).
The court reviews
the full administrative record, as well as any additional
evidence introduced by either party.
20 U.S.C.
§
1415(i) (2) (C).
The court may "grant such relief as the court determines is
appropriate" based on the preponderance of the evidence.
Id.
This standard of review has been characterized as "modified de
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novo review."
Ashland Sch. Dist. v. Parents of Student R.J., 585
F. Supp. 2d 1208, 1212 (D. Or. 2008); West-Linn, 2014 WL 3778571,
at *2.
The preponderance of the evidence standard is "by no means
an invitation to the courts to substitute their own notions of
sound educational policy for those of the school authorities
which they review."
( 1982) .
Bd. of Educ. v. Rowley, 458 U.S. 176, 206
"The very importance which Congress has attached to
compliance with certain procedures in the preparation of an IEP
would be frustrated if a court were permitted simply to set state
decisions at nought."
Id.
The reviewing court's inquiry is
twofold:
First, has the State complied with the procedures set
forth in the Act? And second, is the individualized
education program developed through the Act's
procedures reasonably calculated to enable the child to
receive educational benefits? If these requirements
are met, the State has complied with the obligations
imposed by Congress and the courts can require no more.
Id. at 206-07.
A challenge may be procedural or substantive.
J.W. v.
Fresno Unified Sch. Dist., 626 F.3d 431, 432-33 (9th Cir. 2010).
A procedural violation occurs when a state violates the IDEA's
statutory or regulatory procedures in creating an IEP.
A
substantive violation occurs when a state offers an IEP that is
not reasonably calculated to enable the child to receive a
meaningful educational benefit.
Id.
Courts review the ultimate determination of the
appropriateness of the educational program de novo.
v. Longview Sch. Dist., 811 F.2d 1307, 1310
Gregory K.
(9th Cir. 1987);
Capistrano Unified Sch. Dist. v. Wartenberg, 59 F.3d 884, 891
4 - ORDER
(9th Cir. 1995).
"In the Ninth Circuit, the sufficiency of a
school district's actions, including evaluation decisions and
decisions regarding the student's substantive educational
curriculum are judged by the 'snapshot rule.'"
Forest Grove Sch.
Dist. v. Student ("Forest Grove"), No. 3:12-cv-01837-AC, 2014 WL
2592654 at *20 (D. Or. June 9, 2014) (citing Adams v. State of
Oregon, 195 F.3d 1141, 1149 (9th Cir. 1999)).
In applying the
"snapshot rule," a court must determine whether the school
district's actions were reasonable considering the facts known
when the decision was made.
Adams, 195 F.3d at 1149.
Nevertheless, reviewing courts must give "due weight" to the
state administrative proceedings.
Rowley, 458 U.S. at 206.
The
degree of deference due to the ALJ "is a matter for the
discretion of the courts."
Capistrano, 59 F.3d at 891 (citation
and quotation marks omitted).
"The amount of deference accorded
the hearing officer's findings increases where they are thorough
and careful."
Id.
Reviewing courts are directed to consider the
ALJ's findings "carefully and endeavor to respond to the hearing
officer's resolution of each material issue."
Id.
The court
remains free, however, "to accept or reject the findings in part
or in whole."
Id.
Background
I. Factual Background
Student in this case has been diagnosed with autism spectrum
disorder.
At the time of the relevant IEP, Student's
chronological age was fifteen years and his cognitive functioning
was equivalent to that of a neurotypical child of five years and
five months.
5 - ORDER
The record indicates that Student experiences
difficulty with transitions, such as changing schools or staff.
When experiencing change or transition, Student displays
behaviors which interfere with his ability to access his
education, such as running away, flopping on the floor, or
aggression towards educational staff ("behaviors").
All parties agree that Student is entitled to special
education services under the IDEA.
Historically, Student's
special education services have included extended school year
services
("ESY"), which provided Student with instruction during
breaks and interruptions of the school year.
