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May 24, 2004.

GRANT MILLER, by and through his Guardian ad Litem, LARRY MILLER Plaintiff,

The opinion of the court was delivered by: MARILYN PATEL, Chief Judge, District

MEMORANDUM & ORDER Re: Cross Motions for Summary Judgment
Plaintiff Grant Miller ("Grant" or "plaintiff), by and through his guardian ad litem, Larry Miller, brings this action against the San Mateo-Foster City Unified School District ("the District") pursuant to the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. § 1400 et seq., seeking attorneys' fees and reversal of portions of a state Special Education Hearing Office ("SEHO") decision. Specifically, plaintiff contests the decision of the SEHO hearing officer ("HO") to deny private school tuition reimbursement for the period during which the District violated its Child Find obligations under the IDEA. 20 U.S.C. § 1412(a)(3) & (10)(A)(ii). Now before this court are the parties' cross motions for summary judgment. After having considered the parties' arguments and submissions, and for the reasons set forth below, the court rules as follows. BACKGROUND

I. Statutory Background

  Congress enacted the IDEA "to assure that all children with disabilities have available to them . . . a free appropriate public education which emphasizes special education and related services designed to meet their unique needs. . . ." 20 U.S.C. § 1400(c). If a State provides every qualified child with a free appropriate public education ("FAPE") under federal statutory requirements, the IDEA provides that State with federal funds to help educate children with disabilities. In exchange for these federal funds, the State must comply with "Child Find," which requires the State to design a program to identify and provide services to children with special education needs. 20 U.S.C. § 1412(a)(3). This obligation extends to children enrolled in private schools. Id. § 1412(a)(10)(A)(ii).

  California maintains a policy of complying with IDEA requirements. See, e.g., Cal. Educ. Code §§ 56000, 56100(i), 56128. It implements the Child Find program by requiring local school districts to identify disabled students by "actively and systematically seeking out all individuals with exceptional needs." Cal. Educ. Code § 56300. This obligation includes children in both public and private schools. See Cal. Educ. Code §§ 56301, 56302. Individualized education plans ("IEPs") are required for disabled students. 20 U.S.C. § 1414(d); Cal. Educ. Code § 56344. See also Hacienda La Puente Unified School Dist. v. Honig, 976 F.2d 487, 491 (9th Cir. 1992).

  In addition to its substantive requirements, the IDEA provides procedural safeguards. Some violations of these procedural safeguards may prevent a child from receiving a FAPE. Among the most important procedural safeguards are those that protect parents' rights to be involved in the development of their child's IEP. Amanda J. v. Clark County Sch. Dist., 267 F.3d 877, 882 (9th Cir. 2001). In addition to the procedural right to participate in the development of an IEP, parents have the right to "present complaints with respect to any matter relating to the identification, evaluation, or educational placement of the child, or the provision of [a FAPE] to such child." 20 U.S.C. § 1415(b)(1)(E). After making such a complaint, parents are entitled to "an impartial due process hearing . . . conducted by the State educational agency or by the local educational agency or an intermediate educational unit, as determined by State law or by the State educational agency." 20 U.S.C. § 1415 (b)(2). If either party is dissatisfied with the state educational agency's review, that party may bring a civil action in state or federal court. 20 U.S.C. § 1415(e)(2). California has implemented the mandated procedural safeguards in California Education Code sections 56500 through 56507.


  In 1997, Grant Miller, then eight years old, was attending second grade in the San Mateo-Foster City School District. In April 1997, based on Grant's lack of motivation, general level of academic achievement, difficulty sustaining attention, and behavioral problems, Grant's second grade teacher referred him for an assessment to determine whether Grant had any special education needs. On April 17, 1997, the District requested Grant's parents' permission to assess him for such needs, utilizing a standard form that, along with the assessment request, contained information regarding the parents' right to seek private assessment and to appeal any decision by the District in a due process hearing. Admin. Rec., Exh. 31, at 2 ("Parents Rights and Appeal Procedures"). Grant's parents agreed to have him assessed.

  District personnel completed their assessment of Grant in May 1997. On May 27, 1997, the District convened an TEP meeting; Grant's father was in attendance. Based on results from the Wechsler Intelligence Scale for Children-III ("WISC-III"), the Wechsler Individual Achievement Test ("WIAT"), and a number of other tests, Grant was found not to have a learning disability. He was thus not eligible for special needs education within the District. Admin. Rec., Exh. E ("Pupil Placement Summary"), At the IEP meeting, Grant's parents were again informed about their options with respect to the District's assessment: They could seek an independent assessment and present any results to the IEP team, or they could request a mediation or due process hearing if they disagreed with the eligibility determination. Grant's parents did not pursue any of these options until April 2002.