Student moved to Oregon during the summer of 2013.
his relocation, Student lived in Hawaii.
Before
On May 23, 2013,
Student's Hawaiian school district prepared an IEP for Student
("the Hawaii IEP").
The Hawaii IEP included a provision to
provide Student with ESY during breaks in the 2012-13 school year
lasting longer than ten days.
The District received a copy of
the Hawaii IEP before Student's relocation, but was unable to
acquire Student's other educational records, despite multiple
requests directed to both Parent and the Hawaiian educational
authorities.
Consistent with the Hawaii IEP, the District made
arrangements to provide Student with ESY during the summer of
2013.
The District adopted a policy entitled "Extended School Year
Guidance" to guide staff in making ESY eligibility
determinations.
The District copied their policy from the
information provided on the Oregon Department of Education
website.
In order to be eligible for ESY under the District's
policy, a student needed to demonstrate "undue" regression and
6 - ORDER
recoupment of a skill or behavior directly related to an IEP
goal.
The policy required that an ESY determination be based on
measurable data, but provided that, in the absence of documented
evidence, the determination could be made based on predictions
according to the professional judgment of the IEP team.
On November 20, 2013, the District convened a meeting of an
IEP team to prepare a new IEP for Student.
The IEP team included
Parent, as well as Student's special education teacher and other
representatives of the District.
The IEP team prepared a new IEP
for Student ("the Oregon IEP"), which substantially revised
Student's goals and objectives.
When Parent raised the issue of
ESY, the IEP team determined that it would wait to determine
Student's eligibility for ESY until it had an opportunity to
gather and analyze data about Student's performance before and
after the upcoming school breaks.
Specifically, the District
wanted to gather information about whether Student experienced
regression over break periods and, if so, how long it took
Student to recoup that lost progress ("regression/recoupment
data").
Over Parent's objections, the IEP team resolved to make
a decision on Student's ESY eligibility by April 16, 2014.
Due to a number of factors including illness and inclement
weather, the District only had 16.5 school days to gather
baseline regression/recoupment data between the November 20, 2013
IEP meeting and the onset of the 2013-14 winter break.
Student's
special education teachers gathered the data by selecting and
averaging two data points in each relevant area before the break
to create a "pre-break" average.
The teachers repeated the
process after the break to create a "post-break" average.
7 - ORDER
The
pre-break average would then be compared to the post-break
average to determine if Student regressed over the break.
Student's special education teacher Dorothy Jewell ("Jewell") was
primarily responsible for collecting and analyzing the
regression/recoupment data.
Jewell also separately tracked
Student's behavioral issues on a daily basis, although that data
was intended for use in refining Student's subsequent IEPs,
rather than for determining Student's ESY eligibility.
On March 18, 2014, the IEP team met for a second time.
Parent's request, ESY was added to the meeting's agenda.
At
At the
Match 2014 IEP meeting, Jewell expressed reservations about using
the pre-winter break data as a reliable baseline, due to the
short, interrupted, and chaotic pre-break environment.
Over
Parent's objection, the IEP team resolved to wait until after the
2014 spring break to make a determination about ESY eligibility.
The District anticipated that the IEP team would use the
regression/recoupment data collected over the spring break tp
determine whether to provide Student with ESY over the summer of
2014.
Parent submitted a due process complaint to the Oregon
Department of Education ("ODE"), alleging that the District's
failure to make an ESY determination at the March IEP meeting
violated the IDEA.
A hearing was held before an ALJ from the
Oregon Office of Administrative Hearings.
On April 10, 2014, after spring break, the District convened
a third IEP meeting.
At that meeting, Jewell presented the IEP
team with her data and analysis regarding Student's regression
and recoupment over the winter and spring breaks.
8 - ORDER
With the
exception of Parent, the IEP team members concluded that Student
did not qualify for ESY in any area.
Parent agreed that Student
did not need ESY in writing, but felt that Student needed ESY in
all other areas.
Parent objected to the District's data
collection methodology and the District's analysis of the data.
Over Parent's objections, the District accepted the determination
of the rest of the IEP team and determined that Student would not
receive ESY for the summer of 2014.
Following the April 2014 IEP meeting, Parent filed a second
due process complaint with the ODE, alleging that the District's
decision to deny ESY constituted a denial of FAPE in violation of
the IDEA.
A second hearing was held before the same ALJ.
II. Procedural Background
As noted, the question of Student's entitlement to ESY over
the summer of 2014 gave rise to two administrative due process
hearings.
The ALJ issued her Final Order in the first case, ODE
Case No. DP 14-102 ("CP-1"), on June 6, 2014.
The Final Order in
the second case, ODE Case No. DP 14-104 ("CP-2"), was issued on
July 1, 2014.
A. CP-1
Parent, on behalf of Student, filed his first due process
complaint with the ODE on March 19, 2014.
Parent alleged that
the District improperly failed to consider the issue of Student's
ESY eligibility at the November 20, 2013 and March 18, 2014 IEP
meetings.
Parent also alleged that the District had prohibited
discussion of ESY at the November 2013 and March 2014 IEP
meetings and that doing violated Parent's right to participate in
the development of Student's IEP.
9 - ORDER
Parent alleged that these
actions resulted in a substantive violation of Student's rights
under the IDEA.
A two-day hearing was .held before an ALJ on May
12 and 13, 2014.
The ALJ issued the Final Order in CP-1 on June 6, 2014.
The
ALJ found for the District on substantially all of Parent's
claims.
The ALJ ruled that the District had lacked the necessary
data to make an ESY determination on November 20, 2013, and that
the District had appropriately delayed making a determination
until after the winter and spring breaks to collect the necessary
data.
In addition, the ALJ determined that the District's ESY
policy, which determines ESY eligibility based solely on
regression and recoupment, conforms with the state policy on ESY
eligibility and did not violate federal rules or regulations.
Parent did not appeal the ALJ's decision in CP-l.
B. CP-2
On April 18, 2014, Parent, on behalf of Student, filed his
second due process complaint with the ODE.
Student alleged that
the District's decision to deny ESY constituted a denial of FAPE
in violation of the IDEA, as well as state and federal
regulations.
A two-day hearing was held on June 16 and 17, 2014.
record of CP-1 was incorporated into the record of CP-2.
The
The ALJ
heard testimony from Parent, as well as expert witnesses from
both Student and the District.
Student's expert witnesses were
Joseph Gentry, Ph.D., a psychologist who had worked with Student
as a consultant for Student's previous school district in
Arizona, and Aletha Sutton, Ph.D., a special education
administrator from Student's previous school district in Hawaii.
10 - ORDER
The District's expert witnesses were Kirk Kolb, Director of
Special Education Services with the District; Dorothy Jewell,
Student's special education teacher; and Kirby Erickson, regional
autism consultant for Southern Oregon Education Services
District.
On July 1, 2014, the ALJ issued a Final Order finding that
the District's decision to deny ESY was a denial of FAPE and
ordering that the District provide 360 minutes of ESY per day
consistent with the goals and objectives of the Hawaii IEP.
On July 14, 2014, the District filed a complaint in this
Court seeking review of CP-2 (#1).
Contemporaneously, the
District moved for an injunction against the enforcement of the
ALJ's Final Order in CP-2 (#2).
On July 18, 2014, I granted the
District's request for a temporary restraining order (#6) and on
July 29, 2014, I issued a preliminary injunction in favor of the
District (#17).
Discussion
The ALJ determined that the District's decision to deny ESY
violated Student's substantive rights under the IDEA.
The
District urges the Court to reverse the decision of the ALJ.
I. Deference to the ALJ
As a preliminary matter, I conclude that although the ALJ's
opinion is lengthy, it is not careful and thorough and I give it
little deference.