  Grant remained in District schools through his third grade year, although he struggled to complete both the second and third grades. When he finished third grade, Grant was meeting grade-level expectations in reading, but he was slightly below grade-level expectations in speaking/listening and writing. Concerned about the District's ability to meet Grant's academic and emotional needs, his parents decided to remove him from District placement. They enrolled Grant in Jewish Day School ("JDS"), a private school, for fourth grade.

  During the 1998-1999 school year, at the recommendation of his fourth grade teacher at JDS, Grant was assessed by Andrea Shor of Peninsula Educational Services. Shor concluded that Grant suffered from dyslexia, slow processing speed, and other difficulties, and she recommended that Grant be evaluated for nervous tics and possible attention deficit disorder ("ADD"). See Admin. Rec., Exh. F, at 22. She also recommended three hours of educational therapy per week and placement at Charles Armstrong School ("CAS"), a first-through-eighth grade institution specializing in teaching children with learning disabilities. Id. at 23-24. Shor further recommended that Grant's parents request accommodations at school to address Grant's motivation, work completion issues, behavior problems, writing problems, and other concerns. Id. at 25. Shor did not mention special education funding under the IDEA to Grant's parents, nor did she discuss their procedural rights under that statute. Admin. Tr., at 100. The District was not advised of Shor's assessment, nor was returning Grant to District placement considered at that time. Id.

  Grant was again assessed in November 1998, this time by Dr. Sheila Snyder, a private clinical psychologist retained by Grant's parents.*fn2 Snyder found that Grant exhibited the same weaknesses noted by the District in May 1997, but she concluded that Grant demonstrated a rise in I.Q. score of twelve points.*fn3 She also administered the Test of Variables of Attention ("TOVA") and found that Grant's scores and profile suggested possible ADD. Nevertheless, Snyder felt that distractability, not hyperactivity, was the main component of Grant's attention disorder. She determined that his profile also suggested possible Tourette's Disorder. She recommended that Grant undergo an EEG to determine the regions of his brain that were hyper — and under-aroused, and she suggested that a behavior intervention plan would be helpful. Like Shor, Snyder did not discuss IDEA special education funding with Grant's parents. The District likewise was not advised of Snyder's assessment. Grant was then enrolled in CAS beginning with the 1999 summer session of his fourth grade year.

  Grant remained enrolled at CAS from the summer session of 1999 through the 2002-2003 school year. Until April 2002, there was no significant contact between Grant's parents and the District. In early 2002, Grant's father, an attorney, attended a continuing legal education seminar regarding the rights of parents of children having special education needs. At the seminar, presenters discussed parents' procedural rights under the IDEA, which encouraged Grant's parents to pursue the matter with the District. In April 2002, Grant's parents initiated a private assessment of Grant by Family and Community Enrichment Services, Inc. ("FACES"). That assessment began on April 9, 2002. On April 10, 2002, Grant's father wrote to the District, informing it that Grant had been diagnosed with dyslexia and ADD. He requested further assessment by the District for special education eligibility. The District responded by generating a notification of referral and assessment plan for Grant on May 1, 2002. Grant's parents signed and returned the assessment plan on May 8, 2002, and the District began its assessment of Grant in June 2002. The District testing concluded in October 2002. Meanwhile, between April and June 2002, a FACES team — consisting of Dr. Jeffrey Bruno, Dr. Katherine Eng, and Amy Zerges — privately assessed Grant.

  Around September 24, 2002, Grant's parents requested an IEP meeting on October 23, 2002, to discuss the assessment results. See Admin. Rec., Exh. 16. The District granted the request and convened the meeting on October 23, 2002. In attendance at the IEP meeting were Grant's parents, Grant's attorney, Zerges (from FACES), Jim Cox (a district general education teacher), and a school psychologist. The head counselor at CAS, who was knowledgeable about Grant's performance at that school, was also scheduled to attend but did not.

  The IEP record states that the purpose of the meeting was to assess Grant's needs and to address a private school plan for Grant's eighth grade year (2002-2003), as well as plans for Grant's ninth grade year (2003-2004). The IEP record also reflects that Grant's parents intended to keep Grant at CAS through his eighth grade year, but that they were interested in possible placement at a District high school for the following year. The entire IEP team agreed that Grant was eligible for special education under the Other Health Impaired ("OHI") category because of his ADD, although the FACES representative, Zerges, argued that Grant should be classified as having a "specific learning disability." The District IEP team members disagreed; they further determined that Grant's difficulties required the services of the resource specialist program and regular classroom modifications. Rather than offer an IEP for private school placement for 2002-2003, the District offered Grant a special education placement with the District for 2002-2003. The IEP plan produced at the October 23 meeting included a provision characterized as a private school plan, which offered services to Grant to the extent of his proportionate ...

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