The ALJ ignored contradictory evidence and testimony.
For
example, in her Final Order in CP-1, the ALJ determined that the
District had appropriately delayed making an ESY determination
until it had collected and analyzed regression/recoupment data
11 - ORDER
over the winter and spring breaks.
DP 14-102 at 18.
The spring
break data indicates that Student did not experience marked
regression.
CP-2,
Ex. D10 at 1-15; Tr. Vol. 3, at 116:4-125:21.
In
the ALJ dismissed the spring break data in a footnote and
focused entirely on the winter break data.
DP 14-104 at 25, n.6.
With regard to Student's experts, the ALJ credited Dr.
Gentry's testimony about deficiencies in the District's data
collection methodology.
DP 14-104 at 26.
But the ALJ ignored
Dr. Gentry's testimony that he could not speak to the fidelity of
the District's methods because he had not been there to observe
the collection process. 1
Tr. Vol. 4, at 24:14-25:8.
Similarly,
the ALJ relied on the testimony of Drs. Gentry and Sutton in
holding that, if the data had been properly collected and
analyzed, it would support Student's eligibility for ESY.
104 at 26.
DP 14-
This conclusion is directly contradicted by Dr.
Sutton's testimony that she was not in a position to make any
determination on Student's ultimate eligibility for ESY.
Vol. 4, at 110:3-25.
Tr.
The ALJ makes no reference to the
contradictory testimony of Dr. Sutton.
Q. All right.
When you look at the raw data that you
have before you now, in general how would you normally
determine fidelity of the data if you were not privy to
the collection process?
A. In a case like this, where I have only the raw data
in front of me, it is almost impossible to judge
fidelity just because, as a consultant, I would be
training and sitting in with the data collector to make
sure they're collecting data correctly when they
collect it .
. So without those kinds of things, I
can't say whether or not this data meets the standards
of fidelity or not.
So it's difficult as far as
fidelity goes.
Tr. Vol. 4, at 24:14-25:8.
12 - ORDER
The ALJ also cited Student's experts "considerable
experience with Student" and their "long history of working with
Student" in support of the weight given to their testimony.
14-104, at 26-27.
DP.
In making this determination, the ALJ ignored
Dr. Gentry's testimony that he had not worked with Student for
more than four years before the hearing and that he didn't "know
[Student] now like I knew [Student] years ago."
43:2-3, 75:2-77:21.
Tr. Vol. 4, at
The ALJ also ignored Dr. Sutton's testimony
that, although she had worked with Student's special education
team in Hawaii, she had never directly provided services to
Student or formally observed him.
Tr. Vol. 4, at 118:11-120:10.
The ALJ also made inconsistent determinations in CP-1 and
CP-2, but does not acknowledge the inconsistencies or attempt to
reconcile them.
been noted.
The issue of the spring break data has already
Additionally, in CP-1, the ALJ determined that the
District's ESY eligibility standards were appropriate and
conformed to state and federal requirements.
DP 14-102, at 16-
17. The ALJ made the opposite determination on the same issue in
CP-2, holding that the use of regression and recoupment as the
sole criterion was a violation of federal standards. DP 14-102,
at 23-24.
The remedy ordered by the ALJ also raises concerns about the
care and thoroughness of the ALJ's opinion.
The District was
ordered to provide Student with 360 minutes of ESY per day
"sufficient to maintain student's skills and behavior with regard
to Student's Annual Goals and Short Term Objectives as set forth
in the May 23, 2013 IEP."
DP 14-104, at 28.
As noted, the
Hawaii IEP was superseded by the Oregon IEP, which revised many
13 - ORDER
of Student's annual goals and short term objectives.
Neither
party put on evidence at the administrative level about the
appropriate amount of ESY needed to meet Student's goals and
objectives under the Oregon IEP and the ALJ provided no
justification for the amount of ESY ordered. 2
Furthermore, the
only issue before the ALJ in CP-2 was the District's decision to
deny ESY.
Student did not contend that the Oregon IEP was
otherwise defective and the parties agree that it superseded the
Hawaii IEP.
The ALJ's decision to require the District to
provide ESY consistent with the goals and objectives of a
superseded IEP raises concerns about the care and thoroughness of
the administrative decision.
3
II. ESY
A. Standard for ESY Eligibility
The IDEA does not explicitly address ESY.
Federal
regulations require each public agency to "ensure that extended
school year services are available as necessary to provide FAPE."
34 C.F.R. § 300.106(a) (1).
"Extended school year services must
be provided only if a child's IEP Team determines, on an
individual basis,
. that the services are necessary for the
2
At the April 10, 2014 IEP meeting Parent agreed that Student
did not need ESY for writing.
Ex. D11, at 5.
The Final Order
does not account for the IEP team's complete consensus on the
issue of Student's writing goals.
3
Student previously argued that ALJ's ordered remedy amounts to
a typographical error and that it should be properly read to
require 360 minutes of ESY per day consistent with the Hawaii IEP
in order to meet the goals and objectives of the Oregon IEP
(#15). While Student's suggestion would constitute a more
reasonable remedy, it is not what the plain language of the Final
Order requires of the District.
Nor would such an egregious typo
rehabilitate the ALJ's opinion as careful and thorough.
14 - ORDER
provision of FAPE to the child."
34 C.F.R. § 300.106(a) (2).
The
federal regulation does not specify the factors to be considered
in determining ESY eligibility.
Dist.
N.B. v. Hellgate Elementary Sch.
("Hellgate"), 541 F. 3d 1202, 1210 (9th Cir. 2008).
"A claimant seeking an ESY must satisfy an even stricter
test because providing an ESY is the exception and not the rule
under the regulatory scheme."
quotation marks omitted) .
Id. at 1211 (citation and
"ESY Services are only necessary to a
FAPE when the benefits a disabled child gains during a regular
school year will be significantly jeopardized if he is not
provided with an educational program during the summer months."
Id.
(citation and quotation marks omitted).
A claimant must show
that ESY is "necessary to permit the child to benefit from his
instruction."
omitted).
Id. at 1212 (citation and quotation marks
Claimants may rely on expert opinion testimony to make
this showing and need not present empirical proof of actual prior
regression.
Id.
Oregon regulations provide that the purpose of ESY "is the
maintenance of the child's learning skills or behavior, not the
teaching of new skills or behaviors."
OAR 581-015-2065(4).
Oregon school districts "must develop criteria for determining
the need for extended school year services."
2065(5).
OAR 581-015-
"Criteria must include regression and recoupment time
based on documented evidence or, if no documented evidence, on
predictions according to the professional judgment of the [IEP]
team."
Id.
"Regression" is defined as "significant loss of
skills or behaviors in any area specified on the IEP as a result
of an interruption in education services."
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OAR 581-015-
2 0 65 ( 6) (a) .
"Recoupment" is "the recovery of skills or behaviors
specified on the IEP to a level demonstrated before the
interruption of services."
OAR 581-015-2065 ( 6) (b).
The District's ESY policy tracks the language and
requirements of the Oregon regulations closely.
To be eligible
for ESY under the District's ESY policy, a student "must
demonstrate 'undue' regression and recoupment of a skill or
behavior directly related to an IEP goal."
Ex. Dl, at 1.
For a
student to experience "undue" regression, the student must not
recoup to his or her pre-interruption baseline within a certain
time period after the break. 4
Id.
In this case, the ALJ held that the District erred by
applying a regression/recoupment standard for gauging ESY
eligibility.
The ALJ based this decision on Johnson v.
Independent Sch. Dist. No. 4,
921 F.2d 1022
(10th Cir. 1990) . 5
In Johnson, the Tenth Circuit rejected the use of
regression/recoupment as the sole criterion for determining ESY
eligibility and instead required a multi-faceted inquiry.
Johnson,
921 F.2d at 1027.
The Ninth Circuit has not explicitly adopted the Johnson
standard, however.
See, Hellgate 541 F.3d at 1211 (acknowledging
4
The recoupment period varies according to the length of the
interruption.
"Undue" regression occurs if the student does not
recoup to the baseline within 8 weeks after summer break, 2-3
weeks after winter break, and 1-2 weeks after the spring break.
Ex. D 1, at 1.
5
The ALJ also cited Moser v. Bret Hart Union High Sch. Dist.,
366 F. Supp. 2d 994, 972 (E. D. Cal. 2005), which relied on
Johnson.
Moser predates the Ninth Circuit's Hellgate decision,
as well as the 2006 USDE notice and comment period.
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that, as of 2008, "[t]his circuit has not yet developed a
standard for determining when ESY services are appropriate under
the IDEA.")
To the contrary, in Hellgate, the Ninth Circuit held
that a lower court did not err in applying a
regression/recoupment standard.
6
Hellgate, 541 F.3d at 1210.
The Ninth Circuit's holding in Hellgate is consistent with the
federal regulations.
In 2006, the United States Department of
Education ("USDE") engaged in a rulemaking comment period.
During that comment period, the USDE considered suggested
modifications to the ESY regulations.
Assistance to States for
the Education of Children With Disabilities and Preschool Grants
for Children With Disabilities, 71 Fed. Reg. 46540
14, 2006).
(proposed Aug.
The USDE explicitly rejected a comment suggesting
that the regulations be amended to forbid the use of
regression/recoupment as the sole criterion for ESY eligibility.
The USDE's response affirmed that the establishment of specific
ESY eligibility criteria was a question for the states and that
the states remained free to use regression/recoupment as the sole
criterion in making an ESY determination, provided that the state
standard is consistent with the individually-oriented
requirements of the IDEA.
Id. at 46582-83.
The Oregon regulations require that regression and
recoupment be considered in making an ESY determination.
other factor is expressly required.
6
No
In formulating its policies,
"[Appellants] assert that the district court erred in
employing a 'regression/recoupment' standard in determining that
·C.B. was not entitled to ESY services, as opposed to a multifaceted inquiry, as purportedly required by state law .
. We
disagree." Hellgate, 541 F.3d 1210.
17 -ORDER
which use regression/recoupment as the sole criterion for ESY
eligibility, the District relied on guidance from the Oregon
Department of Education's website.
I conclude, therefore, that
the State of Oregon has determined that regression/recoupment is
the standard for ESY eligibility in this state.
Both the state
regulations and the District policy require that the
regression/recoupment data be analyzed in the context of a
student's IEP goals and objectives, which are carefully tailored
to meet the needs of the individual student.
Use of that
standard is appropriate under Hellgate and the federal
regulations.
I conclude that the District's ESY policy conforms with
state and federal regulations.
It was permissible, therefore,
for the District to base its ESY determination on documented
evidence of Student's regression and recoupment of skills and
behaviors related to his IEP.
B. Student's ESY Eligibility
As noted, school districts must provide ESY if the IEP team
determines that ESY is necessary for FAPE. 34 C.F.R. §
300.106(a) (2).
An IEP adequately provides a FAPE if it is
reasonably calculated to provide a child with a meaningful
educational benefit at the time it was developed.
J.W.,
626 F.3d
at 432.
1. The 2013-2014 Winter Break Data
Based on the testimony of Drs. Gentry and Sutton, the ALJ
found fault with the District's collection and analysis of the
winter break regression/recoupment data.
Dr. Gentry asserted
that the use of two data points created a very weak pre-break
18 - ORDER
average, and that the data's reliability was further undermined
by inconsistent collection methodology on non-consecutive days.
Dr. Sutton opined that Student's daily behavior tracking provided
a better measure of Student's progress.
The ALJ concluded, based
on the testimony of Drs. Gentry and Sutton, that Student
experienced undue regression and recoupment problems over the
winter break.
The District contends that the ALJ improperly held
it to an arbitrarily high standard.
"An 'appropriate' public education does not mean the
absolute best or 'potential-maximizing' education for the
individual child."
Gregory K., 811 F.2d at 1314.
Rather, states
must provide a "basic floor of opportunity" that is "individually
designed to provide educational benefit to the handicapped
child."
Rowley, 458 U.S. at 201.
"The primary responsibility
for formulating the education to be accorded a handicapped child,
and for choosing the educational method most suitable to the
child's needs, was left by the Act to state and local educational
authorities in cooperation with the parents ,or guardians of the
child."
Id. at 207
"[O]nce a court determines that the
requirements of the Act have been met, questions of methodology
are for resolution by the States."
Id. at 208; see also J.W.,
626 F.3d at 450 ("This vagueness [in the IDEA mandate] reflects
Congress' clear intent to leave educational policy making to
state and local education officials.").
Collection and analysis
of educational data, such as regression/recoupment data, is a
matter of educational policy and methodology.
See Virginia S. v.
Dep't of Educ. of Hawaii, Civil No. 06-00128 JMS/LEK, 2007 WL
80814, at *12 (D. Hawaii Jan. 8, 2007) ("Questions of ESY
19 - ORDER
eligibility criteria and methodology are classic examples of
technical questions of educational policy.").
In this case, the ALJ relied on the testimony of Drs. Gentry
and Sutton about how the regression/recoupment data might have
been better collected and analyzed in holding that the District's
denial of ESY was a denial of FAPE. 7
In doing so, the ALJ held
the District to an arbitrarily high standard.
While the data
collection and analysis methods proposed by Student's experts
might be "better" than those employed by the District, the ALJ
provides no legal authority requiring that the District employ
those methods.
Nor is there any indication that the methods used
by the District fell below any standard established by the IDEA
or the state and federal regulations.
To the contrary, it is
well established that school districts are not required to
provide the "best" educational program.
Rowley 458 U.S. at 201;
Gregory K., 811 F.2d at 1314; see also Virginia S., 2007 WL
80814, at *13 ("[A]n IEP need not conform to a parent's wishes in
order to be sufficient or appropriate.").
"[P]arents, no matter
how well motivated, do not have a right under the IDEA to compel
a school district to provide a specific program or employ a
specific methodology in providing for the education of their
handicapped child."
Forest Grove, 2014 WL 2592654 at *25
(citation and quotation marks omitted).
7
The ALJ properly recognized Dr. Gentry as an expert in the
collection and analysis of educational data. As noted, however,
Dr. Gentry was not present for the collection of the data and
testified that he could not speak to its collection methods or
fidelity.
Nor did Dr. Gentry communicate with the District to
determine how the data was collected or analyzed.
Tr. Vol. 4,
74:10-75:1.
Dr. Gentry's testimony was based instead on his
assumptions after reviewing the District's raw data.
20 - ORDER
I conclude, therefore, that the ALJ erred in holding the
District's data collection methodology to the standards preferred
by Parent and Student's experts.
On the issue of the final
analysis of the winter break regression/recoupment data, the
record reflects a divergence of opinion on whether the data shows
undue regression/recoupment problems.
I note, however, that the
District shared many of Parent's concerns about the reliability
of the winter break baseline data.
As discussed below, the
District's reservations prompted them to delay making a
determination until they had collected regression/recoupment data
over the spring break.
I conclude that IEP team properly
evaluated the winter break data in light of the District's own
reservations about the data's reliability.
2. The 2014 Spring Break Data
In addition to the 2013-14 winter break data, the District
also collected regression/recoupment data over the 2014 spring
break.
The spring break data did not support Student's
eligibility for ESY.
Ex. D10, at 1-15; Tr. Vol. 3, at 116:4-
125:21.
In her Final Order in CP-2, the ALJ dismissed the
regression/regression recoupment data collected over the 2014
spring break as irrelevant.
8
8
The ALJ based this determination on
The ALJ's discussion of the spring break data is confined to a
single footnote: "Only evidence on data concerning Student's
performance before and after winter break is discussed in the
Opinion.
Spring break created a break of five school days. As
noted by Parent and by Parent's experts, Student suffers
significant regression-recoupment problems after a break of 10
days or more.
Data collected for Spring break, which consists of
only five school days, is not relevant to that issue." DP 14104, at 25, n.6.
21 - ORDER
the testimony of Parent and Dr. Sutton.
DP 14-140, at 27.
At
the administrative hearing, Dr. Sutton testified that Student's
Hawaiian school district had collected "copious amounts of data"
showing that Student only experienced regression over breaks
lasting more than ten days.
Tr. Vol. 5, at 105:2-4.
reflected in the ESY provisions of the Hawaii IEP.
This is
Ex. S11, at
16.
The ALJ's decision to dismiss the spring break data was in
error.
The Oregon regulations and the District's ESY policy
required the District to base its ESY determination on
"measurable data" and "documented evidence" unless no data was
available.
OAR 581-015-2065; Ex. D1, at 1.
When Student moved
to Oregon the District received a copy of the Hawaii IEP, but
none of the supporting data.
23.
Ex. Sll, at 16; Tr. Vol. 2, 191:19-
It is clear from the record that the District never received
the "copious amounts of data" referenced by Dr. Sutton, despite
repeated requests, including one request made at the
administrative hearing itself.
Vol. 4, at 133:4-135:8.
Tr. Vol. 2, at 239:17-240:3; Tr.
The District's own uncertainty about the
winter break data made the spring break data all the more
necessary for the IEP team to base their determination on
measurable data and documented evidence, as required by the
District's ESY policy and the state regulations.
Even if the District had been able to review
th~
Hawaiian
data, the IEP team would still have needed to base their decision
on the regression/recoupment data collected by the District
because the Oregon IEP revised Student's goals and objectives.
Tr. Vol. 2, 30:19-21.
22 - ORDER
The Hawaiian data was collected and
analyzed in the context of Student's previous IEP goals and
objectives and the determination of Student's ESY eligibility was
made according to Hawaiian, rather than Oregonian, standards.
The necessity of pasing ESY determinations on current data,
rather than past eligibility, was recognized the ALJ in CP-l.
DP
14-102, at 18-19.
I conclude that the IEP team properly considered the 2014
spring break data in making their decision on Student's ESY
eligibility for summer 2014.
The ALJ improperly disregarded the
spring break data in her Final Order of CP-2.
3. Predictions Based on Professional Judgment
Consistent with state regulations, the District's ESY policy
requires that the IEP team base their ESY determination on
measurable data, unless no data is available.
In the absence of
data, the IEP team may base their ESY determination on
"predictions according to the professional judgment of the team."
Ex. D1, at 1.
In this case, the IEP team had measurable
regression/recoupment data from both spring and winter breaks.
State regulations and the District policy therefore required that
the IEP team base their decision on that data.
Nevertheless, the
April 10, 2014 IEP meeting notes indicate that the IEP team
members carefully considered Student's ESY eligibility in each of
the relevant areas before making their determination.
Ex. D11.
Conclusion
Upon review of the record and considering both the high
threshold for ESY eligibility and the deference due to the
educational authorities, I conclude that Student's IEP, including
the District's ultimate ESY determination, was reasonably
23 - ORDER
calculated to provide Student with FAPE.
The decision of the
Administrative Law Judge in Oregon Department of Education Case
No. DP 14-104 is REVERSED.
IT IS SO ORDERED.
DATED this
~day
of April, 2015.
United States District Judge
24 - ORDER
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